Cassandra Voices

Category: Law

  • Spain’s Grand Inquisitors Send Out an ‘Indisputable Message’

    Repost…

    The year is 1500 and Jesus Christ returns – to the city of Seville in Spain. There he performs a sequence of miracles, whereupon he is arrested and hauled before the Grand Inquisitor, as imagined by Ivan Karamazov – a character from Fyodor Dostoyevsky’s 1880 novel, The Brothers Karamazov.

    In his infinite mercy he walked once again among men, in the same human image in which he had walked for three years among men fifteen centuries earlier.

    Surprisingly the aged Grand Inquisitor is decidedly unwelcoming to the putative messiah, warning him that ‘man seeks to bow down before that which is indisputable, so indisputable that all men at once would agree to the universal worship of it.’ There can be no muddying of the message; this interloper cannot be permitted to renew the Christian gospel.

    He resolves to hide the true Christ’s identity from the masses, ‘for this time we shall not allow you to come to us’, and intends to burn him as a heretic. He acknowledges: ‘We shall deceive them again, for this time we shall not allow you to come to us. This deceit will constitute our suffering, for we shall have to lie.’

    The Grand Inquisitor holds those under his power in low esteem: ‘never will they able to share among themselves.’ Instead they should marvel at their rulers: ‘man seeks to bow down before that which is indisputable, so indisputable that all men at once would agree to the universal worship of it.’

    In addition, he adds, ‘we will allow them to sin, too; they are weak and powerless, and they will love us like children for allowing them to sin.’[i]

    Five centuries later in Spain, a new breed of Grand Inquisitor sits atop the judicial tree, sending out an indisputable message, insisting on the territorial unity of the state under the rule of corrupt men, who appear to see women as ‘fair game’, and where left-wing and secessionist parties are subjected to espionage and fake news stories calculated to discredit them.

    For the past year, nine Catalan leaders have been incarcerated before being tried on charges of violent rebellion for the crime of holding a peaceful independence referendum. A leaked text message from a leading Partido Popular (PP) senator claimed a proposed carve up with the Socialist government of judicial appointments, which would see the trial’s presiding judge, Manuel Marchena, being made president of the Supreme Court would allow conservative forces to dominate the judiciary ‘through the back door’.[ii] Legal experts in Spain say that a guilty verdict seems a foregone conclusion, with a draconian sentence of up to twenty years in prospect.

    Moreover, bizarrely, the Far Right party, Vox, has been permitted to act as a third ‘people’s prosecutor’ along with the public prosecutor and state’s council.[iii]

    The treatment of the Catalan leaders is in marked contrast to the leniency shown towards a group of men, coincidentally from Seville, calling themselves ‘the wolf pack’ who appear to have gang-raped a woman during San Fermin – the running of the bulls festival in Pamplona.

    In April 2018, all five were acquitted of rape, but found guilty of the lesser crime of ‘sexual abuse’. This came down to a fine point of law: as the men had not used violence to coerce the woman into the act, the crime could not technically be categorised as sexual assault, a crime which includes rape. The men were thus sentenced to nine years instead of the twenty-two to twenty-five years sought by the prosecution.

    On June 21st, however, there was another twist as the five men were released from jail on bail, pending an appeal against their sentences. In their decision, the judges said the men’s ‘loss of anonymity’ through the trial made it ‘unthinkable’ that they would attempt to flee the country or commit a similar crime.[iv] Or perhaps: “they are weak and powerless, and they will love us like children for allowing them to sin.”

    Most recently, Spain has been rocked by allegations of spying directed against the left-wing Podemos party and prominent Catalan nationalists. This surveillance was not justified by suspicion of any crime – it was simply the ruling party using the organs of state security to wage a dirty trick campaign against opposition parties. High-ranking officials in the Interior Ministry granted residency to a Venezuelan man in April 2016 in exchange for documents purporting to show the existence of offshore bank accounts belonging to its leader Pablo Iglesias and other Podemos leaders.

    Although these payments were revealed as bogus, the information was, nonetheless, circulated throughout national media, at a time when Podemos and the Socialists (PSOE) were negotiating over a possible government coalition.

    Recordings have been leaked featuring a police officer saying that whether the evidence is good or bad doesn’t matter, the only thing important is to be able to accuse Podemos of illegal party funding from Venezuela.[v] It was carried out in a way similar to how fake Swiss bank accounts were used to discredit the Catalan independence movement. In other words “We shall deceive them again, for this time we shall not allow you to come to us.”

    As the rest of Europe stares goggle-eyed at the Brexit drama, a more sinister drama is being played out on the Spanish stage, where three Grand Inquisitorial parties – the Partido Popular, Ciududanos and the Far Right newcomer, Vox, compete with one another in their vilification of Enemies of the One, True Spanish State – “so indisputable that all men at once would agree to the universal worship of it.”

    [i] Fyodor Dostoevsky, The Brothers Karamazov, London, 2004, Vintage Classics, pp.248-259

    [ii] Eoghan Gilmartin and Tommy Greene, ‘The Republic on Trial’, 19th of February, 2019, The Jacobin, https://jacobinmag.com/2019/02/catalan-independence-trial-elections-referendum, accessed 29/4/19.

    [iii] Ibid

    [iv] Meagan Beatley, ‘The shocking rape trial that galvanised Spain’s feminists – and the far right’, April 23rd, 2019, The Guardian, https://www.theguardian.com/world/2019/apr/23/wolf-pack-case-spain-feminism-far-right-vox, accessed 29/4/19.

    [v] Eoghan Gilmartin and Tommy Greene, ‘Assassinating Podemos’, April 11th, 2019, The Jacobin, https://jacobinmag.com/2019/04/podemos-spying-pablo-iglesias-psoe-elections, accessed 29/4/19.

  • The Limits of Law

    ‘What is law?’ This is a fundamental question posed at the outset of any course in the philosophy of law. The standard form of response includes that it is a system of rules, according to a tradition known as legal positivism. Such is a ‘black letter’ lawyer, and Anglo-American approach. This is a product of a tradition of formalism, pioneered by scholars such as Jeremy Bentham and John Austin, and latterly taken up by Christopher Columbus Langdell and H. L. A. Hart.

    In a nutshell it says that if you want to ascertain what the law is then you simply look it up in a statute, or derive it from the interpretation of a case or precedent, and, hey presto, there you have it.  As a lawyer you then arm yourself for battle with this information. Such an outlook matches the common-sense approach of most lawyers. But interpretations of case laws, statutes and constitutions differ. Even within black letter law the meaning of language is never clear. Facts are never exactly the same. Rules are opaque, seen through the looking glass as in Lewis Carrol’s Alice in Wonderland:

    When I use a word Humpty Dumpty said, in rather a scornful tone, it means just what I chose it to mean-neither more nor less. The question is said Alice whether you can make words mean so many different things.[i]

    In fact, the central assumption of certain positivists, such as Hart[ii] that facts are plain, and all meaning is shared, is eminently contestable. It leads to the fallacy within the black letter tradition that law, or legal meaning, can simply be ‘downloaded’ from a case or a statute and technically applied to any case at bar.

    In contrast, the leading rights-driven lawyer, Ronald Dworkin[iii] (in for example Laws Empire, 1986) saw law as a matter of argument, and interpretation. Law and legal meaning are thus intensely creative. He concluded that the best or superior interpretation succeeded – as in Herman Hesse’s last novel The Glass Bead Game – but often this fitted, subjectively, with an overarching liberal agenda. For Dworkin, the right or best answer was always the liberal answer, which allowed his critics to pillory him, arguing his approach was a trojan horse laden with premeditated answers.

    But questions of what law is cede to questions of legal validity. Thus, whether something is there on a statue book, or in a court case, must be related to whether that which is law is itself valid.

    Ultimately an impasse is reached in that legal validity, in order to have normative and thus binding force, cannot simply rely on legal validation. Or to put it more simply, black letter, legal validity must be cross-checked against the moral or ethical quality of any law.

    Nonsense on Stilts

    Thus, the argument runs, in order to be valid black letter law it must also be morally reasonable. This concept is deeply alien to an Anglo-Saxon mindset. It invokes the spectre of supernatural deities and that abomination that Bentham referred to as ‘Nonsense on Stilts’, natural law.

    Ever since Bentham, the architect of legal positivism, English lawyers have frowned and derided such abstract speculation. Within the British intellectual tradition, from Hobbes to Hitchens, the existence of a supernatural deity is either not accepted, or treated with utmost scepticism. Even devout Christian defer to the intellectual wisdom of traditional British empiricism.

    Yet there is still a widely maintained view, of which residues exist even within the British mindset, that in extremis when a law has forfeited all claims to legitimacy it should be abandoned.

    This was also the perception of the reformed German positivist lawyer Gustav Radbruch at the end of World War II in response to Nazism. He argued that once a law abandons all principles of humanitarian morality it ceases to be law. This became known as Radbruch’s formula, and forms the basis of modern human rights instruments and charters.

    Here we approach the kernel of the problem namely, if a law departs from fundamental moral principle should one comply with it; or instead engage in civil disobedience to unsettle and repeal it? Furthermore, should a judge invalidate it on moral grounds?

    Law in Action

    This then throws up the thorny question of morality, a world conjuring images of Baptist street preachers, and public avengers screaming from the rooftops. The moral majority often contends, in Lord Devlin’s terms, that what disgusts the average man on the Clapham omnibus should be declared illegal (see Devlin, The Enforcement of Morals, 1959). But given how many minds are polluted with prejudice that may be a perilous formula.

    Such is the positivist dilemma, and also a pragmatic and realistic one. The view I increasingly lean towards is that it is less important what the black letter law says, as opposed to what are the repercussions of the law.

    As Oliver Wendell Holmes, the quintessential realist, put it: ‘The prophecies of what the courts do in fact are what I mean by the law and nothing else.’[iv] Thus, Holmes maintained there was no law as such until a court had pronounced on the matter. This has morphed into the concept of law-in-action, which is a useful corrective to black letter legal theorising of the ivory tower type.

    It is all well and good to talk about rules, but in the trial and family courts it is not rules but fact, semi-fact, prejudice and bias that condition outcomes. Such technical law as there is contested often is agreed beforehand, and irrelevant to the outcome.

    The question thus becomes: where statute and the practice of the courts is manipulated to favour certain outcomes, what recourse does any citizen have, and what obligation are owed in terms of obedience?

    The Subversion of Subversion

    What are you to do if you are confronted with a corrupt state and attacked personally and professionally by an abuse of process or lack of standards. The current imprisonment and trial of the Catalan leaders in Spain, who had the temerity to organise a referendum trial in Spain is one good example of the distortion of law.

    A number of options are available: you can fight back in a loaded game with predetermined outcomes; comply and sympathise with the plight of your torturers, who are only doing their jobs after all. Stockholm Syndrome must always to be resisted. You can also engage in civil disobedience or write letters to newspapers, or refuse to recognise the legitimacy of a subversive state. Then you may be imprisoned or even murdered either in detention or on the street in plain view, like the Maltese journalist Daphne Caruana Galizia. More likely you will be bankrupted. Such today are the perils of dissidence around the world.

    In practical terms this often means exile is the best option, either as a professional or as a political refugee.

    A place of sanctuary, however, may not provide an adequate haven due to its failure, deliberate or otherwise, to understand the intricacies of the laws of another state. It may feel obligated to comply with reciprocal extradition treaties. Fortunately a court in Schleswig-Holstein refused to extradite the Catalan leader Carles Puigdemont, as it was clear that the charge of violent rebellion laid against him was an abomination. This world is nonetheless increasingly dangerous for enemies of the people: politicians, human rights lawyers, journalists and whistle blowers.

    It leads to the unsettling question of whether, if a state engages in criminali behaviour, is retaliation against a state officials permissible?

    I believe that self-help, disobedience and fighting fire with fire even in an extra-curial sense can in certain circumstances be justified. In general, however, the pen is a mighty counterweight to the sword and a weapon when the legal system no longer functions. The Fourth Estate can still blow smoke up the arses of the establishment.

    This leads to the worrying conclusion that we expect too much from law and that the overlap between law and justice is extremely tenuous. That at least is the case in those states where a crisis of legitimacy is leading to a breakdown in the rule of law.

    Law in societies no longer complying with the rule of law, is whatever works to bring about a desired outcome, which is often the incarceration of the alleged subversive.

    Civilised states at least pay lip service and occasional adherence to justice. Those who believe in legalism and the rule of law, encompassing such diverse figures as the Dworkin, Jurgen Habermas and the late Marxist historian E.P. Thompson, suggest law can be a force to check tyranny.

    As Thompson wrote in Whigs and Hunters:

    But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction.[v]

    The rule of law can, however, only obtain if the legal system has not descended into barbarism.

    Radbruch’s Formula

    As aforementioned, a crucial juristic figure is Gustav Radbruch, both a law professor and government minister during the Weimar Republic. It is often argued that opinions expressed in his earlier writings are positivistic. In 1932 he was a relativist in terms of the question of whether moral standards existed in law. He wrote that a judge had an obligation to uphold an unjust law. The Second World War changed his mind.

    In the famous ‘Radbruch’s Formula’ (Radbruchsche Formel) he argued that where statute law was incompatible with positivist law to an intolerable degree, and if it negated the principle of equality which is central to justice, it could be disregarded. In 1946 he wrote:

    [P]reference is given to the positive law, duly enacted and secured by state power as it is, even where it is unjust and fails to benefit the people unless it conflicts with justice reaches so intolerable a level that a statute becomes in effect false law and must therefore yield to justice … where there is not even an attempt at justice, where equality the core of justice is deliberately betrayed in the issuance of positive law then the statute is not merely false law it lacks completely the very nature of law.[vi]

    Radbruch suggests that where a government’s conduct is intolerable, the statue ceases to be valid. Law and must yield to justice. It was clear for Radbruch that this sense of justice (Gerechtigkeit) was linked to human rights. Thus, in Funf Minuten Rechtsphilosophie he argued for ‘justice as moral equality as applying the same measure to all or guaranteeing human rights to all.’[vii]

    As Hart indicates:

    His considered reflections led him to the doctrine that the fundamental principles of humanitarian morality were part of the very concept of Recht or legality and that no positive enactment or statute, however clearly it was expressed and however clearly it conformed with the formal criteria of validity of a legal system, could be valid if it contravened basic principles of morality.[viii]

    Fuller also argues in oft-repeated quote:

    To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system. When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the street, which no one dares challenge, in order to escape even those scant restraints imposed by the pretence of legality – when all those things have become true of a dictatorship, it is not hard for me, at least, to deny to it, the name of law.[ix]

    But is the moral answer ever completely clear and who is to judge?

    The Fog of War

    In this respect it is worthwhile considering a fascinating film documentary by Errol Morris about Robert McNamara, called The Fog of War. McNamara was Secretary of Defense under Presidents Johnson and Kennedy, and a man of many private accomplishments. In his documentary he surveys his career through a glass darkly.

    McNamara reveals that as an assistant to the American General Curtis Le May he was responsible for the carpet bombing of Tokyo. He admits that if the US had lost the Second World War, he could have been prosecuted for war crimes. He ultimately concedes he was a war criminal, but his side had won. Victory is not necessarily the victory of the morally just.

    Moral arguments can become even more complex. A recent documentary by Claude Landsman – responsible for perhaps the greatest documentary ever made Shoah (1985) – called The Last of the Unjust traces the life of Benjamin Murmelstein during World War I through a series of interviews prior to his death, alongside contemporary reflections by the director. The moral complexity of Murmelstein, a rabbi to the Jewish community at the Theresienstadt ‘model’ Concentration Camp, is such that he is difficult to place, in the seemingly straightforward narrative of the Shoah, as victim or vector. It is only thirty years later that Landsman revisits the footage.

    The argument of the film is replete with moral ambiguity. As head of the Jewish Council in Warsaw Murmelstein liaised with Adolf Eichmann. Then as leader of the Jews at the propagandistic Theresienstadt he was responsible for maintaining the illusion of happy campers; the salutary consequence was that many Jews were saved from the death camps.

    But many others were sent to the gas chambers from Theresienstadt and Murmelstein was privy to those decisions, and saved his own skin. At the end of the war he was prosecuted but the case was dropped.

    What have I done wrong he asks constantly through the film? Did I not do my best? Did I not do good? What would you have done in the same circumstances?

    Should he have been prosecuted or acclaimed like Oscar Schindler, Nazi War Profiteer, Drunk and Womaniser yet a saviour of the lives, at great personal cost, of over one thousand Cracow Jews, rights beside Auschwitz? Schindler is now buried alongside the Israeli hierarchy in the national cemetery in Tel Aviv.

    Conclusions

    Thus, even the invalidation of laws based on morality creates problems. So, in summary, what can be said about law, legality and morality?

    1. That judges should adhere to the process of legality and avoid bending the rules to suit the interest of those who appoint them. They ought to be independent, and not subject to political pressure or motivated by dogma.
    2. That justice must be blind to class or colour, and neutral and dispassionate. Show Trials, such as those going on in Spain today, reveal the mob ascendant.
    3. That judges ought to jettison strict adherence to black letter outcomes, unmitigated by flexibility.
    4. That the judiciary and fact finders must be committed to the process of truth elicitation and non-fabrication.
    5. That in extreme circumstance of an immoral legal code or state-sponsored illegality, a judge should reserve a discretionary right to strike down a statute or a precedent.

    Perhaps people have too much faith in the law and indeed lawyers, but in our times a faith in justice is one of the few things to hold on to.

    A just system is one administered by independent-minded gatekeepers of flexibility, motivated by principle and not corrupt or politically compromised. Fortunately there are many such judges left in the UK.

    We rely on contributions to keep Cassandra Voices going.

    [i] Lewis Carroll, Alice Through The Looking Glass, Chapter 6, 1871.

    [ii] A. L. A. Hart, The Concept of Law, London, Clarendon Law Series, 1961.

    [iii] Ronald Dworkin, Laws Empire, New York, Belknap Press, 1986.

    [iv] Oliver Wendell Holmes, The Path of the Law, 10 Harvard Law Review, 1897 457-58

    [v]  E.P. Thompson, Whigs and Hunters, London, Allen Lane, 1975, Appendix 1.

    [vi] Gustav Radbruch, Five Finutes of Legal Philosophy, 1945

    [vii] Radbruch Gesetetchiches Unrecht Und Bergesetiches Recht Sufddeutsche Juristrazeitung (1946), p.107

    [viii] A. L. A. Hart, Positivism and the Separation of Law and Morality, vol 71. 1984, p.617.

    [ix] Lon L. Fuller, Morality of Law, 1964, New Haven, Yale University Press, 1964, p.660.

  • ‘Wild Law’ is the Path of Natural Justice

    Man-made climate change is as good as a fact, but the consequences are uncertain in any specific location. Indeed, the island of Ireland could actually be more hospitable to human habitation under certain scenarios: drier and hotter summers are predicted, albeit with an increased likelihood of storm events; higher atmospheric CO2-levels could also increase crop yields.[i] Our rising emissions could have greater impacts elsewhere.

    Mitigation strategies may also have adverse side effects. Witness the expansion of sitka spruce plantations across Ireland, which acidify soils and strangle biodiversity,[ii] in pursuit of an improved carbon balance sheet permitting increases in dairy production. There are also question marks around the impacts of wind farms, especially those sited on blanket peat[iii], requiring hundreds of tonnes of concrete in construction, and disrupting the flightpaths of birds. If this energy is devoted to a new generation of electrified autonomous vehicles, rather than communal transport, it will be in vain.

    Climate change opportunism includes the distortion of supermarket shelves being stacked with organic products wrapped in plastic and flown halfway around the world. It is most obvious in the greenwashing of the agricultural sector,[iv] which consistently argues that Irish livestock’s lower emissions profile justifies expansion – as beef and dairy would only be produced elsewhere with higher emissions. Thankfully, the ‘our coal smokes less than their coal’ argument is more easily dismissed as data from the United Nations Food and Agriculture Organisation (FAO), analysed by An Taisce, shows that Ireland is, in actual fact, the most carbon-intensive beef producer in Europe, and ranks third on emissions from its dairy sector.[v] Most importantly, however, narrowing the environmental agenda to climate change alone obscures the equally pressing consideration of the Sixth Extinction, the unarguable reality of which is apparent in Ireland.

    With this in mind, Is it possible that interested parties could assert rights, already implied by the Irish Constitution, to protect Irish nature itself? Could spiralling emissions then be reduced alongside meaningful biodiversity-gains? Such an argument would build on a foundation of Natural Law, a school of thought embedded in the language and historic interpretation of the Irish Constitution. It can be traced to Classical antiquity, as Sophocles’s Antigone puts it: ‘the unwritten and unfailing statutes of heaven’, beyond the temporary, and occasionally illegitimate, laws of any state.

    During the Middle Ages, especially through Thomas Aquinas, ‘pagan’ Classical arguments were adopted by the Roman Catholic Church. In more recent times these became associated with a toxic and myopic focus on human sexuality, especially women’s bodies. Natural Law still transmits, however, compelling arguments for a universal justice beyond, and above, positive law, informed by dialectic, rather than Christian Revelation as is widely assumed.

    The jurist and former President of the High Court, Declan Costello wrote: ‘It has more than once been judicially observed that it can clearly be inferred that the [Irish] Constitution rejects legal positivism as a basis for the protection of fundamental rights and suggests instead a theory of natural law from which those rights can be derived.’[vi] Thus, from the 1960s, Natural Law interpretations ascribed a host of ‘Unenumerated Rights’[vii] to all citizens, including rights to bodily integrity, work, marry, privacy in marital relations, and free movement within the State. These rights are not explicitly identified in the Irish Constitution but are considered intrinsic to the human condition, flowing in particular from a generalised protection of personal rights under Article 40.3. With the Sixth Extinction now upon us, there is an urgent need for Natural Law to be extended to imply an Unenumerated Rights of other species to exist, along with ourselves.

    For this to occur, however, the Court must overcome a contemporary moral relativism, and aversion to decisive ethical responses. No doubt truth is a shifting target, and any single account is insufficient, but faith in our capacity to settle ethical arguments at a given point in time needs to be restored. As Aristotle – whose influence on Aquinas’s Natural Law theory was immense – pointed out:

    The theorizing of truth is in one sense difficult, in another easy. This is shown by the fact that whereas no one person can obtain an adequate grasp of it, we cannot all fail in the attempt; each thinker makes some statement about the natural world and as an individual contributes little or nothing to the inquiry; but a combination of all conjectures results in something considerable.[viii]

    Post-modernists will argue otherwise, but an outlook of ambient confusion is an admission of failure. Holes can be picked in any argument, but the argument as a whole – “a combination of all conjectures” – may stand. One cannot propose anything meaningful without the conviction of arriving at “something considerable” –  an elusive truth. A capacity to determine justice requires we overcome a ponderous Post-Truth incoherence.

    A contemporary philosopher Alasdair MacIntyre sees in the dialectic process, ‘the movement from thesis to thesis as a movement towards a kind of logos which will disclose how things are, not relative to some point of view, but as such’. Contemporary environmental challenges require new logical departures, disclosing “how things are”, “as such.”  Natural Law theory should encompass an Earth Jurisprudence. Then our laws may confront the reality of an oversized human population radically out of balance with its environment, with Ireland presenting a difficult case.

    Currently, however, environmental laws are generally seen as a body of rules foisted on the populace, often in exchange for a subsidy, rather than practices adopted for the commonweal. Accordingly, Coyle and Morrow claim such regulations are seen ‘as a technical instrument of social goals and policies, rather than a body of principles aiming at the articulation of a concept of justice and the good life.’[ix] This can partly be attributed to the prior failure of Natural Law theorists to identify inherent rights in other species.

    In contrast, the sanctity of human property rights have been vigorously upheld. Early modern theorists, drawing more on Christian revelation than reason, assumed rights of virtually unrestrained possession, along with dominion over all wild creatures therein. The seventeenth century Dutch jurist Hugo Grotius described this as ‘a grant which was renewed on the restoration of the world after the deluge’. To deprive any owner of this would, he said, be ‘an act of injustice.’[x] Importantly, however, up to that point there had been little necessity to assert the rights of wild animals, even in Europe, as humans were living in relative harmony with nature, or at least allowing other species to survive. According to Tim Flannery: ‘after the last muskox died in what is now Sweden about 9,000 years ago, the European mainland did not lose another species until the seventeenth century.’[xi]

    Since then the picture has changed dramatically across the world with sixty percent of wild animals wiped out since 1970 alone.[xii] Coyle and Morrow affirm: ‘The very agricultural practices which were held out as a moral necessity by the natural rights theorists can, it seems, create untold environmental damage.’ Given the scale of ecological damage that has ensued – associated with European colonisation of the globe – they argue that ‘the ethical assumptions of the seventeenth century conception of property cannot survive in such circumstances.’[xiii] The accumulating impacts on our planet of over seven billion human beings, living longer than ever, enjoins alternative approaches to land ownership. As Coyle and Morrow put it: ‘If human agriculture was ever in harmony with nature it certainly is not any longer and the sanctity of individual ownership must be restrained. Duties must join rights.’[xiv]

    Natural Law is an ongoing, truth-seeking dialectical process with the aim of disclosing, “how things are, not relative to some point of view, but as such.” If Natural Law is to have continued relevance it must adapt to current conditions. A re-imagining of Natural Law is evident in the field of Earth Jurisprudence, or Wild Law, a term coined by Cormac Cullinan to refer to human laws that are consistent with Earth Jurisprudence.[xv] According to one of its inspirators, Thomas Berry: ‘The Universe is not a collection of objects but a communion of subjects and every member of the Earth Community has three inherent rights: the right to be, to habitat, and to fulfil its role in the ever-renewing processes of the Earth community.’[xvi] These rights ought, logically and morally, to be incorporated into Irish law.

    But how can these aspirations be given tangible legal form? In a seminal 1972 article ‘Should Trees Have Standing?’[xvii] Christopher D. Stone explores how Wild Law might apply. He argues that natural objects could have legal standing by analogy with companies, states, infants, incompetents, municipalities or even universities. Thus, a court appoints a trustee when a corporation displays incompetence. He writes:

    On a parity of reasoning, we should have a system in which, when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship … The guardian would urge before the court injuries not presently cognizable – the death of eagles and inedible crabs, the suffering of sea lions, the loss from the face of the earth of species of commercially valueless birds, the disappearance of wilderness areas.

    He also draws an analogy with the law of patents and copyright:

    I am proposing that we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions and privacy: make the violation of rights in them to be a cost by declaring the piracy of them to be the invasion of a property interest.

    Furthermore, he suggests this could lead to modifications in our representative democracies:

    I am suggesting that there is nothing unthinkable about, and there might on balance even be a prevailing case to be made for an electoral appointment that made some systematic effort to allow for the representative “rights” of non-human life.

    Stone envisages changes in our legal culture informing wider social norms, as, ‘a society that spoke of the “legal rights of the environment” would be inclined to legislate more environment-protecting rules by formal enactment.’

    Intriguingly, he also speculates, ‘What is needed is a myth that can fit our growing body of knowledge of geophysics, biology and the cosmos’, proposing ‘that we may come to regard the Earth, as some have suggested, as one organism of which mankind is a functional part’. Similarly, Coyle and Morrow argue: ‘The problem is that meaningful change responding to environmental and social imperatives will require a true paradigm shift in how we regard our relationship with the world of which we form a part.’

    A transformation in our legal relationship with the natural world requires the participation of other fields. It was Percy Bysshe Shelley who famously described the poets as the ‘unacknowledged legislators of the world.’ The philosopher Timothy Morton makes the provocative claim that putting ‘something called Nature on a pedestal and admiring it from afar does for the environment what patriarchy did for the figure of women.’[xviii] Perhaps W.B. Yeats’s identification of Irish nature with a ‘glimmering girl’, ‘with apple blossoms in her hair’ distracts from an ongoing exploitative relationship, linked to our colonial inheritance. Indeed, rather than celebrating a patriarch ‘Digging’ for turf, as in Seamus Heaney’s poem by that name did, new accounts might draw inspiration from an often-overlooked visionary poet of the early twentieth-century Irish Revival, Eva Gore-Booth. She gave up the wealth and privilege of her aristocratic background to devote herself to the poor. Gore-Booth also recognises the right of all creatures to exist on the land, notwithstanding human ownership in her 1906 poem ‘The Landlord’

    O the bracken waves and the foxgloves flame,
    And none of them ever has heard your name –
    Near and dear is the curlew’s cry,
    You are merely a stranger passing by.    [xix]

    Hearteningly, all around the world, from Ecuador to New Zealand, conceptions of Earth Jurisprudence, Wild Law or Pachamama are actually taking route. For example, Germany’s constitution makes protection of ‘the foundations of nature and animals’ a national imperative, applicable to government agencies, the legislature and the judiciary. The provision has been cited in over seven hundred cases. Moreover, echoing Christopher D. Stone, Oliver A. Houck points out this ‘does not include the more numerous acts of compliance that drew no litigation at all.’[xx]

    Meanwhile in Ireland species loss continues apace. Liam Lysaght recently records: ‘of the 3,000 species that have undergone a red list conservation assessment, one in every four species is threatened with extinction here.’[xxi] Of particular concern is the continued exploitation of peat bogs for fossil fuel extraction – where considerations of nature conservation align precisely with keeping fossil fuels, and embedded methane, in the ground – as well as the impacts of grazing ruminants.

    Unfortunately, existing environmental legislation, including the EU’s Habitats Directive, is failing to protect endangered species adequately, including the iconic curlew, which is now on the red list. This can partly be attributed to a lack of enforcement, but also, as we observed, such laws are currently considered an encumbrance on property owners, and not a scheme of protection for a common inheritance. So how do we spare what remains of Irish nature from the ravages of human exploitation?

    A constitutional amendment enshrining nature rights, similar to that operating in Germany, should be the long-term goal. But this will take time to bring to fruition, especially as mainstream media only falteringly highlights extinction threats, and none of the main political parties prioritise protection of biodiversity.

    I propose the alternative of a test case, applying Thomas Berry’s tripartite rights to a particular native species; proposing, for example, the curlew has a right to be, to habitat and to reproduce, alongside humans, based on a Natural Law interpretation of the Irish Constitution – as a previously Unenumerated Right. It seems crucial that such rights are ‘discovered’ sooner rather than later before further, irreversible, losses occur.

    The Court could certainly injunct particular activities to protect species under threat, or prohibit certain classes of herbicides or insecticides outright, or even declare particular lands under private ownership as protected habitats. This will require expert witness from recognised authorities to distinguish competing rights of native, invasive and naturalized species. Property owners should be compensated for any loss, but under the Irish Constitution all rights, including that to property, are subject to the common good, which is served by preventing extinctions.

    The allocation of reserves and prohibition on the use of certain chemicals would be a proportionate appropriation by the Judiciary of the powers of the Legislature and Executive branches, in circumstances where there has been a serious dereliction of duty. The Sixth Extinction is an emergency happening before our eyes with recognisable victims, unlike the unpredictable devastation that climate change is wreaking.

    Cattle and sheep farmers can find new roles as landscape guardians. Re-wilding may begin with marginal lands, where farming is already uneconomic, while better land currently under pasture can be converted to tillage in order to accelerate what a recent article in The Lancet has referred to as the ‘Great Food Transformation.’[xxii]

    Eventually, beyond legal prescriptions, habitat reclamation can endear the population to the landscape, and reform destructive behaviours. In developing our appreciation of the soft sounds and sweet aromas in nature we may consider reducing dependence on noisy, polluting motor cars. Greater biodiversity also offers scope for judicious harvesting of foodstuffs, building materials and fuel. The tragedy of the loss of other species is almost impossible to convey.

    Many of us wish to see our laws go further: putting an end to the perverse subsidy regime that only benefits the Beef Barons; or dignifying all animals with a decent life, in the wild. For the moment, however, our best legal argument is to assert the rights of all resident Irish species, living in ecological balance, simply to exist. Reduced emissions will be a happy by-product of biodiversity-gain, raising environmental awareness to a point where destructive behaviours are recognised, and changed. In beginning to liberate the natural world from human dominion let us recall the small victories won in the battle against human slavery along the road to the great milestones. Wild Law can emerge incrementally in Ireland through our existing constitutional framework.

    [i] Stephen Flood, ‘Projected Economic Impacts of Climate Change on Irish Agriculture’, October, 2013, Stop Climate Chaos, https://www.stopclimatechaos.ie/download/pdf/projected_economic_impacts_of_climate_change_on_irish_agriculture_oct_2013.pdf, accessed 19/2/19.

    [ii] Mary Colwell, ‘A forestry boom is turning Ireland into an ecological dead zone’, October 10th, 2018, https://www.theguardian.com/commentisfree/2018/oct/10/trees-ireland-biodiversity-sitka-birds-extinction, accessed 19/2/19.

    [iii] Richard Lindsay and Olivia Bragg ‘WIND FARMS AND BLANKET PEAT. The Bog Slide of 16th October 2003 at Derrybrien, Co. Galway, Ireland’, November, 2005, School of Health & Biosciences University of East London. https://web.archive.org/web/20131218090914/http://www.uel.ac.uk/erg/documents/Derrybrien.pdf, accessed 28/2/19.

    [iv] Kevin O’Sullivan, ‘Environmental group calls Origin Green a ‘sham’’, October 4th, 2017, Irish Times, https://www.irishtimes.com/news/environment/environmental-group-calls-origin-green-a-sham-1.3244507, accessed 28/2/19.

    [v] Press Release ‘Bombshell for Irish Peace’, 12th of February, 2019, An Taisce, http://www.antaisce.org/articles/bombshell-for-irish-beef?fbclid=IwAR0uPTUu1TEoZToCGugOCIoS-nmsigAQNU0g_U3XrIZHNU3PKbF2_zO0YIU, accessed 19/2/19.

    [vi] Declan Costello, ‘Natural Law, the Constitution, and the Courts’, from Lynch and Meenan (eds.) Essays in Memory of Alexis FitzGerald, Dublin, The Incorporated Law Society of Ireland, 1987, p.109

    [vii] The original ‘Unenumerated Right’ to ‘Bodily Integrity’ was approved by the Supreme Court in Ryan v. A.G. [1965] IESC 1; [1965] IR 294 (3rd July, 1965)

    [viii] Aristotle, Metaphysics, Book 2, Part 1.

    [ix] Coyle and Morrow, The Philosophical Foundations of Environmental Law. Property, Rights and Nature, Oxford, Hart Publishing, 2004, p.211

    [x] Coyle and Morrow, p.15

    [xi] Flannery, 2018, p.251

    [xii] Damian Carrington, ‘Humanity has wiped out 60% of animal populations since 1970, report finds’, 30th of October, 2018, https://www.theguardian.com/environment/2018/oct/30/humanity-wiped-out-animals-since-1970-major-report-finds, accessed 20/2/19.

    [xiii] Coyle and Morrow, p.206

    [xiv] Ibid, p.209

    [xv] ‘Discovering the meaning of Earth jurisprudence’, Legalbrief, August 27, 2002

    [xvi] Quoted in Mike Bell, ‘Thomas Berry and an Earth Jurisprudence’, http://rainforestinfo.org.au/deep-eco/earth%20jurisprudence/Earth%20Justice.htm, accessed 20/2/19.

    [xvii] Christopher D. Stone, ‘Should Trees Have Standing–Toward Legal Rights for Natural Objects’, Southern California Law Review. 45 (1972): 450–87.

    [xviii] Timothy Morton, Ecology Without Nature: Rethinking Environmental Aesthetics, Cambridge, Harvard University Press, 2007, p.5.

    [xix] [xix] Eva Gore-Booth ‘The Land to a Landlord’, from Sonja Tierney (ed), Eva Gore-Booth: Collected Poems, Dublin, Arlen House, 2018, p.166

    [xx] Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Envtl. L.J. 1, 2017

    [xxi] Liam Lysaght, ‘The six steps needed to save Irish Biodiversity’, February 19th, 2019, Irish Times

    [xxii] Prof Walter Willett, MD et al, Food in the Anthropocene: the EAT–Lancet Commission on healthy diets from sustainable food systems, January, 2019. The Lancet. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31788-4/fulltext?utm_campaign=tleat19&utm_source=HPfeature’, accessed 26/1/19.

     

  • Review: Rather His Own Man by Geoffrey Robertson

    In his autobiography– in itself an unusual exercise for a lawyer – Geoffrey Robertson QC, refers to himself as a ‘Baby Boomer’, and devotes a chapter to that generation. Although of Generation X myself, we share similar career trajectories in our commitment to human rights, which is probably why Geoffrey kindly sent me this biography, Rather His Own Man, for review.

    The title is revealing on all sorts of levels. First, there is no doubt that he has ploughed a creative and perhaps lonely furrow on legal and societal issues, enhancing the cause of human rights in the UK, and throughout the planet. Compared to other Baby Boomers his contribution has been largely positive, which could not be said for his birthfellow Mr Clinton.

    Secondly, though every inch a hard-working scholarship boy from an ordinary school in Sydney, it may be argued that the opportunities he was afforded, notwithstanding his obvious dynamism and drive, were not commonly allocated to Generation X. With fewer aspirants in the 1960s it was easier to forge the path of an international human rights lawyer. He might concede that to achieve his level of dominance and fame would be impossible now for anyone starting from a lower rung on the social ladder. More to the point, the cause of human rights, something I will return to, is dying. Thirdly, and I think most importantly, in the present age – more so than ever – remaining your own man or woman is increasingly difficult, or even nigh on impossible.

    At one level the autobiography is a unique insight into a fading life experience of a somewhat gilded age. He is, as he intimates several times, at the end of the Biblical cycle of ‘three score year and ten.’ The death of his parents at the end of the book are engendering in a personality – one suspects of huge warmth and decency – intimations of mortality. The dying of the light.

    As the great chronicler of our age, and perhaps the foremost Baby Boomer Bob Dylan put it ‘It is not dark yet but it is getting there.’[i]

    There are many aspects of his upbringing which startled me in the realisation that they were similar to my own. We are both bibliophiles, with a love of the great works of literature. Omnivorous in that respect. The first few chapters of the autobiography offer an immersion into the great fictional and non-fiction books he has absorbed. This very defined liberal arts background is no longer typical of lawyers, but is surely crucial to his eminence.

    Elsewhere among his corpus of works there is strict legalism, such as his textbook on Media Law, but he has also put the whole justice structure under a microscope, and has placed law in a sociological and philosophical and indeed historical context.

    He epitomises the paper-giving public intellectual practitioner, which are increasingly being replaced by robotic technocrats. To speak and write as mellifously, and occasionally orotundly, as he does might invites caricature and ridicule among the dominant philistinism of today.

    He is a non-conformist in the best sense and has represented far from popular people. In this respect, Alberto Moravio’s novel The Conformist (Secker and Warburg 1952) shows how the bureaucratic conformity evident in many lawyers leads to the endorsement of fascism. As a cosmopolitan London QC, something one senses he is hugely proud of, he had the protection and freedom to remain a non-conformist, immune from parochial pressures. He flew the coop and in hindsight is quite prescient about how scholarship decisions, which reading between the lines were marginally in his favour. Expatriation gave him a distance from, and perspective on, his native land; about which he writes with a tint of nostalgia and doe-eyed remembrance, in common with Irish Americans recall of their ‘old country’.

    It should be stressed it cannot have been easy to ascend to his level even in more informal times. He tells an interesting anecdote of his first appearance at Knightsbridge Crown Court, representing an indecent t-shirt seller, where his ‘irritable vowels’ of Australian slang lead a snobbish judge to rebuke him. The t-shirt my lord he intoned ‘Says Fuck art, let’s dance.’ To which the judge responded with a reference to his Australian inheritance you surely meant to say: ‘Fuck at, lets drance.’

    Elements of the English establishment may have embraced him but one senses he is still a quintessential outsider.

    As an aside, just as Geoffrey Robertson aspired in his childhood to appear before the Old Bailey so did I, managing to do so very recently. I recall saying in front of my peers when I was sixteen precisely what he had: ‘I want to be a barrister at the Old Bailey in England’, and being greeted with the same jeering laughter and bemusement.

    Now I doubt suburban Sydney is as bad as suburban Ireland in its contempt for that particular courthouse, but I recognise that he had many barriers of prejudice to surmount. It should be stressed that his affectionate evocations of the Australian bar are quite different from my view of the Irish bar.

    He makes the point several times and he is absolutely right, that all true change comes from troublemakers, dissenters and muckrakers and that the bland technocratic and compliant conformity of our new world order needs to be resisted.

    Yet the vanity, though not in a bad way, of the narrative is quite breathtaking. It is almost like reading Katherine Hepburn’s autobiography, simply entitled Me (Knopf 1991), as if everybody should know who that is. Well of course they do, and there is nothing wrong with subjectivism, or an element of personal vanity as long as it leads to the whole series of achievements and good deeds he has accomplished.

    One is dumbstruck at the litany of the high profile representations, and wonders how he has done it. Not least physically. Leaving aside enormous ability, other aspect of his personality emerge, which might be open to censure. He is a total social butterfly and name dropper, and his friends and associates are all glittering examples of the chattering classes, as are many of his amours. Now I would imagine this pronounced maven-like networking ability is a huge asset and he has effortlessly glided between different worlds in the cosmopolis. Is he a lawyer? Is he a  public intellectual? Is he a media don? Is he just another part of the culture of solipsism and celebrity?

    I do not mean to be dismissive and am not. That maven-like ability and his ability to interact at different cultural levels, I suspect, is why he has achieved as much as he has done. Like all great advocates he is an everyman, and complex creature. But to be this unclassifiable is now no longer, in my view,  an asset, but a liability. The lawyering caste, and the world at large, is now populated by arcane specialist, not generalists, however Olympian.

    Robertson is clearly the thinking woman’s lawyer. The alpha-male-minus of the Baby Boomer generation. Man, the very man, but not a caveman. A feminist success. He is very critical, as am I, of corporate lawyers and the vast wealth they accumulate doing no good at all. I think he is very proud in hindsight that he has fulfilled his potential and has been a conventional success by pursuing a less than conventional path.

    There are little clues though to the alpha-male-minus that I must say I do not like. He sees nothing wrong with academic Stalinists no platforming people. But I do. His fellow Baby Boomer and Australian Germaine Greer was no platformed for saying that a man who becomes a woman can never truly understand what it is like to be one.  He is rightly indignant, as am I, about Catholicism and how its institutions have covered up child abuse, and in fact wrote a beautiful crisp book on that theme called The Case Of The Pope (Penguin, 2010). What he neglects to deal with is that now in Ireland this specialist knowledge base on child abuse has been used by a corrupt state to make false accusations and frame people. Thus the sins of the clergy are recast to target those who dissent and challenge the cosy consensus, led by lawyers often religious in orientation.

    I attended a CPD session run by his chambers. Most professional it was, but one was not oblivious to the anti-corporate corporatisation. The slick presentations, the office marketeers and managers. Doughty Street Chambers is in many respects a factory for the good, and he presides over it all like a latter day Friedrich Engels. And he is very proprietorial. At times the CPD was so slick I wanted to holler. But that is too trite a judgment and perhaps reveals my own parochialism.  Doughty Street Chambers, of which he is rightly enormously proud, is a totemic achievement and he presumably knows in this age of advertising and soundbites that in order to take on corporatisation one has to adopt their methods, or at least know a bit about branding. Robertson has been brilliant at marketing himself and his product.

    I applaud him for this, but I doubt the backbiting Australian legal community are quite so approving. From reading this book I do not think he is anything other than a deeply humane man with an acute and developmental sense of justice, along with a terrific eye for detail, nuance and erudition. He is very prescriptive that a lawyer needs to know the hard data, know his onions before grappling with the ethereal world of human rights. Hard Graft. Sydney scholarship boys grow up harder, and are less tolerant of those that have had it handed to them on plate.

    He is very interesting on the nature versus nurture question, having been been given opportunities to grow and develop, thereby escaping the shackles of his background. He has not blown these chances. By contrast, by and large Generation X has had to make more sacrifices and often settle for less. Much less.

    He writes  with great precision about the secular religion that is human rights as an ethic for our time, but it sounds like the lilt of a dying generation, or generation a their song. It is fin de siècle and the new zeitgeist, which I imagine troubles him, as much as me, is resurgent fascism, the decline of pluralism and multi-cultural tolerance, along with the utilisation of surveillance, which he eloquently conveys in his analysis of his client Julian Assange, under an increasingly oppressive state. Human rights lawyers are the new subversives, as defined by state criminals. The dangerous rise of what Chomsky captured as a triage of evil: postmodernist relativism, neo-liberalism and religious fundamentalism; our post-truth universe, so alien to the truth-telling barrister.

    He does mention the word postmodernism favourably once, and such intellectual artifices have probably influenced him unduly, as indeed has an overly-attuned political correctness, but he has had to, and done so brilliantly, navigate some choppy waters.

    He defines himself as a Gladstonian Liberal and a Cromwellian Puritan. I am with him on the former, but not the latter. Puritanism far too easily morphs into Brahmin self-righteousness. Also, dare I say, to define oneself in such sonorous terms, is an echo of a different age. Based on his positive ambivalence towards Lord Denning and enthusiasm for U.S. Legal realism as well as the Harvard Socratic method he seems to be a pragmatist, like myself. Castles in the sky, I would imagine, he has always resisted.

    The most interesting part I found was his analysis (pp. 446-447) of the ‘banality of evil’ – to appropriate Hannah Arendt’s phrase – among government, judicial and state officials, which I witnessed in Ireland. Bean counters absolve themselves of responsibility for evil deed by claiming they had to feed their families. Evil is incremental and increasingly apparent in our times.

    Just as Eichmann saw himself as only putting people on trains, and a mere functionary in Hannah Arendt’s description, so austerity cost-cutters render a decent existence for many people a huge struggle, if not an impossibility.

    I think Robertson accepts he – and I hope he does not take offense – is now a  banger, a cab rank tart and a gun for hire, even for the right reasons. I doubt he has ever considered himself anything else and there is underlying the ego a deep-seated modesty, and acceptance indeed, of the absurdity of the human condition.

    He is prescient about knowing when enough is enough. Experience and judgement are all assets, but not if mind and body are failing.

    It is a remarkable life, and for a lawyer almost unique. He is also still fresh and childlike and a real force for good. In this day and age that is a huge achievement.

    To revert briefly to Irish, or Australian, begrudgery, it just shows how far you can go with the gift of the gab. But the light is dying for the good. It as if we have stepped into Jean Renoir’s 1939 film La Regle De Jeu, on the precipice of an environmental and economic collapse that collectively we are sleep walking into. Robertson has stood bravely resisting the subversive tide. But the tide is high, and what can this King Canute or Rumpole of the legal profession do apart from

    Rage, rage, rage against the dying of the light. (Dylan Thomas: ‘Let us Not Go Darkly Into That Night’ (1952)).

    Did you know that Cassandra Voices has just published a print annual containing our best articles, stories, poems and photography from 2018? It’s a big book! To find out where you can purchase it, or order it, email admin@cassandravoices.com

     

    [i] (Dylan: Not Dark Yet from Time Out of Mind (Columbia 1997).

  • UK’s Surveillance Regime in Breach of European Convention on Human Rights

    In a previous editions of Cassandra Voices we discussed the Russian surveillance system, called SORM, and the far-reaching data privacy impact it may have vis-à-vis private individuals and communication service providers.

    Russia is not the only state struggling to strike a balance between national security concerns that often mandate extensive surveillance measures, and the right to data privacy of its citizens. Recently, the approach employed by the UK in this area, specifically, the Regulation of Investigatory Powers Act 2000 that provides a legislative basis for governmental surveillance, was subjected to the scrutiny of the European Court of Human Rights (‘ECHR’) in Strasburg.

    In particular, in the case of Big Brother Watch and Others v. the United Kingdom the ECtHR had a chance to opine on the legality of the UK bulk interception regime, its intelligence sharing policy with foreign governments, and the manner in which it may collect data from communications services providers.

    Concerns around the UK government surveillance techniques were triggered following Edward Snowden’s allegations about the British Government Communications Headquarters’ (‘GCHQ’) surveillance protocols being even more extensive than the equivalent powers resorted to by the US government. Specifically, Snowden referred to the GCHQ-driven operation codenamed ‘TEMPORA’, which has supposedly facilitated tapping and storing of an unprecedented amount of data about private citizens in the UK. The British government has since neither confirmed nor denied the existence of such an operation.

    The issue has been subsequently picked up by civil rights activists, journalists and non-governmental organizations, including Big Brother Watch, Transparency International, Privacy International, Bureau of Investigative Journalism, Open Rights Group etc., with the ECHR passing final judgment on September 13th, 2018.

    By five votes to two the ECHR judges ruled that the bulk interception regime adopted by the UK violated Article 8 of the European Convention on Human Rights (‘ECHR’), specifically a right of respect for private and family life/communications, in the absence of sufficient safeguards to prevent abuse. The Court noted that while the bulk interception techniques themselves did not constitute a breach of Article 8, the failure to secure adequate safeguards did.

    The Court also held, by six votes to one, that the approach for collecting data from communications service providers breached Article 8, and that both the bulk interception regime and the regime for obtaining data from communications service providers violated Article 10 – the right to freedom of expression and information – of the ECHR, again, due to an absence of safeguards to prevent the abuse of systems, guaranteeing an appropriate level of confidentiality.

    Notably, the UK regime for sharing intelligence with foreign governments was found to be in compliance with Articles 8 and 10.

    It should be noted that the Court issued its judgement in the context of the Regulation of Investigatory Powers Act 2000 that currently forms a legal basis for surveillance activities pursued by the government in the UK. The Investigatory Powers Act 2016 is a new piece of legislation that was supposed to come into force after the allegations have been made and, therefore, fell outside of the scope of the present case. Once fully in force, this Act is expected to heavily amend the existing regimes with the recent ECHR judgement, hopefully, a timely guidance for this purpose.

  • The Torture of my Irish Visa Application

    I am writing this account for the sake of those who follow. As victims of serious negligence by the state bureaucracy, my family and I feel vulnerable, and thus wish to remain anonymous. In any case, revealing my identity will add nothing to what I am about to disclose. If anyone wishes to contact me for support or guidance, please contact the editor of this magazine.

    I – The Background

    I am an Irish citizen originally from Pakistan. By the time of my citizenship application, I had already been living in Ireland for ten years, at all times on a valid visa. I am married to a Lithuanian national (and EU citizen), and we have a child, who is Irish by birth. We availed of the welfare system for a few years after the recession, when we struggled to find work despite our Irish university educations, but we have both since gained full-time employment.

    I entered Ireland on a student visa. A few years later, I met my partner, and we got married. The effect of marrying an EU national in an EU state is that it elevates your legal status in that country. It allowed me to take out a five-year 4EUFam visa, meaning I had a right to remain, live, and work in Ireland.

    Fast forward five years, in 2015, I contacted the Irish Naturalisation and Immigration Service (henceforth INIS), asking them what my options were, as I wished to remain in the country permanently. They replied that I had two options. Either, apply for a ten-year Permanent Residence Card (Form EU3), six months before the expiration of my visa, or apply for full citizenship.

    In February 2016 my wife applied on my behalf, as is required, for the ten years visa. We expected the application to run smoothly, as we had always lived here in accordance with the Free Movement of Persons Regulation, had no criminal records, an Irish child, and had been consistently resident in the country.

    Also, importantly, my wife had also applied for, and received, a Permanent Residence Certificate in 2010 (Form EU2), which provides leave to remain in the state, which can only be obtained after living and working in the country for at least five years.

    Once certain conditions are met, this certificate grants that person’s family leave to remain. The free movement of EU citizens and their family members is a fundamental right under EU Law, enshrined in Article 45, and developed by EU secondary legislation and the case law of the European Court of Justice.

    Nine months passed, because of a backlog at the INIS, as applications, which were supposed to be processed within six months, were taking much longer. But I hear this is only happening to Pakistani nationals, and a few select others.

    In the meantime my five year visa expired, but the INIS sends a letter, which I can take with me to the notorious Burgh Quay, and request a 6 month extension, while my application is being processed. I had already, optimistically, sent my application for citizenship.

    II – The Bombshell

    In November 2016 we received a letter from the INIS, saying the Minister has decided to refuse my application, for the following reason:

    You have not submitted the necessary documents which were requested.

    The documents requested were as follows:

    For each period of study, copies of the following documents should be supplied:

    -Letter from college/course provider including start date and (expected) completion date

    -Letter from private medical insurance provider for EU citizen and any dependants

    -Evidence of financial resources and corresponding bank statements

    For each period of involuntarily unemployment, copies of the following documents should be provided:

    -Letter from Department of Social Protection with details of benefit claims

    -Letter from previous employer outlining circumstances of redundancy

    -P60s for prior 2 years of employment

    Therefore your application does not meet the requirements of Regulation 15(2) of the Regulations as you have failed to submit the necessary supporting documentation set out in Schedule 7 of the Regulations.

    In order to qualify for permanent residence under Regulation 12(1) of the Regulations, you must reside in the State with the EU citizen in conformity with the Regulations for a continuous period of 5 years. You have submitted the following as evidence of the EU citizen’s activity:

    (long list of documents)

    This does not satisfy the Minister that the EU citizen has resided in the State while engaged in employment, self-employment, the pursuit of a course of study, involuntary unemployment or the possession of sufficient resources in conformity of Regulation (6)(3) of the Regulations. Therefore, it does not appear you are entitled to permanent residence as a family member in accordance with Regulation 12(1)(b) of the Regulations.

    It is now open to you to make representations to the Minister as to why your application should not be refused. Such representations must be made within 15 working days of the date of issue of the letter.

    Naively, we assumed there had been a mistake, because we were sure we had submitted all the documents correctly. I had just fifteen days to re-submit all the necessary documentation for the application, without even knowing what exactly was missing in the first place.

    In February 2017, after three months, we received a letter from the INIS, stating:

    The Minister has examined your application based on the documentation on file.

    I am to inform you that the Minister has decided to refuse your application for a permanent residence card under the Regulations. This is for the following reasons:

    In order to qualify for permanent residence under Regulation 12(1) of the Regulations, you must reside in the State with the EU citizen in conformity with the Regulations for continuous period of 5 years. You submitted the following as evidence of the EU citizen’s activity.

    (list of documents)

    This does not satisfy the Minister that the EU citizen has resided in the State while engaged in employment, self-employment, the pursuit of a course of study, involuntary unemployment or the possession of sufficient resources in conformity of Regulation (6)(3) of the Regulations. Therefore, it does not appear you are entitled to permanent residence as a family member in accordance with Regulation 12(1)(b) of the Regulations.

    …

    Request for review:

    If you feel that the deciding officer has erred in fact or in law, then you may request a review of the above decision. This must be done in accordance with Regulation 21 of the Regulations and should contain the details set out in Form EU4. A request for a review of a decision must be made on Form EU4 within 15 working days.

    It is noted that you now have no immigration status in the State. In the event that you do not submit a request for a review of the decision not to grant you a Permanent Residence Card within the prescribed 15 working days, your file will be referred to the Removals Unit, Repatriation Division for consideration under Regulation 20 of the Regulations.

    At that moment panic set in. Shocked, confused, alone and scared, after receiving the letter, we immediately contacted a prominent immigration lawyer, booked an appointment and went to see her. Assuming the INIS is overworked, we thought a mistake had happened in their offices. After ten years in Ireland, we had reasonable amount of faith in the public services.

    We disclosed everything, looking for realistic, practical advice. What did we get from her? Scaremongering and incorrect advice. She told us that not only my own, but also my wife’s immigration status was not certain, even though she had a Permanent Residence Certificate, which was a serious shock. She said the INIS had become very strict on people who were receiving social welfare and were an economic burden on the State. She said they were deporting as many immigrants in that position as possible.

    It seemed even my wife, an EU citizen, could be deported. I felt belittled after being questioned as to why I had even considered applying for a ten-year visa, and not just settled for reapplying for the five-year visa.

    We were told that we might have to fight our case in court, and that she would get in touch with a barrister, and get back to us to say what further steps needed to be taken, which she never did.

    She took €100 for the consultation. We contacted her a few more times, but she was never available and despite our leaving messages, she never responded.

    As a last ditch effort, she had advised us to re-submit our documents and appeal the decision, and also apply for leave to remain in Ireland based on the European Court of Justice’s judgment in the Zambrano case.

    She also advised us to take out a Freedom of Information Request to obtain records of the original application.

    III – Digging Deeper

    We started dissecting the Regulations ourselves, because the solicitor’s advice did not sit well with us. The more we dug, the more we realized that her advice had been misleading.

    We racked our brains about what could be wrong with the application. We could not think of any other reason apart from that a document was missing. The letter from the INIS, however, did not specify the exact reason. We collected all the documents again and re-sent them to the INIS.

    We were absolutely certain we had provided all proofs and all documents as requested, and that my wife and I both had a legal right to remain in the country.

    We decided to appeal the Minister’s decision, meaning more letters, more documents, more legislation, more time, and more effort. I also sent an application for a visa under the Zambrano judgement.

    We were considering our options, and we did not have many immediate ones. If I were deported, it would be horrendous for my family. For starters, my wife would be left to look after our child alone in Ireland. It would also make it very difficult for me to return as a deportee. Plus, I seriously feared living in Pakistan as an atheist vegan.

    If we were all to move, as non-Muslims, my family would be treated as dangerous outsiders in an intolerant and violent country.

    The only other option was to try to move to Lithuania, but for that we needed to show one year of private health insurance costing €5000, paid up front, and enough money in our bank accounts to survive for a year. There was also the small matter that I did not speak Lithuanian, which would have made getting a job extremely challenging.

    I also made a Freedom of Information Request to the relevant Officer at the Department of Justice and Equality for a full copy of my original application and supporting documents, so we could go through everything they had on file as part of the application. That was the only way we had of finding out what was actually missing.

    The INIS had never been specific about which document was missing, or what were the shortcomings of my application.

    Meanwhile, my wife had been getting headaches and having sleepless nights because of the stress of fighting my case, as well as forthcoming exams.

    We did not let them break us. We continued our full-times studies, while working part-time. We were sure we had the right to live here, and knew there must be something wrong. But at the same time we knew we were in an extremely vulnerable position.

    Also, the temporary extension on my visa was about to expire, and I had exams coming up, which I could not sit if I was thrown out of the country.

    This also threw my citizenship application into jeopardy as it cannot be processed without a valid visa.

    IV – Aftershocks

    We started to delve deeper into the legislation, and sent numerous emails and letters to the INIS, stating relevant legislation which safeguarded my right to remain as a family member of an EU citizen.

    The weeks were passing, and we were hardly receiving any responses, even when we were asking for an extension to my temporary visa, while we appealed, and also while the visa under the Zambrano judgement was in process.

    We told them about my forthcoming exams, and the threat to my employment which required a valid visa. Even on the rare occasion when we did receive a response, it was completely useless and frustrating, more or less stating:

    Your correspondence has been forwarded to the relevant section.

    The clock was ticking. Desperation was setting in.

    A friend of our’s suggested contacting our local TD, as we could not get answers from the INIS ourselves.

    She was quick to reply, and genuinely willing to help. She agreed to send correspondence on my behalf to the INIS, firstly to get an update on my three applications (the appeal, the visa based on Zambrano judgement, and the citizenship application), and secondly, to request a temporary visa extension because of my work and academic circumstances.

    Lo and behold, in only a matter of days, I received direct correspondence from INIS via email and post, with a clear update on my three applications, and also with an entitlement to a temporary extension.

    The letter had said my appeal was still being assessed, and I would be informed as soon as the Minister had made a decision. It is funny how people higher up in the pecking order can get information about you faster than you can get information about yourself.

    When we visited their office on Burgh Quay to extend my visa, we were spoken to very rudely, including being shouted at that we did not have any rights here in this country because my wife was at that time involuntarily unemployed.

    But at least we had found a bit of calm in the midst of very rough seas.

    V – Another Angle

    There was no time to rest while the appeal was in motion. We knew at least that the INIS would have to take all our documentation on file into account at the time of making the final decision.

    Looking for another way of communicating our case to the INIS, we came across SOLVIT.

    We told them our story, and they offered to send a letter to the INIS spelling out all our legal rights, and why the INIS had no legitimate basis for refusing the application. They performed this service for free, for which we remain extremely grateful.

    SOLVIT confirmed that based on all the factors, including that my wife had been resident for over 10 years in Ireland, was involuntarily unemployed, and also had a Permanent Residence Certificate, we indeed had a right to remain as a family in the state.

    A few days later they got back to us stating that after pressing the INIS for an answer, they were informed that the INIS had not received a P60 form from my wife, which is why they had rejected my application.

    But we were sure we had sent it!

    We wrote to the INIS stating that we had already submitted the P60 at least twice. Of course, we also took the precaution of sending a copy again ourselves, and via SOLVIT for good measure too.

    More weeks passed by, until one afternoon, I received a call from someone in the INIS, admitting that there had been a mistake with my application (note the passive voice).

    They apologised, and said my visa would be approved. She also casually asked me if I could withdraw my Freedom of Information request.

    To make it clear, that is all I ever got from them in terms of an apology.

    I wonder how many officers go through a single application before the INIS decides to reject it? Are there checks in place, which can offset or safeguard against negligence, laziness or carelessness?

    This is the cold and inefficient system we are up against, which has total power to decide the fate of individuals and their families.

    VI – Relief at last

    A few days later, in May 2017, I finally received a letter stating my application had been approved:

    Your application has been examined under the provisions of the Regulations and the Directive.

    I wish to inform you that your application has been approved, as you fulfill the relevant conditions set out in the Regulations.

    No mention of any mistake, as if the six months of torture had never happened.

    A few months later, we received the records in response to our Freedom of Information request. These contained disturbing revelations, which included an internal memo from within the INIS, admitting that the initial application had been ‘incorrectly refused’, and which sought to rectify their mistake by withdrawing their refusal, and closing down the Freedom of Information request itself, unless I responded within ten days. It also suggested that they had only attended to our case because SOLVIT had applied on our behalf.

    The Freedom Of Information records contain other information which I will be investigating in the months to come.

    *******

    I wonder was the INIS even aware of how the legislation operates?

    And what of human rights? My child is Irish, and I, as his father, should have an inherent right to be with him in this State. I shudder to consider that I was almost deported because of this.

    After being granted my visa, I wanted to complain about my treatment by the INIS. We went to the Ombudsman, but they do not handle immigration matters. We also went to FLAC, and other prominent immigration law firms, who all said that because we had not incurred monetary loss, the INIS had no case to answer. Do stress, mental pain and anguish, as well as a huge amount of wasted time, count for nothing?

    Fast forward a few weeks, and my citizenship was granted too.

    I wonder what if we had not been fluent in English? We would never have had a chance of overturning this injustice, and been expelled from the country.

    So what advice would I have for someone in the situation I found myself? Do your research, and know the legislation like the back of your hand. Don’t blindly trust solicitors to fight for your case. Also, look for ways of using organisations like SOLVIT to communicate with state bodies, or an elected representative, although it should be noted that access to SOLVIT is restricted to EU citizens.

    If you are sure you have a right to remain, never give up, keep fighting, and finding new ways to advance your case.

    Do you think this piece is valuable? If so, you might consider providing us with financial support via Patreon, or simply provide a small sum directly using PayPal: admin@cassandravoices.com. Thanks for supporting independent journalism. Subscribe for free to our monthly newsletter here. 

  • The Towering Qualities Needed in an Advocate

    Leonard Cohen’s ‘Tower of Song’ is a short history, and valedictory, to the tradition of songwriting, fusing aphorisms and personal reflections on failure with nostalgia and regret. In this ‘Tower’, like that of Babel, the songsters of history communicate unsatisfactorily:

    I said to Hank Williams “How lonely does it get?”
    Hank Williams hasn’t answered yet
    But I hear him coughing all night long
    Oh, a hundred floors above me in the Tower of Song

    Cohen also hints at the immortality of his verse:

    Now, I bid you farewell, I don’t know when I’ll be back
    They’re movin’ us tomorrow to the tower down the track
    But you’ll be hearin’ from me, baby, long after I’m gone
    I’ll be speakin’ to you sweetly from a window in the Tower of Song.

    As advocates barristers, especially those representing criminal defendants, see themselves as part of a great tradition: maintaining a vocation in eliciting the truth, and telling it. We also trade in ambiguity, testing the veracity of an opponent’s case in order to establish reasonable doubt in the minds of a jury.

    What sort of qualities should an advocate have? Fearlessness is intrinsic, which does not mean hysteria or histrionics. Flailing arms should give way to precision bombing, and the careful assembly of evidence.

    A true advocate is honest, and never misleads a court, or fabricates evidence: offering persuasion within ethical bounds.

    Nonetheless, the best bend the rules, leading a witness through examination-in-chief, at least until challenged.

    An advocate should be unafraid to criticize the vectors of established authority. Thus Sir Edward Carson, frustrated by the proceedings of a tribunal presided over by a judge, who claimed he was not acting in his judicial capacity, responded: ‘Any fool can see that’.

    Another great skill is knowing when to keep shtum. Silence can be golden, and verbosity pointless. This extends to deciding who to call as your witness. The old lawyers’ joke is that your client is your worst enemy. A question too far, when you cannot anticipate the answer, is a journey into unknown, perilous territory.

    Advocacy is more art than science, and thus demands a high degree of creativity. It requires nimble thinking, judgment, and a degree of circumspection. This branch of alchemy cannot be taught in law schools, as is assumed in the United States.

    It often benefits from non-linear sequences of thought that are the hallmark of a person who is out-of-the-ordinary. This may involve throwing out the rule book for that most devastating of interrogations: the surprise question. This remains the height of creativity in the often gentle, though far from gentile, art of cross examination.

    Great advocates have their idiosyncrasies: from the thespian US lawyers, or indeed the late Adrian Hardiman in Ireland, to the blind courage and rhetoric of the aforementioned Carson, who displayed a unique combination of fearlessness and cold judgment.

    After being frustrated by a playful deluge of responses from Oscar Wilde on his apparently innocent relationship with boys, Carson asked him about one Graingier, and, ‘had he kissed him’?

    Wilde fell for the trap, responding, ‘oh no he was far too ugly’, and Reading Gaol beckoned. Implicitly he had revealed that his relationships with boys was of a different order.

    It goes to show that a witness should never be over-confident. A witness box is the last place to send a stage performer, or for anyone who plays to the gallery.

    Cross examination involves strategies, ruses, subtle discrediting, and of course laying traps. The strategy should be mapped out in advance, and requires the prosecution’s evidence to be parsed meticulously, in order to be dismantled.

    In appealing to a jury, the great advocate often eschews the chronology of a case, instead presenting a fluid and protean account. They often mix it up, and it may not be initially apparent what they are getting at.

    Any aspiring advocate ought to study and indeed listen closely to how senior advocates go about their trade. To attain greatness anyone must commune with the dead, and living, and be humble.

    Increasingly, I believe great advocates should have a commitment to social justice. Alas, few do. Victory and payment is one thing; serving the community, or that nebulous notion of justice, another. Amidst the scramble for Mammon this often gets lost sight of.

    The greater the capacity of an advocate for empathy, the more she will be prepared to do on behalf of her client, though it should be noted that even the best have their foibles.

    I am deeply skeptical, from wide experience, about the motivations and funding sources of the human rights industry, and the type of advocacy we often hear that arrives in the form of sound bites. This is safe sex advocacy on politically correct issues such as gender equity, funded by shady organizations like the Ford Foundation, while ignoring far more pressing issues of homelessness, poverty and social exclusion.

    The crucial test is whether you are willing to represent the wretched of the earth: including the gangster, the property speculator and the drug baron.

    I intensely dislike those who take up causes driven by populist bandwagons. These are not advocates, but politicians in disguise.

    The world is full of public avengers, and family lawyers often deserve contempt for the fake outrage and indignation peppering their speech, while they enrich themselves on cultivating misery with contrived, and even state-sponsored, fabrications.

    As mentioned, advocacy intersects with creativity, which always contains an element of mystery. As when a tennis players enter the ‘zone’, great advocates are often inscrutable in their methods, and react instinctively. Great, as opposed to good, advocacy cannot really be taught. That ability is innate.

    That is not to diminish the value of the science behind the trade: a closing speech should scrupulously assemble the weaknesses of the opponent’s evidence, establishing corroboration, or otherwise, and exposing holes and contradictions.

    From his rhetorical palette the advocate paints in mosaic, fusing a degree of passion with calculated mind games.

    An advocate should be a psychologist in his approach to keeping a jury as a criminal barrister, or judges elsewhere, on side.

    What should be said before a judge, as opposed to a jury, is markedly different. A judge is case-hardened, and less likely to be swayed by the tricks of the trade, unlike a jury, whose affection should be courted.

    But trial courts are becoming increasingly like reality television, or beauty contests. It is getting like Crufts, or a horse parade.

    As I have indicated, a much underrated virtue is discerning when to leave something unsaid. Evidence that may seem advantageous may remain unexplored in a closing speech for fear it will generate ambiguity, and even implode another argument. But this should not lead to timorousness. Points should be put decisively, which may border on stridency.

    I am increasingly of the view that advocacy is a necessary life skill, with application far beyond the courtroom. We all have to sell ourselves and relate to others: our daily lives involve persuasion, and to be too timid in discussion may invite disaster.

    It is important to be confident and assertive, but never too sure of yourself. The minute you believe your own hype, or that you are the cleverest man in the room is when you need to get out of there. This unfortunately is often a feature of the ruling class of any country.

    Like artists, most great advocates are assailed by doubt. These are complex and ambiguous creatures, whose practice of the dark arts may lead to a perception that there is something of the night about them. Perhaps as a result, the burden, and not just of proof, can be onerous.

    In our times public advocacy, not confined to the court room, is in high demand. As Leonard Cohen sang:

    Now, you can say that I’ve grown bitter but of this you may be sure:
    The rich have got their channels in the bedrooms of the poor
    And there’s a mighty Judgement comin’ but I may be wrong
    You see, I hear these funny voices in the Tower of Song

    The world is completely out of balance and spinning towards the disasters of an economic and environmental apocalypse. The acceptance of neo-liberalism dogma is accelerating the prospect of social and economic collapse.

    This has been steered by a diabolic trinity of religious fundamentalism, neo-liberalism, and the post-truth peddling of relativists in the universities: academics who sing for their supper. But there’s a “mighty Judgement comin’”.

    Public advocacy from the likes of Naomi Klein, Arundhati Roy and our own Cassandra Voices is rising up.

    Where better to learn advocacy than in the criminal and public courts of the Tower of Song? For the advocate is a truth-teller, who exposes bullshit wherever it is found. Real training in these skills is difficult to find. The art is increasingly diminished by failure to engage in adequate self-reflection.

    The mark of the truly great advocate is a resolute independence. He is never a dutiful servant of the state: the best would never dream of acting for the prosecution. That is left to careerists, and others who can only dream of advocacy’s Tower of Song.

  • The Key Change to Fix the Irish Constitution

    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 which reads:

    Directive Principles of Social Policy

    The principles of social policy set forth in this article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any court under any of the provisions of this constitution.

    As detailed below, this article provides clear instruction to the Oireachtas to ensure the material welfare of the people, but, crucially, prevents any meaningful judicial enforcement.

    Article 45 covers a lot, instructing the Oireachtas:

    • to promote the welfare of the entire people.
    • to secure wage equality and sufficiency.
    • to manage the natural assets to ‘subserve the common good.’
    • to prevent free competition from detrimental concentration of essential commodities.
    • to manage credit for the benefit of the people.
    • to ensure private enterprise is efficient and where lacking be supplemented by the State.
    • to safeguard the interests of the weak and needy.
    • to ensure the health of the people and prevent exploitation.

    There is so much to welcome here. It is clear, humane, balanced, and entirely workable. Sadly, our Constitution grants the Oireachtas, and hence the Government, a judicial free-hand, and so allows them to ignore their responsibilities.

    An amendment to remove the offending ‘cognisable’ clause, highlighted above, would allow judicial oversight of the vast majority of Government business, requiring efficiency, charity and compassion.

    There is limited jurisprudence on the matter. Initially the courts refused to countenance any argument appealing to Article 45, but it has also served as guidance, insofar as it has been used to inform decisions. This progressive approach to allow reference to the Article has yet to be accepted by the Supreme Court, and current conservative thinking reckons it to be clearly beyond the competence of any court: ‘an invalid usurpation of legislative authority’, and a breach of the separation of powers.

    Quite apart from rendering these goals easily ignored by the government, as citizens we have no recourse in law against any government for failing in its duties. Witness the Housing Crisis, Direct Provision, wage inequality, the gap between the minimum and a living wage, the destruction of natural habitats, commercial exploitation of natural resources, multinational tax avoidance, and the general inefficiency of public services, especially health care in all its forms.

    Instead, our government suggests we turn our attention to the Blasphemy clause. This is welcome among secularists, profoundly uncomfortable for the devout, and so will stir a lot of debate but it will make no meaningful difference to the lives of people.

    Consider one issue afflicting the Nation: the Housing Crisis

    The ideology that free markets are inherently efficient is rampant across the world, and clearly evident in Ireland. The common belief that only very lightly regulated business can achieve efficiencies unobtainable in the public sector is especially clear in our Government’s current policies. This avoids both the fundamental conceptual problem of measuring efficiency in terms of money, or more generally wealth creation, and also breaches sections 1, 2-ii, 2-iii, 2-iv, 2-v, 3-ii, and 4-1 of Artcle 45.

    There are almost 100,000 empty houses in Ireland, and about 10,000 homeless people, of which some 3,755 are children, in 1,739 families.

    Rents are rising rapidly, and are already 23% above the pre-Recession peak.

    Rather than exercise Eminent Domain and issue Compulsory Purchase Orders, an old and well established technique of Government, to buy and re-use exiting property to house families, the Oireachtas is considering the Home Building Finance Ireland Bill, which proposes:

    to provide for the establishment of a company called Home Building Finance Ireland (HBFI), to increase the availability of debt funding for residential development in the State. HBFI will provide financing to developers seeking to build viable residential development projects in Ireland on commercial, market equivalent terms and conditions.

    The Bill facilitates funding of HBFI from resources currently held by the Irish Strategic Investment Fund (ISIF), the granting of the necessary power to the National Treasury Management Agency (NTMA) to provide staff and services to HBFI on a cost recoverable basis, the granting of specific powers to HBFI to enable it to carry on the business of residential development finance, and ensures appropriate accountability for HBFI.

    This overtly favours property developers, contrary to the common good. Indeed, the cost of administering this HBFI will likely run to many millions, millions which could be spent directly by the Government on building and maintaining public housing.

    Consider section 2-iv of Article 45 states:

    that in what pertains to the control of credit the constant and predominant aim shall be the welfare of the people as a whole.

    This bill favours developers over the people who are in most need of housing. It is against the spirit of Article 45, but our current Government is happier delegating responsibility to poorly overseen private quangos. This is just one example of why we need to be able to challenge our Government in our Courts.

    Were we to remove the offending paragraph we could not only pursue our indolent government in our Courts for their derelictions of duties to the people; we could also ensure that all future legislation would take full account of our socio-economic rights.

    This is not a charter for vexatious litigants, it should not and would not allow suit against the Government for minor infringements. The Supreme Court is, by necessity, selective in the cases it hears, and once a matter is decided there the precedent is binding on lower courts. But the doctrine of Separation of Powers should not allow the Supreme Court to deny jurisdiction over any part of our Law.

    Let us recall that these principles of Article 45 are already for the guidance of the Oireachtas. That our elected representatives neglect their responsibilities is nothing short of abhorrent.

    It is our Constitution and we must change it. It is up to us as citizens to elect representatives that will introduce legislation for a referendum to fix this broken string.

     

  • Your Fitbit Might be Walking You into Trouble

    In the previous edition of Cassandra Voices Eoin Tierney explored the extent to which data is routinely harvested in a variety of ways, some of which we cannot easily control. This extends to hardware used to measure one’s fitness.

    Fitbit, a company producing a famous activity tracker, is no exception. Data gleaned from these devices, usually worn like watches, has even been accepted as evidence in criminal trials in the United States. While in certain contexts such application renders numerous advantages, in the wrong hands there are obvious risks to the kind of information amassed by Fitbit being in circulation.

    With the General Data Protection Regulation (GDPR) entering into force last month, organisations all over the globe are reconsidering their data protection approaches and, as a result, updating their privacy policies. The brand-new Fitbit Privacy Policy, last updated on April 23rd 2018, can be found on the Fitbit’s official website.

    Like most privacy policies, its main objective is to align the company’s data privacy policies with the requirements of the GDPR. In particular, it lays down the scope of data routinely collected by Fitbit devices which includes a customer’s name, email address, phone number, payment details and geographic location, period of time for which such data is retained, and more..

    All these provisions are worth noting down for anyone who uses or intends to use Fitbit devices. One category that is essential for the Fitbit operations, but should have a red flag attached to it in the context of the GDPR, is the health-related and biometric data.

    In particular, Fitbit routinely collects your ‘logs for food, weight, sleep, water or female health tracking’, as well as other details that may furnish a vivid picture of any user’s behavioural patterns.

    Article 9 of the GDPR places data concerning health and biometric data within the special categories of personal data, processing of which is restricted to ten instances only. These, include, among others, explicit consent, public interest consideration and performance of obligations in the area of employment and social security.

    Article 9.4 goes further, creating wide leeway for member states to legislate in this area – something that should have Fitbit on its guard for legislative developments in the countries where it operates.

    This being said, Fitbit’s Privacy Policy does acknowledge the extent of sensitive personal data gathered by its watches and commits to obtain a separate consent from its users for related processing. It also expressly reserves the right to ‘preserve or disclose information about you to comply with a law, regulation, legal process, or governmental request’.

    This is a typical provision found in most privacy policies. The GDPR itself expressly allows the disclosure of personal data following a mandatory legal requirement.

    However, in case of Fitbit it took an unexpected turn in a recent Wisconsin murder trial, when a judge allowed step-tracking data, generated by Fitbit, as evidence to prove the defendant was not capable of committing a murder, as the device proved he had been sleeping at that time.

    In another instance, Fitbit logs were used by Connecticut police, this time to charge Richard Dabate for murdering his wife. The man concocted a fictional story to cover the murder, but his wife’s Fitbit brought the truth to the surface, revealing inconsistencies in Dabate’s version of events.

    Yet another example of Fitbit usage that clearly goes beyond what a fitness bracelet was intended for is the partnership that insurance companies are entering into with Fitbit.

    In particular, individuals are offered the option of a type of coverage that involves wearing a tracking device and sharing the data it collects with the insurance provider. On the one hand, such development will help insurance companies to stay up to date with the health condition of their customers and, if the need be, provide necessary assistance in case of an accident.

    At the same time, it effectively offers a full overview of a person’s life, including information about biorhythms, habits, and lifestyle quirks, that may later be utilized by insurance providers for purposes contrary to the interest of insurees, for example, by denying them insurance coverage, or raising their premium.

    *******

    The aforementioned cases illustrate how modern technologies may be utilized in ways that an average user would never expect when purchasing a devise. This may bring benefits, while in other instances it shares intimate information about its owner which could be their detriment.

    The purposes for which public authorities and external companies are using Fitbit-generated data remain contentious. Clearly, it turns out deceptively-guiltless fitness-tracking-gadgets turn out to amass unprecedented amounts of personal data.

    Arguably this tendency will only increase in future, with companies seeking more and more personal data to enhance and customise their products and services, in order to remain competitive in the modern market of accelerated technological development.

    For now, the least a regular user should do is to stay up to date with his or her rights under existing data protection legislation; as well as developing a clear picture of what personal data, and for which purposes, is being processed, and used, by manufacturers.

    All of these questions should be addressed in the privacy policy of any company in question, and these are usually available on a company’s website.

    So next time, before blithely hitting the ‘I accept’ button in a privacy notice pop-up while configuring your Fitbit device, make sure you genuinely do not mind that sensitive and, otherwise, confidential, information about you is being collected, analysed, stored and even shared externally for purposes that go far beyond keeping you fit.

  • The Qualities Needed in a Judge

    The task of ascertaining essential qualities required to be a judge is necessary for the preservation of a functioning democracy. Any state demands gatekeepers of independence and probity, and leadership of the just and the wise. Importantly, the qualities that make for a good judge do not necessarily align with the skills of a successful advocate.

    First and foremost, judicial appointments must be transparent and non-political. Peer selection may bring effective appointments, but often cronyism and tribal affiliation leads to the selection of judges lacking independence, and even ensnared by vested interests. Crucially, a judge is not a servant of the state but the Rule of Law.

    The judge who bends over backwards to manipulate doctrine to serve the interests of his paymasters in government is no longer a true judge. The judge who does not approach each case with an open mind also dishonours his role. The judge who protects the state, no matter what its malfeasance, is unjudicial and even subversive.

    A first recommendation is that judges should neither be appointed by politicians, nor elected as in the U.S.. Alas even supposedly independent appointment boards are often stacked with the ‘yes’ men of the state, which is another stumbling block to the appointment of truly independent judges. To preserve and promote independence those who select judges must also themselves be independent.

    Secondly, the qualities of the advocate and judge are quite distinct. In Ireland at least, there is far too much veneration of successful barristers, which leads to the assumption that their abilities are those required of a judge. Sir Edward Carson was among the greatest barristers of all time, but a hopeless judge in the House of Lords, where his judgments are often incomprehensible. Partisan, fearless advocacy, so necessary to the stock in-trade of the barrister, is often an impediment to being a judge, who must eschew this approach in favour of dispassionate reflection.

    A judge should sit back and listen, and only selectively intervene, not rush in as if it were a college debate. A person of an adversarial bent is not inclined to be even-handed: he takes sides; rushes to judgment; intervenes and confronts.

    Judges are of course subject to emotions, foibles and prejudices. But to call someone prejudiced is not necessarily pejorative, it merely recognises our flawed humanity. Ecce Homo. What is important is to recognise our prejudices as such, and adjust our responses accordingly.

    II

    The great jurist Jerome Frank argues in Law and The Modern Mind (1930) that in order to predict a judge’s decision we would need a full biography of his life; the politics, morality, race, sex, religion and other factors that shape his character, and which will predict the outcome of any case.

    Frank tuned into how the prejudice of participants in the trial process (judges and indeed jurors or witnesses) influenced decisions, and how selective recall or mistakes in evidence often affected the outcome of cases. Thus, the unpredictability of court decisions resides primarily in the elusiveness of establishing the truth and deep-seated prejudice. He expresses this in two deeply evocative passages:

    But are not those categories–political, economic and moral biases–too gross, too crude, too wide? A man’s political or economic prejudices are frequently cut across by his affection for or animosity to some particular individual or group, due to some unique experience he has had; ….the judge’s sympathies and antipathies are likely to be active with respect to the persons of the witness, the attorneys, and the parties to the suit. His own past may have created plus or minus reactions to women, or blonde men, or plumbers, or ministers, or college graduates, or Democrats. A certain twang or cough or gesture may start up memories pleasant or painful to the man. Those memories of the judge, while he is listening to a witness with such a twang or cough or gesture, may affect the judge’s initial hearing of, or subsequent recollection of, what the witness said…

    Or:

    Jerome Frank 1889-1957.

    When pivotal testimony at the trial is oral and conflicting, as it is in most lawsuits, the trial court’s finding of the fact involve a multitude of elusive factors: First the trial judge in a non-jury trial or the jury in a jury trial must learn about the facts from the witnesses and witnesses, being humanely fallible, frequently make mistakes in observation of what they saw and heard, or in their recollections of what they observed, or in their court room reports of those recollections. Second, the trial judges or juries also human, may have prejudices – often unconscious unknown even to themselves – for or against some of the witnesses, or the parties to the suit, or the lawyers … Those prejudices when they are racial, religious, political or economic, may sometimes be surmised by others. But there are some hidden, unconscious biases of trial judges or jurors – such as for example, plus or minus reactions to women, or unmarried woman, or red haired woman . . . or men with deep voices or high pitched voices . . .

    He concludes: ‘The chief obstacle to prophesying a trial court decision is, then, the inability, thanks to these inscrutable factors, to foresee what a particular trial judge or jury will believe to be the facts.’

    In substance Frank is making two points about the unpredictability of outcomes in trial courts. First, that a judge’s background, prejudices and hunches conditions his decision-making, and secondly that decision are often based on mistaken recollections.

    The usefulness of the judicial hunch – so central to legal realist thought – should not to be dismissed outright. Intuition, common sense, or a feel for an outcome compliments arid rationality, but this has limits.

    A modern variant of the undue application of prejudice is what is called cognitive or confirmation bias, whereby a judge makes his mind up in advance of a trial. A judge who predetermines issues or is influenced by a network of ties, or is simply biased, is failing to preform his job.

    I was recently involved in a case involving a judge of Greek Cypriot origin and a Greek Cypriot complainant. I argued that given Greek Cypriots are a tight-knit community the judge should recuse himself, step aside, which, to his credit, he did. More to the point, he actually brought the matter up himself, which displayed the real qualities required of a judge.

    A judge who fails to disclose any real or ostensible bias is subject to the sanction of breaching natural justice. Thus Lord Hoffman’s failure to disclose his involvement in Amnesty International in an extradition case against Chile’s General Pinochet, which involved the charity, led to a fresh hearing being ordered. The application of the Rule of Law gives anyone a fair trial.

    III

    There have been numerous instances of judges allowing their personal or ideological convictions to influence outcomes. In 1927 the much-lauded Oliver Wendell Holmes, Jerome Frank’s ideal judge, rejected Carrie Buck‘s argument that her constitutional rights had been infringed by being forcibly sterilization for being ‘mentally defective’.

    The attack is not upon the procedure but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited and that Carrie Buck ‘is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,’ and thereupon makes the order. In view of the general declarations of the Legislature and the specific findings of the Court obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations of imbeciles are enough.

    Surely Holmes’s belief in eugenics and his mistaken embrace of popular prejudice conditions the outcome of the trial?

    On a lighter note, in terms of judicial prejudice, in Miller v. Jackson (1977) isLord Denning refusal to grant an injunction to a family against a cricket club. The family had moved into a house adjacent to a cricket ground, upset by the danger posed to their young children by cricket balls flying into the back garden. The conclusion is startling obvious from the famous opening paragraph.

    In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

    IV

    A substantial number of roguish characters have been made judges, who like the rest of the speckled timber of humanity inevitably have their foibles. Some judges are perverts, some are alcoholics. A few are both. Far too many are deeply conservative creatures of the establishment. In Ireland, we have our fair share of religious fundamentalists, or worse religious fundamentalist former prosecutors. Perversion in spades.

    Nonetheless, in Ireland, with some notable exceptions, most judges have kept their bibs clean in their personal lives. It may seem controversial to say so, but that should not necessarily matter, at least prior to their appointment.

    A good judge will probably have had wide-ranging life experiences, bringing an ability to empathise with people of variegated backgrounds rather than imposing a class, or caste, credo in increasingly diverse and multicultural societies. I have noticed a significant difference between the smorisgoboard of backgrounds in evidence on the English bench, and the distinct narrowness of background and mentality apparent among their Irish counterparts.

    The more one understands and tolerates the waywardness and infamy inherent in human nature, the more one sees through liars, fraudsters, dissemblers and fabricators among the legal fraternity and their clients. In other words the better one can judge.

    So, what should it mean then to judge? Apart from independence and an ability to acknowledge and submerge personal viewpoints, he has to be, in most circumstances, balanced. He has to weigh and sift and evaluate the evidence and submissions before him. But ideally a judge should not be a narrowly technical lawyer.

    The law must be placed in its social context, and more than a passing awareness of non-legal disciplines such as sociology and philosophy, along with a good dollop of common sense, are required. A judge should be morally-upright, which does not mean sexually-sanitised. Any judge should not be precluded from having a personal life, although this must be, to some extent controlled and restrained. Who you meet and why you meet them could come back to haunt you.

    Self-restraint comes with the territory of being a judge, even though you might not like it. This is not to condone the absurd aloofness, and lack of engagement common among many judges.

    But morality in the sense of integrity is a prerequisite. A judge should not be bought or sold. A judge should not allow personal feelings or attachments to influence decision-making. A judge should always search for the right answer as a matter of principle.

    Technical lawyers often miss the big picture through too narrow a focus. A strict adherence to the wording of an act or case law is often to the detriment of justice. A judge should focus on the spirit of the law, applying a purposive and principled approach.

    If a rule does not conform with basic moral or legal principles then it should be jettisoned or subtly avoided. A judge should have the flexibility and wherewithal – the bag of rhetorical tricks – to cater for that scenario.

    As a realist Frank advocates that judges focus on law-in-action, and think in terms of wider policy

    Lord Denning 1899-1999.

    ramifications. Thus Lord Denning in Spartan Steel Alloys v Martin and Co. Ltd 1973 reasoned that if damages were awarded in the context of a power strike then the electricity company could go bankrupt. He struck out the case on the basis that the public interest lay in maintaining a solvent company to generate electricity supply.

    Denning tended to fashion remedies in a novel and creative way to subvert conventional doctrine. For example, he fashioned the doctrine of promissory estoppel to overcome the strict contract law principles of offer and consideration. He asserted that if someone makes a promise they cannot go back on it. An Englishman’s word is his bond. A norm often lacking in Ireland.

    V

    A judge must have intellectual integrity, which is not to say a judge cannot have opinions. It is just necessary to be up front with preferences or prejudices. Which is not to say that a judge’s opinions are necessarily correct.

    There are numerous academic commentaries regarding the methods a judge may use to interpret a text. I have indicated that literalism and rigidity is a dead-end, but there are other failings.

    The method of strict historical interpretation holds a particular spell over Conservatives in the United States. This imports the anachronistic values of long dead individuals into the interpretation of contemporary law. This allowed Judge Scalia in America to uphold the legality of owning handguns simply because the 18th century forefathers of American constitutionalism ran rampant with muskets.

    The most sinister nonsense of the law and economics movement in America – with two highly placed exponents in Easterbrook and Posner – has given rise to a cost-benefit analysis where wealth maximisation is the defining feature of every legal decision, at the expense of human rights.

    Nonsense has infected our culture, and promotes the agenda of the Far Right and Neoliberalism. The costing of everything in hyper inflated times has destroyed much and continues to do so. The balance is wrong. Not the bank balance but the moral balance. The ledger of life.

    Judges, even the greatest ones, are often ensnared by a viewpoint that does not stand up to intellectual scrutiny over time. Even the great Oliver Wendell Holmes became a proponent of Social Darwinism and eugenics, which led him to permit the compulsory sterilisation of a mentally defective person on the basis that three generations of imbeciles was enough.

    I fear Social Darwinism is back in fashion, but at least in the multicultural environment of London, racial abuse and racism are dissipated. But even here there is growing apprehension. Draconian asylum laws and judgments reflect the slide. The deportation of the undesirable is often the deportation of those you disagree with. The greatest judges have always been immune to ideas of racial hierarchies

    VI

    Every judge should also have an inner voice second guessing them. He or she should hear someone whispering in their ear: ‘Perhaps not’, or, ‘Restrain yourself.’ He or she must remain as neutral as an umpire as in a cricket or a tennis match, evaluating the rules of the game and when matters are out of bounds.

    It is a grave responsibility to sit in judgment particularly in criminal justice matters, and apart from the obligation to sift and evaluate evidence carefully, an obligation always arises to lean over backwards to protect the innocent, or at least to accord them the presumption of innocence.

    To impose any form of punishment on a fellow human being as a judge, without a critical filter and a defined sense of what you are doing and why you are doing it, is to forfeit one’s suitability.

    For judges to collude with state authorities or bend and manipulate procedure and doctrine is a form of intellectual sadism. Many barristers try and avoid particular courts on that basis if they can.

    A judge should also have a commitment to procedural fairness, equality-of-arms, human rights, independence and all the other aspects of the Rule of Law, which has little or nothing to do with judicial pay or pensions.

    In Ireland those who prattle on about the Rule of Law are largely political barristers, the men of the Castle seeking high offices of state, and with much to protect and preserve; deliberately masking self-interest in ruling class chatter.

    The appointment of avowedly party-political judges is a grave danger in any serious democracy. A judge should not have been involved or been a member of any political party prior to their appointment.

    A judge should also give detailed reasons for any decision he makes, and that reasoning should display careful consideration. Failure to do so, or delay, is an abnegation of judicial responsibility.

    As a Dublin-based barrister I endured too many written judgments failed to take into account the depth and sophistication of submissions; where the reasons adduced were a paper mask and compression; where the outcome was never in doubt and equality of arms a charade.

    This leads to the question of when a hearing is fair or not. The most important point in this regard is to distinguish between procedural fairness and the obligation to hear both sides and substantive fairness.

    Substantive fairness, which I have found lacking in Ireland, is always to do the right thing, and bugger the consequences. A judge should not be influenced in reaching a decision by how it will look in the media. A judge is not a fashionista or one of the beautiful people. A judge is not a pop star singing to politicians, though some have advanced that way.

    A judge should fearlessly expose corruption and, above all else, not conceal it or protect it. That obligation is often difficult to follow. Giovanni Falcone was assassinated for confronting mafia corruption in Italy. There are different species of mafia, who may even operate among the ostensible guardians of the state.

    Ireland’s greatest judge, for all his faults, of the last twenty years was Adrian Hardiman. The day after his death I met a judicial colleague of his who remarked: ‘Say what you want, he was a voice of independence in this country’; as if that is exceptional!

    Absent are such independent voices in our present judiciary. The times-they-are-a-changing for the worse, winter is coming and difficult decisions are required, but by people ill-equipped for the task. History will judge our judges as not judging in all of the above senses.

    For a great judge can become an historian, a cultural commissar, a public intellectual, and an arbitrator.

    *******

    A last important point on the qualities required in a judge is that he or she should not have an excessively authoritarian personality. A judge should thus be self-reflexive, and avoid pomposity at all costs. Peter Cooke’s caricature is invaluable for anyone aspiring to be one.

    Above all, as the legendary French writer Camus observed, a judge should be a just man.