Human Rights

When working in litigation, it is not unusual for a brief or file to expand by a case’s hearing date to number thousands of pages spread across numerous boxes.

For this reason, lawyers tend to be good a extracting meaning from a mass of paper at speed.

The McAleese Report into the Magdalen Laundries is over 1000 pages long. The important thing for the would-be reader to realise is that not all words are of equal importance. Here, then is a guided tour of how to read the McAleese Report.

1) Read the Executive Summary.

This will be where the most work went in. It is always important, not usually because it will tell you what is in the report (because that is not what you are expected to read) but rather to tell you what the author wishes you to believe is in the report.

The McAleese Report comes, effectively, with two Executive Summaries. One is called an Introduction, is described as being written by Martin McAleese and runs for eleven pages of disingenuous waffle. The other, called an Executive Summary, follows directly on, was probably written by Nuala Ní Mhuircheartaigh and is sixteen pages of collated statistics, descriptions of methodology and is a display intended to reassure the reader that the report comes laden with all the authority of scholarship.

In fact the Executive Summary is a shameful farrago of guesses, elisions and wilful ignorance. It proposes the most unlikely of explanations for the most serious of issues. On the lack of death certificates for women and the total failure to ever report any women’s death to a Coroner it says

“It is not possible to state definitively whether the deaths for which certificates were not found were unregistered; or whether registration occurred under a variation of the woman’s name or at her former home-place rather than the district in which the Laundry was located.”

In contrast with the Committee’s willingness to build castles of excuses out of thin air, the Executive Summary ends with the following assessment of the first hand evidence of the women who witnessed and experienced these institutions

“Although identifying common patterns in these stories, the Committee did not make specific findings on this issue, in light of the small sample of women available.”

Stories.

2) Who Wrote it?

The Committee are named (Martin McAleese, Eight Civil Servants and Nuala Ní Mhuircheartaigh, a civil servant who acted as the report’s “analyst and drafter”)  and then the report has five pages of acknowledgements. Bishops, Archbishops, Accountants, Doctors, Historians and Academics, Agencies of the State and named Civil Servants are namechecked. Advocacy and Representative Groups administrators are thanked by name. Finally, just before the bottom of page 5 we get the last line of the acknowledgements.

“And finally a special thanks to all the women who shared the story of their time in the Magdalen Laundries with the Committee.”

There you are. The specific women who shared the story of their time with the Committee get an ‘And finally’ as well as a ‘Special Thanks’. You might almost have forgotten their experiences were the whole point of the report after the preceding five page parade of Office Holders, Clerics and Professionals.

3) Chapter 1: Terminology

You can scan this whole chapter in a few seconds. It has no bearing on the meaning of the report. It ought to be an Appendix. It is a justification of the author’s choice of terms.

4) Chapter 2: Establishment, Membership and Mandate of the Committee

This should be Chapter 1.

The relevant nuggets buried in the guff here:

A) The Committee concedes it went outside its brief to present the argument made by the Religious Orders as to the profit the laundries did (or, it is claimed, did not) make. It says it did so because it was in the public interest.

B) The Committee decided its brief did not allow it to decide who was liable for anything. It decided this also meant treating the first hand evidence of the women who had been in the Magdalene institutions as merely “input to the process.”

The only member of the Committee to meet with any women who worked in the Magdalene institutions was Martin McAleese. Paragraph 31 assures the reader he ‘engaged broadly’ with them.

However, as we saw in the Executive Summary, the Committee – that is to say Martin McAleese, who was the only member who met the women whose experiences were the subject of the entire report- declines to state that what they said was true.

Chapter 3: History of the Magdalen Laundries

Skip, unless you are writing a history essay. This is a temptation which afflicts anyone who does research – to just publish all your notes.

Chapter 4: Working Methods, procedures and data protection

Another chapter which ought to have been an Appendix. Relevant nugget: The Committee decided that no woman, living or dead, who had ever entered a Magdalen institution would be given a name in their report. This is explained as being due to ‘broader principles of privacy and confidentiality’.

Apparently, the fact that many women had spoken of having their identity taken from them as being one of the forms of abuse they suffered did not trouble the Committee in its decision.

Chapter 5: Relevant Legislation

Another Appendix-worthy Chapter.

Exculpatory nugget :

“It is possible that a lack of modern awareness of these Acts may have contributed to confusion or a mistaken sense that the Magdalen Laundries were unregulated or that State referrals of girls and women to the Laundries occurred in all cases without any legal basis.”

The rest of the report, of course, provides ample evidence that both these modern ‘confusions’ are in fact accurate.

Chapter 6: Archive of the Committee’s Work

If this were Lord of the Rings, this Appendix would be the one that listed all the ancestors of all the minor characters. Here, the Committee were so taken with their own affairs that we are treated to it as a full chapter.

Chapter 7: Sources and Methodology for Statistical Analysis

Core quotes: “The Committee was wholly satisfied as to the authenticity and reliability of the Registers and accompanying electronic records of the Religious Congregations.’

But, at the same time

“The Committee was conscious that there are some gaps in available information, which means that the merged list does not represent all admissions to the Magdalen Laundries.”

Chapter 8: Findings of Statistical Analysis

This should have been Chapter 2.

The statistical analysis is acknowledged to be based on incomplete data. The statistics relating to deaths in the Magdalen Laundries are kept apart, in Chapter 16. Finds that “the total available field of information consisted of 11,198 cases” but acknowledges that

“the merged database does not include details of entries to the Magdalen Laundries prior to 1922, or entries to the Magdalen Laundries in Dun Laoghaire (for which no Register survives) or Galway (where only partial records survive).”

So the nicely citable hard figure of 11,198 is, in fact, not a complete figure at all.

Nevertheless, this is the first meaningful chapter in the Report. It is worth reading it in full.

Also worth noting: “the Legion of Mary and NSPCC are presented separately (as neither State nor non-State)”  The report couldn’t decide whether the Legion of Mary and the NSPCC were part of the state or not, they were both bound so tightly into the state system.

It goes unremarked upon, but there was a very significant surge in the State sending women to the Magdalen Laundries in the 1960s.

This coincided with the Courts remanding more women to Magdalen Laundries in the 1960s than in any other decade.

 Chapter 9: Routes of Entry to the Magdalen Laundries (A) Criminal Justice System

A revolting litany of oppression, abuse of power and arbitrary behaviour. The McAleese Report consistently seeks to explain away or excuse this behaviour. When no other excuse can be found, or imagined, the authors fall back upon the excuse that the past is very different to now.

Of course, some of the report’s work has been done for it. Institutions have been contacted and invited to explain away their behaviour. These explanations are presented, unchallenged, no matter how flimsy they are.

An example of the approach can be seen with the section dealing with the Gardaí. Gardaí would arrest women who had escaped from the Magdalen institutions and return them to their clutches. There was even a standing order in the Garda handbook

“persons in institution uniform – if persons are noticed to be wandering about in the uniform of institutions, e.g. workhouse inmates they should be questioned and if they cannot give a satisfactory account of themselves they should be arrested”.

Asked now to justify this instruction- and their members’ implementation of it over the decades- by citing the legal basis for this action the Garda Report to the McAleese Committee came up with this:

[It]“may refer to the power of arrest at common law for the larceny of the uniform. This was a regular incident that Gardaí had to deal with and indeed some Garda records show that people have received convictions for ‘larceny of apparel’.

That is to say, the modern Irish police force are arguing that the women were being arrested for stealing the clothes on their back. This is presented as fact without comment or criticism in the Report.

Later in the same chapter, the well-known photograph of the women from Sean McDermott Street Laundry being marched under police guard is explained away after the priest pictured and a Garda shown both say that the police just happened to be marching in the same May parade “in veneration of Our Lady and for no other reason”.

There is no reference to any attempt by the Report’s authors to find any of the women pictured and ask them their view.

Chapter 10: Routes of Entry to the Magdalen Laundries (B) Industrial and Reformatory Schools

It takes a strong stomach to plough through this ugliness. Even presented through the McAleese Report’s insistently bueracratic glass, we cannot help but see the Irish state’s gulag archipelago, built to incarcerate children.

The report has unearthed a mountain of raw material. It is presented here in a mostly undigested form. Lists of case studies, a tour of legislation and a presentation of statistics based on what, in paragraph 297 of the chapter, the Report acknowledges are incomplete records.

Chapter 11: Routes of Entry to the Magdalen Laundries ( C) Health Authorities and Social Services

The story of how enthusiastically all the organs of the state created to care for the weakest people in society embraced the opportunity to vanish their charges into the nun’s laundries.

If you’re reading the report, you have to read this chapter. Of course, as we’re blandly told,

“Difficulties in securing access to specific case-files on the State side in the health and social services sector mean that it was not always possible to determine what State follow-up, if any, occurred in relation to girls and women referred from these categories.”

 Chapter 12: The Factories Acts and Regulation of the Workplace

This chapter aims to demonstrate that the Laundries were under the watchful and careful eye of the State’s designated inspectorate of workplaces.

It contains 150 paragraphs of evidence from the Department of Industry, the religious Orders, retired Inspectors and, in one case, the Manager of one of the Laundries.

The totality of the account of the first-hand evidence from the women Martin McAleese met is contained in paragraph 152.

“152. A number of these women recalled the inspections of the Factories Inspectors. Two women (both represented by Magdalene Survivors Together) referred to these Inspectors as “the suits” and both gave accounts of the process for inspections. They said that in some cases, this included all work in the laundry ceasing, with the women lining up outside the factory area while the Inspectors carried out their duties.

It is unfortunate that Martin McAleese chose not to include anything more of the women’s accounts in this report. According to the Justice for the Magdalen’s group, over 800 pages of first hand evidence was provided from those women.

As to the tone of the rest of the conclave of officialdom, perhaps the best example comes from the Manager of a Limerick Laundry. He is pleased to recall (and the Report is happy to publish) of his establishment

 “walking into the laundry with its expensive non slip vinyl floor covering, standards of cleanliness like those found in a hospital and all the other changes, made it for me, a state of the art industrial place of work.”

And that, though he knew of three bad industrial accidents in the Laundry;

“The one in which the lady lost her forearm in the callender (large roller iron), I am reliably told by a Resident, was completely her own fault”

Which, as we know, makes it all right.

Chapter 13: Financial (A) State Funding and Financial Assistance

A long chapter setting out evidence that the state, through both local agencies and councils and the central government, paid the Religious Orders money for some (at least) of the women incarcerated in the Laundries.

It should be noted that incarcerated is my word. The Report uses the term referred. As in

“Funding included Capitation under the Public Assistance Acts for certain individual women
referred to Magdalen Laundries by public authorities;”

Also, the state’s records and the records from the religious orders didn’t exactly tally up. The report deals with any discrepancy by simply presenting the figures separately.

 “In respect of individual instances of funding identified in the records of the Religious Congregations (and particularly early funding), it was not always possible to determine on what basis funding was provided and for that reason, the findings of those searches are presented separately in this Chapter.”

Also, buried in amongst the figures there is a chilling exchange in 1954 between Mr. C. Cannon, the Monaghan County Manager and the Department of  Health.

The County Manager wants approval to pay the nuns for the women it intends to send to the Laundy in Drumcondra. The Department wants to know what kind of women the County Manager has in mind.

 “the type of patient that this Health Authority has in mind as being suitable for admission to High Park Convent, Drumcondra, is an unmarried lady who has given birth to two or more children and whose moral rehabilitation would prevent her becoming a health and social problem”

So, not actually a patient at all. Just a woman the County Manager didn’t want in his county. And the reply?

“We can have no objection to the admission of an unmarried mother to the High Park Convent. The payment rate by Monaghan Co. Council is actually only a ‘token’ payment”.

Again, I would think incarceration a more accurate description than admission.

Also included is a strange exchange where the Department of Health offers to pay the Sean McDermott Street Laundry for the deficit they said existed between the cost of housing the women and the profit of their laundry. All that had to be done was to have the size of the deficit confirmed.

Strangely, this offer seems not to have been taken up. The Department records that

“it appears from your minute it is difficult to isolate an appropriate figure.”

Part 2 to follow.

This writer is reading a book with the same title as this post. The author of the book is Clive Stafford Smith, a lawyer with a very unusual legal practice. He represents, inter alia, persons on Death Row in the USA. I recommend the book. It is well written and an excellent Christmas present for most lawyers.

The subject of the book is the wrong that is a judicial death sentence. Even in a Europe without the death penalty, this is not an easy proposition to advance or defend. Instead, the ostensible subject of the book is how it is possible to be convicted of a crime you did not commit.

Because of his personal experience the author has settled and very interesting views about forensic or expert evidence. He denies the validity of forensic ballistics and hair comparison but he goes much further; he points out how improbable it is that a defence lawyer will find a ballistics or hair comparison expert who will belittle those “sciences”. After all, nobody would study those issues unless they were convinced, in the first place, they were valid.

The author remarks how lawyers are not likely to challenge these experts. He says the lawyers made their choice of profession because they were incapable of understanding the science subjects that are required for the practice of medicine and are too easily intimidated by the “scientists” of ballistics and hair comparison.

His views on ballistics are persuasive. The manufacturers of microscopes helpfully have produced one permitting the examination and comparison of two bullets at the same time. The expert is seeking the unique pattern of grooves generated by the passage of the bullet through the barrel of the gun. What Clive Stafford Smith denies is this; that there is a unique pattern of grooves generated by the passage of a bullet through the barrel of a gun. Guns are mass produced, therefore the barrel of one gun is very like the barrel of another gun and it is not the case that the pattern of grooves generated by the passage of the bullet through the barrel of the gun is unique to any particular gun.

His views on finance for the law are even more persuasive. If a defendant cannot afford to pay the economic cost of a proper defence in a criminal trial, or the state fails to allocate funds for that purpose, the accused will be convicted even though innocent. What is the economic cost of a proper defence? Inevitably, it will vary from case to case, but Clive Stafford Smith estimates that 1,000 hours will be needed for the task. That’s 83 days. Now assume an hourly rate for the lawyer at €300 (because that is less than the rate allowed by the Irish High Court for some company liquidators) and we can work out the cost of the defence, – €300,000.

Is that what Irish criminal lawyers get paid? No.

Bismark reputedly said that nobody should get too close to the making of laws or sausages.

On Thursday, on behalf of the StopSOPAIreland.com campaign, I took a trip to Leinster House, to catch a glimpse of the sausage machine at work.

Together with Ian Bergin, who runs the Facebook campaign, and TJ McIntyre of DRI, I met with Catherine Murphy TD to discuss her scheduled exchange of questions with Minister Sherlock.

We experienced the minute-by-minute changes of timetables and proposals in relation to the disputed Ministerial Order.

We had originally believed that there would be a full debate that day on the matter. Instead, on arrival, we learned that instead there was to be a tightly structured 8 minute exchange of statements between Derek Keating for FG and Catherine Murphy for the Technical Group of Independents.

To put it at its lowest, this didn’t really seem to meet the needs of the situation.

Nonetheless, there was still the possibility being held out of a further, fuller debate. But when that debate might be- including rather incredibly, whether it would be held before or after the law had been signed- was subject to, um, flux. In all senses of the word.

While we were in the building, we took the chance to bend the ear of any friendly faces we happened upon. They all told us that the issue of the SOPAIreland Order had become one of the hottest potatoes in the Dáil in a bewilderingly short time. One TD told us that, a week ago, this proposal hadn’t had any kind of attention.

“But now…” he said, trailing off.

More than one TD spoke about getting hundreds of emails and what did or didn’t work as a lobbying tactic. Being civil was good. Basing an argument on logic, rather than threats was another point that got the thumbs up. (This was contrasted with what might have worked in the, shall we say, recent past). All expressed dismay at the impact of hundreds (or 50,000) of emails all arriving into an individual’s inbox. “After a couple of hundred, you’re just hitting delete.”, we were told by a TD’s assistant.

I suggested that the TDs offices were probably experiencing the inevitable consequence of the lessening of friction inhibiting communication between constituents and their representatives. Our campaign emails (ie your emails), it was acknowledged, were of a sort not usually seen. “These people, they represent a usually silent group – the people who really know about the internet”, as one other TD described them.

We then decamped to the Visitor’s Gallery, in time to see Catherine Murphy’s opening question to Minister Sherlock. I needn’t describe it for you- here’s the video:

SOPA Ireland in the Dáil

Today started with more Digital Rights Ireland business- of the courtroom kind- before easing off a little. The Minister had rounded off the night before by confirming that he would hold a Dáil debate before, rather than after, the passing of the SOPA law into force.

That he had been unable to confirm that order of events on Thursday gives a little peep into the kind of day he’d been having.

By 4.50 today, Catherine Murphy TD (a former client) was able to confirm that the debate would go ahead on Tuesday evening at 5.30pm and last 50 minutes.

Just received word that next week's debate on #sopaireland will take place on Tuesday at about 5:30pm. May be subject to change.

January 27, 2012 5:50 pm via webReplyRetweetFavorite

@CathMurphyTD

Catherine Murphy

Last week, this law wasn’t going to be published.

Last week, there was no media attention for this proposal.

Last week, there wasn’t any possibility of the matter going to Cabinet to be discussed.

Last week, the idea of a Dáil debate on this Ministerial Order would have been absurd.

“But now…”

Thank you all.

You will have noticed the black banner across the top of our site this week.

You may also have noticed the sudden flurry of media appearances and debates on radio around the issue of Minister of State Sean Sherlock’s plan to introduce a law to allow the music labels (and other copyright holders) to seek injunctions forcing Irish ISPs to block access to sites they don’t like.

“I will introduce this imminently, by the end of January.”
- Minister Sherlock, Sunday Business Post, 22^nd Jan 2012

This SOPA Ireland law, as it is is called, is similar to the proposals defeated in the US only a week ago after a mass uprising of grassroots protest- first from Reddit, and then joined by the biggest names on the net- Google, Wikipedia and so on.

However, unlike that US law, people here can’t even expect to have this blocking law debated in their legislature. The Minister has said that he intends to deal with the matter by way of a Ministerial Order. Nor has he published the text of the law. The first we, the people of Ireland, will know about the text of this law will be when it is signed and brought into force.

This is grossly wrong. This is why we were so enthusiastic when Sabrina Dent suggested that we launch a petition website to let other people (a) know what was going to happen and (b) tell the Ministers responsible that they object to the proposal.

That was long, long ago now. Monday morning to be exact. Since then, 30,000 people have emailed the Minister for State Sean Sherlock and Minister Richard Bruton at the Department of Jobs, Enterprise and Innovation to tell them they DO NOT WANT.

I, Richard Bruton, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [1], as amended by Corrigendum[2], hereby make the following Regulations:

- Opening paragraph of the leaked Draft Text of the Ministerial Order

Minister Sherlock has been traveling around the airwaves acting as a recruitment sergeant for the petition by providing worrisome, self contradictory, “reassurances” about what he intends to do.

All in all, so far, our Public Interest Campaign site has facilitated a very successful piece of civic action.

But more will need to be done. Minister Sherlock has said that he intends that Richard Bruton will bring the Ministerial Order to Cabinet.

This is, to put it mildly, unusual.

A Ministerial Order (otherwise known as a Statutory Instrument) is only intended to bring in secondary legislation -ie, tidying up the administrative side of policies and laws already passed through the Oireachtas after proper debate.

On 29^th July 2011, the Minister was put on notice of this difficulty when Digital Rights Ireland (our client) wrote to his Department;

It is significant that Charleton J. in EMI v. UPC [2010] IEHC 377 referred to any legislative intervention being properly a matter for the Oireachtas. The Opinion of the Advocate General in Scarlet (Extended) v. SABAM (Case C-70/10) similarly referred to a need for legislation in this area to be “democratically legitimised” (at para. 113).

It would be undesirable in any event for a matter dealing with fundamental rights to be disposed of by way of secondary legislation. It is all the more undesirable in this case, however, given the vague and open-ended nature of the powers involved. This is, in effect, a case of delegation heaped on delegation – rather than rules governing blocking and other remedies being made by primary legislation, or even secondary legislation, they are instead effectively being made by delegation to the judiciary.

The new plan to bring the matter to cabinet is an admission of the truth of that argument. But a discussion behind closed doors amongst a handful of Ministers is not good enough.

If a matter is so significant, contentious and complicated that it must be debated by Cabinet, by definition, it is not a matter which is suitable to be brought in by Ministerial Order without public debate and without careful scrutiny of the proposed text.

Ministers Bruton and Sherlock must now bring a Bill before the Oireachtas and let the sunlight in. This issue is too important to be left to the murk of backroom deals.

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.)

Dolly Mapp was a formidable woman. When the cops of Cleveland Ohio arrived at her door, in the early 1960’s or thereabouts, seeking a person in her house, she declined to allow them entry. They called in reinforcements (what a woman!). They searched her house and found pornographic material. She was convicted, lost on appeal and won in the US Supreme court [Mapp v Ohio 367 US 643; S.Ct. 1684]. The cops had searched without a warrant. Dolly had been convicted under the law of Ohio. The US constitution [14^th Amendment] protected a citizen from unreasonable search and seizure and in 1914 the US Supreme court had ruled evidence obtained in breach of the constitution could not be relied on in a Federal prosecution. Mapp v Ohio decided that that position also applied to State prosecutions. (Most criminal prosecutions were under State law, so most defendants had been left without the protection of the constitution until Mapp).

In or about 1986, on a tip-off, police in California flew an aeroplane over the backyard of Mr. Ciraolo. They perceived a crop of marijuana in his yard, got a search warrant and found 73 plants. The California court of appeals applied Katz v United States 389 U.S. 347 and ruled the flight an unauthorised search and a breach of Mr. Ciraolo’s expectation of privacy. The US Supreme court found against Ciraolo on the grounds that he had lost his right of expectation of privacy because he had exposed the back yard to the occupants of the numerous aeroplanes flying over his house. The court disregarded the fact that those occupants were passengers in domestic flights (at great heights, presumably) whose chances of inspecting and recognising marijuana in the backyard were nil.

One wonders what the US court will say when the cops buy and deploy drone aircraft and thermal imaging technology.

Then there are those special places like Birr, County Offaly where, recently, the 41^st Irish Hot-Air Balloon competition took place.  Will the Garda Síochána buy a balloon or opt for a drone?

The Gardaí have had a history of their own difficulties with search warrants and the like. See HERE for the latest episode on that front and for a very good analysis of the case law relating to that history.

Collectively, lawyers are, sometimes, fantasists. We know this from the postulation of “the man on the Clapham omnibus” or the proposition “…something snapped in my brain…”.

These fantasies are overt. We live with others that are covert. I have in mind the continued refusal of the Irish courts to make provision for class actions.

Currently, the courts will only admit of claims from single persons or, exceptionally, groups who have suffered the same damage in the same circumstances. These groups are, in effect, individual litigants who have made their claim in the same proceedings. They will know each other or their lawyer will know each of them in detail.

In effect, the Irish courts are imposing a narrow political and social vision of society on the Irish people. That vision admits as legitimate only the claims of the individual (usually a man). In fact we know very well that society functions through group action and that the groups are often very large.

This attitude by the Irish courts is not exceptional. The EU is toying, again, with the idea of permitting limited class actions in member states. See an earlier post on this HERE.

In the meantime, UK courts have, without significant difficulty, made provision for the bringing of class actions, We see the result of that in the capitulation by Royal Dutch Shell in a class action brought by Leigh Day (solicitors) on behalf of the population of Bodo, a town in Nigeria.

Will Ireland suffer the humiliation of Irish citizens bringing a class action in London for events which happened in Ireland?

This writer remembers, he thinks correctly, that the phrase “compo culture” was coined by a PR spokesman for Dublin Corporation (now Dublin City Council). Probably the spokesman was simply adapting a phrase coined elsewhere, because the title to this post is known in the UK and, it appears in Australia.

Taken literally, we can confidently say that it is a universal social principle that compensation be paid where loss is suffered and the liability to pay for that loss lies with someone other than the victim.

This formulation is very wide; it will cover cases of injury arising from negligence, say, (See HERE for a treatment of Tort law in common law jurisdictions) but also claims for indemnity under an insurance contract.

The principle is not undermined by individual failures in making payment.

Taken with the provisions of domestic law a regional example of that universal principle is to be found in the European Convention on Human Rights (Article 6).

We are now, unfortunately, familiar with some compensation principles which, by arcane means, apply when banks fail. Certain creditors of such banks are compensated for their losses arising from default. The compensation is so certain that the default is scarcely admitted and is, for practical purposes, imperceptible. By those arcane means the liability to pay the compensation is passed to the citizens of the country responsible for supervising the failed bank. (The arcane means are not legally binding means).

It was always clear that the phrase “compo culture” was not an attempt to deny any compensation to any and all claimants; it was directed against one small class of persons, those persons who had been personally injured by negligence or breach of statutory duty. In effect, it was a brazen effort, if taken literally, to repudiate the obligation on wrongdoers of remedying the losses they had inflicted on others.

Life is complicated; consequently it has come about that the liability to pay compensation for personal injury frequently rests on both a liability in negligence and a liability under a contract of insurance. We see this in Domican v AXA Insurance Ltd. [IEHC] 2007 where the judge remarked that the plaintiff and the defendant had a relationship with each other (arising from the fact that the defendant had agreed to insure and indemnify a person whom the plaintiff claimed had injured him through negligence). In the UK that relationship is expressed in a civilized way in the Third Parties (Rights Against Insurers) Act 2010.

Ireland has no such legislation (and no proposals to remedy the situation). The UK made such provision as far back as 1933.

The Irish State has a very poor record in defending the constitutional right to compensation for personal injury. That should come as no surprise when we reflect on the reason why the Minister for Defence (and Ireland consequently) became liable to compensate soldiers in what was known as “the Army deafness cases”. A civil servant had consciously decided not to make provision to protect the hearing of soldiers from exposure to loud and damaging noise. That decision was recorded and the record was obtained by the claimant soldiers, all of whom could show they suffered hearing loss or damage following that decision. (Even without the decision the State would have been liable; it was not a novelty that loud noise is dangerous). The reason for the poor record is straightforward; Ireland clearly has (or had) a very poor quality of civil servant and politician. (In the Irish Times of 11^th December 1997 a headline read; “Smith says deafness claims are wrong and immoral”. Smith was the Minister for Defence.)

It is generous to say Ireland’s record is poor on this issue. Ireland is malevolent on the point. See HERE and HERE for this writer’s opinions.

Which of us is happy with our handwriting? Some, no doubt, but for many of us the admirable writing in our school handwriting workbooks is a thing of the past.

[The United States of America produced its Declaration of Independence in cursive script (HERE)]

So it is with other standards. Here in Ireland we call cursive script joined-up-writing and we aspire to that, but we have little tradition of its cousin, joined-up-government.

In Ireland, government must be conducted in accordance with the Irish Constitution and in pursuit of its objectives. One of those objectives is to vindicate the person [or the good name] of the citizen. That means that if a person is injured the State must and will ensure the citizen is compensated by any wrongdoer responsible for the injury.

You would think that this imperative would produce a regime directed to that purpose, but if you did you would be wrong.

Sure, in law a wrongdoer is liable to pay compensation, but Ireland is not anxious to ensure that that happens. If it were it would have introduced a system currently to be found in the United Kingdom. There, an injured person can enter an agreement with a lawyer to pay an enhanced fee for legal services, conditional on the claim being successful [“Conditional Fee Agreement”]. The defendant will then be liable for that fee in the event of success. In short, the UK recognizes that poor claimants are at a disadvantage relative to rich claimants, in legal proceedings.

This is an inherent feature of the previous UK position [and the current Irish one] where everybody is assumed to be a prosperous gentleman [probably Victorian] who pays his lawyer’s bills on a weekly or monthly basis and expects to recover those expenditures from any wrongdoer when he is successful in his claim that his lawyer prosecutes.

That assumed position is unreal. Such prosperous gentlemen are few and far between. Everybody knows this and yet, in Ireland, nothing is done to remedy the situation.

In fact, the opposite has happened. The government established the Personal Injuries Assessment Board [“PIAB”] to assist defendants. No claimant’s lawyer’s fees are payable by the respondent in the PIAB system. PIAB itself assures claimants that they do not need a lawyer to represent them, a claim at once untrue and an insult.

Any intelligent PIAB claimant must engage a lawyer at his or her own expense without any chance of making the defendant wrongdoer assume responsibility for that expense despite the fact that the defendant caused the expense to be accrued.

On top of all of that, in Ireland it is illegal for a lawyer to advertise that he or she will act for a claimant on the basis that the claimant will not have to pay legal fees if the claim is unsuccessful.

All in all, these provisions and arrangements are in direct opposition to the objectives of the Irish Constitution.

One of us, attending the High court recently, witnessed the following instance of judicial self restraint.

Counsel: “That’s your opinion, judge”.

Judge: “Yes, it is.”

It was a moment of witless insolence. The judge had rejected Counsel’s submissions; Counsel disparaged the rejection by denigrating it as “opinion”.

He was wrong on many fronts.

(1) When you have lost, you have lost.

(2) When you are in a hole, stop digging.

(3) “Opinion” is all we have.

Plato confronted this issue; he opposed objective knowledge and opinion. Presumably this is the basis for the terms of Section 39 of the Broadcasting Act 2009.

Section 39 (1) (a) provides;

“Every broadcaster shall ensure that- “… all news broadcast by the broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views.”

This is nonsense.

All “news” is subjective; that is, a matter of, or expression of, opinion. It has been selected; it has been expressed in words or images, which have to be selected.

What is probably being addressed is “style” or, possibly, fairness. In short, a finding of breach should made by a literary critic or an artist, not by a judge.

That implies that the wrongful act of a broadcaster is not the promulgation of “his” opinion, but the suppression of alternative views. This is a difficult problem. There are views that ought not to be expressed, if not suppressed. We see that in the public burning of a Koran in the USA.

Domestically, what is in issue is this: on what possible moral basis does the Oireachtas claim the right to restrict the public expression of opinion?

We see another, less sub rosa instance of this in Section 16 (2) of the Legal Services Ombudsman Act 2009, which states;

“The Legal Services Ombudsman when giving evidence under this section shall not question or express an opinion on the merits of any policy of the Government or on the merits of the objectives of such policy.”

The Ombudsman’s evidence will be like a doughnut; it will have a lot missing.

PS. Judicial restraint is a requirement of the job. See HERE.