Understanding the EU Response to the Migrant Crisis: Why it Should Not Surprise us and Why it is Unlikely to Change
Alan Desmond graduated from UCC with a first class honours BCL (Law and Irish) and LLM (Criminal Justice). His research interests lie in the field of immigration law as it intersects with human rights law, international law and EU law. He has worked at third level institutions in Ireland, Italy, Poland and the UK and has been a Visiting Researcher at Harvard Law School and UCLA School of Law. He has presented his research at over a dozen international conferences. Before entering legal academia Alan worked as a freelance print and broadcast journalist and wrote a number of award-winning Irish language books.
A fully referenced version is available here.
Discussions concerning the much-criticised response of the EU to the ongoing migrant and refugee crisis have overlooked the wholly predictable nature of the EU approach. By describing in general terms the treatment of migrants by the EU and its Member States, I would like to show why hand-wringing about the failure to do more is unlikely to result in anything apart from well-wrung hands.
Painted in broad brush strokes, the EU response consists of, on the one hand, efforts to prevent unwanted migrants from entering its territory by tightening EU external borders and, on the other hand, deporting those who have successfully entered. This two-pronged prevention and expulsion approach has most recently been exemplified by the establishment of the European Border and Coast Guard to ensure an ever stronger and better controlled external EU border and by the highly questionable deal struck by the EU with Afghanistan whereby the latter, a country still embroiled by violent internal strife, is to accept the return of an unspecified number of the tens of thousands of Afghans whose asylum applications in EU states have been rejected.
There is, however, nothing new in this approach. It is entirely consistent with the policy pursued by the EU since it gained law-making powers in the field of migration and asylum in 1999 which has seen the protection of migrants’ human rights take a back seat to the EU’s focus on controlling migration. This antipathy to unsolicited migration is also abundantly evident in individual Member States. The disaffection so vociferously displayed by a number of states to EU attempts to introduce a quota system for the distribution of a modest number of refugees cannot be seen in isolation from the treatment of migrants already present in EU states. Those seeking asylum in Ireland, for example, are subjected to what some claim amounts to inhuman and degrading treatment in the state’s direct provision system. Ireland’s shameful treatment of these most vulnerable of migrants is of a piece with the UK’s policy of creating a ‘hostile environment’ for migrants who are unlawfully present: laws are passed to make life so difficult for undocumented migrants that they will effectively self-deport.
While states employ the law to prevent entry and to regulate and control the lives of migrants who have managed to enter, they simultaneously attempt to exclude migrants from the potential protection of the law. This pattern of trying to remove migrants from the scope of protection of human rights has created a situation of what I call migrant exceptionality. A key feature of this is the marked reluctance of states to ratify treaties whose focus is the protection of migrants’ rights. The UN Migrant Workers Convention is a case in point. Though designated as one of the ten core international human rights instruments, the Convention has been ratified by only 48 states, a number which does not include a single EU country. The egregiousness of this state of affairs is brought into sharp relief by comparison with the ratification record of one of the other core instruments adopted by the UN General Assembly around the same time: the UN Convention on the Rights of the Child, which has 196 states parties. When it comes to dealing with issues of international migration, states eschew binding multilateral treaties in favour of informal dialogue and voluntary, non-binding processes.
The tack taken by states toward migrants and their rights is facilitated by the deference paid by the courts to state powers of migration control. Thus the European Court of Human Rights, for example, though seen as an institution at the forefront of human rights protection, often seems to be at pains not to upset states in the migration-related rulings it delivers. Indeed, the majority of migrant applicants before the ECtHR are unsuccessful. This highlights the failure of the international system of human rights protection to successfully secure the rights of all persons, regardless of whether or not they are citizens of the country in which they are present. To paraphrase Hannah Arendt, it seems that it is still necessary to hold the citizenship of a state before being able to insist that that state respects and protects one’s human rights.
If the failure of the EU and the Member States to respond to the current migration crisis in a humane and human rights-oriented way is unsurprising, we must ask ourselves why. Why is it that the law allows states to so easily wriggle out of even the most modest of commitments towards even the most vulnerable of migrants? One possible explanation is that when it comes to migration, morality does not appear to align with self-interest. While in many areas of life doing the right thing either advances or coincides with our own interests, this does not appear to be the case when it comes to migration. Most migrants do not have the right to vote, and so cannot in this important regard command the attention of politicians and governments in destination states. Indeed, those who can vote, the citizens, are unlikely to reward politicians who are seen to be active in advocating for the admission of migrants and the protection of their rights once admitted. This is due to a varied array of fears that migrants will place an unsustainable strain on limited public resources and welfare provision; that they will bring with them values and belief systems irreconcilable with the value system of Western liberal democracies; that they will take our jobs and dilute the distinctive character of our culture.
Whether well-founded or not, these fears shape individuals’ attitudes towards migration which, in turn, influences the approach of politicians and governments. If we want the EU and its Member States to do more for migrants, we ourselves have to want to do more for migrants. Only then will the EU and Member State governments change their approach and employ the law to better, more protective effect.
Is mise le meas,
Jeff Walsh holds an LLB., as well as a M.Litt. in international refugee law from Trinity College Dublin. Jeff currently works as a Legal Officer for the ECRE, the European Council on Refugees and Exiles and has, in the past, interned at UNHCR Ireland and worked for the Irish Refugee Council. Most recently, he was the Judicial Assistant to the Hon Mr Justice Humphreys of the High Court of Ireland. In this letter he considers the recent Agreement between the EU leaders and the Turkish government aimed at stemming the flow of migrants into the EU and the potential impact this may have on the right to claim asylum in the EU.
This piece is an expression of the author’s views and not necessarily the views of any associated organisation.
A fully referenced version is available here.
The recent Agreement between the 28 Heads of EU Members States and the Turkish government concluded that in exchange for a more liberal visa program for Turkish nationals, increased funding for hosting Syrian refugees in Turkey and increased resettlement of Syrian refugees to Europe, Turkey will take back ‘all’ new migrants that arrive in Greece from Turkey after 20 March 2016.
The Agreement comes at a time when EU leaders face continuing political pressure regarding the acceptance of refugees in Europe and an increasingly fractured sense of European unity on this issue. It serves to create a buffer zone in Turkey that will reduce the numbers of migrants arriving into the EU, particularly the Greek islands. However, the deal raises one important question: can every ‘irregular migrant’ be returned to Turkey? The quick answer is no, it is not that simple.
Such a program of mass or collective expulsions is a ‘flagrant breach of EU and international law’. According to Steve Peers, the subsequent reference to non-refoulement in the first paragraph of the deal, creates a contradiction with the first sentence. It also brings, or should bring, the framework of the deal within the safe third country concept codified in the recent recast Asylum Procedures Directive. The safe third country concept is defined by EU law in Article 38 of the Recast Asylum Procedures Directive as being a country to which the applicant has a connection, a country ‘it would be reasonable for that person to go to’, as long as the following criteria are satisfied in a national procedure for assessing such a country’s ‘safety’:
(i) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
(ii) there is no risk of serious harm as defined in Directive 2011/95/EU [the Recast Asylum Qualification Directive];
(iii) the principle of non-refoulement in accordance with the Geneva Convention is respected;
(iv) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and
(v) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.
The application of the safe third country concept means that an application for asylum can be deemed inadmissible. In such cases, the claim has not been substantively decided, but there was found to be a safe country where asylum could have been applied for. The concept is essentially a presumption meaning a Member State can shift the burden to the applicant to prove ‘counter-indications’. Couple this with the statement in Recital 44 of the Directive:
Member States should not be obliged to assess the substance of an application for international protection where the applicant, due to a sufficient connection to a third country as defined by national law, can reasonably be expected to seek protection in that third country, and there are grounds for considering that the applicant will be admitted or readmitted to that country. Member States should only proceed on that basis where that particular applicant would be safe in the third country concerned.
This calls into question the ability of the EU, within its own laws, to return ‘all new irregular migrants from Turkey to the Greek islands’. Indeed Elizabeth Collett, of the Migration Policy Institute, stated that ‘if governments execute the agreement in conformity with international and European legal frameworks, few arrivals are likely to be returned’. The Norwegian Refugee Council have cited a recent UNHCR report stating that as of 11 September 2016, only 502 migrants had been returned to Turkey from Greece. However, Collett warned that in the interest of expediency, corners in legal protections could be cut, thus raising issues regarding the Greek asylum procedures and the pressure they will be placed under if admissibility proceedings will have to be conducted for every new arrival from Turkey.
There needs to be a full examination of whether Turkey fulfils these safe third country criteria, for example, the treatment of those held in the Askale Removal Centre in Eastern Turkey needs to be assessed under the principle of non-refoulement. Furthermore, there has been evidence of refoulement and push-backs by Turkish authorities along the Syrian border.
While the Agreement can be seen as a measure aimed at restricting access to the EU for those travelling through Turkey to seek asylum, its implementation has been muted in terms of numbers actually returned to Turkey. It is, however, imperative that for those who do reach Greece, effective access to the asylum process, including an individualised assessment of the applicability of the safe third country concept is provided. A more thorough and robust assessment should be made of Turkey to ascertain whether it meets the legal criteria set out in Article 38 of the Asylum Procedures Directive. A rushed political assessment does not suffice in this regard.
Is mise le meas,
Alan Cusack (BCL, LLM, PhD Candidate and IRCHSS Scholar) is an Academic Visitor at the Centre for Criminology at the University of Oxford and a PhD candidate in University College Cork conducting doctoral research in the area of access to justice for victims of crime with disabilities. Specifically, Alan’s research assesses how traditional adherence to normative adversarial processes at each of the pre-trial, trial and post-trial stages of the Irish justice system inhibits participation by victims of crime with disabilities.
In 2013, Alan was awarded the prestigious Government of Ireland PhD scholarship from the Irish Research Council (IRCHSS), having also previously been offered a Faculty of Law PhD Scholarship from University College Cork. Prior to commencing his doctoral research, Alan qualified as a solicitor with Arthur Cox solicitors, an international law firm based in Dublin.
Alan is a professional member of The Law Society of Ireland and is also a member of The Centre for Criminal Justice and Human Rights at University College Cork and The Institute for Social Sciences in the 21st Century (ISS21) at University College Cork.
A fully referenced version is available here.
Last month, in one of her first public acts as Lord Chancellor and Secretary of State for Justice, Elizabeth Truss launched a joint paper which sets out the Ministry of Justice’s vision for the future of the English justice system. The vision, according to the paper, is ‘to modernise and upgrade our justice system so that it works even better for everyone, from judges and legal professionals, to witnesses, litigants and the vulnerable victims of crime’.
One of the principal reforms which is to be introduced as part of this ameliorative exercise is the admission of pre-trial cross-examination. Under the scheme, vulnerable victims and witnesses will be spared the ordeal of having to appear in court. The scheme envisages that, rather than being required to undergo the orthodox practice of live cross-examination before a jury, such witnesses will instead undergo private cross-examination at an earlier stage in proceedings. A video recording of these exchanges will then be played for the jury at the eventual trial thereby sparing vulnerable persons the stress of reliving traumatic events in open court. The move to introduce this measure comes following the successful implementation of pre-trial cross-examination on a pilot basis in three Crown Courts in England. According to the joint paper, the results of this pilot indicate that pre-trial cross-examination ‘results in a better experience for witnesses, with the cross-examination taking place in around half the time compared to other cases, and also showed an increase in early guilty pleas by defendants’.
When the scheme is rolled out nationally in England and Wales next year, it will mark a major shift in how criminal courts operate across the Irish Sea. For centuries, victims and witnesses have been expected to physically attend and, deliver their evidence live, in court in front of both members of the jury and the criminal accused. In enabling jurors to make judgements about the reliability of a witness’s account based on his or her demeanour in court, the live delivery of testimony has long been seen as an important evidentiary safeguard within the adversarial model of trial justice. In other words, it was seen as an essential ingredient in securing a fair trial for the criminal accused. Moreover, there was a significant practical argument against conducting this process pre-trial. Essentially, it was felt that by staging cross-examination earlier in proceedings both police and prosecutors would encounter significant difficulties in meeting their disclosure obligations. Given that the legal representatives of an accused can only effectively cross-examine a witness once they have received full disclosure of all prosecution evidence, expedited examination posed the obvious risk that some evidence may not have been disclosed to the defence by the scheduled interview date.
It is almost certainly for these reasons that Irish policymakers have traditionally been reluctant to meaningfully entertain the prospect of reforming this area of trial practice. Thus, while we have seen some significant developments in Irish criminal process in recent years with a view to improving the experience of vulnerable witnesses – such as the admission of live tv link testimony, the introduction of intermediaries and the recognition of recorded examination-in-chief- the position nevertheless remains that vulnerable witnesses must be available to attend court on the day of trial for live cross-examination. Even for the most assiduous and indefatigable of witnesses this process can be intimidating, but for vulnerable witnesses- such as those who, for instance, are children or have an intellectual disability- the ordeal is arguably heightened.
Owing to their limited cognitive development, such witnesses can encounter significant difficulties in understanding, recalling and communicating the details of a criminal event. These difficulties, research has shown, are in turn compounded by the intimidating setting and formality of the courtroom. On a moralistic level then, it is difficult to justify Ireland’s enduring subscription to this process. Nor, it would seem, can this procedural imperative be justified on instrumental grounds. In insisting that cross-examination be delayed until the formal trial date, traditional adversarial practice not only poses the serious risk of narrative distortion (given the likelihood of a vulnerable witness’s memory degrading over time), but it also poses a significant risk of attrition (given the likelihood of a witness dis-engaging with the criminal process over time due to mounting anxiety at the prospect of going to court).
Moreover, the evidentiary concerns routinely cited to justify our continued subscription to live cross-examination appear to be over-stated. Consistent research by Graham Davies in England, for instance, suggests that the medium of presentation of evidence has no material impact of the overall decision-making process of the jury. With regard to the traditional disclosure argument, the experience of the police and Crown Prosecution Service in England, who participated in the pilot scheme, suggest that this fear is unfounded. Indeed, in the Ministry of Justice’s formal process evaluation of the pilot (which too was launched last week), it was found that ‘[d]espite the concerns held by the police, third party disclosure did not appear to be a substantial problem for CPS prosecutors, defence advocates of judges’.
Ireland, it is submitted, should follow the lead of our Commonwealth neighbours on this issue. With our approaching (and long overdue) transposition of the Victims’ Directive, we have a unique opportunity to re-examine the formalities of the Irish criminal trial with a view to yielding a more inclusionary paradigm. Article 23(2)(a) of the Directive compels Member States to put in place, for vulnerable victims, ‘measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of communication technology’. The first step in meeting our obligation under this instrument is to establish pre-trial cross-examination on a statutory basis in this jurisdiction. In heeding the overwhelmingly positive reports emerging from the Ministry of Justice’s pilot scheme, the Irish framework should, at a minimum, replicate the scheme poised for introduction in England and Wales in 2017. However, Irish policymakers should also be emboldened to take this reformative exercise one step further by providing the measure to both vulnerable witnesses and vulnerable defendants alike. To restrict the benefit of pre-trial cross-examination solely to witnesses and victims- as is the case, for instance, in England and Wales- would not only be to deprive Irish courts of a vulnerable defendant’s best evidence but it would also, arguably, be to infringe the sacrosanct due process principle of equality of arms.
Pre-trial recording of the cross-examination of vulnerable witnesses is not a new idea. Back in 1989, the Pigot Committee advocated the implementation of such a scheme in England and Wales. While more recently in Ireland, the Irish Council for Civil Liberties recommended in a 2013 report that ‘provision…should be made to permit video recorded cross-examination or re-examination of vulnerable witnesses’. It is high time that these calls for reform were acknowledged and responded to by Irish policymakers. After all there is a strong public interest in empowering vulnerable witnesses to give their best evidence in court, not only in the moral sense of ensuring that the legitimate expectations of all court users are equally met within our criminal justice process, but also in the instrumental sense of making sure that those who prey on some of the most vulnerable members of our society are brought to justice.
Is mise le meas,
On Foreign Agents & Undesirable Organizations: Regulation of Foreign Capital in Russian Civil Society
Nicholas Liddane graduated from University College Cork with a BCL (Hons) in 2012 and University College Dublin with a LLM (Commercial Law) in 2013. During his time in UCC, he was Editor-in-Chief of the 11th Edition of the Cork Online Law Review. Currently, he is a trainee solicitor with Arthur Cox in Dublin. A fully referenced version of the letter is available here.
Pre-revolutionary Russia had a rich philanthropic tradition and blossoming civil society. It was the progeny of both imperial policy, beginning with the empire-building Peter I at the turn of the 17th century, and the long-standing Russian Orthodox tradition that contributed to this. Civil society was one of the numerous victims of the 1917 October Revolution, bricked up as antecedent to the ideology of the new Marxist-Leninist state, not to be exhumed again for 70 years. Retrospectively, pre-revolutionary Russian civil society served as a magnifying glass, not just as to how Russian society viewed itself and the poor, but more pertinently, how it also viewed the West and its relationship with it. Today, nearly a century on, the relationship between Russian civil society and the Russian state apparatus is again reflective of the relationship between Russia and the West. Unfortunately, the current fractious state of geopolitical relations is reflected acutely in the state of Russian civil society. Rather than drinking deep and passively observing Western civil society practices, allowing a domestic civil society to mature in the process, legislative policy has universally condemned foreign non-commercial organisations (NCOs). As a result, any modicum of foreign funding is now regarded as insidious manipulation and unwarranted interference in Russian society. This letter will firstly briefly outline the legislative measures regulating NCOs in receipt of foreign funding, and will continue to address the recently proposed draft amendment definition of ‘political activity’. It will be shown that the legislative framework, compounded by this proposed definition, is unwarrantedly vague and creates the risk of arbitrary application. In so doing, the Russian legislature has overstepped its mandate of legitimate regulation, and in the process missed an opportunity to effectively and productively audit the inflow of foreign capital into Russian civil society.
A number of restrictive legislative acts have been promulgated over the past number of years, the most relevant of these for the purposes of Russian civil society being the Federal Law Introducing Amendments to Certain Legislative Acts of the Russian Federation Regarding the Regulation of Activities of Non-commercial Organizations Performing the Function of Foreign Agents (Foreign Agent law), which became law on 21 November 2012. This law obliges NCOs, prior to the receipt of any foreign funding, to register in the registry of NCOs, if they intend to engage in or conduct political activities. NCOs which find themselves on the registry are referred to as ‘NCOs carrying on functions of a foreign agent’. This registry is maintained by the Ministry of Justice. A raft of further legislative amendments and acts affecting NCOs were promulgated subsequently, but the most notable are the Federal Law on Measures of Influence of Persons Relating to Violation of Basic Human Rights and Freedoms of Citizens of the Russian Federation in 2012, the Federal Law on Amendments to Certain Legislative Acts of the Russian Federation, which affects foreign and international NGOs and their partners in Russia (the Law on Undesirable Organizations) in 2014, and Federal Law on Amendments to Certain Legislative Acts of the Russian Federation also in 2014. The proliferation of these laws has been so rapid, and their locations in varying legislative sources so disparate, that it is difficult to list all of the ways in which they practically affect NCOs. Notwithstanding this, it can be stated with certainty that an NCO in receipt of any foreign funding is to be added to the ‘Foreign Agent’ registry, and that should an organisation be deemed ‘undesirable’ in the eyes of the Prosecutor General as a threat to national security, individuals participating in said organisation can be held liable to administrative and criminal penalties. However, the effect of addition to this registry was somewhat softened by the Federal Law of 8 March 2015, which delineated the procedure for removal from the list. Such steps include (i) not being in receipt of foreign funding or conducting political activities within 12 months prior to the application for removal; (ii) lack of foreign funding for 3 years in the case of an unplanned audit or inspection; and/or (iii) liquidation of the NCO.
Nevertheless, the crux of the legislation was the engagement of NCOs in ‘political activity’, a term which remained undefined up until January 2016. On 21 January 2016, the Russian Ministry of Justice posted a draft amendment to the NCO law, with a definition of ‘political activity’. While the list of specific activities vary, they satisfy the definition if they are carried out
in the area of state-building and of the basics of the constitutional order of the Russian Federation, federal governance of the Russian Federation, ensuring the sovereignty and territorial integrity of the Russian Federation, ensuring lawfulness, law order, state and public security, national defence, foreign policy, the socio-economic and national development of the Russian Federation, the functioning of the political system, bodies of state power and of local governance, legal regulation of the rights and freedoms of a person and citizen, with the purpose to influence the development and implementation of state policy, and the establishment of state bodies, local governance bodies, their decisions, and actions.
Foreign NGOs and recipients of foreign funding are labelled ‘foreign agents’ (innostranye agenti), and are obliged to register as such publically, and mention same on all of their documentation and correspondence. ‘Foreign agent’ has distinctly negative connotations emanating from the Soviet era, when the term was commensurate to ‘traitor’ or ‘spy’. An action against the Foreign Agents law which forwarded this argument was rejected by the Russian Constitutional Court in April 2014.
‘Political activity’ is crucial in defining whether an NCO qualifies as a ‘foreign agent’. The draft definition, however, is vague in the extreme, encapsulating any activity which can be categorised as ‘state building’. The vagueness of the definition, compounded by the negative connotations associated with being branded a ‘foreign agent’, will more than likely render it more difficult for NCOs to conduct work in Russia, and easier for the authorities to obstruct them. Furthermore, such a hostile working environment for NCOs invites a notable level of risk for the recipients of foreign funding.
Regulation and oversight of civil society’s receipt of foreign capital is not a crime. On the contrary, such financial regulation and oversight, if carefully drafted and applied, can beneficially serve financial accounting and due diligence standards. It falls into broader debates about the legitimate extent of host country policy priorities, and the thornier and more divisive questions of national sovereignty. Further, it must be noted that overt Western funding of civil society, democratic movements, and grassroots political organisations over the years leading up to the promulgation of this legislation did also unnecessarily invite some of this hostility, as well as determined State policy. However, it is submitted that the Russian legislative regime has overstepped the mark. The vagueness and negative connotations the legislation imposes on civil society merely lends itself to a stifling of legitimate activities and freedom of speech, rather than legitimately regulating civil society’s receipt of funding and day-to-day activities. If it is accepted that one of the functions of Russian civil society from an outside perspective is as a vignette which reflects Russia’s attitude towards and relationship with the West, then it bodes ill that the vice-grip is being gradually tightened on its civil society. An opportunity to effectively regulate civil society has been missed, but not permanently, it is hoped.
Is mise le meas,
Denis Flynn is a final year LLB student at Trinity College Dublin. He spent the 2013/14 academic year on exchange at Emory University, School of Law, in Atlanta. A fully referenced version of the letter is available here.
With the recent revelation that GSOC has been monitoring journalists’ telephones to uncover information in respect of their sources, it seems timely to examine the state of the protection of journalistic sources under Irish law. The law offers privilege to many different types of relationships such as that of the lawyer and his client, the doctor and his patient and the priest and the penitent. Another form of privilege in existence protects the relationship between the journalist and his source. The so-called ‘journalistic privilege’ is the entitlement of a journalist not to reveal the identity of a confidential source in court or to be compelled to give evidence which may result in the source’s identity being revealed. The law suffers from a lack of clarity in Ireland at present and it is the contention of the author that this should be resolved by statute.
Almost every constitutional democracy enshrines freedom of the press in their constitutions. In Ireland, this is replicated by Article 40.6.1o.i of Bunreacht na hÉireann. However, this is not an absolute right and is subject to keeping within the common good and laws such as defamation. A free press is a press which is not influenced by the government or public authorities and is not subject to punishment or recrimination for publication of factual events or non-defamatory opinions. The press is regarded as a watchdog of democracy. They have a duty to inform the public on all matters of public interest. In turn, the public has a right to receive such information. Dr Yutaka Arai writes:
The press and investigative journalism guarantee the healthy operation of democracy, exposing policy actions or omissions of government to public scrutiny, and facilitating the citizens’ participation in the decision-making process.
In Goodwin v United Kingdom, the European Court of Human Rights stated: ‘[p]rotection of journalistic sources is one of the basic conditions for press freedom’. This author contends that this analysis is correct. If press freedom necessarily involves the freedom to publish without recrimination, it would be illogical to fail to vindicate the journalist’s right to protect his source’s identity. The reasons for this are twofold. First, the source may be subject to punishment or recrimination for revealing the information involved. This would be contrary to the principle that the press is free from interference from authority. Secondly, a journalist would lose his credibility with current or prospective sources if he was forced to reveal his source in a judicial setting. Other sources would be less inclined to reveal corrupt or immoral practices to journalists if their confidentiality could not be ensured. Furthermore, it would be paradoxical for courts to punish behaviour that reveals illegal, immoral or corrupt practice.
Traditionally, the Irish courts did not recognise the concept of journalistic privilege arising from the protection of freedom of expression in the Constitution. In Re O’Kelly, Walsh J held: ‘[j]ournalists or reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence…’
However, with the advent of the European Convention of Human Rights into Irish law, protection of the right is now obligatory for Ireland. This is based on Article 10 ECHR and can be seen clearly in the Goodwin v UK case. However, the Supreme Court decision in Mahon Tribunal v Keena has thrown the right into confusion. While Keena confirms that there is a privilege that journalists can avail of in Ireland, it is unclear how much protection it affords to journalists as the right must be analysed on the basis of a proportionality test weighing the competing interests involved.
The Report of the Constitution Review Group recommended that the Article 40.6.1o be replaced by a text similar to Article 10 ECHR because it would be a more powerful tool for the media. The report stated:
No private medium of expression can be compelled to express particular opinions or even a representative range of opinions without infringing the right to free speech. It would seem that constitutional provision could scarcely go further in promoting responsible freedom of expression than Article 40.6.1o.i will, when amended on the model of Article 10 of the European Convention of Human Rights, as recommended by the Review Group.
It is contended that the most effective way to protect the right in Ireland is to incorporate it into statute. This would have the effect of spelling out in a clear manner when, and to what extent, the law will protect a journalist from revealing his or her source.
It is of course important to limit this privilege to journalists. Twenty years ago, it would not have been difficult to identify who a journalist was. Presumably, it would be anyone who works for a media organisation with allowances being made for freelancers. However, with the advent of new media and forums whereby it has become more difficult to identify journalists, the issue of journalistic privilege becomes an issue in determining who is afforded protection. It is the view of the author that the law should recognise some new forms of media as being capable of attaching protection, taking into account a range of factors including the reliability of the author and the motive for publication. This would give protection to certain blog posters, online newspapers like journal.ie and even Twitter account holders who post content of public importance.
The most important question, however, is whether the privilege should be an absolute or a qualified right in the form of a balancing of competing interests test. It is argued that a compromise test should be adopted where there is a presumption towards absolute privilege whereby in compelling or unprecedented circumstances which make it essential to know the identity of the source, the journalist should be compelled to reveal his source. Such circumstances could include where there is a life in peril or the welfare of vulnerable people is under threat or in the interests of national security. As guidance for establishing a balancing test, we should turn to the following four criteria set out by Wigmore:
- The communications must originate in a confidence that they will not be disclosed.
- This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
- The relationship must be one which in the opinion of the public ought to be sedulously fostered.
- The injury that would insure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.
It is submitted that an edited version of this formulation should be enacted in statute in order to give effect and certainty to this privilege. Regarding the fourth condition, it is suggested that it should be edited to read: ‘the interests served by protecting the communications from disclosure will outweigh the interest in getting at the truth in the absence of compelling and extraordinary circumstances.’ Such circumstances should be expressly provided for in the legislation and include instances where there is a life in peril and where there are threats to national security. The purpose of this would be to make the law relating to protection of journalists’ sources very clear and to ensure that journalists are fully aware of their rights. This would ensure greater realisation of the freedom of the press.
Is mise le meas,
Giulia Dondoli is a PhD candidate at Te Piringa – Faculty of Law in the University of Waikato, in New Zealand. Her research focuses on transnational advocacy theories related to LGBTI (lesbian, gay, bisexual, transgender and intersex) rights. A fully referenced version of the letter is available here.
In January 2015, the European Court of Human Rights (ECtHR) handed down judgment in Paradiso and Campanelli v Italy. The claim was submitted in the name of a married couple and their child who was born in Moscow as the result of a gestational surrogacy agreement and identified by the Russian authorities as being their child. The applicants alleged an Article 8 ECHR (European Convention on Human Rights) violation because the Italian authorities refused to recognise the parental relationship legally established abroad, and removed the child from the couple’s household.
The analysis sheds light on the surrogacy issues among Council of Europe (CoE) Member States in highlighting that two principles are at stake: the best interests of the child and the margin of appreciation doctrine. It is the purpose of this letter to examine how these principles were considered in Paradiso and Campanelli.
Harris defined assisted reproductive technologies and in vitro fertilisation as follows:
Assisted reproductive technology (ART) generally refers to a category of fertility treatments in which eggs are surgically removed from a woman’s ovaries, fertilized with sperm in a laboratory by means of in vitro fertilization (IVF), and then placed in the uterus of the woman who provided the eggs or in the uterus of another woman.
Furthermore, the ECtHR’s press release on Paradiso and Campanelli v Italy defined gestational surrogacy arrangements as occurring when a woman bears a child for a couple whom subsequently have parental responsibility of the new-born. Such couples are referred to as the ‘intended parents’, while the gestational mother is called the ‘carrier’. Two types of gestational surrogacy arrangements are addressed in this letter. First, when the child results from the insemination of the male gametes of the intended father with the female gametes of a donor and implanted in the carrier, the male is both the genetic and the intended father. Second, when the child’s conception results from the donation of both male and female gametes and subsequently implanted in the gestational mother, neither of the intended parents are genetically related to the new-born.
Kilkelly noted that children’s rights are ‘essentially absent’ in the ECHR, as the text provides limited expressed references to children’s rights. However, in studying the ECtHR decisions on child protection from punishment and abuse, she concluded that the ECtHR uses a child centric-approach. Although not always expressly, the ECtHR refers to principles set forth in the Convention on Rights of the Child (CRC), which all CoE Member States are signatory to. Moreover, Hodson explained that the protection of children’s rights is fundamental at European level as all CoE member states agree on the pivotal principle that ‘in every decision relating to children, protecting the best interests of the child is a primary consideration’. However, the author notes that whilst the heterosexual nuclear family as the only valid form of family is being slowly replaced by the concept of the de facto family, children raised in de facto families may be precluded from living with their parents or limited in their enjoyment of private and family life. These limitations are not coherent with the principle of the best interests of the child. Similarly, this letter shows that the ECtHR prefers bionormative family frames, with consequent limitations of the best interests of children born from surrogacy agreements.
On the other hand, the doctrine of margin of appreciation is based on the assumption that national governments are better placed to decide upon conflicts between individual rights and public interests, and is defined as the ‘room of manoeuvre’ that the ECtHR is willing to concede to national authorities. However, this doctrine has been deemed to have a disproportionate application, to promote the development of double standards, and to be applied unnecessarily. This letters argues that, in the Paradiso and Campanelli case, the principle of the best interest of the child is partially limited by the doctrine of the margin of appreciation.
The former European High Commissioner for Human Rights, Thomas Hammarberg, explained that the ECtHR ‘has not identified a positive obligation for states to ensure a right to assisted reproduction’. For consistent jurisprudence, Article 8 ECHR does not guarantee the right to form a family through assisted reproductive treatments or through adoption. CoE Member States have a wide margin of appreciation regarding surrogacy, and there is no European consensus on this matter. Before the Paradiso and Campanelli case, the ECtHR considered surrogacy on two occasions; Mennesson v France and Labassee v France.
In both cases, the couples went to the United States for gestational surrogacy agreements. As a consequence of surrogacy, twins were born in the Mennesson family, and a baby girl in the Labassee family. The twins are genetically related to Mr Mennesson, and the baby girl is genetically related to Mr Labassee. When both families returned to France, they asked that the French authorities recognise the parental relationships legally established in the United States. They were denied such recognition as gestational surrogacy agreements are prohibited in France. Nonetheless, the children were not removed from the couples’ households.
In both cases unanimously, the ECtHR denied violation of Article 8 ECHR in respect of the parents because the lack of recognition of the parental relationships had not prevented the parents from living with their children. However, the ECtHR noted that the French refusal to recognise the parental relationships established abroad ‘undermined the children’s identity within the French society’. Considering the principle that the best interests of the child must prevail, the ECtHR found France in breach of the right to the protection of privacy and family life of the children. In other words, not recognising the parental relationship between the children and their biological fathers, France ‘had overstepped the permissible margin of appreciation’. A different approach was taken in the Paradiso and Campanelli case.
In the Paradiso and Campanelli case, the applicants claimed that Italy has violated their rights in not recognising the birth certificate of their child born in Russia with a gestational surrogacy with both sperm and eggs donation. The applicants noted that the donation of gametes and embryos is legal in Russia and, therefore, the Italian authorities should have recognised the parental relationship legally established abroad (as prescribed in Article 33 of Law 218/95). Italy considered the birth certificate to be a false document as it indicated that Paradiso and Campanelli were the parents of the child. Additionally, Italy highlighted that there is no European consensus on regard of gestational surrogacy.
The ECtHR discussed three aspects. First, regarding the refusal of the Italian state to recognise the parental relationship established abroad, the ECtHR accepted that the use of male gametes from a donor instead of Campanelli’s gametes was a mistake of the Russian clinic, and that the couple believed in good faith that the child was biologically related to the intended father. However, the ECtHR concluded with a convoluted double negation in saying that ‘the national judges did not take an unreasonable decision’. Puppinck and De La Hougue argue that this sentence means that the ECtHR accepted the decision of the Italian authorities not to recognise the birth certificate issued abroad because of the lack of a biological relationship between the child and the intended parents.
Second, on the removal of the child from the de facto family to a foster family, the ECtHR looked at the concept of necessity in relation to the best interests of the child. Indeed, the removal of the minor from the family, even the de facto family, is an extreme measure. The ECtHR considered that the interest of the state to preserve the public order is not a sufficient reason to justify the removal of the child from Paradiso and Campanelli’s custody. A dissent was issued arguing that, because the Juvenile Tribunal of Campobasso deemed that the child was not living in an adequate familial environment under the parameters of the international adoption law, the situation was delicate and had a certain degree of urgency. Therefore, the dissenting judges found there was no reason to overcome the decision of Italian authorities.
Finally, the ECtHR noted that the child had only obtained a new birth certificate in April 2013 and did not have an official identity for more than two years with consequences on a number of administrative issues. The ECtHR noted that the child should not be disadvantaged by the fact that he was born from a surrogate mother. Puppinck and de La Hougue viewed the judgment as being ‘benevolent but impossible’ because the Russian clinic had eradicated the child ‘from his roots, from his biological filiation’ and sold to an aging couple.
A violation of Article 8 ECHR was found and Italy was condemned to pay €30,000 of material and immaterial damages. However, because the child has developed a familial relationship with the foster family, the decision cannot be interpreted as creating an obligation to return the child to the applicants. It is argued that in accepting the Italian authorities’ decision to not recognise the Russian birth certificate the ECtHR indirectly expressed an opinion on surrogacy, taking no consideration of the best interests of the child.
Paradiso and Campanelli shows that surrogacy cases raise contrasting interests. On one hand, there is the right of the couple to have their status of parents legally established abroad recognised in their home country. On the other hand, there is the interest of the government to protect public order. When private and public interests are competing, the ECtHR may allow a margin of appreciation to the government. In addition, when cases involve children, their best interests must be a pivotal consideration in the decision making. The Paradiso and Campanelli decision can be broken down into two parts to clarify how these interests have interacted.
The ECtHR answered two questions: whether the removal of the child from the couple’s custody was justifiable and whether the Italian non-recognition of the parental relationship established abroad breached the ECHR. As regards the first question the ECtHR answered no and did not extend a margin of appreciation to the Italian government, instead taking the best interests of the child into consideration. The answer to the second question was a timid yes. With a convoluted double negation, the ECtHR accepted the decision of the Italian authorities not to recognise the birth certificate issued abroad. This allowed a margin of appreciation to the government which does not consider the best interests of the child.
The French cases and the Italian case have different outcomes, which derive from the factual differences of the cases. France was not allowed any margin of appreciation for not recognising the parental relationship legally established abroad and the best interests of the child principle prevailed because the children were genetically related to the intended fathers. On the other hand, in the Italian case, the margin of appreciation prevailed over the best interests of the child principle, because the child born in Russia was not genetically related to Mr Campanelli. Although the ECtHR is slowly recognising forms of de facto families, it still prefers a bionormative frame. Arguably, in future cases regarding surrogacy agreements, CoE Member States can persist in not providing a legal identity to a child, if the child is not genetically related to the intended parents. This lack of legal recognition is in breach of the best interests of the child.
To conclude, without a clear statement from the ECtHR that CoE Member States should recognise parental relationships legally established abroad, situations as the one of Paradiso and Campanelli will occur again, to the inevitable detriment of the best interests of the children born from gestational surrogacy, especially those not genetically related to the intended parents. It is hoped that further jurisprudence will provide greater clarity.
Is mise le meas,
Jan Kralik is a PhD researcher at the Charles University in Prague and is currently working in the International Law Department at the Ministry of Justice of the Slovak Republic. Previously, he studied European and International Law at the University of Matej Bel in Banska Bystrica. He completed his second master’s degree in International Law and the International Organizations at the Rijksuniversiteit Groningen in the Netherlands. A fully referenced version of the letter is available here.
During the past few years a series of egregious acts of sexual violence were committed in States and territories wherein the United Nations deployed its peacekeeping operations. These acts were perpetrated inter alia by military members of national peacekeeping contingents (MMsNCs) whilst assigned to a UN peacekeeping unit.
With regard to crimes committed by persons involved in these operations, the UN adopted a dual approach distinguishing between its staff and MMsNCs. Whilst the former have the status of officials under the Convention on the Privileges and Immunities of the United Nations (the Convention), the latter is governed by the status of forces agreements (SOFAs) and the Memorandum of Understandings (MOUs).
The main difference between these intricate systems of norms is the extent of granted jurisdictional immunity and the possibility to waive the immunity. The Convention provides that officials are immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. The Secretary-General has the right and duty to waive the immunity of any official after particular circumstances are met.
Under the SOFAs, the MMsNCs are subject to the exclusive jurisdiction of the troop-contributing country. That is, the respective participating States have jurisdiction over acts of MMsNCs committed in both public and private capacity. Unlike the immunities of the UN officials involved in the peacekeeping operation, the exclusive jurisdiction of the respective participating State is not subject to the waiver of the Secretary-General or any other respective UN body.
Therefore, it depends on the will of the respective States whether MMsNCs are prosecuted for the crimes committed during their assignment to an operation. Numerous revelations show that States are reluctant to take action and that, if action is taken, the accused tends to be convicted of crimes of a lesser charge. Unsurprisingly, the UN tries to ensure that the States take action against the perpetrators. This intention may be seen in the amended Model MOU, which stipulates that the respective States assure the UN that they shall exercise such jurisdiction.
Yet recent incidents show that amendments of relevant UN documents do not compel respective States to take the necessary steps to adequately punish MMsNCs of serious crimes committed whilst deployed on a UN mission. The reluctance of respective States to agree on a more imperative and categorical wording of Model MOU’s provisions indirectly supports this position. Balancing the sovereignty of States and the bringing of perpetrators of serious crimes to justice cannot be achieved without overcoming the current status quo secured by the provisions of SOFAs and MOUs.
It must now be considered whether the possibility of legal redress before the European Court of Human Rights (ECtHR) with regard to acts committed by the MMsNCs who are nationals of State Parties to the European Convention on Human Rights (ECHR) whilst they are assigned to the UN mission exists. It will be assumed that, as stipulated in Article 35 ECHR, all domestic remedies are exhausted before sending an appeal to Strasbourg. This letter will focus on other requirements that must be met regarding the particularities of the crime in question and the special nature of the relationship between the UN and MMsNCs.
Several questions need to be addressed. First, it must be determined to which entity the conduct of MMsNCs may be attributed, taking into consideration the specificity of the relationship between the UN and MMsNCs. Indeed, the UN does not possess full command but rather operational authority and control as MMsNCs remain in national service while deployed to the mission. It could be said that the attribution of conduct problem is analogous to the relationship between the Dutch peacekeepers and the UN in an infamous incident in Srebrenica. In this case, the peacekeepers were accused of failure to protect around 300 Bosnian Muslims who were trying to escape from Serbs. The Dutch Supreme Court held that the acts of Dutch peacekeepers were attributable to the Dutch government which had effective control over the peacekeepers.
The ECtHR reached the same conclusion regarding the attribution of conduct in Al-Jedda v UK wherein it held that the acts of UK troops in Iraq were attributable to the UK rather than the UN and that the UN had neither effective control nor ultimate authority over the acts and omissions of UK troops. The ECtHR also referred to Article 7 of the Draft Articles on the Responsibility of International Organizations (DARIO) which stipulates that the conduct of an organ of a State placed at the disposal of an international organisation should be attributable under international law to that organisation if the organisation exercises effective control over that conduct. It also acknowledged that the conduct may be attributed either to the UN, respective State or both entities.
Thus, the conduct of peacekeepers may, under certain circumstances, be attributed to the respective States. This does not necessarily mean, however, that the States have effective control over their troops whilst they are committing crimes of sexual violence during their assignment. The responsibility of States may perhaps be established implicitly as it could be claimed that the UN had neither effective control nor ultimate authority over the acts of the troops. Hence, it should be States who have had effective control and, therefore, bear responsibility.
To avoid future confusion, it would be more appropriate if a judicial body dealing with cases involving crimes of MMsNCs would address clearly and explicitly when exactly and under which circumstances an entity has effective control over the troops. Nevertheless, due to the specific nature of an operation, attribution of conduct should be based on ‘a factual criterion’, as stipulated in the commentary to the DARIO.
Assuming that troop-contributing countries have exclusive jurisdiction over their troops, a failure to adequately investigate potential crimes and bring the perpetrators to justice would mean that these States do not comply with their obligations arising from international human rights instruments. Thus, the responsibility of a State may arise through a failure to protect human rights. If we accept this premise, we need to ascertain whether States have obligations to make inquiries in alleged cases where the acts were committed outside of their territory.
This would mean that States, by ratifying the ECHR, accept that the obligations flowing thereof apply extraterritorially. The current approach held by the ECtHR is opposite to the regional context and espace juridique model in the Banković case which defined a rather more restrictive view regarding extraterritorial application of the ECHR.
In Al-Skeini, the Court shifted its view and stated ‘whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation … to secure to that individual the rights and freedoms under [the ECHR] that are relevant to the individual’s situation.’ In essence, the Court acknowledged that the State’s jurisdiction, as stipulated in Article 1 ECHR, may be extended to the other States or territories. What is imperative is the control and authority over an individual.
Under these circumstances, a victim’s position regarding a State and its agents is more obvious and complaint to the ECtHR seems plausible. However, to accept this statement, questions concerning the legal basis of such a complaint must be answered. Since sexual violence is not explicitly regulated in any provision of the ECHR, it needs to be determined under which article a victim could submit a complaint to the ECtHR.
Taking into account existing jurisprudence, it could be observed that, in certain circumstances, sexual violence may satisfy the minimum threshold of Article 3 ECHR, by amounting to torture. In particular, the recent Zontul v Greece case is worth highlighting as the ECtHR held that the rape of a detainee by a state actor is equal to torture, thereby constituting a violation of Article 3 ECHR.
However, we need to distinguish between sexual violence perpetrated by the peacekeepers assigned to a UN mission and the rape of a detained person by State actors, because the sexual violence by peacekeepers is not necessarily perpetrated on detainees in enclosed spaces. Furthermore, there is a clear difference between rape and sexual violence as the latter is of a broader nature, ie not every act of sexual violence per se would in fact constitute rape. Therefore, it should be noted that the severity of harm criterion for torture may in some cases not be established.
Given the position of MMsNCs it would be very harsh for a victim if a complaint would be rejected on a basis that the act has not reached the minimum threshold of Article 3 ECHR owing to the fact that the violence has not occurred in detention. Moreover, it should be taken into consideration that the MMsNCs are often sent to places where it is not difficult to arbitrarily abuse their powers whilst taking advantage of the vulnerability of a victim.
Nevertheless, the view of ECtHR remains unclear. In the opinion of the author, it should not be decisive whether the act was perpetrated on a person in detention. By the same token, given the specific nature of sexual violence crimes, significance should also be attached to the dire consequences that such crimes could have on mental health of a victim.
Development of jurisprudence of this area is vital. The UN cannot afford to leave the perpetrators of such serious crimes unpunished or to leave these perpetrators to the exclusive jurisdiction of their respective State. In relation to the ECtHR, it can be concluded that the most crucial factor is to determine whether the violence reaches the threshold of Article 3 of the ECHR. Even if the ECtHR does decide to award compensation to the victim, the judgment needs to be implemented in the respective State. Unfortunately, it is not uncommon that some States are reluctant to do so. That is, however, another issue.
Is mise le meas,
Caroline Bergin-Cross is a PhD candidate at University College Dublin and the author of ‘Electronic Fund Transfers in the Republic of Ireland’, published in 2015 by Lonsdale Law Publishing. She is a Barrister-at-Law and holds LLM (Comm) and BCL degrees. She is currently the Editor-in-Chief of the University College Dublin Law Review. A fully referenced version of the letter is available here.
The spread of mobile phones across the developing world is one of the most remarkable technology stories of the past decade. Consumer adoption of smart phones is growing internationally at a phenomenal rate. Smart phones present significant m-commerce opportunities for all organisations, however, such potential has yet to be realised. To realise such potential there must be engagement with mobile service providers in order to make m-payments secure, private, reliable and easy to effect. The first part of this letter will illustrate what an m-payment is. Part two shall look at the growth of mobile banking, taking into account the implications of same, especially in respect of regulation and privacy. Finally, this letter will discuss the future development of m-payments.
1.1. WHAT IS AN M-PAYMENT?
A mobile payment (m-payment) may be defined, for our purposes, as any payment where a mobile device is used to initiate, authorise and confirm an exchange of financial value in return for goods and services. M-payments are a natural evolution of e-payment schemes that facilitate m-commerce. Mobile devices may include mobile phones, wireless tablets and any other device that connect to mobile telecommunication networks and make it possible for payments to be made. The realisation of m-payments will make possible new and unforeseen ways of convenience and commerce.
There is no universal form of m-payments; rather, purposes and structures vary from country to country. The systems offer a variety of financial functions, including micropayments to merchants, bill-payments to utilities, person-to-person transfers between individuals, and long-distance remittances. Currently, different institutional and business models deliver these systems. Some are offered entirely by banks, others entirely by telecommunications providers, whilst others involve a partnership between a bank and a telecommunications provider.
Mobile phone operators have identified m-payments as a potential service to offer their customers, which will increase loyalty, and generate fees and messaging charges. Financial institutions see m-payments as a form of ‘branchless banking’. Government regulators see a similar appeal but are presently working out the legal implications of the technologies, particularly concerning security and taxation.
1.2. EFFECTING AN M-PAYMENT
M-payments may broadly be classified as a ‘contactless’ or ‘remote’ payment. In a mobile ‘contactless payments’, the payer and payee and the mobile telecommunications device are in the same location and communicate directly with each other using contactless radio technologies, such as near field communications, which use Bluetooth or infra to transfer data. For mobile ‘remote payments’, the transaction is conducted over telecommunication networks such as the internet, and can be conducted irrespective of the location of the payer and their mobile telecommunications device. Creating ease, convenience and trust for end-customers is regarded as critical for the further development of m-payments.
2.1. M-PAYMENT MODEL
In m-commerce, it is often required that personal data, as well as financial data, be exchanged among the transacting parties to facilitate the purchase. This sharing of personal data imposes a risk in the case of data misuse. Even if consumers’ personal data is used correctly, consumers inevitably have to forfeit parts of their privacy when interacting with businesses online. Consequently, trust in the vendor is essential for the necessary disclosure of personal information.
2.2. BENEFITS AND DISADVANTAGES
The benefits of m-commerce will not be realised until the tangible benefits outweigh the intrusion and privacy concerns of consumers. While m-commerce can provide significant benefits and efficiencies for consumers, the potential risks have to be evaluated and appropriate data protection and privacy safeguards must be established, monitored, and reviewed, to lower this risk and significantly reduce any fears that consumers may harbour. Authentication, confidentiality, data integrity and non-repudiation are key issues cited by consumers.
Consumers’ perceptions of the security and privacy controls employed by smart phone service providers are a critical element of their willingness to make m-payments. Such controls should be specified in legislation and governments should adopt legislation which stipulates the standards of service, thereby setting the legal rights of m-commerce consumers. To ensure the robustness of this legislation and governance, an independent objective third party regulatory authority should be established to ensure service providers are fulfilling their obligations under the m-commerce legislation. Furthermore, this will improve consumer confidence that regulatory bodies have sufficient powers to take actions against mobile service providers who do not adhere to such frameworks. Such legislation will help build consumer trust in m-payments and rebut concerns that their personal data can be violated or captured during transmission or by hacking databases and spoofing identities.
2.3. MAIN ISSUES AND CONCERNS
For widespread use and customer acceptance of m-payment services, both perceived and technical levels of security should be high. For customers, privacy should not be compromised and there should be no possibility of financial losses. For businesses, customer authentication is important. As per the general framework of any secure messaging system, confidentiality, integrity, non-repudiation and authentication should be guaranteed by m-payment service providers.
M-payments lack cohesive technology standards. Consolidation of standards in the m-commerce arena is critical and will enable producers and consumers to make investments that produce value. The lack of standards gives rise to many local and fragmented versions of m-payments offered by different stakeholders. Standards need to address security and privacy concerns of consumers as well as interoperability between various stakeholders. Standards formation is a process of negotiation between various stakeholders, more like political negotiations than technical discussions. There is currently no consensus in respect of m-payment standards setting. Certain start-up companies have proposed standards and they hope to make these de facto by being the first movers with strategic advantage and early market selection. The battle over standards occurs both at the firm level and at the inter-consortia level.
Although m-payments may allow parties to make economic exchanges, it is not a form of recognised legal tender. That is, it lacks the status of other payment instruments such as cash, which is a medium of exchange that is authorised, adopted and guaranteed by the government. To overcome this problem, legislation that will make m-payments legal tender must be enacted.
3.1. FUTURE OF M-PAYMENTS
The European Payments Council (EPC) published the latest version of its white paper on m-payments in October 2012. This paper incorporated submissions from 17 parties representing various stakeholders in the m-payments ecosystem. On 29 June 2015, the ERPB, chaired by the ECB, considered the future of person-to-person m-payments and the recommendations of the White Paper. The members of the ERPB subsequently agreed to endorse the vision of allowing any person initiate a pan-European person-to-person m-payment safely and securely, using a simple method with information the counterparty is prepared to share in order to make a payment. In particular, payment service providers offering person-to-person m-payment services should make use of existing infrastructure as far as possible. Moreover, a harmonised process should be created, allowing person-to-person m-payment data to be exchanged between local solutions across borders. It is most unfortunate that the EPC has taken a deferential approach and has decided against introducing regulations or directives to harmonise m-payments across the EU.
3.2. APPLE PAY
Apple Pay is simple to use and works with the cards already owned on devices used every day. As your card details are never shared when you use Apple Pay, and are not stored on your device at all, using Apple Pay on your iPhone, Apple watch, or iPad is the safer and more private way to pay. However, customers need to use a bank card from one of Apple Pay’s partners.
If the customer has a credit or debit card registered with their Apple ID, they can add it to Apple Pay directly. If not, or the customer wishes to add a new card, Apple encrypts the whole process, wrapping up the card details in a unique identifier before handing it over to their card operator.
Assuming the customer is credit-worthy, the operator sends back an authorisation key that is stored in the Secure Element in the iOS device or watch. Secure Element is an industry standard chip and the customer is not relying on Apple alone to maintain the technology. As each one is unique to the device in which it resides, it reliably ties the device to the customer’s account. That way, the card processor knows exactly whose account to debit without passing their details over the network again or handing them to the retailer itself.
Apple Pay has proven to be an extremely safe and secure form of m-payment. To use the payment the customer inputs a six digit passcode rather than four, and payments can only be authorised from iOS devices with near field communication and the device-unique Secure Element chip built in.
Many challenges must be overcome for m-payments to be widely accepted as a mode of payment. Businesses, merchants and consumers have to come forward and make value-producing investments. A regulatory framework and widely accepted standards will be the pillars on which m-payment applications will be built in order to have a robust system which consumers have confidence in.
Consumers’ fears over their data and privacy appear to presently outweigh consumers’ perceived benefits of m-commerce. Consumers’ unwillingness to make m-payments is the greatest barrier to future growth of m-commerce.
Apple Pay has shown that a convenient, secure and reliable m-payment system can be established, however, the deferential approach by the EPC to setting standards and regulations for m-payments is unfortunate. Without a standardisation of m-payments, customers’ unwillingness to use m-payments will continue.
Is mise le meas,
Caroline Bergin-Cross BL
Rachel O’Sullivan graduated from University College Cork with a BCL (International) degree in 2015. In 2015, she was a member of the UCC Jessup Moot Court team and won the James D Donegan Annual Moot Court Gala. She was also awarded the Gold Medal for best overall submission in the 14th Edition of the Cork Online Law Review. A fully referenced version of the letter is available here.
The President of Sudan, Omar Al-Bashir attended the African Union Summit in Johannesburg in June 2015. Al-Bashir is the subject of two arrest warrants issued by the International Criminal Court (the Court) in relation to war crimes, crimes against humanity and genocide allegedly committed during the Darfur conflict. However, despite South Africa’s ratification of the Rome Statute, and its implementation in domestic law, the South African authorities failed to detain Al-Bashir. This failure not only epitomises the increasing division between African states and the Court but has once again demonstrated the lack of clarity surrounding the interaction of the Rome Statute and the principle of Head of State immunity in international law.
Prior to the visit of Al-Bashir the Court contacted the Embassy of South Africa in the Netherlands, reminding South Africa of its obligation under the Rome Statute to surrender Al-Bashir to the Court. However, on the eve of Al-Bashir’s visit, South Africa sought consultations under Article 97 of the Rome Statute indicating that they believed there existed ‘problems which may impede’ their ability to fulfil the request of the Court for the surrender and arrest of Al-Bashir. South Africa contended that tension existed between Head of State immunity under international law and the applicability of Article 98 of the Rome Statute. However, both Pre-Trial Chamber II of the Court and the North Gauteng High Court of Pretoria confirmed South Africa’s obligation to take immediate steps to arrest and surrender Al-Bashir. The rejection by the South African authorities of both the international and domestic position has initiated a bitter legal and political dispute between Pretoria and The Hague, culminating in the statement that South Africa intended to ‘review’ its membership of the Court.
In light of high profile arrest warrants issued against sitting African leaders such as Al-Bashir and President Kenyatta of Kenya, Head of State immunity has been a central facet of the increasing tension between the Court and African States. While Article 27 of the Rome Statute removes the traditional immunities offered to Heads of State under international law, this applies only in relation to State parties to the Rome Statute. In the case of Sudan, a non-state party, the issue becomes more complex. However while the Court has consistently affirmed that Head of State immunities offer no protection to Al-Bashir from arrest and surrender by Member States of the Court, it is unfortunate that two divergent lines of reasoning have developed in an attempt to justify this position.
In proceedings against Malawi and Chad for the failure to arrest Al-Bashir while on their territories, the Court found an exception to Head of State immunities in customary international law where the individual concerned was sought by an international court for the commission of international crimes. However, it is difficult to conclude that this approach withstands scrutiny. Article 98 of the Rome Statute specifically requires a waiver to be sought where the surrender of an individual to the Court would be inconsistent with the diplomatic immunity of a person of the non-state party. Therefore, the Court’s approach appears to strip Article 98 of any useful purpose. One may question whether this contradiction may have initiated the new line of reasoning developed in proceedings involving the Democratic Republic of the Congo, as reiterated in the South African dispute. Although Sudan is not a State party to the Rome Statute, the situation in Darfur was referred to the Court by the UN Security Council, as is provided for under Article 13 of the Rome Statute. The Court used the nature of the proceedings against Al-Bashir as the basis for the non-applicability of traditional immunities, concluding that Security Council Resolution 1593(2005) had, ‘implicitly waived the immunities granted to Omar Al Bashir under international law’. This volte-face by the Court on the rationale for the immateriality of Head of State immunities was reached without any reference to previous decisions. While the Court is not a precedential body, an entirely new legal justification for this controversial conclusion is unwelcome given the precarious nature of the relationship between Africa and the Court.
Therefore, although the Court appeared dismissive of South Africa’s arguments, it is impossible to conclude that this saga is likely to be resolved in the near future. Proceedings are continuing within the domestic appellate structure in South Africa and thus proceedings before the Court concerning South Africa’s failure to comply with the order to arrest and surrender Al-Bashir have been delayed. Furthermore, while he ultimately decided not to travel, the holding of the Forum on China-Africa Cooperation in South Africa last December demonstrated that the prospect of Al-Bashir retuning to South Africa remained.
However, if one takes a more overarching view of this dispute it once again illustrates the crumbling relationship between Africa and the Court. While the African Union has long opposed cooperation with the Court in relation to the arrest and surrender of Al-Bashir, South Africa initially declined to adopt the African Union’s standpoint. Indeed in 2009 the South African government stated, ‘[i]f today President Bashir landed in the country … he would have to be arrested’. This change of approach by South Africa heightens concerns surrounding the future of the Court on the African continent. While the work of the Court in seeking to end the impunity enjoyed by those who have committed the most serious of international crimes deserves great praise, the same cannot be said for its conflicting and unconvincing legal reasoning. While it would be disingenuous to reduce African opposition to the Court to concerns over legal reasoning, a more coherent line of jurisprudence could constitute a first step in addressing the concerns of African states, providing more solid legal foundation for the difficult political discussions that appear inevitable in the future.
Is mise le meas,
Emily Hancox is a PhD researcher at the University of Edinburgh working on the interplay between norms in the EU legal order and the implications of this for the scope of application of European law. Alongside her PhD, Emily Co-Convenes the Europa Research Group, sits on the Steering Committee of the Edinburgh Europa Institute and is Managing Editor of the University of Edinburgh Legal Studies Research Paper Series. She also teaches Public and EU Law. Prior to moving to Edinburgh, Emily worked as a lecturer at the University of Oxford and was a Legal Trainee at the Office of the European Ombudsman in Brussels. A fully referenced version of the letter is available here.
While there are many urgent and troubling issues one might choose to write about regarding European public law at present, I write to you today with a fairly modest plea. My plea is aimed at the European Court of Justice (ECJ) and implores its members to better respect the rule of law in their decision-making.
It is perhaps always dangerous to invoke such a contested concept as the rule of law in an argument. However, the Member States themselves, as drafters of the Treaties, made clear the commitment of the EU towards the rule of law. Article 2 of the Treaty on European Union (TEU) states:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
A number of meanings can be (and have been) attributed to the rule of law, ranging from a formalistic conception to requiring a full-blown commitment to human rights. At its most basic, perhaps, the rule of law might be regarded as a requirement of consistency that contrasts with arbitrary exercises of discretion. When directed towards the judiciary, the rule of law as consistency requires a coherent line of jurisprudence with some degree of predictability. Respect for the rule of law does not imply that it is illegitimate for judges to overrule earlier decisions. However, in such cases, judges ought to justify and explain the shift.
In the context of the EU the need to respect the rule of law takes on a new dimension. The decisions of the ECJ are binding across all twenty-eight Member States where it is the obligation of national judges and law-makers to interpret and apply those decisions. While, strictly speaking, the ECJ is not bound to follow its earlier decisions, its position within the EU legal order provides a strong argument why the ECJ should aim for consistency.
The ECJ has only very rarely expressly departed from its earlier decisions and the cases in which it has done so are ‘as few as they are celebrated’ (in the words of Advocate General La Pergola). Such cases where the ECJ explicitly overruled its earlier decisions include Roquette Frères (overturning Hoechst), Keck, and Metock (overturning Akrich). More frequently, the ECJ implicitly departs from earlier judgments such as from its decision in Cinéthèque to ERT and Familiapress. It is this latter instance that I want to pick up on and raise in the light of two recent cases regarding access to social benefits for EU citizenship: Dano and Alimanovic.
In Dano the ECJ appears to depart its rulings in Martínez Sala and Trojani, namely that migrant EU citizens, lawfully resident according to national law (but not EU law), are entitled to equal access to any social benefits regulated by EU law. The ECJ focused on the primary rights of Ms Martínez Sala and Mr Trojani to move and reside (Article 21 TFEU) and to non-discrimination on grounds of national (Article 18 TFEU). Ms Martínez Sala, as a Union citizen lawfully residing in the territory of another Member State, fell within the personal scope of the Treaty (para 61) and was thus able to claim equal access to social benefits. Similarly, in Trojani, the ECJ held that while Member States ‘can make residence of an EU citizen conditional on his having sufficient resources, that does not mean that such a person cannot, during his lawful residence in the host Member State, benefit from the fundamental principle of equal treatment’ (para 40).
In Dano, however, the ECJ chose not to focus on the position of Ms Dano as an EU citizen lawfully resident in a host Member State. Instead, the ECJ focused its attention on whether Ms Dano had a right of residence under EU law (specifically Directive 2004/38, the Citizens’ Rights Directive). Ms Dano did not have a right of residence under Citizens’ Rights Direct as she lacked sufficient resources (para 81) which meant she could not claim equal treatment with regard to social assistance (para 82). The case clearly departs from the ECJ’s earlier decisions, yet does not expressly say so or provide reasons as to why it is doing so. It might be that the entry into force of the Citizenship Directive signalled the need for a change, but the ECJ does not even go so far as to state this.
In Alimanovic, the ECJ again implicitly overruled its 2009 decision in Vatsouras. Article 24(2) of the Citizens’ Rights Directive permits Member States to derogate from the right to equal treatment as regards jobseekers. In Vatsouras, the ECJ held, notwithstanding Article 24(2), that a jobseeker still falls within the scope of Article 45 TFEU on free movement of workers. A jobseeker could therefore still benefit from the right to equal treatment in Article 45 TFEU (para 36) as regards ‘a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State’ (para 37). The ECJ did accept, however, that a Member State could choose to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State (para 38). In Alimanovic, however, the ECJ did not refer to Article 45 TFEU. Instead the ECJ narrows, almost to the point of extinction, this aspect of its decision in Vatsouras, holding simply that social assistance to jobseekers may be withheld under Article 24(2) of the Citizens’ Directive (paras 57-58).
In both Dano and Alimanovic therefore, the ECJ implicitly overrules several earlier cases on the rights of EU citizens. Without explicitly declaring this, the ECJ leaves in doubt the status of the earlier decisions, complicating the position of national judges who have to make their way through the ECJ’s case law. What is more, when the subject matter concerns the rights of EU citizens, a decision to limit these rights warrants justification. In the absence of explanation, the ECJ leaves itself open to criticism for acting arbitrarily or political expediency. I therefore end, as I began, with a plea for greater respect for the rule of law in Europe.
Is mise le meas,
Gary Moloney is a graduate of UCC’s BCL (Law and Irish) programme and is currently pursuing an LLM in International Human Rights and Public Policy. He was a member of UCC’s triumphant Jessup Moot Court team in 2014/15. A former Vice Auditor of the UCC Law Society, he currently tutors first and second year law students in Dlí Bunreachtúil (Constitutional Law). A fully referenced version of the letter is available here..
It is, in my view, quite timely that the Fifteenth Annual UCC Law Conference looks to tackle one of the key elephants of Irish constitutional law; Article 41.2, which ostensibly assigns women a domestic role within the home. For many the observer, this provision, along with Article 40.3.3o, is emblematic of Ireland’s poor record when it comes to matters of gender equality.
Article 41.2.1o holds that the common good benefits from the work of women within the home. As a result, Article 41.2.2o states that women should not be obliged by economic necessity to work outside of the home causing neglect of their duties in the home. It is unquestionably a product of De Valera’s Ireland; a country of ‘happy maidens’, ‘cosy homesteads’ and ‘frugal comfort’. While we have made great strides in recent times with respect to marriage equality and gender recognition, there is still much work to be done. We continually fail over half of our population through discriminatory treatment, preventing Ireland from being a truly equal society in fact and in law.
In Sinnott v Minister for Education, Denham J, as she then was, stated that:
Article 41.2 does not assign women to a domestic role. Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities. It is a recognition of the work performed by women in the home.
With great respect to the Chief Justice, even if that was the intent of Article 41.2, its inclusion sends a negative normative message. It does nothing in practice to empower women, but rather highlights an outdated traditional role which it presupposes women should be inclined to fulfil. Even though the learned Chief Justice argues that ‘[t]his special recognition is of the 21st century and belongs to the whole of society’, it is hard to reconcile that with the discrimination faced by women within Irish society in pay, bodily autonomy and job opportunities. It perpetuates the myth of complimentary gender roles, with the mother seen as the natural caregiver. It actively disregards the rising number of stay-at-home fathers and thereby entrenches traditional gender roles within Irish constitutional discourse.
The Chief Justice’s comments might also be more palatable were this recognition to lead to implementation of oft-forgotten economic and social rights, but this would not appear to be the case. In L v L, the Supreme Court rejected the argument that a housewife who worked exclusively in the home was entitled to an equitable interest in that house, holding that a married woman had to make a financial contribution in the form of actual income for such an interest to be created. Despite recognising that these equitable principles contradicted 41.2, the Supreme Court said they did not have the jurisdiction to engage in the transfer of property within a family. Finlay CJ found this to be the case despite also acknowledging the inconsistency in disadvantaging women who took up their ‘preferred constitutional activity’. Furthermore, in Sinnott, Keane CJ, held that while Kathy Sinnott’s contributions as a primary caregiver to her autistic son were worthy of ‘respect, admiration and compassion’, they were not grounds for damages with respect to the State’s breach of her son’s education rights. So if Article 41.2 doesn’t seem to confer any positive rights on women then what is its purpose? If its role is merely normative in nature then is it one that needs revisiting?
The Report of the Constitutional Review Group (CRG) suggested that a gender neutral version would alleviate some of the concerns raised. Such an amendment would be commendable, also adding some much needed recognition and protection for single parent families. On the recognition of the work of fathers as carers and the duties they hold with respect to care, Murray J in DT v CT held that Article 41.2 as part of a contemporary document could be interpreted so as to include fathers within its remit. Thus, the 10th Progress Report of the All-Party Oireachtas Committee on the Constitution noted that a gender neutral version could arguably be unnecessary. Nevertheless the report provided for a gender neutral alternative, albeit one not as open to including single parent families as that found in the Report of the CRG. Were we to agree with the All-Party Oireachtas Committee’s initial conclusion, an amendment to that effect would still be preferable and would go a long way to addressing core issues. As Professor Mullally has noted in her submission to the Constitutional Convention, ‘domestic care has often remained invisible with little official recognition of its significance to the everyday functioning of society’.
Article 41.2, in its current form, is a patriarchal antiquity which negatively impacts the whole of Irish society by entrenching traditional gender norms which we as a nation should strive to rise above. Its retention is potentially inconsistent with Ireland’s obligations under the Convention on the Elimination of Discrimination Against Women (CEDAW) given its sexist connotations with regards to gender stereotyping. The Ireland of 1937 may have been satisfied with dancing at the cross-roads, but it is clear that the Ireland of 2015 can no longer dance around its treatment of women within Bunreacht na hÉireann.
Mise le meas,
Jeff Walsh is currently completing an M.Litt. in international refugee law in Trinity College Dublin. In the past, he has worked for UNHCR Ireland and the Irish Refugee Council and was the Thomas Addis Emmet Fellow for International Public Interest Law in 2010. He is currently the Vice-Chairperson of the Irish Society of International Law. In this letter he considers the impact of the refugee crisis on the future of the Common European Asylum System. A fully referenced version of the letter is available here.
One can hope that the recent wave of asylum seekers and refugees arriving in Europe from the Middle East and Afghanistan will have a positive impact on the operation and direction of the Common European Asylum System (CEAS) going forward. The current crisis has provided the EU with various challenges. It has raised questions regarding the potential use of temporary protection and further questions regarding the Dublin system, as well as forcing Member States to tackle the issue of burden sharing and relocation on a scale not seen heretofore.
The Dublin system operates under the ‘Dublin III Regulation’. It allows for a determination to be made regarding the Member State responsible for determining a particular asylum claim – thus attempting to eliminate secondary movements of asylum seekers across the EU.
In recent years, the Dublin system has been subjected to operational restrictions from both the European Court of Human Rights (ECtHR) and the Court of the European Union (CJEU). In MSS v Greece & Belgium, the ECtHR held that there were ‘systemic deficiencies’ in the Greek system and, as such, the transfer of asylum seekers amounted to a violation of Articles 3 (right to freedom from torture, inhuman and degrading treatment) and 13 (right to an effective remedy). Shortly afterwards, in NS and ME v United Kingdom and Ireland, the CJEU upheld the ‘systemic deficiencies’ threshold and stated that the transfer of asylum seekers to Greece under the Dublin system breached Article 4 of the Charter of Fundamental Rights of the EU in that it amounted to inhuman and degrading treatment. In a departure from requiring ‘systemic deficiencies’, the ECtHR held in Tarakhel v Switzerland that individual circumstances must be taken into account, meaning that systemic deficiencies are no longer the sole deciding factor in suspending transfers.
While the Dublin III Regulation forms part of the CEAS legislative package, major NGOs, such as the European Council on Refugees and Exiles (ECRE) have stated that ‘the Dublin system fails to ensure that refugees are protected, and wrongly assumes that there are equal standards of protection across Europe.’ Furthermore, ECRE calls for the Dublin Regulation to be abolished and replaced with a ‘more humane and equitable system’.
What effect has the refugee crisis had on the operation of the Dublin system? The crisis has created difficulties for the implementation of FRONTEX, the fingerprint system, important to the operation of the Dublin system, whereby each asylum seeker has their fingerprints taken as part of the registration process when they apply for asylum. The crisis has also highlighted further problems with reception conditions, as highlighted in judgments such as those mentioned above. Recently, questions have been asked of the Hungarian system, leading the German Administrative Court of Dusseldorf to suspend transfers of asylum seekers to Hungary and the Swiss Council for Refugees to call for transfers to Hungary to be similarly suspended. Earlier this month, the Belgian Council of Aliens Law Litigation also suspended transfers of single women asylum seekers to Italy.
It is clear that it will not be possible to return all asylum seekers to the Member States where they first entered the EU, particularly Greece, Hungary and Italy, both in law and in practice. What this means for the Dublin system is unclear. The move towards greater burden sharing through relocation agreements could see the introduction of a more equitable system, as called for by ECRE.
In the face of large increases in the numbers entering Europe to seek asylum, the EU has, so far, opted not to invoke the Temporary Protection Directive, the first asylum-related directive to be enacted under the CEAS in response to the influx of asylum seekers from the former Yugoslavia in the 1990s. There have been calls to invoke the Temporary Protection Directive as a means of coping with the sharp increase in asylum seekers. However, such a move would mean the EU – and refugees – would have to grapple with yet another status, ancillary to refugee status, most likely leading to differences in treatment, in terms of legal entitlements and protections afforded to those in need of international protection. Instead the EU has taken the preferable option of burden sharing and relocation. This route still provides for recognition under the CEAS legislation. Two agreements, reached in September, provide for the distribution of asylum seekers across EU Member States, known as ‘relocation’. In order to be considered under this agreement, the asylum seeker’s nationality must have a recognition rate of 75% or greater in international protection (both refugee status and subsidiary protection) – based on Eurostat figures, this includes Syrians, Eritreans and Iraqis. While these agreements go some way towards easing the pressure on Italy and Greece as frontline states – the second agreement purports to take 43% of the Greece and Italy’s asylum seekers that arrived during the period of July and August – a sizeable number of asylum seekers in Hungary are not being included due to Hungary’s unwillingness to be seen as a frontline state. The agreements are temporary for now, operating within a framework of two years; however, there is a proposal for a more permanent arrangement. This could mean that the Temporary Protection Directive might never be invoked.
In conclusion, it is hoped that some positives can come from the current refugee crisis. There is now the potential for increased integration in terms of asylum procedures across the EU as a result of the refugee crisis. The flow of asylum seekers arriving in Europe, traversing states such as Croatia, Hungary, Slovenia and Austria in order to gain access to Germany, Sweden and Finland has had clear impacts on existing structures, most notably the ability of Member States to partake in the Dublin system. While there are undoubtedly economic considerations in choosing a destination, and indeed it is the right of asylum seekers to choose where to apply for asylum, variations in recognition rates across the Union cannot be ignored. While, practically speaking, new measures to increase harmonisation of asylum procedures can be expected in the coming years, finding agreement at an EU level will be difficult. The recent agreements on burden sharing have served to highlight numerous differences on the issue between Member States. The CEAS will, as it has done, slowly move forward. Whether it can bring all Member States along is another question.
Is mise le meas,
Sarah Slevin is currently a trainee solicitor with Ronan Daly Jermyn, Ireland’s biggest regional law firm. Previously, she studied Law and Irish at undergraduate level in University College Cork and continued to complete an LLM in Business Law for which she was awarded the E-Law Summer Institute Bursary for Postgraduate Study. Her thesis was entitled ‘Personal Guarantees of Commercial Loans: An Analysis of the Legal Protection Afforded to Guarantors in Ireland’. In this letter, she considers the recent Irish Supreme Court decision of In the Matter of JD Brian. A fully referenced version of the letter is available here.
On 9 July 2015, Laffoy J gave judgment on behalf of a three-judge Supreme Court in the case of In the Matter of JD Brian Limited (in Liquidation) t/a East Coast Print and Publicity  IESC 62 (JD Brian). In finding that a valid notice of crystallisation had been delivered by Bank of Ireland over the floating charge at issue, and thus overturning the 2011 decision of the High Court, the floating charge was deemed by the Court to be a fixed charge which took precedence over priority debtors, including the Revenue Commissioners.
The delivery of this judgment brings to an end a legal and judicial interregnum in which the priority status of crystallised floating charges in the context of a winding up remained unclear. However, the comments of Laffoy J, particularly in light of the relative silence of the Companies Act 2014 (the 2014 Act), demonstrate a clear dissatisfaction with the current position of the law. It can be argued that, although the interpretation of the law as it stands may be correct, we are now left in a position that is at odds with modern legal and economic trends.
Finlay Geoghegan J, in the High Court, reasoned that a correct construction of section 285(7) of the Companies Act 1963 (the 1963 Act) gave preferential debts priority over the claim of the bank, irrespective of any crystallisation that may have occurred prior to winding up. In doing so, she refused to follow contrary lines of authority from the UK, such as Re Griffin Hotel  Ch 129 and Re Brightlife  Ch 200. In a supplementary judgment on the outstanding issue of the effect of crystallisation, it was determined that a proper interpretation of the provisions of the debenture document in question, the floating charge could not be said to have been converted into a fixed charge.
The Supreme Court, in contrast, held that the relevant clauses of the debenture displayed an intention on the part of each party, upon crystallisation, to restrict the ability of the company to use the property and assets concerned. A clause under which the company covenanted to carry on the business in a proper and efficient manner did not conflict with established law on crystallisation. On the second matter, that of the effect of section 285(7) of the 1963 Act, Laffoy J expressed the view that to interpret the provision as entitling preferential creditors to priority over a floating charge which validly crystallised prior to winding up would be to rewrite the section itself, as it was clear that the operative time for assessing priority was the time of winding up; any finding to the contrary would, in her opinion, conflict with the will of the Oireachtas.
It should be noted that although this decision follows the previously rejected line of authority in the UK, the position in that jurisdiction has since been legislatively reversed; in particular the Insolvency Act 1986 ensured that crystallised floating charges do not get priority over preferential creditors. This was followed by the Enterprise Act 2002, which abolished the right of the crown as a preferential creditor generally. This reversal follows recommendations regarding the abolition of priority debtors dating back to the opinion of the Cork Committee in 1982.
Despite the clarity with which Laffoy J articulated the operation of the law, the learned judge also highlighted the dissatisfactory result which derived from this interpretation of section 285(7). She highlights the potential of this decision to allow for the creation of a false form of crystallisation, which would secure priority for the debts whilst still allowing the debtor to trade in its assets. As well as this, the judgment draws attention to a lack of transparency arising from the absence of a need to register floating charges which have crystallised, transparency being a crucial principle underpinning the operation of company charges and insolvency law generally.
The enactment of the 2014 Act provided the legislature with an opportunity to resolve this issue by more clearly enunciating the rules regarding the status of floating charges post-crystallisation, particularly as against priority debtors. It also provided the chance to review the necessity of statutorily-protected priority debtors in the first place, given the abolition in England of crown preference (as discussed above). Consideration should have been given to the view, more prevalent in modern times, that offering priority to certain debtors does not accord with the desire to equitably distribute funds on a winding up, or with the need to protect smaller creditors who may suffer more during these events.
However, section 621(7) of the 2014 Act repeats the wording of its predecessor in its entirety. Whilst this may appear to offer little insight into the current thinking of the Oireachtas on this matter, G Brian Hutchinson believes that, rather being an indication of a lack of consideration of the matter, this verbatim repetition could represent a conscious decision to prioritise the effective operation of floating charges over any other policy.
Whilst this may be the case, the concerns of Laffoy J regarding the current legal position remain outstanding and need to be addressed. It may be appropriate, in light of this decision, the changed approach in England, and the recent overhaul of company law generally, to review not only the expression of the current principle in section 621(7), which is patently dissatisfactory, but also the reasoning behind the existence of such priority debtors at all. Although Laffoy J’s legal interpretation of section 285(7) in this case may be correct, it is up to the legislature to decide if it gives the most desirable outcome.
Is mise le meas,