Are there any other ways to recognize human rights other than a referendum

edgal · 21-10-2012 10:30am #1

Take the children's rights referendum 2012, are there any other legal ways their rights could be recognized ?

Would imposing greater penalties for breaches of such rights be a way to recognize them or is that just wrong ?

Other suggestions means of legal recognition would be much appreciated!

Manach · 21-10-2012 10:47am

Offhand, a greater emphasis on the obligations signed-up for by encorporating the ECHR into Irish law in 2003.

Dandelion6 · 21-10-2012 10:49am

Legislative incorporation of the UN Convention on the Rights of the Child into Irish law.

ResearchWill · 21-10-2012 10:54am

edgal wrote: »

Take the children's rights referendum 2012, are there any other legal ways their rights could be recognized ?

Would imposing greater penalties for breaches of such rights be a way to recognize them or is that just wrong ?

Other suggestions means of legal recognition would be much appreciated!

The Courts have recognised, unenumerated rights, see Ryan v AG [1965] IR 294. That is the idea that Natural or Human Rights even if not written into the constitution are contained in it.

I would say that the children's rights referendum add no rights for children in to the Constitution, that are not already there even the addition of adoption of children of martial families has I believe been sanctioned by the High Court in the past.

If anyone thinks that what happened to children in the past cannot happen because if this referendum they are being misled.

Dandelion6 · 21-10-2012 11:05am

ResearchWill wrote: »

I would say that the children's rights referendum add no rights for children in to the Constitution, that are not already there

I think it's mainly an "avoidance of doubt" thing. Some of the documents uncovered in the Roscommon case indicate that there was a belief among HSE staff that the Constitution prevented them intervening. You can say this could be rectified just through better education, but would that necessarily work or might there continue to be a chilling effect - maybe it's better to be safe than sorry.

If anyone thinks that what happened to children in the past cannot happen because if this referendum they are being misled.

Yes I agree, particularly since the TD case which showed the limits of courts' willingness to enforce constitutionally guaranteed rights for children.

Procrastastudy · 21-10-2012 11:42am

ResearchWill wrote: »

I would say that the children's rights referendum add no rights for children in to the Constitution, that are not already there even the addition of adoption of children of martial families has I believe been sanctioned by the High Court in the past.

I actually believe the referendum is counter-productive. If I could vote, I'd vote no, not that it would make any difference. The level of critical thought going into this is zero. The referendum itself should have been a modernisation of various articles relating to families. As it stands it could actually remove the flexability associated with unenumerated rights.

edgal · 21-10-2012 11:42am

ResearchWill wrote: »

...

I would say that the children's rights referendum add no rights for children in to the Constitution, ...

I would wholeheartedly agree with that, as IMO this new referendum appears to focus less on the children's rights than on ease to conditions for state intervention. Thus they'll be able to make decisions on behalf of children that override the parent's. IMO The wording of such would appear rather ambiguous and unclear.

The Constitution currently states in Article 42.5, “In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavor to supply the place of the parents, but always with due regard for the natural and imperceptible rights of the child.”
New:
(2.1°) " In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicial affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavor to supply the place of the parents, but always with due regard for the natural and imperceptible rights of the child. "

edgal · 21-10-2012 11:45am

Dandelion6 wrote: »

Legislative incorporation of the UN Convention on the Rights of the Child into Irish law.

Is there a major disparity between Irish law and that of the UN Convention on the Rights of the Child ?
I would have thought there was adequate protection to children's rights outlines in A42.5, but do you think many changes are necessary?

edgal · 21-10-2012 11:49am

Procrastastudy wrote: »

... As it stands it could actually remove the flexability associated with unenumerated rights.

Interesting take on the upcoming referendum. What in particular do you think removes such flexibility with unenumerated rights ?

From my own stance I would have thought the increased power of the state to intervene against parental wishes.

gozunda · 21-10-2012 11:58am

edgal wrote: »

.....

Would imposing greater penalties for breaches of such rights be a way to recognize them or is that just ...

Correct me if I am wrong but is there a case from moving certain rights violations from civil to criminal offences?

Is a referendum required for this type of change in law?

Where an offence is considered criminal as opposed to a civil offence I am presuming it would carry greater potential sanctions in terms of judgements . Though I am not sure this is actually the case?

Procrastastudy · 21-10-2012 11:59am

edgal wrote: »

Interesting take on the upcoming referendum. What in particular do you think removes such flexibility with unenumerated rights ?

From my own stance I would have thought the increased power of the state to intervene against parental wishes.

Without going into the various judgments the constitution is, to some extent, a living document. There have been various judgments on the articles relating to family. When this article is introduced we may find that rather than look to find a right under art 40.3 a court will simply say - there was a referendum, the people have spoken - we have to rely on they. Also there is obviously the issues of unexpected results.

This is obviously oversimplified (like me!) but I hope it gives you some idea of where I'm coming from on it.

ResearchWill · 21-10-2012 12:06pm

gozunda wrote: »

Correct me if I am wrong but is there a case from moving certain rights violations from civil to criminal offences?

Is a referendum required for this type of change in law?

Where an offence is considered criminal as opposed to a civil offence I am presuming it would carry greater potential sanctions in terms of judgements . Though I am not sure this is actually the case?

A simple way to make a matter criminal law is to pass a statute to do so, there is no need for the constitution to be involved, unless the statute is in some way in breach of the constitution. Then the measure would fail. Say a law was passed making any peaceful assembly of citizens over 50 in number illegal, then that would fall foul of the constitution.

chops018 · 21-10-2012 12:24pm

European Convention on Human Rights, incorporated here by the European Convention on Human Rights Act 2003, has the European Court on Human Rights that can be appealed to.

The International Covenant on Civil and Political Rights.

The Universal Declaration on Human Rights.

All ratified by Ireland.

Procrastastudy · 21-10-2012 2:05pm

chops018 wrote: »

European Convention on Human Rights, incorporated here by the European Convention on Human Rights Act 2003, has the European Court on Human Rights that can be appealed to.

The International Covenant on Civil and Political Rights.

The Universal Declaration on Human Rights.

All ratified by Ireland.

Its worth noting, of course, that the Act incorporates at a sub-constitutional level and all the ECtHR can do is award compensation.

Ashashi · 21-10-2012 2:12pm

Procrastastudy wrote: »

Its worth noting, of course, that the Act incorporates at a sub-constitutional level and all the ECtHR can do is award compensation.

That is true but it states in S.3 that the State must do all it can to comply with the obligations set down in the ECHR. It's all awfully whimsical when you try to apply it.

chops018 · 21-10-2012 2:28pm

Procrastastudy wrote: »

Its worth noting, of course, that the Act incorporates at a sub-constitutional level and all the ECtHR can do is award compensation.

Kind of true, but nonetheless it is a good system for protecting human rights. Possibly one of the most robust in the world. Also declarations of incompatibility can be made by a court here regarding EU laws and this means that we are supposed to come in line with EU law as soon as we can. Not 100% sure if ECHR is actual an EU law instrument in the sense of directives and the like, but it was drafted by the Council of Europe so I would say it is. Therefore EU law overrides our Constitution and national laws via the principle of supremacy, which was put into Irish law in the third amendment of the constitution. So EU law and it's institutions and doctrines have a lot more power than you may think. Crotty .v. An Taoiseach was an interesting case discussing the effects of EU law and its impact on Ireland if I remember correctly, I think they stated that our law wasn't to be overruled absolutely though and may be subject to review, it's quite an old case so I'm sure plenty has changed since then.

Peregrinus · 21-10-2012 2:28pm

gozunda wrote: »

Correct me if I am wrong but is there a case from moving certain rights violations from civil to criminal offences?

Is a referendum required for this type of change in law?

Where an offence is considered criminal as opposed to a civil offence I am presuming it would carry greater potential sanctions in terms of judgements . Though I am not sure this is actually the case?

Lots of rights violations are criminal offences. Murder, for example. Or false imprisonment. Or many others. It doesn't require a referendum.

Procrastastudy · 21-10-2012 3:09pm

chops018 wrote: »

Kind of true, but nonetheless it is a good system for protecting human rights. Possibly one of the most robust in the world. Also declarations of incompatibility can be made by a court here regarding EU laws and this means that we are supposed to come in line with EU law as soon as we can. Not 100% sure if ECHR is actual an EU law instrument in the sense of directives and the like, but it was drafted by the Council of Europe so I would say it is. Therefore EU law overrides our Constitution and national laws via the principle of supremacy, which was put into Irish law in the third amendment of the constitution. So EU law and it's institutions and doctrines have a lot more power than you may think. Crotty .v. An Taoiseach was an interesting case discussing the effects of EU law and its impact on Ireland if I remember correctly, I think they stated that our law wasn't to be overruled absolutely though and may be subject to review, it's quite an old case so I'm sure plenty has changed since then.

I'm not great on EU law but I'm pretty sure the ECHR is a different organisation to the mechanism you mention. I'm 99% sure that the ECHR can not overide the constitution. I'm pretty certain that a declaration on incompatibility does very little. The Foy decision as an example.

gozunda · 21-10-2012 3:38pm

Peregrinus wrote: »

Lots of rights violations are criminal offences. Murder, for example. Or false imprisonment. Or many others. It doesn't require a referendum.

And lots of violantions are not especially those that do not constitute a physical attack on a person but may be as damaging to a persons integrity.

Mental cruelty and psychological harm are two that come to mind. Many of these issues are not dealt with in a criminal manner.

For these issues to be properly dealt with, statutary change as pointed out by a previous poster may be required.

krd · 21-10-2012 3:44pm

edgal wrote: »

I would wholeheartedly agree with that, as IMO this new referendum appears to focus less on the children's rights than on ease to conditions for state intervention. Thus they'll be able to make decisions on behalf of children that override the parent's.

This referendum isn't really about children's rights. It's about the rights of middle-class women to have a supply of children to adopt.

Maybe it should be called 'The middle-class women's rights to children referendum'

A quick history of Irish adoption. Once upon at time it was very easy to adopt in Ireland. The country was dotted within "orphanages" (though technically very few of the children would be orphans - their parents were in fact Orwellian unpeople.). So there was a ready supply of locally produced infants - even an excess for export. As time went on, this system became too obviously morally repugnant and indefensible. The adoptions of Irish born infants dwindle from thousands per annum, to as little as you could count on one hand.

"Desperate" couples had to cast their eye further afield. And their gaze fell upon the impoverished lands of Eastern Europe. And for a time all was well. For the cost of a city break - a few quid to a fixer, you could have a bundle of joy in your arms in days. No longer feel like the seedy childless couple at family get togethers. "Fit in" better, your social and economic status more secure. A terrible injustice of nature undone.

Then as the economic situation improved in Eastern Europe, there was a gradual clamp down on live baby exports. But before that happened the situation did get pretty bad. The Romanians had to introduce a moratorium on foreign adoptions, because even doctors were going as far as stealing babies in the hospitals and selling them out the back door - and telling the mothers their children had died.

Where to next? The Irish middle-class couples circled in the air like vultures looking for new feeding grounds - they alighted on the poor and vulnerable young women of China and East Asia. A few years of miracle economic growth - and that door sadly closed too.

In fact, the situation is so "dire" in places like Vietnam, that "orphanages" where young middle-class people "volunteer" during their gap years (looks great on a CV - makes you look like your caring and decent - the orphanages charge the "volunteer" a fee. It the price of showing you care these days)....The situation is so dire for these "orphanages" that they are now stocked with fake orphans. The parents are alive and well, and living locally. They're paid a fee to allow their children to play "orphans" for dead eyed soulless middle-class tourists. (When some Orla from Foxrock, takes a year out of HR to travel the world, she can put it down on her CV as volunteering at an orphanage in Vietnam.)

Where to now?...Well, Africa is a little too "look who's coming to dinner" to be suitable for Irish middle-class life. But even in Africa, they're up to the fake orphanages lark too.

So, it's time to turn back home - and "take off the kid gloves" as Irish middle-class people are so fond of saying.

IMO The wording of such would appear rather ambiguous and unclear.

Are you paranoid, that they're up to no good. I think they're up to no good.

It is their modus operandi, isn't it. Caring on the surface ("we're doing this for your own good".."this hurts me far more than it hurts you") but very vague on the details - that is until a they're kicking down your door down at dawn, slamming you into the floor, and kneeling on your back. You won't be able to breath or speak, just a whisper, as they crush your face and next into the carpet, you'll see them carry your screaming and terrified children out the door, to a "better life".

The Constitution currently states in Article 42.5, “In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavor to supply the place of the parents, but always with due regard for the natural and imperceptible rights of the child.”

This is interesting. What do they mean by "moral". The old system of Irish adoption - or womb raiding - the Laundries. Children were seized from mothers on the basis of their "immorality". Will they use "drugs" as excuse for seizing children - The is no War on "drugs" - it's tool in the war on the working class. Will someone who was caught smoking a joint when they were a teenager, run the risk of the authorities grabbing their baby at the moment of birth? Middle-class people will not have to worry - they will have been able to pay privately for "drug treatment" - and they are now cured, and morally rectified.

And physical. What's this?.....Will parents with disabilities have their children snatched?........If you're a young working class woman, who at some point has been diagnosed with depression, can the authorities rip the child from your arms and give it to a "better home", for the "common good"?

(2.1°) " In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicial affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavor to supply the place of the parents, but always with due regard for the natural and imperceptible rights of the child. "

So much from the inviolable sanctity of marriage. Back in the good old days, the days some people are intent on turning the clock back to, to have children outside of marriage was enough an act of moral turpitude to justify the seizure and sale of your children. This will catch out the couple who've been deemed unfit to be parents, from running off to the registry office and doing the 'I do' - it will do them no good.

There will be nowhere they can run.

chops018 · 21-10-2012 3:57pm

Procrastastudy wrote: »

I'm not great on EU law but I'm pretty sure the ECHR is a different organisation to the mechanism you mention. I'm 99% sure that the ECHR can not overide the constitution. I'm pretty certain that a declaration on incompatibility does very little. The Foy decision as an example.

Was the law not changed then soon after (well a good bit after) the Foy decision? The courts cannot incorporate law that isn't there but they can make it incompatible with EU law meaning that Ireland should bring the law in line with EU law as soon as possible.

Well the ECHR was created by the Council of Europe so I'm just going by that. Not 100% sure on it myself. Just trying to put across some points, hopefully someone elucidates them.

I did a module on the ECHR during my masters but it's all very hazy now and I can't remember it with much clarity myself unfortunately and I'm too lazy to go researching it :P It was a good subject though, very interesting and there some great jurisprudence regarding an array of issues from the right to life to the right to freedom of expression. The ECtHR also has some great mechanisms in coming to a decision, the margin of appreciation being one complicated tool they use.

Anyway going a bit off topic, mainly I just put across some points that came back to me, not 100% sure on them so would like to see if anyone adds to what I said as I'm too lazy to go looking it up!

EDIT: some more info popping into my head now, as I remember if a decision is made by the ECtHR then there the Council of Europe must make sure that the decision is enforced and that any domestic laws are changed to reflect that rights protected under the ECHR. Remember the ECtHR can be appealed to from the national courts, it is a place of last resort, and so it's decisions (I'm assuming), have stronger standing than national decisions. Also all EU states are members of the Council of Europe and have signed the ECHR so I can't think of why it would not override Irish Law to be honest.

ResearchWill · 21-10-2012 4:03pm

gozunda wrote: »

And lots of violantions are not especially those that do not constitute a physical attack on a person but may be as damaging to a persons integrity.

Mental cruelty and psychological harm are two that come to mind. Many of these issues are not dealt with in a criminal manner.

For these issues to be properly dealt with, statutary change as pointed out by a previous poster may be required.

Mental cruelty and psychological harm are in my opinion both on the following section

10.—(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.

(2) For the purposes of this section a person harasses another where—

(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and

(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.

(3) Where a person is guilty of an offence under subsection (1), the court may, in addition to or as an alternative to any other penalty, order that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.

(4) A person who fails to comply with the terms of an order under subsection (3) shall be guilty of an offence.

(5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice so to do.

(6) A person guilty of an offence under this section shall be liable—

(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.

The issues cover by Common law and criminal statutes are very broad and more than likely cover any issue you can think of.

gozunda · 21-10-2012 6:36pm

ResearchWill wrote: »

Mental cruelty and psychological harm are in my opinion both on the following section

10.—(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.

(2) For the purposes of this section a person harasses another where—

(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and

(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.

(3) Where a person is guilty of an offence under subsection (1), the court may, in addition to or as an alternative to any other penalty, order that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.

(4) A person who fails to comply with the terms of an order under subsection (3) shall be guilty of an offence.

(5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice so to do.

(6) A person guilty of an offence under this section shall be liable—

(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.

The issues cover by Common law and criminal statutes are very broad and more than likely cover any issue you can think of.

Re mental cruelty and psychological harm:

Unfortunately it appears to completely fail to deal with bullying whether this is by a third party, a work collegue or a parent. This form of assault appears not to dealt with under any of the existing acts.

Whilst specific acts of harassment as detailed above may lead to some convictions they remain very difficult to prosecute.

What I would like to see is the criminalisation of persistant psychological assault / mental cruelty similar to that recognised for physical assault

There has been a move towards such changes In law in some other countries in lauding certain states in the US.

I believe that the current rights of the individual including that of children could be vastly improved by such a move without the need for any controversial referendum.

edgal · 21-10-2012 7:18pm

gozunda wrote: »

Re mental cruelty and psychological harm:

...
Whilst specific acts of harassment as detailed above may lead to some convictions they remain very difficult to prosecute.

What I would like to see is the criminalisation of persistant psychological assault / mental cruelry similar to that recognised for physical assault

There has been a move towards such changes In law in some other countries in lauding certain states in the US.
.... without the need for any controversial referendum.

How would you hope that such a change could be implemented, through statutes (acts) or by other means ? If the latter please elaborate.

gozunda · 21-10-2012 7:24pm

edgal wrote: »

How would you hope that such a change could be implemented, through statutes (acts) or by other means ? If the latter please elaborate.

That is the question indeed. Another poster indicated that such changes may be Implemented by statute and that a referendum would not be required.

I believe their is a real and urgent need to adopt such changes so that instances of mental cruelty / psychological harm can be properly dealt with and criminal convictions brought where such behaviours are proven.

Peregrinus · 22-10-2012 12:02am

You can certainly introduce new offences by simple legislation, without a referendum (unless your proposed new legislation would itself be repugnant to the Constitution as it stands, of course). But, even if intended to protect fundamental rights, your new legislation would not be entrenched; it could be repealed, amended or simply superseded by later legislation.

Framing new offences is always difficult, though. You need to frame the offence so that it covers the behaviour you want to criminalise but doesn't inadvertantly penalise behaviour that you don't wish to criminalise. It also has to be very clear, both so that prosecutions will be practically feasible and so that citizens will know in advance what behaviour is, and what is not, prohibited. Vagueness in the definition of a criminal offence is unacceptable.

These aren't necessarily insuperable problems, but they are real problems.

gozunda · 22-10-2012 12:14am

Peregrinus wrote: »

You can certainly introduce new offences by simple legislation, without a referendum (unless your proposed new legislation would itself be repugnant to the Constitution as it stands, of course). But, even if intended to protect fundamental rights, your new legislation would not be entrenched; it could be repealed, amended or simply superseded by later legislation.

That is I presume the same situation with any legislation? Take example the law on physical assault or murder that could be changed but in reality how likely is that to happen considering the nature of these crimes?

Peregrinus wrote: »

Framing new offences is always difficult, though. You need to frame the offence so that it covers the behaviour you want to criminalise but doesn't inadvertantly penalise behaviour that you don't wish to criminalise. It also has to be very clear, both so that prosecutions will be practically feasible and so that citizens will know in advance what behaviour is, and what is not, prohibited. Vagueness in the definition of a criminal offence is unacceptable.

These aren't necessarily insuperable problems, but they are real problems.

What then would the actual mechanism for assigning something like psychological assault as a criminal act be?

Am I correct in presuming that there would have to be a certain level of direct lobbying and political momentum required to instigate such a change in legislative terms?

Peregrinus · 22-10-2012 1:22am

gozunda wrote: »

That is I presume the same situation with any legislation? Take example the law on physical assault or murder that could be changed but in reality how likely is that to happen considering the nature of these crimes?

It’s unlikely, I agree, that the law would be changed so that homicide ceased to be a crime at all. But it could certainly be changed in other ways, and it has been. For example, a mandatory sentence of death has been replaced with a mandatory sentence of life imprisonment. And, in other countries, the “borders” of the offence have shifted. It’s not impossible to imagine, for example, a law that says that if you kill an intruder in your own home, that’s not an offence - other countries have enacted such a law - or a law that changes the defence of provocation.
But the question is not whether Irish law on murder might be changed, but whether a hypothetical law on “psychological assault” might be changed. And that, of course, depends on what the law says in the first place, how workable it turns out to be, and how satisfactory people find it to be. But the bottom line is that if the law can be changed to make some behaviour, not currently an offence, into an offence then it can obviously be changed again either to “tweak” that or to reverse it completely.

gozunda wrote: »

What then would the actual mechanism for assigning something like psychological assault as a criminal act be?

You’d want an Act of the Oireachtas which defines certain behaviour as a crime and assigns a sentence.
For example, have a look at s. 2 of the Non-Fatal Offences Against the Person Act 1997, which defines the offence of assault and assigns a penalty: http://www.irishstatutebook.ie/1997/en/act/pub/0026/sec0002.html#sec2
You’d want a similar provision defining the offence of “psychological assault” with similar precision, and assigning a penalty. And, in framing the definition of the offence, you’d need to consider not just precision and certainty, but also practicality; the elements of the offence need to be things you could prove in court with evidence that is likely to be available; otherwise no-one will ever be convicted.

gozunda wrote: »

Am I correct in presuming that there would have to be a certain level of direct lobbying and political momentum required to instigate such a change in legislative terms?

Not all legislation is the result of lobbying; much of it emerges from the internal policy formation processes of government. But if you’re outside the government and you want to see some legislative change then, yes, your options are (a) public campaigning, (b) direct lobbying of elected representatives, or (c) trying to feed into the policy formation processes (for example, by joining and becoming active in an organization that policymakers are likely to consult).

Dandelion6 · 22-10-2012 7:41am

chops018 wrote: »

Was the law not changed then soon after (well a good bit after) the Foy decision?

The law still hasn't been changed to reflect the Foy decision.

The courts cannot incorporate law that isn't there but they can make it incompatible with EU law meaning that Ireland should bring the law in line with EU law as soon as possible....Also all EU states are members of the Council of Europe and have signed the ECHR so I can't think of why it would not override Irish Law to be honest.

All EU states individually are members of the Council of Europe. The EU itself is supposed to ratify the ECHR but AFAIK has not done so yet, so it is not "EU law".

ResearchWill · 22-10-2012 8:11am

gozunda wrote: »

Re mental cruelty and psychological harm:

Unfortunately it appears to completely fail to deal with bullying whether this is by a third party, a work collegue or a parent. This form of assault appears not to dealt with under any of the existing acts.

Whilst specific acts of harassment as detailed above may lead to some convictions they remain very difficult to prosecute.

What I would like to see is the criminalisation of persistant psychological assault / mental cruelty similar to that recognised for physical assault

There has been a move towards such changes In law in some other countries in lauding certain states in the US.

I believe that the current rights of the individual including that of children could be vastly improved by such a move without the need for any controversial referendum.

How does section 10 not cover bullying and psychological assault. I have seen it used in relation to both, in court and convictions granted. If a person is being bullied or assaulted psychological, they can bring it to the attention of AGS or bring a private prosecution under section 10. For proof keep a diary, of each event, inform the person clearly that you feel their behaviors amounts to an offense under section 10 and maybe section 2. If they persist then act. But I can see a whole range of events covered by section 10 including cyber bullying, text bullying and simple old fashioned verbal bullying. I have seen it used to prosecute psychological attack on a person, by that I mean statements made which on the face of it are innocent but put in context caused damage to the victim.

The section is so broad I can not see how it does not cover bullying

10.—(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.

And the test is 2 part 1 is the victims life seriously interfered with, and would a reasonable person realise that the acts complained of would so interfere or cause alarm or distress or harm.

(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and

(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.

If this guy can get convicted in the UK under I would assume similar legislation http://www.telegraph.co.uk/news/uknews/crime/9602481/Man-jailed-for-wearing-anti-police-T-shirt-on-day-PCs-killed.html it could happen here.

From the article "Thew later admitted displaying or writing on offensive message with intention of causing harassment, alarm or distress."

In any case if you do not believe the section or any other section covers a act you believe should be criminal, then contact your local TD's and request they introduce a private members bill to create the offence, there is no need to go near the constitution unless of course your law will be in breach of the constitution.

gozunda · 22-10-2012 1:19pm

ResearchWill wrote: »

How does section 10 not cover bullying and psychological assault. I have seen it used in relation to both, in court and convictions granted. If a person is being bullied or assaulted psychological, they can bring it to the attention of AGS or bring a private prosecution under section 10. For proof keep a diary, of each event, inform the person clearly that you feel their behaviors amounts to an offense under section 10 and maybe section 2. If they persist then act. But I can see a whole range of events covered by section 10 including cyber bullying, text bullying and simple old fashioned verbal bullying. I have seen it used to prosecute psychological attack on a person, by that I mean statements made which on the face of it are innocent but put in context caused damage to the victim.
The section is so broad I can not see how it does not cover bullying

The act referred to appears relies on a person that " harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence."

That is sufficient for a stranger or individual not normally in regular contact with the person they are harassing

However in the case of a child subject to mental abuse in a home environment or an employee under the direction of a manager who directly psychologically abuses that employee in their place of work AND where that abuse is inherent in the environment - section 10 fails to cover such bullying or psychological abuse

I agree that section 10 is useful especially in there case of electronic harassment however where bullying / psychological abuse is insidious it would be nearly impossible to take a case under that section.

It is important to remember that Psychological Abuse may not only involve the use of words or physical acts but may rely on situational harassment including isolation, unfair treatment, and the emotional abuse of the individual whether a child or adult. This form of psychological assault can be seen in some forms of child abuse, employee bullying and elder abuse

Such psychological abuse is unfortunately not dealt with under current criminal law in my opinion.

ResearchWill wrote: »

10.—(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.
And the test is 2 part 1 is the victims life seriously interfered with, and would a reasonable person realise that the acts complained of would so interfere or cause alarm or distress or harm.
(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and
(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.

If this guy can get convicted in the UK under I would assume similar legislation http://www.telegraph.co.uk/news/uknews/crime/9602481/Man-jailed-for-wearing-anti-police-T-shirt-on-day-PCs-killed.html it could happen here.
From the article "Thew later admitted displaying or writing on offensive message with intention of causing harassment, alarm or distress."
In any case if you do not believe the section or any other section covers a act you believe should be criminal, then contact your local TD's and request they introduce a private members bill to create the offence, there is no need to go near the constitution unless of course your law will be in breach of the constitution.

I am aware of a number of cases of electronic harassment which have relied on section 10 but not in the types of cases of psychological abuse I have referred to.

The OP requested in the first post regarding mechanisms for recognising human rights other than a referendum. I believe the criminalisation of Pychological abuse of an individual whether of a child or adult is a valid direction in this context.

ResearchWill · 22-10-2012 1:36pm

gozunda wrote: »

The act referred to appears relies on a person that " harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence."

That is sufficient for a stranger or individual not normally in regular contact with the person they are harassing

However in the case of a child subject to mental abuse in a home environment or an employee under the direction of a manager who directly psychologically abuses that employee in their place of work AND where that abuse is inherent in the environment - section 10 fails to cover such bullying or psychological abuse

I agree that section 10 is useful especially in there case of electronic harassment however where bullying / psychological abuse is insidious it would be nearly impossible to take a case under that section.

It is important to remember that Psychological Abuse may not only involve the use of words or physical acts but may rely on situational harassment including isolation, unfair treatment, and the emotional abuse of the individual whether a child or adult. This form of psychological assault can be seen in some forms of child abuse, employee bullying and elder abuse

Such psychological abuse is unfortunately not dealt with under current criminal law in my opinion.

I am aware of a number of cases of electronic harassment which have relied on section 10 but not in cases of psychological abuse I have referred to.
The OP requested in the first post regarding mechanisms for recognising human rights other than a referendum. I believe the criminalisation of Pychological abuse of an individual whether of a child or adult is a valid direction in this context.

I believe it is, I have seen a conviction in a ex-relationship situation where the comments made were of a psychological nature, such comments and acts having been committed during and after the relationship.

We have to look at "he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and"

In relation to children section 246 of the Childrens Act 2001 deals with it

246.—(1) It shall be an offence for any person who has the custody, charge or care of a child wilfully to assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to affect his or her wellbeing.

(2) A person found guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 7 years or both.

(3) A person may be convicted of an offence under this section—

(a) notwithstanding the death of the child in respect of whom the offence is committed, or

(b) notwithstanding that actual suffering or injury to the health of the child, or the likelihood of such suffering or injury, was obviated by the action of another person.

(4) On the trial of any person for the murder of a child of whom the person has the custody, charge or care, the court or the jury, as the case may be, may, if satisfied that the accused is guilty of an offence under this section in respect of the child, find the accused guilty of that offence.

(5) For the purposes of this section a person shall be deemed to have neglected a child in a manner likely to cause the child unnecessary suffering or injury to his or her health or seriously to affect his or her wellbeing if the person—

(a) fails to provide adequate food, clothing, heating, medical aid or accommodation for the child, or

(b) being unable to provide such food, clothing, heating, medical aid or accommodation, fails to take steps to have it provided under the enactments relating to health, social welfare or housing.

(6) In subsection (1) the reference to a child's health or wellbeing includes a reference to the child's physical, mental or emotional health or wellbeing.

(7) For the purposes of this section ill-treatment of a child includes any frightening, bullying or threatening of the child, and “ill-treat” shall be construed accordingly.

In relation to marriage or partner situation there is relevent family law measures, which can lead to criminal convictions.

The work place is a interesting one, I am going to have to think about it, but there is of course civil law that covers bullying in the work place. The Safety Health and Welfare at Work Act 2005 at section 8 says "(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk;" Section 77 (2) SAYS "(2) A person commits an offence where he or she— (a) fails to discharge a duty to which he or she is subject by virtue of sections 8 , 9 , 10 , 11(1) to (4), 12 , 13 and 15 to 23 ," Section 78 sets the punishment "is liable— (i) on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both, or (ii) on conviction on indictment to a fine not exceeding €3,000,000 or imprisonment for a term not exceeding 2 years or both."

Grolschevik · 24-10-2012 1:49pm

TL/DR:

"The government's gonna steal our babies and vaccinate them against our will".

The first bit of pro-"No" argument I've actually seen, bar some hysterical rants on Facebook, so I thought I'd share:

(From the "Alliance of Parents Against the State", http://www.aps.ie/page8.php)

10 Reasons to vote No in the Children's Rights Referendum

1/ Your legal right under Article 42.5 of the Irish Constitution to decide "Best Interests" for your own child will be handed over to the State. Parents will be reduced to Caregivers under the UNCRC.

2/ Your child can be placed for adoption against your will. You will not need to be accused or convicted of any crime and the arbitrary decision can be made my one person. The entire process will take place in secret Family Courts and you will be gagged and prevented from speaking out.

3/The State can decide for example to vaccinate every child in Ireland, and the parent, and even the child have no say in the matter. You do not need to be consulted or give permission. Joan Burton has already hinted that Child Benefit will be tied into vaccination records, this could be extended to school admission.

4/ The State can decide to give give Birth Control to children of any age, even if they are below the Age of Consent. The State can bring children to other countries for abortions without parental consent and even if the child disagrees. (X case, C Case, D case)

5/ The UN and the EU can make any laws for children without consent of the Irish Government if it wishes. This allows unelected people in the EU and UN to write Irish Laws without prior notice. This removes what little Sovereignty Ireland has as a nation.

6/ The United Nations Convention on the Rights of the Child is no mere statement of altruism, it is a legally binding Human Rights Treaty which, if Article 42 is changed, will allow unelected people in the EU and UN to re-write Irish Law. Fully ratifying the UNCRC will now make every other treaty that we have ratified also apply to all Irish Children. The entire landscape of Irish Law may need to be rewritten.

7/The UNCRC does not give Irish children any privileges they did not possess before. Parents have always vindicated the rights for their child. As children are not autonomous, the State can decide anything even if the child disagrees. Effectively, this also removes children's rights.

8/ The "Best Interest Principle" of the UN is nothing more than a slogan. Was it in the "Best Interests" of the 260 who died in Irish State "Care", or the 500 who went missing and many were later found to have been trafficked into prostitution and slavery? We believe if Ireland is to have a World-Class Child Protection System that "Best Interests" should be replaced with "to the Measured and Demonstrated Benefit of the Child" and it will need to be measured and demonstrated. Despite 760 children missing or dead in a decade, nobody has ever been held accountable. In the Baby P case 2 doctors were struck off and 4 social workers fired, in Ireland 260 dead, 500 missing and nobody was punished.

9/ The UNCRC only gives "Rights" to children but there is no obligation on the Government to comply. Children in developing nations whose Governments have ratified the UNCRC have the right to food and water and yet children are dying. Children are executed in some countries and the UNCRCC does not protect them, only their "Rights". Many of the countries that have ratified the UNCRC allow for Child Soldiers, Child Forced Marriage, the Death Penalty for Children and even Female Genital Mutilation. The UNCRC does not protect children, their parents protect them.

10/ The question we are being asked here is "do you trust the Irish State, the UN and the EU to make decisions for your children when your parental rights have been eliminated?" If you are not 100% sure you must vote no.

gozunda · 29-10-2012 9:22am

Sorry I have had my attention on other things so just now picking up the threads here - an interesting discussion ...

ResearchWill wrote: »

I believe it is, I have seen a conviction in a ex-relationship situation where the comments made were of a psychological nature, such comments and acts having been committed during and after the relationship.

We have to look at "he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and"

In this instance there was a move of status from married to seperated between the litigants ie an ex-relationship but In the main this Act fails to cover most cases of bullying where the victim is in normal regular contact or under the direction of the bully

In relation to children section 246 of the Childrens Act 2001 deals with it

246.—(1) It shall be an offence for any person who has the custody, charge or care of a child wilfully to assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to affect his or her wellbeing.

(2) A person found guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 7 years or both.

(3) A person may be convicted of an offence under this section—

(a) notwithstanding the death of the child in respect of whom the offence is committed, or

(b) notwithstanding that actual suffering or injury to the health of the child, or the likelihood of such suffering or injury, was obviated by the action of another person.

(4) On the trial of any person for the murder of a child of whom the person has the custody, charge or care, the court or the jury, as the case may be, may, if satisfied that the accused is guilty of an offence under this section in respect of the child, find the accused guilty of that offence.

(5) For the purposes of this section a person shall be deemed to have neglected a child in a manner likely to cause the child unnecessary suffering or injury to his or her health or seriously to affect his or her wellbeing if the person—

(a) fails to provide adequate food, clothing, heating, medical aid or accommodation for the child, or

(b) being unable to provide such food, clothing, heating, medical aid or accommodation, fails to take steps to have it provided under the enactments relating to health, social welfare or housing.

(6) In subsection (1) the reference to a child's health or wellbeing includes a reference to the child's physical, mental or emotional health or wellbeing.

(7) For the purposes of this section ill-treatment of a child includes any frightening, bullying or threatening of the child, and “ill-treat” shall be construed accordingly.

Again the 'ill treatment' is being dealt with in a specific context of the material needs of a child and the parents obligations to provide these needs. It fails in this instance to factor psychological abuse of children outside the remit of the home environment. Or by other individuals not in loco parentis

In relation to marriage or partner situation there is relevent family law measures, which can lead to criminal convictions.

Of interest which ones in particular are you referring to?

The work place is a interesting one, I am going to have to think about it, but there is of course civil law that covers bullying in the work place. The Safety Health and Welfare at Work Act 2005 at section 8 says "(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk;" Section 77 (2) SAYS "(2) A person commits an offence where he or she— (a) fails to discharge a duty to which he or she is subject by virtue of sections 8 , 9 , 10 , 11(1) to (4), 12 , 13 and 15 to 23 ," Section 78 sets the punishment "is liable— (i) on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both, or (ii) on conviction on indictment to a fine not exceeding €3,000,000 or imprisonment for a term not exceeding 2 years or both."

Unfortunately that particular act if you notice places the responsibility of contravention of health and safety provisions not on an actual perpetrator but on the governing organisation. For this to be applied there must be a recognised injury. In the case of psychological abuse the link between cause and effect for such injury is much harder to prove than say loosing a finger in an unguarded machine.

RW - I do believe you have hit the nail on the head in an oblique way - There is no currently no single piece of legislation that deals properly with the issue of psychological abuse of the person in any way similar to that available to individuals who have suffered physical abuse such as a physical attack etc

This is an area that I believe will require legislation to properly deal with the huge amount of bullying / psychological abuse that is encountered by both children and adults in nearly every walk of life. There are no proper criminal penalties for such behaviour and as such it remains outside the bounds of direct prosecution as what it is - a criminal act on the person.

Are there any other ways to recognize human rights other than a referendum

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