All persons and authorities within the state, whether public or private, should be bound by, and entitled to, the benefit of laws publicly and prospectively promulgated and publicly administered in the courts. Lord Bingham, ‘The Rule of Law‘, Sir David Williams Lecture, Cambridge, 2006.
I have written extensively about the whittling away of due process in Ireland. This is derived from Article 38 of the Constitution, which states: No person shall be tried on any criminal charge save in due course of law.
In 2017 Supreme Court Justice Gerard Hogan at least had the courage to argue that the Irish Courts have, in effect, failed to enforce due process, constitutional rights in Ireland for the past thirty years. ‘Moves’, he said, to reduce the scope of ‘the most fundamental constitutional safeguard of all‘ — the habeas corpus guarantee in Article 40.4.2 – ‘speaks volumes regarding the prevailing constitutional zeitgeist.’ That zeitgeist has only become more illiberal, especially with the advent of emergency powers in response to Covid-19.
The particular violations of due process have been exposed in the J.C. Case (2015) where the Supreme Court – notwithstanding what was probably Adrian Hardiman’s most brilliant dissenting judgment – effectively allowed the police to characterise as an accident, what seems to have been a purposeful and deliberate breach of constitutional rights.
We have also witnessed the subordination of privacy rights to considerations of public order in the Dwyer Case on appeal to the Supreme Court. There, the Court simply sidestepped the State’s breaches of directly applicable EU data protection legislation, rendering privacy rights a dead duck.
But if these developments aren’t sinister enough, consider what is happening now for the liberty of the subject.
Adrian Hardiman.
In Camera Proceedings
The term in camera in legal and juridical terms is about a hearing being held in private. It is a pragmatic feature of civil or industrial processes, such as patent violations or family law proceedings. It has various implications, including that the names and identities of the parties to the suit are kept out of the public gaze, and reporting restrictions are in place, including press coverage and conventional law reporting. A judgment could be published, and context made clear, but details may be kept out, redacted or anonymised.
The intra-jurisdictional consensus – a fundamental principle of international law – is that when a process or a piece of legislation or an executive decree is adjudicated without there being independent representation or scrutiny it is of dubious authority, as it has not been adequately challenged.
So-called emergency powers have a nasty habit of becoming permanent, everywhere. In the face of opposition, however, the UK government repealed its controversial law, giving police the right to apprehend people suspected (hence ‘sus’) of ‘intent to commit an arrestable offence.’
Within Lord Bingham’s summary of the Rule of Law is the idea that the law ‘should be publicly administered in the courts.’ It is crucial for any democracy that all judgments become a matter of public record or, failing that, only partial elements are excluded, and then only by implication, after independent representations of counsel.
This is violated when in camera proceedings occur. Justice, as Bingham said, cannot be achieved behind closed doors.
The current Minister for Justice Helen McEntee TD has, nonetheless, obtained a High Court order from Justice Owens requiring telecommunications service providers to retain certain data – including user, traffic and location data – for a period of twelve months, for the purpose of safeguarding the security of the State.
The Communications (Retention of Data) (Amendment) Act 2022 came into operation on June 26, 2023. Under the terms of the Act, the Minister for Justice must have been satisfied that there exists a serious and genuine, present or foreseeable, threat to the security of the State.
She also, presumably, had regard to the necessity and proportionality of the retention of Schedule 2 data, and how this could potentially impact on the fundamental rights of citizens under the Constitution. Justice Owens was obviously persuaded by her arguments, which are not in the public domain, for reasons of state security; do you see where this is going?
It should also be noted that the Minister consulted with the Garda Commissioner prior to making the application. The Act was, in effect, a transposition of an EU Directive, but no scrutiny has been permitted. No independent counsel. No counterweight.
So what could this threat to the security of the state amount to? Minister McEntee also recently stated that Sinn Féin presents a threat to the criminal justice systembecause they timorously suggested adopting suggestions of the review group on the Special Criminal Court.
The Yam Case of 2020, which Geoffrey Robertson QC litigated before the ECHR under Article 6, clearly identified that even partial exclusion under the in camera rule and partial reportage invites scrutiny.
Thus, T.J. McIntyre from the Sutherland School of Law in UCD argued that Ireland’s new mass surveillance regime is ‘certain’ to be challenged in the European courts. He said the government’s decision to seek a High Court order was made ‘behind closed doors, without any consultation with the data protection commissioner, with civil society, or with the industry’ and, importantly with no detail provided on the supposed national security threat.
In a damning assessment he stated:
The 2022 Act has to be treated as of no legal value … You can’t have a measure that’s supposed to authorise mass surveillance of the entire population, and be the basis for criminal investigations and prosecutions for years to come, where its foundation is so uncertain. It’s grossly irresponsible to do that.
Thomas Bingham, Baron Bingham of Cornhill 1933-2010.
Special Justice
The Special Criminal Court is a three-judge criminal court, convened without a jury to avoid any potential intimidation of its members. It is enabled by the Offences Against the State Act, the first of which was published in 1939 to prosecute members of the IRA and declare any similar organisations unlawful. More recently, the Court has been used to deal with the deadly rise in gangland crime and organised criminal syndicates.
The legislation, and its Court, have been criticised by Amnesty International, the United Nations and the Irish Council of Civil Liberties over the last number of decades and at its inception by Mary Robinson.
Most of the recent review group concluded that the use of a non-jury court is ‘justified’ and that the court is needed to counter ‘a real risk to juror intimidations.’ However, the review added, contradictorily, that there is ‘an absence of concrete evidence’ on the nature and extent of the risk posed to jurors today. The review added that a non-jury court should only be used in ‘an exceptional case.’
One way that the review recommended this should be done is through abolishing ‘scheduled offences’ – where certain offences are automatically tried by a non-jury court – and placing the decision in the hands of the Director of Public Prosecutions (DPP), which, it should be noted, is a political appointment.
As an additional safeguard, the majority review recommended the appointment of a judge to review whether the correct procedure has been followed by the DPP, and whether the decision had been made based on of the evidence heard in that case alone. This would mean, under the new Court, that the DPP would decide whether it is suitable that a citizen, who stands accused of a crime, be tried in a non-jury court based on the evidence in the case, regardless of the case’s threat to national security.
Accompanying the majority review, there is also a minority review which argues that the establishment of a permanent non-jury court is ‘constitutionally inappropriate’. The minority review said: ‘Just because something can be done does not mean it should be done, we are in danger in all sorts of way as Iseult O’Malley of the Irish Supreme Court said of becoming ‘overly habituated to the abnormal.’
Commenting on the recommendation to replace the SCC with a new Special Criminal Court Minister for Justice Helen McEntee said that the Special Criminal Court eliminates the very real risk to jurors and potential jurors posed by subversives and organised criminal groups. She said that the recommendation from the review group ‘requires serious consideration’ due to the importance of the Special Criminal Court and its place in the Irish judicial system.
Minister for Justice Helen McEntee.
‘Belief Evidence’
As well as non-jury trials, the SCC has special powers to accept ‘belief-evidence’. This allows the belief of a Garda Chief Superintendent that a person is a member of an illegal organisation to be used and accepted as evidence of that person’s membership. While the majority’s report recommends that new legislation be created to provide more regulation around the use of non-jury courts, they have deemed the continuation of belief-evidence ‘appropriate’.
While the report says that belief-evidence can continue to be used, it adds that someone must not be prosecuted ‘solely on the basis of that evidence.’ There needs to be corroboration. The minority simply notes that the UK police did not need belief evidence to prosecute and recommends its abolition.
Last month, Minister Simon Harris, who took over as Justice Minister while McEntee was on maternity leave, received approval to propose the resolutions to extend the legislation. A Government spokesperson said Harris considered that there remained ‘a real and persistent threat from terrorist activity, primarily from so-called ‘dissident’ republican paramilitary groups.’
The criminal court of justice, Dublin. Daniele Idini/Cassandra Voices
Conclusion
We appear to be witnessing a serious regression in the Rule of Law in Ireland, where unspecified threats to the state are decided in camera, and an extension to the use of judges without jury with police belief evidence continuing to be accepted. All of this twenty-five years after the signature of the Good Friday Agreement which effectively ended the Troubles.
It has also been branded “insane” by Donald Trump Junior, which was used as a distorted form of justification for the law by Minister Simon Harris. However, criticism has also come from Paul Murphy of People Before Profit from the opposite end of the political spectrum to the Trump family. There has also been criticism from human rights bodies.
The crucial provisions are Section 7 and Section 8.
Section 7 is the mechanism by which offences against those of protected characteristics can be criminalised. At one level it is an admirable measure. Indeed, I have represented people with disabilities, who are one of the categories included.
More controversially, transgenderism is one of the protected categories. It was surely not hate speech for the feminist author Germaine Greer to say that a man who becomes a woman can never really understand what it is to be a woman.
In my view it was a serious violation of fair comment to no platform Greer for the comments – no matter whether one agrees with her ideas or not. To criminalise such a statement would be a return to the Dark Ages of the Papal Index.
One hopes that a statement such as that made by Greer would be protected as legitimate political or cultural criticism, which are important delimiters and qualifiers contained in the Act, but the defence would arise only if the matter actually came to Court. The existence of a criminal charge might still be bandied about to damage the reputation of an individual or publisher. Malicious prosecutions are not unheard of in the Emerald Isle.
Perhaps what really stoked the ire was Greer also stating “because he does not have a smelly vagina”. This brings us to the subject of ridicule. Ronald Dworkin wrote an article on the right to ridicule inspired by the Danish Cartoons incident.
ridicule is a distinct kind of expression: its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended….
So, in a democracy no one, however powerful or important, enjoys a right not to be insulted or offended. Christopher Hitchens and the English judge Stephan Sedley have also remarked that any freedom to speak inoffensively is worthless.
In more carefree times, political opponents Gore Vidal and William F. Buckley came together as pundits at the behest of a failing network for the 1968 Democratic and Republican Party Conventions. This has recently been documented in a film called ‘Best of Enemies’, which is now a West End play by the same name.
William F. Buckley was the archangel of neo-conservatism, while Gore Vidal was an embodiment of what now seems an excessive liberalism. They deliberated on a state of siege, with riots in Chicago and democratic legitimation in question. America, along with the rest of the world, was on the brink, just like today.
The debate famously culminated after the Republican Convention nominating Richard Nixon, who now seems a more sympathetic figure when compared to what followed him. Indeed, Nixon’s statement in 1969 that government has a great role to play in health care, ‘but we must always make sure that our doctors will be working for their patients and not for the federal government,’ is perhaps an idea that still has some merit; especially when one considers the damage of the top-down, dictatorial approach taken by many governments in response to Covid-19.
In front of a live TV audience of millions, Buckley vented an anger, which he later regretted, calling Vidal ‘a queer’; in response to Vidal describing Buckley as a crypto-Nazi.
Let’s consider both comments in the light of the current Irish legislation, Section 7 and Section 8 in particular. Buckley’s comment is arguably hate speech directed against a protected characteristic, i.e. gay people, although a term that was originally meant as an insult has since been appropriated by the gay community as almost a badge of honour, in a way similar to the artistic licence taken with the “n-word” among African-American (or Black?) communities. Can offensive terms be used by those with a protected characteristic?
Moreover, in a 1974 essay for the New York Review of Books ‘Fascinating Fascism’ on Leni Riefenstahl, Susan Sontag wondered how it had come about that ‘a regime which persecuted homosexuals [had] become a gay turn-on?’ Under the current legislation would it be a crime to suggest that the Nazi (anti-)aesthetic could be ‘a turn on’ to a gay person?
A latter-day Gore Vidal might also be prosecuted for branding a right-wing Republican such as Buckley a crypto-Nazi, as Section 8 criminalises grossly trivialising genocide, crimes against humanity and peace.
Crucially Section 11 of the act allows for a defence of criticism with respect to protected characteristics. But this does not apply, remarkably, to crimes against humanity under Section 8. To this we now turn.
The language of Section 8 which criminalises inter alia crimes against humanity may be desirable in principle, although the overly broad language sets off alarm bells.
Arguably, condoning or negating such crimes ought to be a criminal offence. Imagine being an Armenian and having to listen to Turkish propaganda justifying what is considered the first orchestrated attempt to eliminate a national group in the twentieth century?
But this may easily become a legitimate subject for debate, such as exploring whether the Malthusian policies of the British Crown in Ireland during the Famine of 1845-51 should be described as a genocide.
Also, who decides whether a genocide has taken place, a body of historians, or a court of law? Do we need to allow the fog of war to dissipate before any such adjudications with criminal ramifications are determined?
Could it now be an offence to claim that Putin’s war in the Ukraine is really about Great Powers competing for resources rather than an attempt to eliminate Ukrainian national identity? By assessing the attendant brutality of the war in terms of Great Power politics, would a publisher or individual then be “trivialising” a crime against humanity.
A measured denial of genocide – such as claims that the ICC’s Putin arrest warrant was based on State Department funded report that debunked itself – is completely different to an ahistorical assessment of a wide range of primary sources. The crucial issue here is adherence to the facts. It must be open for historians, journalists and lawyers to scrutinise questionable narratives around controversial events, such as the Kennedy Assassination. A distinction perhaps is that crimes against humanity are generally on a scale such as to make them undeniable.
Criminalising that which grossly trivialises crimes against humanity is far too opaque and subjective a ground for a prosecution. The Act ought to be challenged under Article 40.6.1 of the Irish Constitution: ‘The right of the citizens to express freely their convictions and opinions.’
An Article 26 Reference (by the President to the Supreme Court required within seven days of his receiving it) poses the risk however that if is unsuccessful there will be no further opportunity challenge any aspect of it in an Irish court.
There may, however, be certain unintended consequences of the Act that could be used to advance progressive causes.
In international law there are established candidates which are part of customary international law so called lex lata (established principles of customary international law), and more speculative controversial candidates over which there is an increasing lack of consensus, called in international law terms de lega ferenda (not yet firmly established).
Thus, for example, one potential crime against humanity supported from the 1970’s proposed by Richard A. Falk is ecocide or crimes against the environment. Since such a crime involves various forms of intent and can include a conspiracy, it would involve at least the meeting of minds of the major oil and gas companies, and those who profit from them, including legislators.
There is also a potential new crime against humanity for which there is less authority to date of economicide. Perhaps all of those who peddle a neoliberal world view, or support vulture or cuckoo fund, or allowed wealth to be siphoned off by Big Pharma during Covid-19 could and should be prosecuted!
It could be said that the lifting of the eviction ban by the government is a form of economicide, as it is indirectly fuelling far-right wing extremism, led by gangsters attacking people with baseball bats. Thus, arguably, government policies, or the lack thereof, have indirectly generated racial hatred, and racism (speech directed against a protected characteristic) is criminalised by the Act.
The framing of the innocent is also a de ledge ferenda candidate as a crime against humanity. One might argue that the Garda and/or the Department of Justice have condoned or been in denial of this.
The Act is also likely to be challenged, and is subject to the jurisprudence of the European Court of Human Rights. Irish courts are bound, but rarely properly observe the Charter, despite the interpretative obligation. In reality we follow the ECHR selectively, ignoring it if it is too awkward, as in the nefarious Dwyer case.
In a number of cases such as Jersild v Denmark (1994) and Lingens v Austria (1986) the ECHR have indicated under Article 10 of the Convention that speech encompasses a right to outrage and shock. These are deemed hallmarks of pluralism, tolerance and broad-mindedness in a society.
Not everything is permitted. Thus, Holocaust denial or racist speech are excluded from protection, but the parameters are wide and restricted categories do not go quite as far as this Act.
The crucial case of Lehideux and Isorni v France (1998) is particularly instructive. Here Le Monde newspaper were protected under Article 10 of the Convention for publishing an article celebrating the career of Marshall Pétain, the Vichy French leader who collaborated with the Nazis. The content was not set out in a way to negate or revise clearly established facts.
It should also be noted that no action of publication or broadcast of hateful material is required, bringing us into the territory of thought crimes. The much-trumpeted defence of legitimate artistic and political criticism only applies to possession of such material.
Considering the imposition of close to absolute liability for the distribution of so-called offensive material on the internet, and even a reversal of the burden of proof, it is no wonder Elton Musk is concerned. He may be put out of business!
Moreover, the term ‘may be prosecuted’ is very loose statutory language. On whose behest?
Let us stress test the crucial sections of the Act against potential scenarios.
Stating that Leo Varadkar is like Verruca Salz from Willie Wonka’s Chocolate Factory, a spoilt privileged brat, and a wart on the body politic offence falls short of being a criminal offence on a literal interpretation of the Act. But what if one called him a crypto-Nazi or inferred that Nazism could be a turn-on to him? Would that be grossly trivialising crimes against humanity or demeaning to a protected category? Crucially, the defence of political criticism is unavailable for crimes against humanity.
Adrian Hardiman, our finest judge since Declan Costello, once addressed my King’s Inn class to defend his decision in the Portmanock Golf Club case (2009) where he sanctioned the barring of women members from the club, much to the distress of the Equality Authority, which had taken the case. He then argued that a lesbian rugby club should not be obliged to accept him as a member given he was not a lesbian and couldn’t play rugby. These comments by a Supreme Court judge were in a public place. We may have to shut down, or sanitise beyond recognition, the hallowed debating societies of Ireland in response to this Act.
Is Michael O’ Leary the Chairman of Ryanair in his denial of man-made climate change grossly trivialising the crime against humanity that is ecocide? Or what if one were to say that supposed climate change activists including the IMF and Bill Gates are themselves guilty of crimes against humanity for condoning Malthusian practices, rather than focusing on regulating the extractive corporations devouring the planet?
I have been a book collector of first editions since I was sixteen. One book in my collection is a first edition of Vladimir Nabokov Lolita, (1959) which narrates in baroque language an affair between a middle-aged man and an under-age girl. I also possess a first edition of the notorious fascist writer Louis-Ferdinand Céline’s Journey to the End of Night (1932). In possessing works that seemingly supports crimes against humanity, and another that undermines protected characteristics am I guilty of an offence?
Even if I am not prosecuted, does the very existence of such an offence generate opprobrium towards great literature?
One fears that even the great Dostoevsky’s books may soon be de-platformed if any of these are deemed a “Kremlin-favoured work.”
Simon Harris has suggested that there is no conspiracy, or campaign being orchestrated against free speech in response to condemnation. The jury is still decidedly out on that question. Perhaps what we see at work is a coalition of interests, or a just a confederacy of dunces.
A chill wind blows. Slow train coming and more acts to follow.
Irish Times journalistNaomi O’Leary wrote an article recently commenting on how journalists are curtailed in what they can write by the threat of defamation actions, which contributes to an omerta or code of silence, undermining free speech.
This leads to self-censorship, dictated by fear of suit. But the Irish Times trust also appears to be compromised by association with vested interests, which dictate the blandishments and glorified stenography passing for journalism commonly encountered in its pages.
In the aforementioned article, O’Leary cited emotive evidence of a landlord attempting to evict ‘an entire apartment block’, and a civil society group ‘highlighting privatisation in healthcare’ being silenced. She notes, fawningly, that Minister for Justice Simon Harris this week ‘laid out a planned defamation reform, saying it should not be perceived as a “rich man’s law”.’
Does she seriously think that any reform of defamation laws has simply been designed to restrict the casino capitalism of the current level of awards in defamation cases?
Indeed, in some instances a high level of damages is appropriate. For example, Lord Aldington was entitled to millions in damages for the outrageous slur that he had participated in sending the Cossacks back to Stalin. The unjustified staining of reputations with crimes against humanity requires vigorous restraints.
Predictably, the draft guidelines for what lies in store do not look auspicious, as it appears designed to protect the powerful, who dominate legacy media.
It should be noted that recently both Taoiseach Leo Varadkar and Tánaiste Micheál Martin suggested that Sinn Féin were using legal action and menacing solicitors’ letters to undermine free speech and robust questioning of political motives. There was obvious concern arising out of strict conditions for an RTÉ interview with Shane Ross, discussing his biography of Mary Lou McDonald.
I have some empathy with Ross – whose views I generally find abhorrent – as when I went on RTÉ they stipulated certain matters, such as overt criticism of the Gardaí, were out of bounds.
What Ross wrote about the Sinn Féin leader may not have been defamatory, but simply ideologically tainted. After all, Ross has what might be regarded as extreme views on certain issues, as, arguably, do elements within Sinn Féin. The difference is that Ross is indulged by the establishment with publishing deals and a column in a Sunday paper. Go figure.
Moreover, remarks made by Leo Varadkar last year in an interview with the Sunday Times to the effect that those associated with the Leo the Leak story in Village Magazine were Russian sympathisers is a classic example of the degradation of contemporary political discourse, conveyed by media which offers an uncritical platform to those in power. It was, of course, clearly defamatory towards its editor Michael Smith, who has been vocal in his condemnation of Vladimir Putin.
He might not expect a justified windfall, however, if the case comes before a Fine Gael-appointed judge, as opposed to a jury, as the defamation bill proposes.
The renowned jurist Geoffrey Robertson QC has criticised gagging orders silencing critics, which serves the interests of the kleptocracy, including Russian oligarchs, in a recent book. but be we should be careful for what we wish for.
A gagging orders might have been appropriate to counter Labour’s recent absurd slur against Rishi Sunak, which Keir Starmer doubled down on despite internal criticism from within his own party. All too often it has been the fake left, epitomised by Alastair Campbell, which has pandered to press hysteria in criminal justice in the UK.
I note the word ‘aggressive’ being used by Ms O’Leary in the context of pre-emptive threats, which is similar to the menace required to ground the criminal offence known as blackmail; the definition of which is menace backed by threats. Such tactics are something the government parties in Ireland and apparatchiks in the police and justice department know a considerable amount about.
So, spurious defamation actions for ulterior motives may come close to the criminal charge of blackmail backed by threats, but only if these are spurious and untrue. But what if they are true? And where should the balance lie?
It is almost universally agreed, including, apparently, by the incumbent Minister for Justice, Simon Harris that ‘Democracy cannot truly flourish without robust protection for the right of freedom of expression.’ In a certain respect, however, this Bill will in fact seriously curtail freedom of expression, a point that Naomi O’Leary strikingly ignores.
Indeed, one wonders whether the whole article was conceived in cahoots with said Minister, who she has previously quoted approvingly over his role in the repeal of the Eighth Amendment, while ignoring that he once adopted a Pro-Life stance. The article is also presented with a flattering shot of the Minister emblazoned over it, depicting him as the champion of free speech.
Freedom of expression is the central hallmark of a democracy. Anthony Lewis, referring to the First Amendment of the US Constitution, said that free speech should be a search engine for the truth. The great legal scholar Ronald Dworkin argued that free speech is a condition of legitimate government and a counterweight to hysteria and unreason. Stephen Sedley, a great English judge, called it the lifeblood of a democracy. Freedom of speech also opens the government and indeed opposition to intense scrutiny. The prior restraint of gagging orders invites scepticism.
So, bearing this in mind, let us explore the motivation of the current government for reforming the defamation laws.
The proposed government Bill on Online Disclosure applies to all media, including Twitter, and potentially criminalises certain categories of ‘hate’ speech.
It could amount to the most dramatic curtailment of free speech in the history of the state. Thus, if Naomi O’ Leary had the temerity to compare Leo Varadkar to a wart on the sole of one’s foot in jest she might be prosecuted, and appear before a Fine Gael appointed judge.
The much-trumpeted new Whistleblowing Act ineffectively opposed, and badly amended, is also worth considering. It does not protect media breaking stories; nor does it adequately protect employees including journalist from reporting externally.
A legal environment that favours legacy publishers that employ expert legal advice in advance of publication, as opposed to private individuals ranting on Twitter – often to very small audiences – also ignores the restraints imposed internally by an increasingly corporatized press, which acts as a stenographer to the powerful. This is a role which Naomi O’Leary herself seems proud to perform.
The Irish Times is a trust, but dependent on its sponsors and connections; so it does not, and arguably cannot, provide genuinely truth-driven coverage that a true democracy requires. It is institutionally neutered and not just by prospective defamation actions.
Defamation suits and pre-emptive injunctions chill free speech, and are frowned on by lawyers and responsible journalists. Such injunctions sought to shut down Watergate and Wikileaks. The judgment in the seminal US constitutional case the Pentagon Papers frowned on it. Politicians ought to be thick-skinned when it comes to obloquy and ridicule, it goes with the territory of assuming power.
What we are dealing with is a far wider problem in contemporary political discourse. Jürgen Habermas – perhaps the leading public intellectual alive on the planet – developed the crucial idea of ideal speech or communicative action, which serves as an argument to the effect that speech should be proper and non-ideological in order to achieve optimum technical outcomes that are also morally purposeful.
Sadly, most of what passes for debate in Dáil Eireann would be at the very opposite pole to the kind of Enlightenment salon discussions he imagines.
The criminalisation or suing or gagging of speech – generally of those that most need protecting – is an awful feature of these woe-begotten times.
Given the approving coverage that legacy media already provides to representatives of the parties representing large corporations in Ireland, the least we might expect is that debate on online fora continues remains robust, and, in general, conducted without fear of suit.
Rarely, if ever, does the Irish Times land a blow against vested interests in Ireland, channelling instead a latent anger against distant caricatures over whom we have no control. Online fora at least offer an opportunity for citizen journalists to provide accounts that challenge dominant narratives in a way that legacy media does not.
Naturally, speech has its outer limits. Hate speech that inspires violence against minority groups cannot be tolerated in a civilised society. Social media publishers have a responsibility to moderate content, but cannot be allowed to decide what constitutes ‘disinformation’, and censor according to the whims of bodies that may be subject to regulatory capture. Censorship is always dangerous.
Surely, with respect to Fine Gael for example, one should be allowed to describe them as crypto-fascists, or indeed suggest that Mary-Lou McDonald is associated with terrorists as Mr. Ross seems to have done.
Fintan O’Toole constantly warns against the dangers posed by Sinn Féin, but rarely does he offer a searing critic of the corporatocracy and dominant political parties. His sympathies seem to lie with a weary establishment, which ‘have no choice’ but to coalesces with the neoliberal parties.
Untrammelled freedom of expression should only be accorded to those who say something of significance – those who have something to lose by speaking out.
Robust Debate
The solution, of course, is not litigation but robust debate in civil society; as one of the great defenders of speech the late great Christopher Hitchens put it: ‘If you disagree with me, do so and stand in line so I can kick your ass.’ Or words to that effect. Possibly slurred.
A defamation action can ruin a person’s life. A casual disregard for the truth in Ireland and premptive publication fed by the police and its journalistic cohorts in the gutter press can have serious consequences. The Irish Independent and much of RTÉ deserve no special protection.
Given the platform he is accorded, nor should the gaffe-prone Leo Varadkar be allowed to shelter behind loose laws that should be designed to protect real journalists. His big mouth was most recently in evidence with his crass sub–American Monica Lewinsky comment.
Indeed, give the parlous state of media in Ireland, one shudders to think what nonsense will be published if we are to dispense with reasonably strict defamation laws, and jury trials.
Nonetheless, I can agree with a certain amount of what Naomi O’Leary’s recent article argues. No doubt defamation awards should be curtailed and are out of kilter with other jurisdictions, but negating jury trials where liars are exposed would be a retrograde step, and the criminalisation of the nebulous concept of hate speech could be disastrous, rendering satire almost impossible.
Freedom of expression has its limits. Indeed, one wonders about the responsibility of a publisher such as the Irish Times, which gives a platform to an ideologue like Michael McDowell, who attributes the world’s problems to Vladimir Putin as opposed to the neo-liberal shock brigade that he and his Irish Times acolytes belong to. They have provided cover for mass evictions, a declining quality of life and incipient far-right fascism.
An earlier version of this article was recently published in the Irish World newspaper, we commend the courage of the editor Bernard Purcell for doing so, but a week is a long time in politics and we felt it required updating and a short addendum on the possibility of a legal challenge.
Indirectly, the failure to deal with the issue of housing and homelessness has led to the rise of far-right protests, targeting immigrants in temporary accommodation. This is the slippery slope to fascism.
Housing is the defining issue of this Irish generation. By extension, it is the defining issue of Ireland’s next general election.
One slender thread of hope to ensure matters did not decline further was Ireland’s temporary ban on evictions. But that has been rescinded.
In contrast, Scotland had the good sense to extend its own evictions ban until September. But in the midst of the worst housing shortage in the country’s history, the Irish government is prioritising the financial interests of landlords.
Ireland’s recently appointed Attorney General Rossa Fanning SC had advised the Irish government that landlords’ groups could mount a constitutional challenge to the extension of the ban. But the Irish government subsequently insisted its decision to revoke the evictions ban was a political one, rather than one based on the AG’s advice.
Nevertheless, the Irish governments have frequently hidden behind the issue of constitutionality. It’s the first line of defence whenever the question of genuine rent control is proposed, and the last line of defence when the calls for the introduction of the eviction ban were first made.
We believe there is a constitutional solution to a supposedly intractable constitutional problem. The origin of the problem is that in Blake v Madigan (1982) The Rent Restrictions Act 1960, (1981) limited the amount of rent which could be charged on certain controlled dwellings.
It also made it difficult for a landlord to recover possession of a dwelling affected by the legislation. Landlords argued that the legislation amounted to an unjust attack on their property rights.
The Irish Supreme Court agreed, referring to how the scheme operated in an arbitrary manner, with no means testing of either landlord or tenant, and that no compensation was available for the restriction of the property rights of the landlords affected.
So, under the Constitution, the right to property is to be protected against “unjust attack and the landlords’ rights unjustly attacked.”
But constitutionally, this idea of an unjust attack is subject to the proviso that the rights of landlords must give way to the common good – where the legislature is informed by Directive Principles of Social Policy set out in Article 45 – and also that the means used to intrude on property rights are proportionate.
The social justice and common good arguments for maintaining an eviction ban are, in our view, overwhelming. But, of course, this would limit and restrict the property rights of landlords in an increasingly neoliberal Ireland.
Compulsory purchase schemes have, however, been upheld in such cases as Dreher [984], with the suggestion that sometimes there is no need to pay any compensation.
In Re Article 26 and Part V of the Planning and Development Bill[2000] 2 IR321, Part V of the Bill aimed to provide affordable housing and social integration, imposing a condition that planning permission for residential developments would either have to cede some of the development for affordable housing, or instead pay compensation.
There was no requirement that the State pay compensation to the developer under the scheme, which was upheld by the Supreme Court in a judgment which focused largely on the reasons for the restriction on property rights.
The Court noted that the restriction on property rights was justified and proportionate to the objectives of the Bill.
Based on this precedent, today the government could acquire properties at less than market rates, paying a measure of compensation to the landlords and thus avoiding the unappealing vista of increased homelessness, leading to further social divisions further social divisions, and creating conditions for the rise of a far-right fascism, which may serve the interests of this neoliberal coalition, and its apologists.
It could also have a welcome deflationary impact on the price of property which now exceed Celtic Tiger levels.
Alas, it appears the Irish government does not want this and has proposed an alternative. They are currently drawing up legislation which in effect will extend their Shared Equity scheme to second hand homes where the landlord wishes to sell but has a tenant in situ.
The drive to introduce this Shared Equity scheme came from the two main property lobby groups – Property Industry Ireland and the Irish Institutional Property.
Neither group came up with the idea itself. It is based on an English scheme which research by the London School of Economics (LSE) found pushed up London house prices by 9per cent.
In effect, it operates as a dual mortgage, whereby the tenant in situ would have a mortgage to a bank and also be required to repay the State who would take an “equity stake” in the property.
This is unlikely to work, or even be ready in time, for the forthcoming wave of Irish evictions. A simpler proposal is to follow the South African model of amending the Constitution to include an enforceable right to housing in an emergency context.
The Irish government’s promise of a housing referendum has foundered on a disagreement about the wording. We suspect that it will not implement what is needed for an immediately enforceable emergency housing right, as is enforceable in other jurisdictions.
We doubt the present government has the political will for meaningful action on housing. But there is an alternative, which is to launch a constitutional challenge so the Supreme Court can recant on such nefarious cases as O’Reilly v. Limerick Corporation [1989] in which Mr Justice Declan Costello (1926-2011) held that he lacked jurisdiction to compel the defendant to provide the plaintiffs with adequately serviced halting sites, because this was a question of distributive justice.
Such matters of social justice, he intimated, were for Leinster House, not the Four Courts. Importantly, he recanted the O’Reilly decision a few years later in the case of O’Brien v Wicklow UDC [1994].
Costello (1926-2011), the son of former Taoiseach John A Costello, was a former Fine Gael TD, Attorney General, barrister and judge, who served as President of the Irish High Court from 1995to 1998.
As a politician he was the author of Towards a Just Society, a policy document which shifted Fine Gael towards the left and social justice, and which made Fine Gael a more attractive coalition partner for the Irish Labour Party.
Costello also created Ireland’s Office of the Director of Public Prosecutions and the Law Reform Commission, making him the most effective and consequential Irish Attorney General in the history of the State.
He was a thoroughly decent man, and a visionary, but also a product of his background. Fine Gael has long since parted company with Costello’s vision of the Just Society for Ireland. Just like Fianna Fáil, it has been completely captured by business interests, landlords and property developers.
Their politics is little more than the shadow cast upon society by big business, as the American philosopher John Dewey (1859-1952) might have said.
The portents for a constitutional challenge in this period of an unprecedented housing emergency are not, however, all bad. In a fledgling way recent judgments have hinted at a more interventionist approach, in proportionate terms where there is recklessness or bad faith.
Well, if throwing people out on the street, disrupting family units with no affordable place to go, is not reckless, what is?
The current crop of Fine Gael TDs have no interest in reading that document, but are happy to deploy it for public relations purposes when it suits them.
Last week Sinn Féin forced a vote on the government’s lifting of the eviction ban, which led to one Green T.D.’s Nessa Hourigan breaking ranks and voting against the government.
As the doomsday scenario for terrified tenants looms large, and the Irish government looks on with complete indifference to such pain, we are reminded of the word of a Christy Moore song- “the spirit that dwelt within, now sleeps out in the rain”.
"The Harp needs more than tuning. The single most important and useful change we should make to our Constitution is to remove the first paragraph of Article 45…" Recalling an important article from 2018 by Eoin Tierneyhttps://t.co/NZ5U8ODAYo@paddycosgrave@cilliandoyle87
With the government’s rejection of last week’s motion from Sinn Féin to extend the eviction ban, and with the help of certain “independent” TDs, the same result is now likely to be reached today. The Labour Party’s no confidence motion has also fallen short.
This government and its drive to break all homelessness records is bruised and battered, but not unbroken. In our view the last remaining hope for the thousands facing eviction rests upon the kind of last-minute legal challenge our initial article set out.
Papers could potentially be lodged on Thursday seeking an interim injunction for violations by the government of Article 43, Article 40.3 and Article 45 of the constitution. This will require state-sponsored lawyers to show cause, and seek a return date for a fully-fledged interlocutory hearing with skeleton arguments and detailed consideration.
The logic is that the implementation of the lifting of the eviction moratorium on Friday would not happen as mandatory relief and an injunction would be sought against the lifting. This would require careful judicial consideration, and thus time for cool judicial heads to resolve whether it could be secured.
If a lawyer cannot be enabled to seek an interim injunction on such short notice any member of the public can do so.
However, a powerful symbol would be the representatives of the opposition in Dáil Eireann coming together, in conjunction with some of those currently facing eviction, to try and avert the inevitable prospect of a humanitarian catastrophe on our streets in the months to come.
A new Socialist Lawyers’ Association of Ireland announced its establishment in January of this year, so perhaps they might even want to lend a hand. There are also organisation likes CATU and other campaigning groups. But time is of the essence.
Our conservative political classes seem to have either sleep-walked or deliberately created this unprecedented housing crisis and its dysfunctional property market. Sterile and detached cost benefit analysis where households are units and people products lead to the increasing dehumanisation of those impacted by policy decisions.
Even the most basic rights we can think of like housing and a safe and secure upbringing seem to wither on the vine. To quote someone who Fine Gael should know well:
“We are not living in a just society. This fact must be understood, and complacency must be dispelled, and enthusiasm created to remedy the social injustices in our midst.”
Those are the words of the late Declan Costello former Fine Gael TD, Attorney General and author of the “Just Society”. They seem to ring truer than ever.
The time has come for a Housing challenge, for we the people.
David Langwallner is an Irish Barrister based in London. Cillian Doyle is a political economist and policy advisor. The views expressed are their own.
To meet ex-prison officer Sean O’Brien for the first time I drove through a sparse landscape of family homes, outside the town of Clara in County Offaly. Miles of narrow roads ran through cold and wet pasture, bog, and occasional patches of woodland, typical of the Midlands.
On June 14, 1988, Sean O’Brien disclosed to the Department of Justice various wrongdoings he claims to have witnessed over his years of service in Portlaoise Prison. During his time as a prison officer, between 1981 and 1989, the Northern Troubles were raging, and what went on in the prisons was generally hidden from public view.
Behind locked doors, staff and prisoners alike endured a parallel conflict, requiring physical and psychological resilience.
As is already in the public domain, there was a “Heavy Gang” among members of An Garda Síochána operating at that time. There was also a group of prison officers who went by the same name operating in Portlaoise Prison, and which enjoyed the tacit support of prison management. They were notorious for ‘unconventional’ methods, embedded in the prison system.
Unsafe and alienating working conditions, widespread bullying from top prison officials, as well as being pressurised, Sean claims, to produce a falsified report about a shooting incident in which he was involved, all left their marks on his mental health. Like many others that served as prison officers, he still suffers from those experiences.
Portlaoise Prison.
The Prison
The Portlaoise high security prison complex is one of the oldest penitentiaries in the State. Built in the 1830s, it is still fully operational. Regarded as one of the toughest prisons in the world, it contains the notorious E-Block: a wing dedicated to dissident Republicans, predominantly ex-members of the Provisional IRA (PIRA) and the INLA.
Parallel to the prison’s official organization, during the Troubles prison officers had to understand and operate alongside the Republican’s own strict command structure. In the case of the E-Block, the prisoners’ relations with staff were filtered exclusively through the highest-ranking members of the PIRA. In 1988 that was Martin Ferris, who went on to become a T.D. for Kerry North between 2002-2020.
The history of Portlaoise Prison is chequered with multiple escape attempt, riots and blanket hunger strike campaigns. Allegations of prisoner mistreatment by a Heavy Gang first appeared at the Prison Officers Association convention of 1984.
On that occasion a delegate from Portlaoise Prison, Larry O’Neill told the Prison Officers’ conference in 1982: “If Hitler wanted generals today, he would find plenty of them in Portlaoise. After the war the Nazis said many of them were doing their duty and that is what the management in Portlaoise are saying today”.
Away from the public eye, the working conditions of prison staff, especially South of the Border, have rarely been covered. An official inquiry was carried out in the wake of the Good Friday Agreement, but for reasons that remain unclear, Sean O’Brien’s testimony was excluded after he had initially been invited to testify. The resulting report falls short of exploring the extent of the human rights abuses that seem to have occurred behind the prison’s walls.
Irish Press, May 25, 1988.
PO Sean O’Brien
From a working-class family, Sean O’Brien began his career as a prison officer on February 16, 1980, aged twenty. The ‘job’ consisted of dealing with the most problematic, and in some cases dangerous, individuals in Irish society. Due to staff shortages, this work was mostly given to young and inexperienced men in their late teens or early twenties.
The training was basic, lasting just a few weeks, and involved a few meetings, active service in different prisons, physical exercise, and simple inductions on the regulations of the institution. None of this offered much value to someone beginning their work in the State’s prisons.
Sean clearly recalls spending his twenty-first birthday on duty with colleagues; as well as when he had to wear riot gear for the first time during a protest, despite having received no training for what to do in that event.
He also recalls working through the so-called ‘dirty protests’, when officers were forced to use power washers to clean inches of prisoners’ faeces off the walls; and when he was involved in, and witnessed, prisoners receiving unwarranted strip searches, punishment beatings and enduring conditions which he describes as contrary to the Geneva Convention.
After one such strip searches, he recalls the Governor at the time, Bill Reilly – a man with a reputation for being particularly hard on Republicans – telling him and the late Chief Officer Brian Stack, who was working with him at the time, to “bait them again,” after Stack told him they had completed the searches. Sean recalls being reluctant to obey the order as his arm was exhausted from already meting out such beatings.
As a result of such distressing episodes, Sean claims that many prison staff turned to heavy drinking to cope with the stress that the ‘job’ entailed.
We cannot ascertain the extent of the human rights abuses in Irish prisons at the time as a veil of secrecy, or outright omertà, still hasn’t been lifted. In all likelihood, many episodes have never been made public, as it would involve the State accepting liability for its shortcomings.
What prison officers endured as a consequence of this environment ought to become public knowledge to ensure it does not re-occur, and so that the necessary redress process is put in place to assist victims of the State’s past failings.
Flash
In 1988, Sean O’Brien was living in a housing complex built by Portlaoise prison for officers and other employees a few yards away from the main gate.
Every morning on May 18, after the customary substantial bowl of porridge and large mug of coffee, the shift began as usual with a security search between the first two gates. This was followed by a meeting at the ‘Parade’, the canteen room, where all the officers on duty lined up to be assigned their positions and tasks for the day by the Duty Chief Officer.
That morning a crowd of protesters and foreign media had gathered at the main street entrance in front of the prison on the Dublin Road. Patrick McVeigh, a member of the PIRA – known as Flash – was scheduled to be released that day. However, he was expected to be re-arrested by the Gardaí as soon as he stepped outside the main gate, before being extradited to Northern Ireland.
Tensions were running high in the prison at the time, and the issue had garnered considerable public attention. McVeigh was a political prisoner, and extradition laws did not cover prisoners with such status. Nonetheless, the extradition machine was in motion, as well as another machine attempting to find a way to save McVeigh from the extradition.
As Flash left the building, a crowd of his sympathisers greeted him at the gate, along with media reporters and a Garda van, with doors open ready to receive the newly freed prisoner. Why there was no other way to handle the exchange remains unclear.
Sean had elbowed his way in through the unfriendly crowd a few minutes before McVeigh was escorted to the Gardaí waiting for him outside the gate. From there he would be conveyed to Court to finalize the extradition.
At this point McVeigh somehow evaded his escort and began running along the inner perimeter of the outer wall in the hope of jumping out on to the Dublin Road.
Contrary to the Governor’s orders, his Deputy Mick Horan physically pushed Sean and illegaly ordered him into a shoot-to-kill area of the prison operated by the Army, shouting, “after him”. Sean obliged along with prison officer Frank Muldowney.
McVeigh had earned the nickname Flash from his speed of foot. He ran along the inner perimeter of the outer wall, reaching the place where, from the outside, accomplices were hanging off the wall to lift him out, where a motorbike awaited.
It was then that Irish Army personnel, stationed on the roof of the prison at all times, shot a sequence of five shots, which can be clearly heard from RTÉ footage of the scene.
Sean felt the reverberations through his body from the flying bullets which, he says, only narrowly missed him. On the ground a few metres away, shots landed in a puff of smoke. Adrenaline overcame fear, and he managed to stop McVeigh before he could leap out on top of the wall.
With the help of Muldowney, Sean brought him into the custody of two Gardaí, and he then made his way into the main prison building to resume his shift.
Apart from O’Brien’s testimony, as of November 2022, we came into possession of two additional eye witness accounts of the events.
One is from Martin Ferris himself. In a letter he writes:
From where I was watching in recreational room E3, a number of bullets hit the space between Officer O’Brien and McVeigh. Pat McVeigh attempted to climb the farm wall onto Dublin Road with the help of some supporters from outside and certainly, would have succeeded only for Officer O’Brien grabbing his legs and preventing his escape.
The second source says he witnessed bullets hitting the ground and bits of tarmac flying up around Sean, and that the distance from Paddy McVeigh was seven feet. However, he wishes to remain anonymous, unless an official inquiry is carried out into why this version of events has been consistently denied by the Department of Justice, the Prison Service, and the Department of Defence.
Cork Examiner, May 25,1988.
Half Sheet and the Governor
Not long after Sean had caught his breath, he received an order from the radio room of E-Block to report to Governor Ned Harkin’s office. As Sean was on his way there he recalls being praised and cheered by some colleagues.
He had just prevented an escape. That would surely lead to a commendation. Instead what welcomed him as he walked into the Governor’s office was a freshly typed false version of that morning’s events, which Sean was ordered to make a copy of in his own hand-writing, right then and there.
That version of events – insofar as Sean recalls – would have protected Deputy Governor Mick Horan, the officer in charge that morning of the release (and re-arrest) of McVeigh, and would attribute most of the blame to another prison officer Paddy Dunne, who was by then already being suspended, as a suspected accomplice to the escape.
Sean refused to comply then, and on dozens of occasions during subsequent days.
According to O’Brien’s protected disclosure:
The purpose of the Prison authorities ordering me to collaborate with their account as to ACO Dunne was to have him dismissed as not to shine a light on Deputy Horan who would have whole responsibility for Prisoner McVeigh escort on that day. Deputy Horan did not chase after the escaping prisoner. This is what Governor Harkins was covering up.
In response to Sean’s refusal to provide a false testimony, threats of dismissal such as “leave your uniform at the gate on the way out” from the Governor Ned Harkin became more and more frequent.
From then on he was not allowed to work on the landings where the prisoners were held. This meant that he was left doing nothing during shifts; waiting in a backroom for the end of the day to arrive. Day after day.
In that situation the first indications of deteriorating mental health became evident. This included frequent nightmares and strong paranoia, which started to make his days unbearable.
Sean knew that he wasn’t meant to catch McVeigh, and besides it would be normal to expect animosity towards him from some Republican prisoners. On top of being bullied for carrying out his job, he sensed a target on his back.
As Martin Ferris, in the aforementioned account, dated 12 November 2022, writes:
Tensions were high within the prison in the aftermath of this incident, and I, as the spokesperson for the republican prisoners, suggested to prison Governor Harkins that Officer O’Brien should not return to the prison landings until things calmed down. I personally never saw prison officer Sean O’Brien within the confines of Portlaoise Prison from that day forward.
It was at that stage that he asked the Prison Officer’s Association Representative Noel Touhy for assistance. He was told that it was not possible for the prison to dismiss him in that fashion. The Association was already pressurising the Department of Justice to reinstate Paddy Dunne, and trying to bring to light the dynamics at play in the attempted escape.
The Department of Defence consistently denied that the shooting could have endangered an officer on duty, as reported by the Cork Examiner on May 25, 1988.
Cork Examiner, May 25, 1988.
As recently as July 2022, Brian Stanley T.D. and Chair of the Public Accounts Committee asked the Minister for Justice “if there are any files being withheld for national security reasons that relate to the attempted escape of a prisoner on May 18 1988 at Portlaoise prison.”
The Minister responsed: “I am advised that the record in question was previously considered as not suitable for release by the Irish Prison Service.” (05/07/2022, Question number: 539, Question Ref: 36042/22)
The Office
On June 14, 1988, Sean O’Brien attended a meeting with Noel O’Beara in the Department of Justice in Dublin in order to: ‘[…] make them aware that the “Prison Administration” in Portlaoise Prison were ordering me to make a false report surrounding Assistance Chief Officer (ACO) Paddy Dunne’s involvement in the escape, to have him dismissed.’
Prior to the meeting, Sean O’Brien says O’Beara shook his hand and congratulated him, stating words to the effect of “you are going to get a medal, what type we don’t know, as one does not exist yet. The equivalent for the Gards is a Scott medal. You are the first prison officer to capture an escaping PIRA prisoner.”
But by this stage O’Brien was feeling his options were running out. The office to which he had been invited felt wrong from the moment he entered. He found no sign of personal effects – a family portrait, postcards, a sporting trophy or anything of that sort – such as one would expect in a regular office.
Despite a suspicion of being recorded without his consent, Sean gave as many details as possible, as well as disclosing the many wrongdoings he had witnessed during his years of service.
Essentially, he blew the whistle on what his superiors wanted him to do, and the wrongdoing within the prison system, while O’Beara listened and took notes. The meeting ended with a promise the matters would be investigated.
Sick Record
After this meeting, Sean O’Brian patiently waited for a change in his circumstances. Then he went on sick leave on September 12, 1988, for a stress-related illness. At that point his previous poor attendance record, in part due to a certified injury he had received while on duty, suddenly became an urgent matter within the Department of Justice and Prison Service.
Sean had already been referred by the Prisoner Governor and the Department of Justice to a psychiatrist (who also wishes to preserve his anonymity). He visited for the first time on September 8, 1988. This resulted in the first suggestion of a diagnosis of post-traumatic-stress-disorder (PTSD), following the shooting incident.
Nonetheless, behind the scenes, in a correspondence between the prison welfare office and the Department of Justice, his dismissal was being considered; while the full diagnosis of PTSD, resulting from a consultancy sought by the Prison Management itself, was completely ignored.
Correspondence which we have obtained includes a letter dated February 13, 1987, one year prior to the shooting, where the prison management tell Sean O’Brien that although the Minister had considered his dismissal, he also ‘noted the improvement in your sick leave record.’ It also states that his ‘late attendance has been unacceptably high since September 1986,’ and that his case will continue to be closely monitored.
Any management is likely to deal with a poor attendance record, but Sean O’Brien’s prior record seems to have been used to inform a response to his attendance after the shooting incident. It blatantly ignores the diagnosis of PTSD, or any other duty of care mandate that the prison service welfare office would have, or ought to have, had at the time.
A letter, dated March 29, 1989 directly from the Department of Justice, outlines the reasons why it cannot any longer accept the standard of the previous evaluation of a ‘marked improvement on an already atrocious pattern of sick absence.’
It continues by saying: ‘The result, if such a standard became the norm, would be to push the cost of absenteeism in the Prison Service from its present £3m. (approx) per annum closer to £4m.’
Thus, despite referring to sick absence, there is no sign of any attention to his medical condition to be found in this letter, which reads like a preparation for a dismissal.
In a subseqent letter, dated April 14, 1989, O’Brien’s dismissal was actively being sought. The prison’s Personnel Section writes to the Chief Medical Officer that:
It would be helpful if a definite medical opinion could be obtained as regards to the absences relating to the officer’s metacarpal injury as the orthopaedic surgeon does not appear to have totally ruled out the possibility that this injury could be a recurring one.
This injury occurred in 1983 and since then he had required recurring treatment and suffered constant pain. Thus, some of the absences being used to prove his poor record seem to have been a direct consequence of this injury.
The letter ends with a pointed request:
Perhaps you would confirm that Officer O’Brien does not have an on-going health problem.It would be appreciated if you would also say if you agreed that absenteeism is the problem in this case.”
Apart from the recurring physical injury, the year between the shooting incident and his dismissal is constellated with absences, arguably caused by his deteriorating mental health.
Debilitating insomnia, extreme paranoia, crippling anxiety, flashbacks; all these symptoms have led to a diagnosis of PTSD, but again there’s no sign of a duty of care wherein the psychological damage received while on duty is recognised.
Instead, on May 23, 1989, at approximately 3pm, a knock arrived on the door of O’Brien’s parental home. It was Senior Prison Officer Mick Horan and Garda Sergeant Kevin Ford. They are looking for Sean and Hugh O’Brien (Sean’s brother, also employed at Portlaoise Prison) to tell them that they were both being dismissed. They are asked not to turn up at work the following day. His parents are instructed “to tell Sean to leave his uniform at the gate”.
So Sean O’Brien and his brother were dismissed from the Irish Prison Service with a verbal notice delivered to their bewildered parents, without any official document being issued by the Cabinet of the Irish government.
Following this we discover from the letters obtained from St. Patrick’s Hospital that the prison’s chief medical officer John Geoghegan did not even see Sean O’Brian before his dismissal had been finalized. And we find more indications that his mental health injuries suffered while on duty had been completely ignored by the Prison Service in considering such a dismissal.
The Void
At the beginning of my interaction with Sean O’Brien, I timidly inquired about the long period running from his dismissal in 1989 to 2017, when he was approached by the former President of the Prison Officers’ Association P. J. McEvoy, who instructed a solicitor to pursue his requests for a Duty of Care under the 1956 Regulations, and recognition for his actions on duty, at a point when Sean’s mental health inhibited him from pursuing the case.
During that period, Sean O’Brien claims he was not in the right mental state to follow up on his case. It seems he let it slide. What he had endured by then in terms of psychological distress he is reluctant to recollect, apart from to liken it to hell.
After his dismissal, an alter ego emerged in his personality. All we know is that this alter ego opened a security firm with his brother and that at some point in 2007, he landed a helicopter onto the roof of a shopping centre, in his own words, to “collect a set of keys”.
The Missing File
The proceedings against the DOJ that began in 1991 were interrupted in 2008 when O’Brien’s solicitor, David O’Shey was placed under arrest.
Then, O’Shey’s documents, including those in relation to the case of Sean O Brien vs The Department Of Justice no.14045P, came before the Law Society.
Since then the file has disappeared without a trace.
It was only in 2017 that he was able to instruct another lawyer to pursue the case. By the time he served a notice of an intention to proceed, in 2019, twenty-six year had elapsed.
Thus far, efforts made by his new solicitor, Kevin Winters to find the file have been unsuccessful.
In the Court of Appeal Judgement, delivered on 27/01/2022 we read that ‘witnesses for the defence (Minister for Justice) cannot reasonably be expected to give evidence that could be regarded as reliable after such an interval.’
The Minister of Justice again denied many of the claims made by Mr O’Brien, including that he recaptured a prisoner who escaped and that he suffered PTSD after nearly being hit by bullets shot by the Irish Defence Forces, which also continues to deny responsibility.
Over the last few years, the case has gained a certain amount of media coverage, mainly concerning the dismissal and sick days. However, very little attention has been paid to Sean O’Brien submitting a protected disclosure to the same Minister of Justice two months after the shooting incident denouncing grave misconduct.
Nor has anyone considered that although O’Brien’s attendance record was certainly not exemplary – 682 days absent between 1980 and 1989 – some of these were due to an injury on duty which occurred in 1983: a fractured hand, and subsequently from 1988, symptoms of a psychological nature.
It would undoubtedly be difficult for any court of law to establish precisely what happened well over thirty years ago in such a complex and volatile environment, but this story seems to contain another lesson.
For many whistleblowers who feel that they have been wronged one of the most difficult challenges is simply to let go. To move on. The obsessiveness associated with their behaviour is often due to a lack of closure.
That Sean O’Brien is still pursuing a judgment in his favour thirty years on from his dismissal reflects this condition.
Only after an attempt is made by a State agency to delve into the historical context of these events can a sense of closure be achieved. A proximate attempt to do so by the Prison Service is what can be found in the Final Report of the Portlaoise Prison Staff Welfare Programme.
This a project carried out by the Prison Service, which recorded the testimonies of almost two hundred Prison Officers who served between 1973 and 1989.
Here we read that:
Portlaoise gave rise to practices that could only have existed in that particular context and the challenges it presented
…
In that time Knowledge and awareness of the lasting impact of occupational stress, of role ambiguity and role overload and of requirements for healthy, sustainable work practices have been transformed. Such knowledge and awareness were not widely available at the time. It is important to avoid judging the past solely in terms of present-day knowledge.
Thus, from this official source we learn that the working conditions were, indeed, unsuitable and outright damaging to officers.
It is reasonable to say we should not cast moral judgement on past practices during war time, but it still only seems fair that there should be compensation available for breaches of a duty of care that applied at that time.
Some respite from the silence that still engulfs this traumatized country should be available. Such is the long tail of war. You still see it slithering through the streets, long after the last shots have been fired.
Regarding the shooting incident, it is instructive to examine the Irish Army’s Rules of Engagement from this period (below). This differentiates between warning and containment shots. The first, as one would expect, are ordinarily fired into the air, posing no danger to anyone’s life, while the second ‘will be fired near to the person concerned,’ but ‘NOT’ ‘into locations where innocent persons would be endangered.’
Based on Sean O’Brien’s account, corroborated by other witnesses, it would appear that these Rules of Engagement were breached, including a prohibition against firing at a target that is running away.
The Irish Army’s Rules of Engagment/ Use of Force in effect in 1988.
Conclusion: Whistelblowing in Ireland
The title image for this article, was taken towards the end of our first in-person encounter. The names of the dogs are Squirt at the front, Maxine on his right arm and Freddy – who was the most protective of Sean as I recall – Beauty hiding in the background and Mighty Man, named in honour of Noel Tracy TD. Treacy has always been very supportive of Sean. Apparently he always started and ended a sentence with “Mighty Man” when talking to anyone.
Having the company of dogs has been an important coping mechanism for O’Brien, while he deals with the effects of PTSD to this day.
We can say that the context of the Troubles legitimately required a certain level of secrecy. There’s obviously more then meets the eye to the events that ultimately led to the non-extradition of McVeigh, which Margaret Thatcher herself was very keen to achieve.
The Department of Defence, to this day, refuses to release the records in relation to the shooting incident, requested through a Freedom of Information Request in 2016, saying:
The release of this information may potentially compromise the security of the Defence Forces in preparation for peace and security operations at home and overseas.
Meanwhile, the first legal file in relation to O’Brien’s case has disappeared without a trace.
Whistleblowers suffer repercussions all over the globe, but Ireland’s reputation for mistreatment of whistle-blowers has worsened inexorably.
In 2021 Ireland’s Protected Disclosure Act undertook reforms to comply with a European Directive. Even then, according to some stakeholders, the new legislation still falls short of providing adequate protection from the inevitable repercussions of such a radical act.
Beyond the legal frameworks, better outlined in David Langwallner’s article “Whistleblew in the face”, which appeared in Village Magazine in November, 2021, the corrosive effects on a whistleblower’s mental health is often overlooked.
All too often, when an instance of whistleblowing reaches the mainstream media, these negative mental health consequences are used implicitly to discredit the disclosures. One of the first questions the media tends to pose to whistleblowers is “Why did you do it?”; followed by: “Would you do it again, knowing the consequences you would face?”
Both questions, somewhat deviously, shift the focus away from any wrongdoings that have been exposed to the action of whistleblowing itself; subjecting the whistleblower to moral scrutiny. Those kind of questions seem designed to suggest a hidden motive for why an individual has become a whistleblower.
Being subjected to such questions – including from oneself – might lead most of us to assume a defensive posture. Over time one may construct an elaborate justification for one’s action, as if the disclosure was itself a crime, and not, only, a testimony to a crime.
With thanks to Ben Pantreyfor editorial assistance.
I’d emailed, left messages, and read their mission statement: To free the innocent, prevent wrongful convictions, and create fair, compassionate, and equitable systems of justice for everyone.
No. I have no idea what I’m doing, but I’m doing it. Walking downtown to the office of The Innocence Project in Manhattan. On my way, I look up to see the spike of the Freedom Tower cutting through dense spring clouds. It makes me wonder, in this country of income disparity, prejudice, and Proud Boys, is there indeed justice for all?
“Well, I’m here now and I’d like to speak to an attorney.”
I fucked up. No one is coming to speak with me.
Within minutes, I’m greeted by an affable intake attorney named Dara, who gives me her full attention. I explain that I’m a writer advocating for a wrongfully accused inmate at Cumberland Prison. Emmanuel Clark is serving a life sentence for first degree murder. After letting her know that Emmanuel’s files were given to their office by his cousin four years ago to no conclusion, she agrees to take my 16-page typed transcript and assures me the office will again give his case … a look. I’m informed it will take time. That there are no guarantees. With profuse thanks, I’m gone.
For months now, I’ve interviewed Emmanuel Clark. An inmate serving a life sentence with no parole at Cumberland Prison in Baltimore. He went in at age 19. Now he’s 46 years old, serving time for a crime he claims he did not commit. We communicate by prison pay phone, trying to untangle a web of injustice. One that is all too common when you’re young, poor, and not white.
I learned about Emmanuel through my friend Greg. Someone who knows what it’s like to be incarcerated. But for the past 10 years, Greg has focused his life on sobriety, and making people laugh, while attempting to make a difference in the world. He heard about Emmanuel’s plight through his cousin, felt compelled to advocate for him, and solicited my help in the process. Both my friend and I have had our share of family dysfunction. Probably what lead us both to stand-up comedy and a decade-long friendship. But we’re here now. Meeting once a week, to put together this complex puzzle that a corrupt legal system once scattered.
A robot operator asks us to accept the call, “From an inmate at Cumberland Correctional Facility.”Press zero, and you’re connected. Allocated a strict 30-minute time limit for which the inmate has to pay. At 90 cents an hour on a jail work program, one phone call per week is a significant expense. But after two decades of no one listening to his story, Emmanuel decides it’s worth it. He’s excited. There’s a lot to tell and not much time. Greg in his raspy, Good Fellas voice repeats, “Very simple, Emmanuel, go slow and don’t give us too many details all at once.” As he speaks, I’m reminded of Denzel Washington in the movie, Philadelphia and his unforgettable line, “Tell it to me like I’m five.”
Born Emmanuel Clark,in a rough section of Baltimore City, neither the Greek American father he never knew, nor a Native-American mother were capable of raising him. Both parents had a dependency on drugs and alcohol which would later prove lethal for their son. What followed was foster care, juvenile detention centers, and homelessness. Out of desperation to survive, 16-year-old Emmanuel started selling crack on the street. And by 1997, he was convicted of murder one. A life sentence. Without parole.
Emmanuel had been selling in Patterson Park. An area of Baltimore known as Butcher’s Hill. His customers were, for the most part, prostitutes and petty thieves. There, he met a woman named Bonnie Felicetti who worked as an admin for a lawyer. But Bonnie was also a known prostitute and crack addict. She lived with her husband Tony, also a drug user, and a 38-year-old friend called Louis Koch. Emmanuel didn’t know Louis well but described him as follows:
“When you talked to him, you knew he was kind of…slow. Bonnie would get high and use Louis to buy drugs when she didn’t want to leave the house.”
On Sunday, June 16th, the night before the murder, Emmanuel gave his last gram of crack to Bonnie with the promise that she’d pay him back. 60 bucks. Within the next couple of days.
Next morning, Monday, June 17th, Emmanuel got breakfast at Hardee’s, before walking to Patterson Park, where his cousin would re-up his supply. He was there for several minutes when Louis showed up, saying Bonnie would be home from work. And had his 60 bucks.
“I figured I’ll hang out there, get my money, wait for my cousin and get off the streets.”
When Emmanuel followed Louis home, he was led through an alleyway. Not the front entrance.
“Louis went through the gangway. I didn’t think anything of it at the time. I just followed him.”
As the two enteredBonnie’s backyard, Emmanuel saw panes of glass on the lawn. He noticed the outside windows were broken, but the inside windows were intact.
“Louis asked me to hand him the glass and I did. Whatever was in the yard, I gave him. Some of the glass I handed, he put on the kitchen table and then threw it away.”
Both men then entered through the window. Emmanuel was there for maybe five minutes, when he heard his cousin’s whistle.
“We had calls to let us know we were looking for each other. When I left Louis, he was alive.”
Responding to the call, Emmanuel headed back to his cousin’s, re-upped his supply, then proceeded to where he’d been staying at his girlfriend Tonya’s house.
“When we’d made it back into the neighborhood, there was police everywhere. I didn’t find out Louis was dead until the next day.”
Tonya and her mother didn’t like Emmanuel selling drugs. So, he’d applied at Teddy’s Roofing and got the job.
“It was my first day of work and when I got home that night, Tonya was in our bedroom crying.”
“What did you do?”
“What do you mean what did I do? I didn’t do nothing!”
“The police was here asking questions about you.”
Louis was pronounced dead on June 17th, stabbed with a screwdriver over 100 times. Fingerprints on the glass pointed the police to Emmanuel, and the weight of these accusations triggered a psychological breakdown. 400 milligrams of Thorazine and Tegretol were administered. Both antipsychotics.
“I had a mental snap.”
“I was given heavy doses of drugs.”
“I was a zombie.”
After ten days of treatment, Emmanuel was back at the regular detention center where he faced hours of grueling questioning.
“I was scared terribly. The cops said I would never see my girlfriend again. Eight hours later, I repeated everything they told me. I just wanted it to be over.”
If Emmanuel got something wrong, if something didn’t fit the detective’s narrative, they would correct him. Under the influence of drugs, he was coerced into giving a false statement.
“The confession I gave the cops didn’t match the evidence. This was in my taped confession. Which, years later, they claim they lost.”
Reading through Emmanuel’s case file, I noticed a few things. Fingerprints on the glass belonged to both Emmanuel and Louis. Glass found placed in the trash. The cops told Emmanuel to confess that he broke in through the window. But the question remains: What kind of robber breaks in and then places the glass in trash bins? There were also a pair of pliers and knife found near the window which fits with Emmanuel’s narrative that Louie was being locked in the house by Bonnie and Tony.
After his arrest, Emmanuel awaited trial, locked up in Baltimore City Detention Center for a year and a half. Feeling his fate was sealed, he attempted an escape.
Digging his way out of jail through a catwalk, he was caught just as he jumped the barbed wire fence. Photographs taken of him that night show scrapes, cuts from a fence and his hard fall. These pictures from his failed escape were then transferred into evidence for his impending trial. Evidence which was conflated, to make it appear as if those injuries occurred the night of Louis Koch’s murder, as a result of a struggle between the two. At trial, Emmanuel’s public defender never questioned those images detectives and a prosecuting attorney presented to the jury.
“I kept telling my lawyer the photos they were using were from the escape, NOT from the crime scene. All he could say was, “I don’t know Mr. Clark. They went into evidence.”
Emmanuel was convicted of first-degree felony murder. For 26 years he’s been a model inmate at Cumberland Prison with no history of violence. He went in barely out of his teens and is now a middle-aged man who spends his days in a cell no bigger than the average American bathroom. Days when the prison goes on lockdown, for lack of staff or bad behavior from a prisoner, Emmanuel spends 22 hours in his cell.
“It’s a fishbowl. They can see everything we do. There is no privacy.”
On more than one occasion, I’ve asked Emmanuel how he has spent so many years like this, and the answer is always the same.
“You don’t want to know.”
I’ve asked my friend Greg too, how he dealt with being incarcerated for the stint that he did. And on every occasion his answer is always the same.
“When you’re in prison time stops.”
With our interviews completed, Greg and I had limited choices. We could wait for someone to take the case, or solicit another pro bono office. At Emmanuel’s suggestion, I contact Project Six, and The Integrity Unit, two Baltimore agencies with similar missions of reversing and/or reducing sentences for the wrongfully accused.
In the interim, I go back and forth withThe Innocence Project, inquiring about the status of Emmanuel’s case. When I get the same response every time, that they have limited staff, massive caseloads, and thousands of pages to read and review, I have to let it rest. But my last email was a doozy. An article I sent on Robert Patton, one of the three detectives in Emmanuel’s case. Patton had been accused of four different types of misconduct. Including, but not limited to, withholding the testimony of key witnesses.
The decision to devote two of his podcasts to Emmanuel’s predicament, resulted in Greg’s phone lines lighting up with calls from distant family members and intrigued listeners. For the duration of his segment, there is full support but no funds with which to move forward in a tangible way. To retain a lawyer worth his or her salt. An intricate case, such as this, would cost at least 50 grand. Emmanuel’s family doesn’t have that. What they do have are jobs, kids, worries, and bills.
Emmanuel has confessed many times that even though he often feels forgotten, he understands. For people on the outside life goes on, but for him time has, in a word, frozen.
Six months after my downtown visit, Emmanuel received a letter that could change his life. I’m paraphrasing, but it went something like this: “We’re pleased to inform you that The Innocence Project has agreed to take your case. Please fill out the attached form. Upon our receipt, you will be assigned a lawyer and a legal team. There is no fee for our services.”
The odds are still stacked against Emmanuel. When a system puts you in prison, they are unyielding. Unwilling and unlikely to admit their mistakes. Prisons are big business. The city of Baltimore spends roughly 300 million dollars every year to incarcerate people. There is no promise Emmanuel will ever see the outside of a prison wall. Nor is there a set time frame for the re-trying of his case. The legal road back to equanimity is a long and winding one. But for the first time in decades of unimaginable suffering, these clouds of despair have been pierced. By hope. For justice.
Featured Image: Butchers Hill Historic District on the NRHP since December 28, 1982 The historic district is roughly bounded by Patterson Park Ave. and Fayette, Pratt, Chapel, Washington, and Chester Sts. in southeast Baltimore, Maryland.
As events in Ukraine demonstrate, ineluctably, war diminishes our humanity, possessing men – and mostly men – of a callous disregard for life, and a capacity for often inexplicable cruelty.
As such, the invasion of one state by another without a casus belli – as we have witnessed in Russia’s essentially unprovoked invasion of Ukraine and also with the US invasion of Iraq in 2003 and other incursions since – has long been considered an injustice: any aggressor thus bears a level of responsibility for what follows.
This does not, however, absolve an injured party from guilt for mistreatment, or worse, of prisoners of war, or other breaches of the Geneva Convention; notoriously described as ‘quaint’ by George W. Bush’s Attorney General Alberto Gonzales, with apparently horrifying consequences.
Sabrina Harman poses for a photo behind naked Iraqi detainees forced to form a human pyramid, while Charles Graner watches.
A Single Murder
In peacetime the violent ending of a single life is newsworthy, but during a military conflict the deaths of thousands are often defined as mere casualties, calculated to diminish one side or another’s capacity to wage war. A cold-blooded logic often underpins such strategic analysis.
‘What was a single murder’ Stefan Zweig asked of World War I, ‘within the cosmic, thousand-fold guilt, the most terrible mass destructive and mass annihilation known in history?’
Beyond the mindless trench warfare of World War I, the twentieth century also produced the exquisite evils of World War II, when the carnage reached the civilian sphere as never before; the leading industrial nations harnessing advanced technologies to produce Concentration Camps, Gulags, carpet bombing, and of course – supposedly bringing wars between Great Powers to an end – the atomic bomb.
In that war’s wake there emerged a new understanding of international law, previously dominated by an insistence that this should only apply between states, as opposed to allowing individual rights to be enforced against officials of an offending state in a foreign jurisdiction.
This traditional understanding was emphasised by a British official during negotiations prior to the Treaty of Versailles after World War I: ‘The new League of Nations must not protect minorities in all countries,’ he complained, or it would have ‘the right to protect the Chinese in Liverpool, the Roman Catholics in France, the French in Canada, quite apart from the more serious problems such as the Irish.’
According to Phillipe Sands: ‘Britain objected to any depletion of sovereignty – the right to treat others as it wished – or international oversight. It took the position even if the price was more injustice and oppression.’ [i]
But the depravities of World War II changed the global mood, even if Hermann Goering could persuasively assert that ‘the victor will always be the judge and the vanquished the accused.’ Indeed, there is a reasonable argument that Russian, American and British officials should also have been in the dock to account for what occurred in Katyn, Hiroshima, Bengal and elsewhere.
Nonetheless, the universal ambit of human rights was one of the great advances of the post-Second World War period, culminating in the Universal Declaration of Human Rights. In theory at least, it was no longer permissible for states to act with impunity even within their borders, as the Rule of Law gained universal jurisdiction, at least where atrocities were concerned.
Looting of an Armenian village by the Kurds, 1898 or 1899.
Genocide v. Crimes Against Humanity
Thus, charges of Crimes Against Humanity and, arguably more problematically, Genocide, were laid against leading Nazi at the Nuremberg trials.
Coincidentally, the two Polish-Jewish jurists Raphael Lemkin and Hersch Lauterpacht responsible for developing these novel concepts both studied in the University of Lwów, a Polish city between the Wars, before being annexed by the USSR at the end of World War II. Today Lviv, as it is now called, is the main city of Western Ukraine.
Amidst accusations of war crimes, including that of Genocide, being levelled against Russia, it is worth considering important distinctions between Crimes against Humanity and Genocide.
The author of the former concept, Hersch Lauterpacht argued that ‘The well-being of an individual is the ultimate object of international law.’ In contrast, in his 1944 book, Axis Rule in Occupied Europe Rafael Raphael Lemkin adopted an approach which aimed to protect groups, for which he invented the new crime of ‘Genocide.’
In response, Lauterpacht worried that the protection of groups would undermine the protection of individuals. He challenged the ‘omnipotence of the state,’ suggesting atrocities against individuals should be referred to as Crimes Against Humanity, whereby no longer would officials from any state be free to treat their people with impunity.
Lemkin also wrote of the misdemeanours of the ‘Germans’ rather than the Nazis, arguing that the ‘German people’ had ‘accepted freely’ what was planned, participating voluntarily, and profited from their implementation. This was similar to the War Guilt Clause contained in the Versailles Treaty after World War I, which was deeply resented by Germans.
Genocide concerned acts ‘directed against individuals not in their individual capacity, but as members of national groups.’ For Lemkin Germany’s terrible acts reflected a militarism born of the innate viciousness of the German racial character. He selectively included a quotation from Field Marshall Gerd von Rundstedt who noted that one of Germany’s mistakes in 1918 was to ‘spare the civil life of the enemy countries’[ii] and that one third of the population should have been killed by organised under-feeding, but not all Germans shared this mentality.
Collective Guilt
The difficulty, therefore, with the crime of Genocide is that in purporting to protect one national, ethnic or religious group it often implicates another via its ruling authority; this may perpetuate racial stereotypes, such as innate viciousness, and contains a potential for indiscriminate reprisals, or even further wars.
Under the original conception of the crime of Genocide, any Russian, even an expatriate opposed to Putin, might be held responsible for the conduct of the Russian army in Ukraine. This idea of collective guilt – a species of Original Sin attached to a national or racial group – generally based on supposedly timeless national characteristics, could also permit crippling sanctions and even bombing campaigns impacting on civilian life.
Punishing an entire nation for the conduct of its government – even if that government is democratically elected – is therefore unjust, not least as it tends to bolster the authority of belligerent elements within a state – who may point to the aggressor posture of the opponent – diminishing the likelihood of lasting peace.
Far less problematic is the idea of Crimes Against Humanity, which simply asserts a universal jurisdiction for atrocities committed by the officials of any state, including ‘legally’ against their own people.
But charging Russian officials with Crimes Against Humanity might lead us to consider whether the leaders of other nations, including the US – which along with Russia (and Ukraine) is not a party to the International Criminal Court – should be similarly indicted.
Drone Strikes
Since the beginning of the twenty-first century the US has been waging warfare through extra-judicial assassination operations: drone strikes, aimed at suspected ‘terrorists’ living in some of the world’s most deprived and defenceless countries. As of 2021, the Bureau of Investigative Journalism claims that there have been at least 13,072 confirmed drone strikes on Afghanistan alone since 2015.
These remote attacks represent a new phase in the cruelty of warfare, as the leading Superpower maintains a social distance from each hit. The consequences, or ‘collateral damage’ is rarely investigated by a mainstream media that now howls in anger at Russia’s excesses.
As LSE’s Maarya Raabani puts it: ‘Buoyed by mainstream media, an alarming preponderance of metaphors and passive-voice reporting have denied any chance to hold drone atrocity perpetrators to account.’
Moreover, ‘Drone strike casualty estimates are substituting for hard facts and information about the drone program,’ said Naureen Shah, Acting Director of the Human Rights Clinic at Columbia Law School. ‘These are good faith efforts to count civilian deaths, but it’s the U.S. government that owes the public an accounting of who is being killed, especially as it continues expanding secret drone operations in new places around the world.’
In July 2021, U.S. President Biden announced the adoption of an ‘over the horizon’ counterterrorism strategy. According to the Brookings Institution:
The new plan would rely on armed unmanned aerial vehicles — or drones — to respond to terrorism threats around the globe without deploying American boots on the ground. But although the strategy was designed to overhaul policies that had kept the United States embroiled in conflict for 20 years, it failed to address the unintended consequences of counterterrorism strikes, namely civilian casualties. On August 29, 2021, with most U.S. soldiers withdrawn from Afghanistan and regional bases shuttered, this challenge became clear. The U.S. military conducted a strike that killed 10 civilians, including women and children, rather than the intended target.
TAS13: GENOA, JULY 22. Russian President Vladimir Putin (left) and US President George Bus.
In striking unison, mainstream media in the West has reacted to the invasion of Ukraine with outrage, and conveyed statements of the President of Ukraine with uncritical approval. Russia certainly deserves opprobrium for his war of aggression against Ukraine – and its officials may be responsible for war crimes – but the failure to interrogate the actions of the US and its allies including Israel and Saudi Arabia over many years makes the self-righteousness ring hollow.
Russia is operating in a context established by the US’s illegal invasion of Iraq in 2003 that destabilised the Middle East causing hundreds of thousands of unnecessary deaths. Putin exploited the anarchy in the international system with his invasion of Georgia in 2008, having divined that the rules of the game had changed. There is a continuum between Russia’s attacks against Georgia, the Donbass and Crimea campaign in 2014, and this latest invasion of Ukraine.
Once Western leaders and their allies are also held accountable for their actions we may move to an environment where the Rule of Law attains a universal character; then the invasion by one state of another without a legitimate casus belli may become unthinkable.
Unlike during the period of the USSR, Russia exerts little ‘soft’ power. Putin’s propaganda relies on the hypocrisy of the West, especially the US which continues to baulk at becoming a party to the International Criminal Court and allies with rogue actors such as Saudi Arabia and Israel. Confronting Russia should also involve Western governments pursuing morally consistent foreign policies.
[i] Phillipe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity, (Knopf, New York, 2016) p.72
You enter here a taut quintet Where theorists can shift or shape How we make sense of market flow; How men and how it’s mostly men, Explain the ways our commerce works. No Flash of insight, more a slow Encroachment that in turn creates Our understanding how by stealth New certainties of common sense Construe the weave of life and wealth. Micheal O’Siadhail, The Five Quintets, Dealing, Canto 1, Mechanisms, p.67.
‘Is what is written on a piece of paper worth the paper it’s written on?’ was the simple question posed by the Master of the High Court, Edmund Honohan, at the beginning of a recent Decision, delivered on the 9th of February, 2022 in the case AIB PLC vs Gary Lennon.
Curiously, unlike other Decisions, this is still unavailable on the court’s website, and certainly didn’t make many headlines; although an article in the Irish Times provides a simplified account.
Could this be because of its seemingly complex legal arguments; or perhaps because it reveals too much about how banks and Vulture funds are taking advantage of Ireland’s permissive legal environment?
The Decision relates to a case in which AIB were claiming payment of an outstanding debt, from Mr Lennon. However, Mr Lennon counterclaimed that AIB had not furnished the necessary evidence to the Court entitling them to substantiate or prove the claim.
The first thing that a bank or vulture fund needs to do when claiming payment of an outstanding debt or repossess a house, is to prove, with supporting hard (’probatory’) evidence, that it owns the rights to that property or debt.
Unsurprisingly, this often proves a difficult exercise after the individual debts are bundled up (securitised) and sold on the international market via ever more and more complex financial structures; Section 110 companies, SPVs, Subsidiaries of subsidiaries. These structures allow our banking system to handle non-performing loans, but also to facilitate a lot more capital outflow, often in the form of un-taxed profits.
AIB PLC vs Gary Lennon
In this Decision (which to be clear is not a judgment) by the Master of the High Court we find, apart from the case in question, some serious warnings in relation to the use in courts of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, which now allows business documents, previously considered mere hearsay – out of court statements that are generally inadmissible in proceedings – as evidence in financial cases.
Simply put, when it now comes to such cases, it has become acceptable for a bank to adduce hearsay evidence, laying claim to a property or debt, and for this to be accepted in good faith.
Thus, according to Honohan’s Decision, creating a situation where:
In banking cases, the plaintiff has deep pockets and a reputable firm of lawyers to present the case. Is there any risk of an overarching judicial prejudice in the plaintiff’s favour? The lay litigant thinks there might be.
We cannot overlook, either, the alarming phenomenon of banks telling the courts to not even think of requiring their witnesses to come to court and submit to cross examination. A belief that summary judgment is there for the asking?
Confusion around what actually constitutes acceptable evidence and the institution of legal procedures that overwhelmingly favour big financial institutions over ordinary citizens, could be yet another channel for regulatory capture.
There is currently €16 billion worth of loans on this roulette table in Ireland, all of which are in some way securitised and being traded as we speak.
With politicians and the media are now furiously engaging with more accessible aspects of the housing crisis, like simplistic explanations of supply and demand, and the necessity for foreign investment, it is also important to look into how the law has been altered to give more leeway to banks and Vulture funds.
Citizens, as much as the financial institutions, should demand a justice system that satisfies basic criteria of fairness and impartiality. This should make it realistic for any citizen to challenge a bank or Vulture fund.
This ought to be regardless of how deep, shallow, or broken, your pockets are.
“Wolf of Golfgate” Country
Readers may be familiar with a movie about the 2008 subprime market collapse called ‘The Big Short.‘ It is constellated with explainers like Margot Robby in a bubble bath illustrating subprime mortgage backed securities, and chef Anthony Bourdain making a fish soup with left over mortgages with low values to explain securitisation.
The financial collapse, as described in the movie, actually happened, after some twenty years of head spinning financial innovations. In that period, investment banking went from being a relatively boring and stale career into what may be referred to as the “Wolf of Wall Street” life.
Fast forward about a decade, banks get bailed out, while austerity cripples the most vulnerable. 2013 is the year that Reits and Cuckoo Funds came to Ireland and begin to dictate the kind of supply of housing the Irish should have. This has led to the artificial inflation of prices in the housing market.
In the Land of the Wolf of Golfgate there are thousands upon thousands of loans being bundled together, as we speak, and traded around the world like you would soya beans or any other asset. The reality on the ground is that these are mostly homes that many of us are living in, or should be.
Securitisation and other complex financial structures to recover outstanding debts, are not always a bad practice and are actually an essential tool to limit banks’ exposure to risk; thereby ensuring a country’s financial stability.
But if financial predators go unchecked, especially when it comes to housing, and the courts are not up to speed with the financial innovations involved in the cases that it encounters, the country offers fertile ground for those financial entities, and their money, to become overwhelmingly more powerful than the ordinary citizen.
As Edmund Honohan warns in his recent Decision:
Courts are not yet up to speed with the byzantine multiple-player transactions in the capital markets. Even the Financial Times, in a full page ad in the edition of 27/28 November 2021 warned “Fakery is now everywhere, Regulation has failed.” Our courts are still exploring the mechanics of securitisation. Wait till we start getting “synthetic” securitisation! And as for encryption and blockchain software, who will interpret the “hash”? (77)
Moreover, in this often unbalanced relationship between the judiciary and high finance, the use value of a house is deemed to be superseded by its exchange value.
Another explanation is that unequal access to quality legal representation creates a great disparity between individual citizens and these institutions when it comes to access to housing stock and credit.
This is an issue for which a petition has recently been launched to address a problem that could affect over 200,000 people. It is called ‘Legal Support for possession proceedings on homes.‘
“There are currently thousands of citizens battling to save their family home in Irish Courts, not represented by any legal team.” Legal Support for possession proceedings on homes | Uplift https://t.co/Hz99SW6K8Y
For the above to happen as smoothly and quietly as possible, you need lubricant in the machinery, which normally comes in the form of extra virgin political oil. This speed up things and make sure the machinery of claims and repossessions works like clockwork, and without any unnecessary impediments.
As we previously mentioned, one of the widespread practices for banks, Vulture funds and Cuckoo funds, to lubricate the passage of cases, is to present hearsay evidence, something somebody says out of court, and for it be accepted in good faith: This practice now seems even easier despite ad hoc clarifications in the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.
The Act was passed shortly after the case, Promontoria (Aran) vs Burns, wherein Promontoria, a notorious investment fund, often referred to as a Vulture, (I didn’t say it, it’s hearsay) was barred from presenting business records in evidence, and therefore lost the case.
At that point most people in the country were absorbed with dealing with a pandemic, and shortly afterwards there was the Golfgate Scandal, which included Brian Hayes, CEO, Banking & Payments Federation of Ireland; a prime examples of Ireland’s revolving door between politics and the private banking sector.
With an urgency rarely seen for other problems, such as the homeless and healthcare crises, the Act was fast-tracked through the Oireachtas.
Here is how Minister of Justice and Equality, Deputy Helen McEnteeintroduced the Act in the Dáil debate on the July 30 2020:
The commission’s report recommends that records compiled in the course of business, because they are generally reliable, should be admissible in civil proceedings as an inclusionary exception to the hearsay rule, subject to the safeguards that have been set out in the Bill. Separately, the Court of Appeal was called in a recent case, Promontoria (Aran) Ltd. v. Burns, to interpret and apply the law as it currently stands regarding the admissibility of business records in civil cases. Both judgments delivered by the court last April were clearly of the view that the law in this area needs to be updated by legislative reform. More recently, the Judiciary has specifically identified legislative reform of the civil law rules on business records to my Department as among the most urgent priorities for it to be able to advance cases fairly and without unnecessary delays and costs to all parties concerned.
It introduced the possibility, or rather encourages the use of business documents as evidence, even if they are mere hearsay, although it does allow the other party to challenge the validity of such evidence.
But best of luck if you are a lay litigant, without legal aid and in a precarious financial situation, attempting to challenge a skilled team of lawyers pitted against you, by the bank or Vulture fund in question, full of good faith.
The inherent risk to private citizens posed by the the misinterpretation of this new law in front of the disarming power of the law firms which the banks rely on, was articulated in an earlier decision by Ed Honohan, AIB PLC vs McGrane, on the 9th June 2021, under the heading EU Charter of Fundamental Rights:
Given that at least some of these issues – contract terms, debt restructure etc. – are now the subject of EU Directives, the courts will have to satisfy themselves, under Article 47 of the Charter, that the defendants are given “effective access to justice” and, for cases of complexity of the sort above described, that “Legal Aid shall be made available to those who lack sufficient resources insofar as such aid is necessary.
Most litigants in person just show up in court on the day the case is listed and it may then be too late to make up for lost ground. The chances of framing and corroborating a second bite at the cherry, on Appeal, may be vanishingly small, even if they manage not to miss the ten-day deadline for an Appeal (which many do).
Writing in Prospect Magazine in 2018, David Neuberger, former President of the UK Supreme Court, said:“Without the rule of law society becomes unjust, violent and poor. It is of fundamental importance that courts are open and accessible.
“Accessibility means that people with grievances and those being sued must get access to legal advice and to courts. It is an affront to justice if people cannot understand or enforce their rights.
It’s always a difficult task to communicate to a wider audience how the intricacies of the law, full of carefully crafted language, are at play in underpinning how our society, and economy operates.
Especially when true complexity arises, actual trials are needed and the public needs to know it can trust their judicial public servants “the adults in the room”, in the making of these key decisions.
The thicker the blanket of legal fog, the more political “good intentions” and “good faith” are but a faded image of what people’s actual needs are.
This leads to a society dominated by cynicism, unable to envisage any change, and politically impotent.
The noted American historian, and Putin critic,Timothy Snyder’s recent text Our Malady: Lessons in Liberty and Solidarity (2020) is a cri de coeur against almost non-existent healthcare rights in the U.S. – which the pandemic brought into sharp focus. The cossetted Yale professor saw the light, as his country failed to cope.
Our Malady is about health care, but it is also an example of confessional literature about how health care provision, or lack thereof, begins to affect even those that are putatively privileged. The pandemic laid bare the limitations of the neoliberal order. But it is not just about healthcare, and not just about the United States, as the pandemic lays waste to income structure, life expectancies and perhaps a whole species’ expectations of the good life.
We urgently require legal arguments in terms of justiciability, resource allocation and clarification of the limits and extent of judicial powers to enforce social and economic rights. These arguments are no longer of cautious relevance given the gathering storm we confront. This is not the time for legal casuistry, or politeness either.
https://vimeo.com/426871719
In terms of the consensus as to what these rights are let me sketch a list, all of which are denuded or under threat:
A right to adequate nutrition.
A right to clean drinking water, and for bathing.
A right to basic health care and, in particular, to emergency treatment.
A right to housing or shelter; alongside a complimentary right to resist arbitrary eviction.
A right to a minimum or adequate standard of living.
A right to social security, leading to universal basic income.
A right to a healthy environment, including air quality.
A right to education, up to third level.
A generalised right to dignity and self-expression in terms of expressing one’s identity.
A right of a country to development.
Crucially, there is a lively discussion as to which of such rights must be progressively realised, and which have a minimum content that are immediately realisable. Thus, the right to health care, both domestically and internationally, is progressively realisable, subject to resources.
A right to emergency health care, however, is a minimum content right with direct enforceability, if justiciable.
Similarly, the right to shelter is progressively realisable, but the international consensus is that forced or arbitrary evictions are directly enforceable again, if justiciable.
Social and economic rights, in fact, have a long intellectual pedigree. Indeed, they are even evident in Thomas Hobbes’s enumeration of Natural Rights. Ancient Greek philosophers also identified such fundamental natural rights as inherent to membership of a polity.
Eleanor Roosevelt with the UN Universal Declaraion of Human Rights.
The proposal to include them in the UN Charter was aborted by representatives of the developed world. They were reconstituted in the 1966 UN Covenant on Civil and Political Rights, but with limited effectiveness, even allowing for recent rights of individual petition. Now amidst a growing convergence between developed and developing societies in the neoliberal order, we are increasingly all in the same boat.
The plaintiffs argued that they could not be evicted from their squalid shelters without being offered alternative accommodation. They further argued that they had chosen a pavement or slum to live because it was nearest to their place of work, and that evicting them would result in deprivation of a right to a livelihood.
The petitioners were to be evicted under the Bombay Municipal Corporation Act, which empowered the Municipal Commissioner to remove encroachments on footpaths or pavements over which the public have a right of passage or access.
Olga Tellis, Ex Editor of Sunday Observer & Asian Age. Source YouTube.
The relevant article of the Indian Constitution (modelled on Article 45 of the Irish Constitution) excludes the Directive Principles from judicial cognisance, yet the court opined, in finding that the right to life itself was informed by the Directive Principles; that Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards ensuring that citizens have the right to an adequate means of livelihood.
The court concluded that if there is an obligation upon the State to ensure citizens enjoys an adequate means of livelihood and the right to work, it would be an exercise in pedantry to exclude the right to livelihood from the content of the right to life.
The judgement thus expanded the right to life guaranteed under Article 21 of the Indian Constitution to include within its scope the right to livelihood, which in this context translated into the right to be allowed to remain on the pavements.
More remarkably in People’s Union for Civil Liberties v. Union of India & OR’s (2003), India’s Supreme Court derived the right to food from the right to life and ordered that that the Famine Code permitting the release of grain stocks in times of famine be implemented.
The court ordered that the grain allocation for the food to work scheme be doubled and financial support for schemes be increased; that ration shop licensees stay open and provide the grain to families below the poverty line at a set price; that publicity be given to the rights of families below the poverty line to grain; that all individuals without means of support (for example older persons, widows, disabled adults) be granted an Anthodia Anna Yojana ration card for free grain; and that State governments should progressively implement the mid-day meal scheme in schools.
In terms of stretching the bounds of acceptable judicial intervention this case could not be more dramatic, as the Court utilised mandatory policing orders and even inspectors in the field to ensure compliance with their orders, which have spread nationwide.
With inflation in food prices already evident in the wake of the pandemic, will our judicial authorities oblige often reluctant, and even compromised, executive authorities to intervene in the market, and avert shortages? And in Ireland will the Court overcome a reluctance to vindicate a right to housing as part of a generalised right to life?
Global food prices have risen 40% in the past 15 months on account of rising transport costs and blocks in supply chains. This has made banks more likely to increase interest rates, putting recoveries at risk, reports the Financial Times.https://t.co/vKZyyeqgPb
In Canada a similar conclusion that social and economic rights inform the content of the right to life is evident in a dissenting opinion in the Canadian Supreme Court case of Gosselin v. Attorney General of Quebec (2004).
The case concerned the denial of unemployment assistance to those under thirty-five, who could do a form of workfare in lieu. The court addressed issues pertaining to discrimination and the right to life and security of the person under the Canadian charter. The majority found the law justifiable and in Thatcherite terms as an incentive for the young to work. “Get on your bike”, as Norman Tebbit would put it.
Judge Louise Arbour dissented however, as indeed did Mr Justice Lahreux Herbe. Arbour J. derived a right to minimum social assistance from the right to life and indeed security of the person under Section 7 of the Charter, and drew a prudential distinction between corporate-commercial economic rights and economic rights fundamental to health and human survival.
He indicated that the appeal makes it obvious why ‘those economic rights fundamentals to human life or survival’ should not be treated as akin to corporate commercial economic rights.
Simply put, the rights at issue here are so intimately intertwined with one’s basic health (and hence ‘security of the person’) – and, at the limit, even of one’s survival (and hence ‘life’) — they could readily be accommodated under section 7 rights of ‘life, liberty and security of the person’, without the need to constitutionalize ‘property’ rights or interests.
Notably, Arbour J also links the right to health to the guarantee of security of the person. He argued the expansion of the right to life in this fashion gave content to this right, which is to be protected in such a fashion so as to invest the State with a positive duty to protect life.
Little shop on the main street of Dukathole, South Africa.
South African Experience
It might be noted that the South African experience is different in that social and economic rights are textual and thus inherently justiciable, with the word dignity mentioned in several places.
The relevant housing provision explored in Government of the Republic of South Africa v Grootboom (2000) is Article 26 whereby:
Everyone has the right to have access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
The South African Constitution also specifies an immediately enforceable specific minimum right against forced or arbitrary evictions. Such a right entails:
Meaningful consultation prior to eviction.
Alternative relocation if eviction proceeds.
No eviction to proceed unless the land is being put to productive use.
Nonetheless, the South African Courts have set down limits for their review and in general such rights are in the text of the document to be progressively realised.
In Subramani v. Minister for Health (1997) for example the South African Supreme Court was very explicit about the large margin of discretion it would give to the State to set its budget.
It also states that the court: ‘will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities.’
Sachs J went further stating that:
In open and democratic societies based upon dignity, freedom and equality, the rationing of access to life-prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care.
Justice Oregon writing for the Constitutional court found the City’s free basic water policy of twenty-five litres per person per day to be reasonable under section 27(1) of the Constitution, and that the introduction of prepaid water meters to be lawful, procedurally fair, and not unfairly discriminatory.
The Court noted that the City was under no constitutional duty to provide any amount of free water, but merely to take reasonable measures to progressively realise that right. It said it could not fix a minimum core amount, as this would vary in terms of personal and local circumstances and would prevent context being considered.
It also argued that this was not a determination for a court to make, as it was properly the role of the democratic branches of government to investigate conditions, having regard to the availability of resources, and to determine achievable targets.
In Ireland, the housing market is chronically under-supplied with affordable units, particularly in Dublin, but increasingly elsewhere too. Many local councils appear reluctant to countenance building modular homes, and the rental market is out of control and extortionate.
David McWilliams blithely advises homeowners to step away from the market, as there is no security for the mortgaged or rentier class, but for most finding a home to live in is not an investment.
The Irish State is also tolerating rampant evictions by banks and Vulture Funds and negligently permitting unfair commercial practices to occur, often in breach of consumer protection.
Thus, lenders have reneged on agreements bartered with consumers at a time of high ostensible economic prosperity by neglecting a contractual obligation to revert the consumer to a tracker mortgage after the expiry of a fixed rate period, or upping interest rates to the highest in the Eurozone, often aimed at those seeking to exit the country.
Thus, lending institutions with no interest in Ireland such as Danske Bank and The Bank of Scotland simply left the room and disposed of their assets, hiking up the mortgage interest rate payments as they left and/or selling assets off to Vulture Funds.
Ulster Bank has followed them out the door, while citizens are thrown out on the streets in spite of the pandemic.
The old cry of the tenant farmer for the 3Fs: Fixity of Tenure; Free Sale and a Fair Rent falls on deaf ears in the era of the Vultures.
The Sinnott Case
In the Sinnott case (2001), comprising judgments from all seven members, the Supreme Court was asked inter alia to adjudicate on the legality of mandatory orders made in the High Court by Judge Peter Kelly. This precedent remains an important brake on the capacity of the Court to vindicate the right to life – which includes a right to shelter – of Irish citizens.
In a leading judgment for the majority Adrian Hardiman, following a High Court decision of Justice Declan Costello in O’Reilly v Limerick UDC(1989) distinguished between commutative and distributive justice, the former bearing on relations between individuals such as found in contract and tort, with the latter involving the distribution of the resources of the State.
In contrast to commutative justice which Hardiman considered central to the Court’s function, he held that the exercise of the Court’s jurisdiction over distributive justice was repugnant to the Separation of Powers.
Despite Justice Costello demonstrating a willingness to countenance distributive justice in the subsequent case of O’Brien v Wicklow District Council (1994) Hardiman only brought to bear his arguments in O’Reilly, and sought to elevate non-justiciability to a constitutional principle.
He said that the apportionment of resources ‘would lead the Courts into the taking of decisions in areas in which they have no special qualification or experience’; and were a judge to engage in ‘designing the details of policy in individual cases or in general, and ranking some areas of policy in priority to others, they would step beyond their appointed role.’ He did, however, allude to generalised ‘human rights to earn a livelihood and hold property.’
It would appear to have been disingenuous for Hardiman to deny jurisdiction on the grounds of judicial incompetence in budgetary affairs. Detailed financial resolutions are, after all, already executed in the commercial arena. The test is one of proportionality, as the South African case law demonstrates.
A paramount right to life under Article 40.3 should now require the Court to make mandatory orders, interceding on behalf of citizens whose health and life is threatened by this Housing Crisis, particularly in the presence of contagious disease. Where the executive and legislature fail to vindicate a right to life the Court must surely assume responsibility.
The Harp needs more than tuning…
A Constitutional Challenge
To deal with homelessness and affordable housing a challenge needs to be made through the courts to establish a right to housing.
The Irish Constitution through Article 45 and a generalised right to life contains minimum rights against forced or arbitrary evictions.
Such a right should lead inter alia: to meaningful consultation begin given prior to any eviction; alternative relocation if eviction proceeds; no eviction proceeding unless the land is being put to productive use.
An arbitrator should also be able to probe into what banks or Vulture Fund intend to do with this vital infrastructure, fundamental to the lives and livelihoods of citizens.
Any arbitrator would of course reject spurious defences involving colossal amounts of borrowings, but should achieve a re-calibration of the system. establishing some equality of arms in the process, now desperately needed.
Shelter from the Storm
Without adequate shelter no one can live a dignified existence. A home – a place of one’s own – is intrinsic to the good life we have a right to expect. But housing is only one issue.
Our social structure is unravelling through the hidden hand of American and Canadian Vulture and Cuckoo Funds. In the dystopian aftermath of the Pandemic, and Screen New Deal, once vibrant communities are fracturing, and social atomization is increasing apace.
In the urban wastelands, we have entered the territory of Chile under Pinochet during the 1970s as Ireland becomes a test case for how much a people can endure.
Salvador Allende in 1972.
In her recent novel A Long Petal in the Sea (2019), Chilean novelist Isabel Allende – a distant cousin of the murdered President Salvador Allende – describes the scene in Chile at the time, bearing increasing resemblance to our increasingly dysfunctional society:
He called to tell them that on the surface the country was modern and prosperous, but one only had to dig down a little to see the damage underneath. The degree of inequality was staggering: three-quarters of the wealth was in the hands of twenty families. The middle class survived on credit; there was poverty for the many and opulence for the few; shantytowns contrasting with glass skyscrapers and mansions behind walls. Wellbeing and security for some; unemployment and repression for others. The economic miracle of recent times, based on absolute freedom for capital and a lack of basic rights for workers, had burst like a bubble.
Similarly:
The military government had decided public services should be in private hands. Health was not a right, but a consumer good to be bought and sold. In those years when everything that everything had been privatized had been, from electricity to airlines, a plethora of private clinics had sprung, with state-of-the art buildings and facilities for those who could afford them.
One thinks of The Beacon Hospital and other facilities reserved for Ireland’s wealthy health consumers.
Life depends on livelihoods, now threatened by disproportionate measures. There must be an alternative. Otherwise, suicide, shortened lives, poverty, inequality, social exclusion, and social fragmentation await, leading to fascism and extremism. In this respect, COVID-19 has been the perfect storm of opportunism, or a coalition of interests.
Over the past few years, a broad consensus has emerged that in Ireland providing adequate protections for whistleblowing, and whistleblowers, is a lot more difficult to achieve in practice than in theory.
In many fields, extreme real life consequences for a brave decision to go public with revelations of wrongdoing have been apparent. The protections currently in place do not shield individuals from repercussions in one’s personal and family life, or career. We are talking about losing a job, harassment, unwanted public exposure, grave false allegations and framing, protracted legal challenges, financial difficulties to name but a few. All too often, such individuals are dismissed as ‘rats’. There follow death threats and even the potential for imprisonment. At any level such a decision is a life-changing event. In many cases it is traumatic.
There are many examples: Garda John Wilson and Maurice McCabe’s ordeals are well recounted in a RTE in a documentary. Back in 2017, banking whistleblower Jonathan Sugarman testified to the Oireachtas that: “Official Ireland has absolutely and completely destroyed the lives of every single whistleblower who has come forward, from whatever walk of life they’ve come.”
Many others have come forward to expose misconduct they witness emanating from so-called ‘official Ireland,’ a term that broadly signifies the nexus of the Irish ruling class’s power, across the public and private sector. It is fair to say, as sources have revealed, that there were, and possibly are, many more people who feel unable to go down the whistleblowing path.
Notwithstanding the Protected Disclosures Act 2014, the law should better regulate whistleblower disclosures and their protection, and encourage people to step forward when they witness wrongdoing.
Even now in 2021, after much debate and revelations, and with Irish whistleblowing legislation being under the process of amendment in compliance with the EU Directive 2019/1937, it is alleged that a culture of ostracizing whistleblowers persists in the civil service, Garda, as well financial and other corporate institutions.
If the legislation is there to protect individuals, why then, are some, or many unwilling to proceed? Why is it that after long pondering, and perhaps after seeking confidential advice from a lawyer or union, they find themselves unable to proceed with a disclosure?
And what can the whistleblower expect to endure after making the brave decision? More to the point, does the proposed new legislation offer adequate protect form the extensive tentacles of ‘official Ireland’?
I posed these questions to human rights barrister David Langwallner, who was asked by Sinn Féin to help draft a private member’s bill which they propose to introduce to Dáil Éireann by July 31st, 2021.
Daneiel Idini (DI): David, can I ask you what’s happening these days with regard to whistleblowing in Ireland?
David Langwallner (DL): What happened was and I’ve got to be a bit circumspect about this. I was approached by a former client of mine who’s a whistleblower, and that client indicated that the Oireachtas was about to introduce, in compliance with EU law, a newly amended protected disclosure legislation to pass in 2021. There is an existing Protected Disclosures Act 2014. But certain deficiencies were pointed out to me by the Sinn Fein party. I had a meeting with them, they’ve asked me to draft a private member’s bill that they propose to introduce by July 31th 2021, first because of perceived and actual deficiencies in the existing whistleblowing bill.
DI: How long have you been dealing with the issue of whistleblowing concerning Ireland?
DL: I have represented whistleblowers [in the inquiry into a bank inquiry.] I continue to represent Garda whistleblowers and corporate whistleblowers. I lectured for one semester whistleblowing, at Middlesex University and I have gathered extensive materials.
DI: You have also written two articles, one in the Village magazine and one in broadsheets on the pitfalls of whistleblowing. And tell me what exactly is wrong with Ireland’s handling of whistleblowing.
DL: I think a number of things. The first thing is that the new proposed act is seeking to introduce private whistleblower regulation. The real problem in Ireland is state corruption. So you need regulation for whistleblowing and provisions that deal with whistleblowers in the Police; whistleblowers in the Department of Civil Service; whistleblowers within the structure of inquiries; whistleblowers within the structure of the public health system; and indeed the prison service and the present bill does not address that fully.
DI: Is that because of the fact the whistleblower is forced to refer to the top of the organization that he is trying to blow the whistle on?
DL: So that is that deficiency, I suppose. But the other deficiencies, documents, and literature suggest that there is no point in having a structure where a whistleblower is subject to the necessity to follow internal procedures before they (feel safe) to go externally.
The reason for this is that when internal procedures are usually invoked, there’s the risk that bullies, submission, demonization, can ostracize the whistleblower.
The first recipients of the disclosure are usually the very people who want cover-up in the first place. And in a culture like Ireland’s one, there are very few independent people who take this seriously.
So a whistleblower has to do a job. He has to be able to circumvent the internal processes and procedures of the corporate or public organization that they’re in.
And that means a whistleblower has to be allowed to go outside that organization, to the press, for example. But the difficulty that we face in this Irish media context though, is that there is very little investigative press, anymore, who are not controlled by the established parties. The same parties are concealing all the levels of misconduct and wrongdoing.
DI: So can you tell me in a nutshell in a few minutes exactly what the current legislation covers and if it tackles this “Culture” of antagonism towards whistleblowing?
DL: Well, the current legislation covers things like criminal wrongdoing, corruption, bad financial administration, miscarriages of justice. It’s extensive to that extent. But the problem is that it doesn’t matter how extensive the coverage is in terms of protection If the culture is not receptive to whistleblowing.
So, the person I represented to the inquiry into whistleblowing and audit the second day of the case,(the first effective third case,) the police got wind of this and they threatened the breach of the Official Secrets Act. So to intimidate to not go ahead. So even if you’ve got a culture of bullying, harassment, and intimidation, you could also, at the same time have, like the Soviets, a fabulous constitution that protected every right under the sun but it was utterly meaningless in practical terms.
You could have a whistle-blowing statute that protects everything, but not when organizations such as the Department of Justice, Police, corrupt politicians get involved. I think what we need to do is create a more receptive culture. It means creating an independent ombudsman, allowing for external reportage.
DI: Can you give me an example of what is the path that he has to follow to effectively become a whistleblower and therefore denounce what he saw?
DL: Well say, for example, a senior police officer who sees that the police are actively framing people for child sex abuse, for example. The process of complaint in that particular context is that the police officer in question would have to make an internal complaint within the police. And those at the top police force were part of corruption.
DI: Are you saying that there should be more protections for someone who makes the disclosure directly to an external, independent first recipient. Someone or a body that is not in the organization involved by the whistleblower disclosures?
DL: There can be no barrier, statutorily, to someone going to an external body or agency or the press, having to have exhausted internal procedures. As they have to go through the hoops of internal procedures, those procedures would try to demonize and diminish them and have a vested interest.
So you have to go first internally, and then go to an ombudsman, before you go to the press or external body.
I think in conjunction with the whistleblower allegation, we need to build in a procedure where the whistleblower is almost immediately protected, and that I mean that there must be a party to go to that can give them a income structure if there were suspended from work, so that they don’t have to interact with people who are blowing the whistle on the workplace. The lack of such support is inherent in our culture of compliance, which is so amazing.
For the purpose of clarification, I had further conversations with David on the last points touched on in the above interview as to the psychological impact that a whistleblower faces. If not properly addressed with, for example, access to therapeutic psychological support, as well as other forms of protection, even more stigmatization may be the result.
I also discussed with him, as well as with other sources, that currently wish to remain anonymous, the procedures for disclosure that are in place for whistleblowers to use. It’s pretty obvious that internal procedures of disclosures, in some cases, can be painful as well as inefficient for all the reasons discussed above. But are alternatives offered, for example the Garda Ombudsman with regard to complaints about Gardai, allowing for the full protection available under the Act? And is the compensation scheme adequate, or should this include aggravated and exemplary damages?
Should the protections, and possible compensation, also include redress to family members of whistleblowers, who might have suffered the consequence of this “culture”.
We will continue to ask these and other questions, but in the meantime, there remains one important question for me to ask which is: has Ireland got any better for whistleblowing, after years of revelations, media coverage, and resignations; or are things pretty much as they always were, if not worse?
