Equality

Modern newspapers are, or have been, full of Tony Blair. However, the US Blairs are more notable, particularly Montgomery Blair.

A US lawyer, from Kentucky, he represented Dred Scott in Scott v Sandford [1857].

Dred Scott was a black slave, married to Harriet and each owned by Major Emerson of the US Army (in the case of Dred, since 1832). Major Emerson had consented to the marriage of Dred and Harriet and had taken them to Illinois and the Wisconsin Territory. In each of these places slavery was prohibited. In 1837 Major Emerson married Eliza Sanford. The Emersons and the Scotts moved in accordance with Major Emerson’s army assignments and the Scotts were in Missouri when Major Emerson died, his wife inheriting his estate, including Dred Scott.

Dred Scott offered to buy his freedom from Mrs. Emerson but she refused and in 1846 Dred Scott sued her, claiming he was entitled to his freedom. He ultimately lost in the Missouri Supreme Court, it finding that he should have made his claim while he was in the free territories of Illinois and the Wisconsin Territory.

Dred tried again, in 1853, in Federal court. The defendant was the then executor of Major Emerson’s estate, John Sanford. Ultimately, represented by Montgomery Blair, Dred Scott lost again in the US Supreme Court, (the court mis-spelling Sanford’s name as “Sandford”). The majority on the court denied that Dred Scott was a citizen of the US and therefore the US Supreme court lacked jurisdiction over his claims. It found that the applicable law was that of Missouri, in which Dred Scott was a slave.

The consequences of the decision were very far-reaching. There was an immediate financial upheaval; the possibility that the Southern states could expand slavery into the territories disrupted a political balance between the North and the South and led to the US Civil War.

During the war Montgomery Blair served in the Lincoln cabinet, retiring in 1864 as part of a deal to stall a Fremont candidacy for President, leaving  the way open for Lincoln to seek a second term. Prior to that, Blair advocated the freeing of black slaves to undermine the power of the secessionists, a course followed by Lincoln in due course.

Like many lawyers, Mr. Blair’s representation of his client, Dred Scott, was not for money but from conviction.

As for Eliza Sanford, she learned there are some offers you should not refuse, even if you can. (She had gone to live in Massachusetts before the Supreme court decision and slavery was not permitted there. Massachusetts was a Union state in the war.)

This blog has previously bemoaned the lack of interest in Ireland in ideas. Strictly, what was being regretted was the failure to articulate the controlling idea; the people of Ireland, sometimes all of them, and often many of them, are not heedless of ideas – they act on them rather than voice them or consider them.

One of the most influential ideas in Ireland is the belief that the State is superior to the citizen. This idea does not have universal acceptance, but it has a very strong grip on the persons controlling public administration. It is all the stronger for being an assumed truth and never referred to, let alone justified.

The fact that the Irish Constitution contains, and is professed to contain, provisions intended to safeguard the citizen from abuses by the State or its agents, does nothing, it would appear, to attenuate the Statist belief.

Historically, the Statist view is most strongly associated with Germany. Arguably its traditional or original German proponents hold the view as a considered philosophical position. They readily express and defend their ideas of the precedence of the State over the citizen.

It is a matter of surprise that such an idea would find root in Ireland, but its home in public administration suggests its attraction; it appeals to politicians in office and public administrators generally. The exercise of power is rarely if ever a pure act. The administrator invests his/her personality into the decision or act (and judges the fortune of his/her career thereby). Any opposition is resented. Any abstract idea that belittles or diminishes the status of the citizen is welcomed. It vindicates the continued deployment of power even in the face of substantial opposition. In the balancing of citizen and State rights, the balance is not affected by opposition measured by numbers; after all, numbers cannot make what is wrong, right.

Ireland inherited from the UK a perception that the traditional marginal role of the police in the UK (and Ireland) was superior to the Napoleonic system, seen in modern times in mainland European countries in the vestige requiring strangers to report in to the local police station.

In Italy its most ironic manifestation is the absence of internet hotspots or wifi zones on the terms found in Ireland, the UK and the US – free. In Italy it is necessary to produce a passport to use an internet shop; to join a wifi network or, effectively, to use a hotspot.

Benito Mussolini’s villa in Rome was Villa Torlonia on Via Nomentana. Reputedly its garden is a good reception point for the principal wifi network of the city. But reception is available only on terms Mussolini would have understood; by the grace of the Italian State.

While that is not the situation in Ireland, we still limit the ability of the citizen to challenge the State. The principal mechanism of limitation is Order 84 of the Rules of the Superior Courts.

Mussolini would have understood and approved that.

Modern governments have phenomenal spending power. Like a householder, they need to engage tradesmen and professionals of various types to do work the State needs done.

You want a new motorway? Here is a company to build it. You want a new harbour? Here is a company to dig it. You want a contract drafted for the motorway construction to secure your interests and ensure you get value for money? Here is the solicitor to write it for you.

These contracts are very valuable. They allow the person to whom the contract is awarded to, at the very least, pay the wages of the staff of the successful tendering company, say, during slack industry trading periods.

They also represent opportunities for pork-barrel politics. The politician who formulates and guides the policy resulting in the decision to have a motorway in the first place and then the decision as to who will get the contract, wields enormous power. The exercise of that power can secure re-election by the votes of grateful beneficiaries or the money to win those votes in an election.

Clearly, they represent opportunities for criminal activity in the form of fraud and corruption.

That aside, the State, as a major economic engine, can “distort�? the free market in goods and services. The European Union is professedly wedded to ensuring such markets, as are of a minimum size, will be free.

Consequently, EU member states are obliged to adjust their national law to conform to Directive 2004/18/EC intended to ensure only economic considerations (broadly defined) are the determining factor in the awarding of those public contracts which reach the threshold limit.

(HERE is a reference to an Irish-related case dealing with the obligation to advertise (or not!), that the contract is available.)

Ireland passed European Communities (Award of Public Authorities’ Contracts) Regulations 2006 (Statutory Instrument No. 329 of 2006) to comply with its EU obligations in this regard.

The Regulations are legally binding on the awarding authority. In Chapter 3 there is set out the basis for the awarding of the contracts:

Criteria for the award of a public contract

66. (1) A contracting authority shall, in awarding a public contract on the basis of the tender that is most economically advantageous to it, adopt criteria linked to the subject matter of the contract.

(2) Except as provided by paragraph (1), a contracting authority shall award a public contract on the basis of the lowest price.

(3) For the purpose of paragraph (1), the criteria may include (but are not limited to)―
· quality,
· price,
· technical merit,
· aesthetic and functional characteristics,
· environmental characteristics,
· running costs,
· cost-effectiveness,
· after-sales service and technical assistance, and
· delivery date and delivery period or period of completion.

(4) The contracting authority shall specify in the relevant contract notice or contract documents or, in the case of a competitive dialogue, in the relevant descriptive document, the relative weighting that it gives to each of the criteria chosen to determine the most economically advantageous tender. That weighting can be expressed by providing for a range within an appropriate maximum spread.

If an unsuccessful party wishes to challenge the legality of the award of a public procurement contract it is necessary to do so as quickly as possible.
Failure to act swiftly will preclude the applicant from relief. (See HERE).

The High Court enjoined the Oireachtas to URGENTLY revise the constituencies.

By that time the Minister for the Environment, Hertiage and Local Government had established the usual Constituency Commission to furnish a report on the necessary changes to be made to some constituencies.

Presumably it URGENTLY asked for submissions from interested parties. Presumably they URGENTLY delivered those submissions.

Now the Commission will URGENTLY submit a report to the Minister.

In the middle of all this urgency we can see that there is no urgency in fact. The Commission has six months to do its work, and presumably, following form, will use all of the time to do that.

Where is it written that the world of politics stands still for this kind of process?

1. This post is a tentative, partial, review of the legal status of some Muslim marriages in Ireland.

2. The civil and religious laws of some (indeed many) Muslim countries permit polygamy.

3. Under common law polygamy is not lawful in Ireland. That is to say, a marriage contracted in Ireland is monogamous or it is not a valid marriage. A person so married who partakes in a valid ceremony of marriage while the first marriage is still subsisting, will commit the crime of bigamy.

4. Irish law on polygamy is, reputedly, as set out by Lord Penzance in Hyde v Hyde and Woodmansee [1886] LR 1 P&D 130 where marriage was defined in these terms (at 133):

I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

And at p. 138 he said..

This court does not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue of the polygamous unions, nor upon the rights or obligations in relation to third persons which people living under the sanction of such unions may have created for themselves. All that is intended to be here decided is that as between each other they are not entitled to the remedies, the adjudication or the relief of the matrimonial law of England.

5. In that case the husband had petitioned for the dissolution of a Mormon marriage (permitting him to take more than one wife). His claim for matrimonial relief was rejected. (Neither party had contracted a second marriage; the objection was to the fact that the marriage was potentially polygamous).

6. Of course there have been very significant changes in the law of Britain and Ireland since the judgment in Hyde v Hyde. Each jurisdiction has made provision for divorce. Thus, a modern marriage in either jurisdiction does not conform to Lord Penzance’s definition of a marriage. It is very likely, on a proper interpretation of Hyde v Hyde that it cannot, by that token alone, be declaratory of the law in Ireland.

7. The UK, however, recognising the serious difficulties that the law as framed by Hyde v Hyde caused to some Muslims, particularly women, took steps to reduce those difficulties and expressly varied its law with Section 47 (1) of the Matrimonial Causes Act 1973 (amending the Matrimonial Proceedings (Polygamous Marriages) Act 1972), subsequently, again, changing the law with Section 5 of the Private International Law (Miscellaneous Provision) Act 1995. The Section reads:

Validity in English law of potentially polygamous marriages.

5. -(1)A marriage entered into outside England and Wales between parties neither of whom is already married is not void under the law of England and Wales on the ground that it is entered into under a law which permits polygamy and that either party is domiciled in England and Wales.

(2) This section does not affect the determination of the validity of marriage by reference to the law of another country to the extent that it falls to be so determined in accordance with the rules of private international law.

8. In Ireland, under Irish conflict of laws, the law of the place of celebration prescribes the nature and incidents of a marriage. (Brook v Brook 9 H.L.C. 193) However, the law of domicile determines the capacity to marry. If under the law of domicile polygamy is not permitted, the polygamous marriage, valid under the law of the place of celebration will not be valid under the law of domicile.

9. In the case of a marriage where the law of domicile and the law of the place of celebration are the same and polygamy is permitted in that jurisdiction, the marriage will be polygamous and valid in Irish law. If the parties then change their domicile by choice and gain a domicile where monogamy only is permitted, the marriage will, in the absence of any further marriage on the part of either person, be deemed to be monogamous.
Nevertheless, as seen in Bibi v. Chief Adjudication Officer [1997] EWCA Civ 1957 (25th June, 1997) difficulties remained. A widow of a deceased Bangladeshi man was denied Widowed Mother’s Allowance under section 25 of the Social Security Act 1975. She was the deceased’s first wife, having married him in Bangladesh in 1966. Her husband had been born in Bangladesh and registered as a British citizen on 20 September 1961 after working in the United Kingdom. The deceased married again, in 1969, in Bangladesh, lawfully so, in accordance with the law of that place. The applicant and the deceased travelled together to Britain and had a child or children there. The husband died in 1988. The court, applying Regulation 2 (1) of the Social Security and Family Allowances (Polygamous Marriage) Regulations 1975 upheld the refusal of the allowance to the widow. The law of his domicile was deemed to be Pakistan rather than Britain. (If Britain had been his deemed domicile the marriage would have been presumed to be monogamous regardless of the law of the place of celebration, i.e. Pakistan). See (Hussain v Hussain [1983] Fam. 26)

10. In Imam Din v National Assistance Board [1967] 2 QB 213. this view of matters was shown to be a one way street. The appellant was ordered to pay maintenance to his spouse and children. His spouse was his second wife, they having married in a polygamous marriage valid according to Muslim law. The first spouse was still living. On marrying the second time he traveled with his new spouse and their children to the UK where he deserted them, leaving them destitute. Under Section 42 of the National Assistance Act 1948 he was required to maintain his wife and his children. The fact that the marriage was polygamous did not prevent the court construing the Act that the ‘wife’ was to include the wife of the polygamous marriage.

11. Despite the changes in the UK there are still difficulties for Muslims seeking matrimonial and certainly Social Welfare benefits from the UK State.

13. Given that Ireland has not made any effort to adapt to the social needs of Muslims, some of them, particularly women, will find their position unenviable and considerably more difficult relative even to the UK.

The Personal Injuries Assessment Board (PIAB) was inefficient, the Minister for Enterprise Trade and Employment has implied.

Of course he may have been guilty of a solecism when he declared the purpose of his new Act, amending the Personal Injuries Assessment Board Act 2003, was to ensure the efficiency of PIAB.

He probably meant he wanted to ensure its effectiveness. To do this he has placed a further trip wire in the path of injured persons seeking compensation for their personal injuries.

Now, if an injured person declines to accept the judgment of PIAB as to the correct and fair value to be placed on the personal injury and, instead, seeks to have that assessment made in open court following a trial, the Minister has provided that s/he will not be awarded legal costs against the unsuccessful defendant if the court award is less than the PIAB assessment.

What are the problems (statutorily enforced) that the Government has imposed on such plaintiffs?

1. Persons injured (bodily or mentally) by the wrongful action or inaction of another have been deprived of their constitutional right to apply to the courts to adjudicate on their entitlements to compensation for such injury without first submitting their claim to PIAB for an assessment by it.

2. Those persons must bear the cost (to them) of such submission and assessment.

3. Such injured persons now have just two years to commence legal proceedings against the wrongdoer who caused the injury. The claim will be statute barred on the expiry of this time. Previously it was three years, itself a tight deadline.

4. If a letter of claim is not written to the proposed defendant (the wrongdoer causing the personal injury) within two months of the incident causing the injury, the court may be asked (by the wrongdoer; who else?) to deprive the injured person of some or all of his/her accrued legal costs. (The general rule, still extant for property developers, banks, insurance companies etc., is that “costs follow the cause�? – the loser pays). In short, having been found guilty of the cited wrongdoing, the defendant will ask the assistance of the court to avoid paying some or all of the costs incurred by the plaintiff in bringing the claim.

5. A personal injury plaintiff must swear an affidavit verifying the truth of the facts of the personal injury summons issued by the plaintiff.

6. The plaintiff is now obliged to express his/her claim by the issue of a personal injury summons. The form of this dictates that the fullest details of the claim must be pleaded (and therefore be ascertained and known) within the two year limitation period.

7. If the plaintiff, although successful in the litigation, does not receive an award of damages in excess of that assessed by PIAB the effect will be as if the defendant had made a lodgement of that sum and the defendant will be entitled to ask the court to refuse an award of costs in favour of the plaintiff.

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

5th July 2007

1. The Judgment of the High Court is available HERE

President Katsav of Israel has the benefit of a good deal. Following complaints of rape and sexual harassment (by and of women) and investigation of those complaints the Attorney General of Israel has made the deal with him.

Under the deal he will plead guilty to minor sexual offences and will not be tried for rape. He will resign two weeks ahead of the expiry of his term of office.

The complainants do not appear to have agreed to the deal. The first complainant, “Ms A�?, stated:

It [the deal]

gave sex offenders license and legitimacy to do anything they want with impunity.

The Attorney General gave as his reason

it was important to spare Israel the sight of a president on trial.

There could be no better example of an act taken for “Raisons d’Etat�?, and of course what happened was not a judicial process being a classic insider fix and a denial of the Rule of Law.

It should always be remembered, the State is an abstraction and the women are real. To prefer an abstraction over a person is to promote crime.

The interests of the State, but more importantly, the people, require that the deal not stand.

I have written about Irish legal aid elsewhere.

Litigation anywhere can be ruinously expensive

This is particularly so if, as in the USA, the parties bear their own costs irrespective of the outcome.

So, when a small firm of dry cleaners in Washington, USA, was sued by a judicial figure of some kind
for a sum of $54 million, the firm was in trouble. The case had all the appearances of a try-on by the Plaintiff. He claimed the loss of the pants from a suit he left in for cleaning. His calculation of his losses was based on his reading of the effect of consumer protection laws and his claimed entitlement was based on interpreting “satisfaction guaranteed�? subjectively rather than objectively.

In reality he cannot have been oblivious to the unrecoverable costs he was heaping on the dry cleaners.

Unusually, there is a prospect of the Defendants getting an order for the recovery of their costs from the Plaintiff.

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

25th June 2007

1. The Defendants have agreed to meet and discharge the legal costs of the Plaintiffs in the action.
2. The Court, on being informed of this, endorsed the decision of the Defendants, saying the case raised significant issues of public importance.
3. What was the case about? The case turned on two questions: (a) What is a census (within the meaning of the Constitution)? (b) Who cares?
4. A census is the officially ascertained result by the Central Statistics Office. For the purposes of the Constitution the ascertainment of the population results by electoral area by the CSO is the census, not the publication of those results by the CSO.
5. Who cares?: the Oireachtas must care, to discharge its urgent obligation to ensure equality of voting and therefore the claim that Ireland is a democracy.
6. The urgency of the obligation on the Oireachtas indicates that the very reliable preliminary census figures should be the trigger for the commencement by the Oireachtas of the preparatory work of constituency revision (if necessary). If such were done there would be no delay on revising constituencies where revision is indicated and required.
7. PILL means “Public Interest Law & Litigation”. A person litigating such a public law issue, in the interest of all, should be awarded costs, and usually is.