judicial

European Union Economic Governance – Too Late For Dithering !

Posted by CJ Walsh

2010-12-22:  November & December 2010 … when the shit really started to hit the international economic fan ! … there has been an excess of hysterical nonsense in the Irish Media concerning growing European Union (EU) Economic Governance … and a perceived erosion of Irish National Sovereignty.  How sad ?!?

Economic Environment … the intricate web of real and virtual human commercial activity – operating at micro and macro-economic levels – which facilitates, supports, but sometimes hampers or disrupts, human interaction in the Social Environment.

Social Environment … the complex network of real and virtual human interaction – at a communal or larger group level – which operates for reasons of tradition, culture, business, pleasure, information exchange, institutional organization, legal procedure, governance, human betterment, social progress and spiritual enlightenment, etc.

However, let me sketch out an altogether different and much more positive picture !

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Thesis – My Argument

[During 2009, I first raised this issue in meetings of the IIEA (Institute of International & European Affairs) Economists’ Group, in Dublin.]

Towards the end of 2010 … we can now see that Inter-Governmental Economic Governance in the European Union has failed … miserably.  This has not only destabilized the EuroZone … but the entire European Union, itself, as a political entity … and will continue to do so … until Economic Governance is brought much closer to, and fully within, the Community Method … which is a lengthy and complex process.

Back in 2009, however, when the Financial Markets were not in such a mad frenzy … it would have been natural to imagine that an interim stage in this process would most probably be to adopt an Open Method of Co-Ordination.  This is no longer an option … being too little, too late, to calm the Markets.

Throughout this process of reform, the European Central Bank (ECB) and the National Central Banks can, and must, retain their independence … as legally mandated in European Union Primary Legislation, i.e. the Treaties.

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Three Concerns I have had for some time …

–  Economists don’t know the Community Method from the Rhythm Method, and they are ill-equipped to deal with matters of Mainstream European Union Institutional Reform ;

–  The use of Economic Performance Indicators in the EU Stability & Growth Pact is simplistic and crude … and, therefore, very problematic ;

–  Economic Performance Indicators must be improved … qualitatively … and be mainstreamed in considerations, and the implementation, of Sustainable Human & Social Development … as legally mandated in the EU Treaties.

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Mr. Olli Rehn, European Commissioner for Economic & Monetary Affairs recently delivered a speech at the Institute of International & European Affairs, in Dublin …

Mr. Olli Rehn, European Commissioner

9 November 2010

Reinforcing EU Economic Governance: Relevance for Ireland

Click the Link Above to read and/or download PDF File (39kb)

However … instead of trying to desperately backfill the holes and gaps in the current, failed Inter-Governmental Method of Economic Governance in the European Union … Commissioner Rehn should be clearly identifying the proper target as the Community Method of Economic Governance … and plotting an appropriate course to reach that target … as soon as practicable !

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This is a useful background document … and includes a lot of information about the EU Stability & Growth Pact …

European Commission & General Secretariat of the EU Council

June 2007

EU Economic & Monetary Union – Legal & Political Texts

Click the Link Above to read and/or download PDF File (2.66 Mb)

Since Ireland joined the European Economic Community (EEC) in 1973 … after 10 years of accession negotiations ! … an ‘informed’ view of European Integration has always been that the different Countries are pooling their national sovereignty, in an expanding range of specific areas, for the greater benefit of all their citizens.  This has certainly been the experience of Ireland.  And … let us also not forget that Irish Politicians and Senior Civil Servants have participated directly – at all stages – in the development of the EMU Legal & Political Texts listed.  There is no such thing as a Domineering ‘Brussels’ Big Brother !

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This is the most recent update of the EuroZone’s Economic Performance Indicators …

European Commission, Directorate-General for Economic & Financial Affairs (DG ECFIN)

2 December 2010

Key Economic Indicators for the Euro Area

Click the Link Above to read and/or download PDF File (360kb)

It is now widely acknowledged that Gross Domestic Product (GDP) is neither a reliable nor an adequate indicator of Sustainable Human & Social Development.  But … that is another story … for another day !

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Community & Inter-Governmental Methods of Governance

The Community Method is the expression used for the most common and effective operating and decision-making mode of institutions in the European Union.  It proceeds from an integration logic, with due respect for the subsidiarity principle … and has the following salient features:

  • European Commission monopoly of the Right of Initiative, with a strong monitoring role in implementation ;
  • should consensus not be achieved, widespread use of Qualified Majority Voting in the Council of the European Union ;
  • an active, participatory role for the European Parliament ;
  • uniform interpretation of EU Law by the Court of Justice.

In contrast to the … Inter-Governmental Method … which proceeds from an inter-governmental logic of co-operation between EU Member States … to a large extent outside the institutional framework of the European Union … and has the following salient features:

  • the European Commission’s Right of Initiative is shared with the Member States or confined to specific areas of activity … with little, if any, monitoring role for the Commission in implementation ;
  • the Council of the European Union generally acts unanimously … and unilaterally ;
  • the European Parliament has merely a consultative role ;
  • the Court of Justice plays only a minor role.

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Open Method of Co-Ordination

The Open Method of Co-Ordination (OMC) developed as an instrument of the 2000 Lisbon Strategy, and provided a new framework for co-operation between the EU Member States, whose national policies could thus be directed towards certain common objectives.

Under this method of governance, the Member States are evaluated by one another (peer pressure), with the European Commission’s role being limited to ‘lite’ surveillance.  The European Parliament and the Court of Justice play virtually no part in the OMC process.

The Open Method of Co-Ordination takes place in policy areas which fall within the competence of the Member States … such as employment, social protection, social inclusion, education, youth and training.

It is based principally on:

  • jointly identifying and defining objectives to be achieved (adopted by the Council of the European Union) ;
  • jointly established measuring instruments (statistics, indicators, guidelines) ;
  • benchmarking, i.e. comparison of the Member States’ performance and exchange of best practices (oversight by the European Commission).

Depending on the areas concerned, the OMC involves so-called ‘Soft Law’ Measures which are binding on the Member States to varying degrees but which never take the form of ‘Hard Law’ Directives, Regulations or Decisions.  Thus, in the context of the Lisbon Strategy, the OMC required the Member States to draw up national reform plans and to submit them to the European Commission.

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Colour photograph showing the last resting place, in Arbour Hill Cemetery Dublin, for many - not all - Executed Leaders of the 1916 Revolution. The Memorial was designed by G. McNicholl. Photograph taken by CJ Walsh. 2010-10-24. Click to enlarge.
Colour photograph showing the last resting place, in Arbour Hill Cemetery Dublin, for many – not all – Executed Leaders of the 1916 Revolution. The Memorial was designed by G. McNicholl. Photograph taken by CJ Walsh. 2010-10-24. Click to enlarge.

Ireland’s National Sovereignty in 2010/2011 ?

On a beautiful sunny day, this past autumn … I again visited Arbour Hill Cemetery in Dublin … the last resting place for many Executed Leaders of the 1916 Revolution … an event which finally initiated an irrevocable process of terminating a prolonged period of barbaric external imperial domination and cultural cleansing of the indigenous population …

Colour photograph showing, in the background, a latin cross and the Irish language version of the 1916 Proclamation of Independence inscribed on the stone wall, with the simple grass-covered graves of Executed Leaders in the foreground. Detail of the 1916 Revolution Memorial in Arbour Hill Cemetery, Dublin. Photograph taken by CJ Walsh. 2010-10-24. Click to enlarge.
Colour photograph showing, in the background, a latin cross and the Irish language version of the 1916 Proclamation of Independence inscribed on the stone wall, with the simple grass-covered graves of Executed Leaders in the foreground. Detail of the 1916 Revolution Memorial in Arbour Hill Cemetery, Dublin. Photograph taken by CJ Walsh. 2010-10-24. Click to enlarge.

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On the wall behind the graves … the 1916 Proclamation of Independence is inscribed in the Irish Language, and also in English …

Poblacht na hEíreann

THE PROVISIONAL GOVERNMENT OF THE IRISH REPUBLIC

TO THE PEOPLE OF IRELAND

IRISHMEN AND IRISHWOMEN:  In the name of God and of the dead generations from which she receives her old tradition of nationhood, Ireland, through us, summons her children to her flag and strikes for her freedom.

Having organized and trained her manhood through her secret revolutionary organization, the Irish Republican Brotherhood, and through her open military organizations, the Irish Volunteers and the Irish Citizen Army, having patiently perfected her discipline, having resolutely waited for the right moment to reveal itself, she now seizes that moment, and, supported by her exiled children in America and by gallant allies in Europe, but relying in the first on her own strength, she strikes in full confidence of victory.

We declare the right of the people of Ireland to the ownership of Ireland, and to the unfettered control of Irish destinies, to be sovereign and indefeasible.  The long usurpation of that right by a foreign people and government has not extinguished the right, nor can it ever be extinguished except by the destruction of the Irish people.  In every generation the Irish people have asserted their right to national freedom and sovereignty:  six times during the past three hundred years they have asserted it in arms.  Standing on that fundamental right and again asserting it in arms in the face of the world, we hereby proclaim the Irish Republic as a Sovereign Independent State, and we pledge our lives and the lives of our comrades-in-arms to the cause of its freedom, of its welfare, and of its exaltation among the nations.

The Irish Republic is entitled to, and hereby claims, the allegiance of every Irishman and Irishwoman.  The Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and of all its parts, cherishing all the children of the nation equally, and oblivious of the differences carefully fostered by an alien government, which have divided a minority from the majority in the past.

Until our arms have brought the opportune moment for the establishment of a permanent National Government, representative of the whole people of Ireland and elected by the suffrages of all her men and women, the Provisional Government, hereby constituted, will administer the civil and military affairs of the Republic in trust for the people.

We place the cause of the Irish Republic under the protection of the Most High God, Whose blessing we invoke upon our arms, and we pray that no one who serves that cause will dishonour it by cowardice, inhumanity, or rapine.  In this supreme hour the Irish nation must, by its valour and discipline and by the readiness of its children to sacrifice themselves for the common good, prove itself worthy of the august destiny to which it is called.

Signed on Behalf of the Provisional Government,

THOMAS J. CLARKE,

SEAN Mac DIARMADA,          THOMAS Mac DONAGH,

P. H. PEARSE,          EAMONN CEANNT,

JAMES CONNOLLY,          JOSEPH PLUNKETT.

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As We Approach the 100th Anniversary of the 1916 Revolution … Ireland has failed to implement and foster the social values so eloquently elaborated in the 1916 Proclamation of Independence … widespread, deeply ingrained corruption infects our economic environment … and the institutions of national governance are dysfunctional and no longer ‘fit for purpose’ … while individuals within those institutions rise in rank according to their own natural level of incompetence.

Politically … Ireland has not yet properly matured as an Independent State.

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Ireland’s Relationship with the European Union … I am more than a little curious as to why Ireland is not associated with Declaration No.52, which is annexed to the Treaty of Lisbon …

52.  Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia and the Slovak Republic on the symbols of the European Union

Belgium, Bulgaria, Germany, Greece, Spain, Italy, Cyprus, Lithuania, Luxemburg, Hungary, Malta, Austria, Portugal, Romania, Slovenia and the Slovak Republic declare that the flag with a circle of twelve golden stars on a blue background, the anthem based on the ‘Ode to Joy’ from the Ninth Symphony by Ludwig van Beethoven, the motto ‘United in diversity’, the euro as the currency of the European Union and Europe Day on 9 May will for them continue as symbols to express the sense of community of the people in the European Union and their allegiance to it.

Yes … we have a lot to discuss before 2016 !

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Update:  2013-06-03 …

On Friday, 31 May 2013, at the Institute of International & European Affairs (IIEA) in Dublin … I attended the third seminar in a series organized to mark Ireland’s Presidency of the Council of the European Union (January to June 2013) … the seventh such Presidency … and 40 years since Ireland officially joined the European Economic Community (EEC), on 1 January 1973 … after a long, long, long accession process …

‘Economic Sovereignty in an Age of Globalization and EU Integration – Economic, Legal and Political Perspectives’

[ For full information about this IIEA Economic Seminar:  www.iiea.com ]

Because the seminar was not only very interesting, but is directly relevant in the context of this post … and the remarks of Mr. Peter Sutherland, Chairman of Goldman Sachs International and the London School of Economics, and former Irish Attorney General, former European Commissioner and former Director-General of the World Trade Organization, caused quite a stir in the printed media on the following day … here is Paper 2 from Seminar Session I … which went to the heart of discussions on the day …

Prof. John W O’Hagan, Dept. of Economics, Trinity College Dublin, Ireland

Shared Economic Sovereignty: Beneficial or Not, and Who Decides ?

Click the Link Above to read and/or download PDF File (635 Kb)

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Update:  2014-07-04 …

Economists exist and operate in a special bubble … in their own little isolated world of quasi-science and fantasy, where everything in ‘our’ society is seen merely as an input, or fuel, for economic development.  And when they talk about Sustainable Economic Growth … believe me, their notion of ‘sustainable’ is altogether different from our understanding of that word !

European Union Economic Governance

It should come as no surprise to learn, therefore, that economists are blissfully unaware that the EuroZone’s current directionless (and dysfunctional) economic governance is causing enormous instability and harm to the whole political entity that is the European Union …

EU Economic Governance & The European Semester - Who Does What and When, Every Year
Flow chart diagram, in colour, showing how it is proposed that The European Semester will operate … which EU Institution will do what, and at what stage every year.  Source: Council of the European Union.  Click to enlarge.

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This issue is too important for all of us … to be left to economists and national politicians, alone, to muddle through !

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END

Irish Nursing Home Care – Dysfunctional National Governance !!

Posted by CJ Walsh

On Tuesday last … 9 November 2010 … Ireland’s Office of the Ombudsman issued a Report to the Irish Oireachtas (the Dáil and Seanad) … in accordance with Section 6(7) of the 1980 Ombudsman Act … concerning an Investigation based on more than 1,000 individual complaints made, since 1985, on behalf of older people who were unable to get long-term nursing home care from their health boards … now the Health Service Executive (HSE).

Please Note Well … this Report is not just about Older People !

This document raises a number of very serious and fundamental issues concerning our current system of Dysfunctional National Governance in Ireland.  Every Irish person should, therefore, expend a small bit of time and effort in making themselves familiar with these problems … especially in the run-up to any by-elections … or, perhaps, even a general election … and certainly before we enter a prolonged period of being hammered in a Draconian Series of 4 Budgets !

This Report places a major question mark over the positions of Ms. Mary Harney T.D., Minister for Health & Children (a woman of strong ‘Boston-esque’, neo-liberal and anti-social convictions) … and the Senior Civil Servants (plural !) in Her Department.

And don’t be fooled into thinking, either, that the Department of Health & Children is our only dysfunctional national ministry !   See my previous Posts.

Ms. Emily O’Reilly, Ireland’s Ombudsman, deserves our full support !

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This is the Full Ombudsman’s Report …

9 November 2010 – Office of the Ombudsman

WHO CARES ? An Investigation into the Right to Nursing Home Care in Ireland

Click the Link Above to read and/or download PDF File (621kb)

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Conclusions (Executive Summary)

The conclusions of this investigation are easily stated:

  • The Health Act 1970 has required the State to provide nursing home care for those who need it.
  • It is an open question as to whether that obligation continues in place, notwithstanding recent amendments to the Health Act 1970.
  • The State has failed consistently to meet this obligation over four decades.
  • The State has failed over that same period, and despite repeated commitments (especially since 2001), to amend the law so as to bring actual practice and legal obligations into harmony.
  • Very many people over these decades have been deprived of their legal entitlement.
  • Access to nursing home care over this period has been marked by confusion, uncertainty, misinformation, inconsistency and inequity.
  • Very many people over this period have suffered significant adverse affect.
  • This situation has been allowed to continue with the full knowledge and consent of the responsible State agencies.
  • Arising from these failures, the State is now facing several hundred legal actions from, or on behalf of, people seeking compensation for the costs incurred in having to avail of private nursing home care.
  • These particular failures, which have been allowed to continue for decades, point inevitably to wider failures in government.

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The conduct of the investigation and the preparation of this report for the Oireachtas have been marked by an unprecedented level of rancour and disagreement.

The Department, in particular, has laid a multiplicity of charges against the Ombudsman regarding the manner in which the investigation has been conducted.  Amongst its charges are:

  • that the Ombudsman exceeded her jurisdiction in undertaking this investigation ;
  • that the Ombudsman failed to abide by fair procedures particularly in relation to the provision of a draft version of the investigation report ;
  • that the Ombudsman displayed prejudice and objective bias in the course of the investigation ;
  • that the Ombudsman displayed arrogance in purporting to interpret the law ;
  • that the Ombudsman has purported to deny the State bodies concerned their right to have the litigation (detailed in this report) determined by the Courts.

The Minister, acting on behalf of the Government, has informed the Ombudsman that the Government supports the submission of her Department in which these charges are made.  While the HSE, in general, has been more temperate, it has specifically charged the Ombudsman with attempting to influence the outcome of court proceedings.  In effect, the Department and the HSE are saying that the Ombudsman undertook this investigation in bad faith.

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In fact, the Ombudsman’s motivation in producing this report was five-fold:

     1. To highlight the very significant difficulties faced over several decades by families seeking to make arrangements for long-term nursing home care for a family member.

     2. To represent, in many instances through their own words, the distress and upset (including financial) of people who complained to the Ombudsman’s Office over the years in relation to nursing home care.

     3. To highlight the inadequacy and the tardiness of the State’s responses to these problems.

     4. To raise the issue of whether and, if so how, people adversely affected should have some recognition of having been failed by the State.

     5. To raise wider questions of governance prompted by the practices highlighted in this report.

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In the 2001 Report: ‘Nursing Home Subventions’, the then Ombudsman expressed the view that the issues of bad administration dealt with in that report reflected significant dysfunction in our system of government.  That view could, with only minor contextual amendments, be reproduced in full here with the same validity as in 2001.

The then Ombudsman identified deficits in three sets of relationships which, in his view, contribute significantly to this dysfunction.

These relationships are:

The Relationship between the Oireachtas and the Executive – the Constitutional model whereby the Legislature makes the laws and the Executive implements them has become a fiction; in fact, it is the Executive (Government) ‘which decides policy; which proposes legislation and ensures its passage through the Oireachtas and, subsequently, in its executive capacity ensures that the laws are implemented’.  Parliament is relatively powerless and not in a position to exercise the role (including that of calling the Executive to account) envisaged in the Constitution.

Relationships within the Executive – in the past, there was a clear division of functions as between the political (Ministerial) side and the official side.  The integrity of the governmental process depended, to a large extent, on the official side being seen to be non-political; the tension inevitably generated by this division was regarded as necessary and healthy.  “Good government”, as Professor Séamus Ó Cinnéide put it, “depended on a certain distance and balance between the two sides”.  This distance and balance no longer applies and, again to quote Professor Ó Cinnéide, this change is part of “an unspoken revolution in our system of governance”.  Again, another key element in the overall model of government has been discarded or, at the very least, diluted considerably.

Relationship between Department and Health Boards – similar to the relationships within the Executive, the relationship between the Department and the health boards is most effective where the latter are prepared to keep a certain distance from the former and to exercise, as necessary, their status as independent, statutory bodies.  But the health boards, for the greater part, failed to act independently; to ‘a large extent, health boards appear to act in relation to the Department as if they are satellites rather than independent bodies […]   The majority of the health boards were prepared to continue with a scheme, about which they increasingly had doubts, for as long as the Department told them they should.’

The present Ombudsman comments on these three areas from the perspective of today and concludes that, if anything, matters have disimproved rather than improved.  In relation to the role of the Oireachtas, the Ombudsman observes that parliament has been sidelined and exercises only a limited role.  Reflecting the views of many commentators, the Ombudsman observes that our governmental arrangements are undermined significantly by virtue of having an Executive which is too powerful and a Legislature which is too weak.

As regards relationships within the Executive, and taking the example of the Department of Health & Children, the Ombudsman observes that the distance between Ministers and senior civil servants – which was a necessary feature of our model of government – no longer exists.  In the wider context of the health service, the Ombudsman draws attention to a continuing confusion as to the respective roles of the HSE and of the Department.

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Findings (Executive Summary)

The Ombudsman finds, in relation to the type of complaints dealt with in this investigation, that the health boards (HSE) failed to fulfil their obligations to older people under section 52 of the Health Act 1970 and that this failure came about with the full knowledge and agreement of the Department.  As a result of these failures, very many older people (and their families) suffered significant adverse affect over several decades.  The Ombudsman finds that these failures of the health boards (HSE) and of the Department constitute (to use the language of the Ombudsman Act) actions “based on an undesirable administrative practice” and also actions “contrary to fair or sound administration”.  These findings are at a level of generality as this investigation is an ‘own initiative’ one rather than one linked to specific, named complainants.

The Ombudsman takes the view that the HSE and the Department should acknowledge formally that the State, in the case of older people needing long-term nursing home care, has not been meeting its obligations under section 52 of the Health Act 1970.  This acknowledgment could be in the form of a public statement from the two bodies and could be made on a ‘without prejudice’ basis.

There is no satisfactory solution to the issue of whether there should be financial redress for those who have been adversely affected by the State’s failure to provide long-stay care.  The financial consequences for the State, in meeting a recommendation to compensate all those adversely affected, would be enormous, potentially running to several billion euros.  In present circumstances, it appears this is not a cost which the State can meet.  Nor is it likely that the State will be in a position to meet this type of charge for many years to come.  On the other hand, not to recommend financial redress, might be seen as condoning maladministration and allowing bad practice to go unchecked.  It would also mean that individual people and their families are being left with nowhere to turn and with a financial burden to bear which, as the Ombudsman understands the law, should have been borne by the State.

With considerable reluctance, the Ombudsman takes the view that in present circumstances the public interest is best served in not recommending any specific redress in the sense of financial compensation for those affected adversely.  The Ombudsman suggests that some thought be given within the Department to devising some limited scheme under which families which have suffered serious financial hardship might be assisted.  One possibility, in this regard, is that the existing Supplementary Welfare Allowance scheme might provide the statutory mechanism for the making of one-off payments, based on exceptional need, for such people affected adversely by the State’s failure to provide nursing home care for a family member.

The Ombudsman feels it is vital that steps be taken to prevent situations, such as described in this report, coming about in the future; or, where they do come about, there should be mechanisms in place to deal with them at an early stage.  The Ombudsman proposes that, in future, measures to deal with such instances should be conducted with full transparency and in the public domain.  The Ombudsman proposes the creation of an independent group whose function would be to advise Government on how best to handle legal actions, or threatened legal actions, which involve numbers of people and which arise from a contended failure of a State agency to meet statutory obligations particularly in instances where those claimed to be affected belong to a vulnerable group in society.  Past examples of situations where such an approach might have been helpful include:

          –   the army deafness claims ;

          –   the contaminated blood claims ;

          –   education rights of autistic children ;

          –   provision of secure care for children ;    and

          –   the right of older people to long stay nursing home care.

This proposal is based on the premise that the State should react to such situations, not simply in legalistic terms, but in terms which have regard both to legal rights (including human rights), to the State’s finances and the overall public interest.  The proposal envisages that, while ultimate legal responsibility for dealing with such claims will continue to rest with the State (and its relevant agency), the direction of the State’s response should have regard to the advice of this group.  Amongst the options for this group would be that of stating a case to the High Court, perhaps at an early stage, in order to get legal clarity where that is needed.  The overall thrust of this proposal is that the State’s response to situations of this kind should be speedy, be made at an early stage, and be based on considerations of fairness and the public good rather than, as tends to happen at present, being defensive, combative and legalistic.

Some thought might be given to the possibility of such a group acting as adviser to the Attorney General in fulfilling the role of guardian of the public interest or, alternatively, that this group would replace the Attorney General in fulfilling that role.  In any case, there is certainly considerable scope for improving our governmental mechanisms with a view to ensuring that, where these major issues arise, they will be handled always with a view to securing the public interest.

Emily O’Reilly – Ombudsman – November 2010

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EU Sustainable vs. Green Public Procurement – Beware !

Posted by CJ Walsh

2010-11-02:  For a long, long time … too long … I have been bleating on about the major and substantial difference between Sustainable Design and Green Design … or ‘Sustainability’ and ‘Green-ness’.  See my previous Posts.

This bores me no end !

HOWEVER … there are some serious implications if this difference is not properly understood … particularly by individuals, groups or organizations attempting to advance the Application of Criteria which address Social and/or Ethical Concerns within, for example, the European Union’s Public Procurement Framework … or the EU’s Construction Product Framework.

The following is a nice little example of exactly what I am talking about … explained by no less an authority than the Directorate General for Environment in the European Commission itself … on its very own Public Procurement WebPage at  http://ec.europa.eu/environment/gpp/index_en.htm … as viewed, by me, on 2010-09-12 …

[ For a moment, let’s just overlook the simplistic and crude ‘three pillars’ understanding of Sustainable Development.  See my previous Posts.]

Sustainable Public Procurement (SPP) … means that public authorities seek to achieve the appropriate balance between the three pillars of sustainable development – economic, social and environmental – when procuring goods, services or works at all stages of the project.

Green Public Procurement (GPP) … means that public authorities seek to procure goods, services and works with a reduced environmental impact throughout their life cycle compared to goods, services and works with the same primary function that would otherwise be procured.

Practical Differences Between SPP & GPP !

GPP is often more easily accommodated than SPP within the existing legal and practical framework of procurement.  Green requirements can be included in technical or performance-based specifications for products, services and works.  Provided the conditions set out in the ‘Helsinki Bus’ and ‘Wienstrom’ Cases, and Evropaïki Dynamiki vs. European Environment Agency (EEA) … are met, green award criteria can also be applied (further information on these cases is available at  http://ec.europa.eu/environment/gpp/case_law_en.htm).

The application of Criteria aimed at addressing Social or Ethical Concerns can be more difficult in the context of regulated public procurement procedures.  Public authorities are specifically empowered to include social requirements in their conditions for the performance of contracts or to reserve certain contracts for performance by sheltered workshops or employment programmes (Articles 26 and 19 of Directive 2004/18/EC respectively).

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My Note:  DIRECTIVE 2004/18/EC of the European Parliament and of the Council, of 31 March 2004, on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts.

[ For another moment, let’s just overlook the unfortunate use of disability-related language … which fails, utterly, to take account of the 2001 World Health Organization’s International Classification of Functioning, Disability & Health (ICF).  See my previous Posts.]

Article 19 – Reserved Contracts

Member States may reserve the right to participate in public contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes where most of the employees concerned are handicapped persons who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions.

The contract notice shall make reference to this provision.

Article 26 – Conditions for Performance of Contracts

Contracting authorities may lay down special conditions relating to the performance of a contract, provided that these are compatible with Community law and are indicated in the contract notice or in the specifications.  The conditions governing the performance of a contract may, in particular, concern social and environmental considerations.

ANNEX VI – Definition of Certain Technical Specifications

For the purposes of this Directive:

1. (a)  ‘technical specification’, in the case of public works contracts, means the totality of the technical prescriptions contained in particular in the tender documents, defining the characteristics required of a material, product or supply, which permits a material, a product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contracting authority.  These characteristics shall include levels of environmental performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling and production processes and methods.  They shall also include rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve ;

    (b)  ‘technical specification’, in the case of public supply or service contracts, means a specification in a document defining the required characteristics of a product or a service, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of the product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods and conformity assessment procedures ;

2.  ‘standard’ means a technical specification approved by a recognised standardising body for repeated or continuous application, compliance with which is not compulsory and which falls into one of the following categories:

–  International Standard: a standard adopted by an international standards organisation and made available to the general public ;

–  European Standard: a standard adopted by a European standards organisation and made available to the general public ;

–  National Standard: a standard adopted by a national standards organisation and made available to the general public.

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In order for a Criterion … any Criterion … to be acceptable within the European Union’s Public Procurement Framework, it should be expressly linked to the subject matter of the Contract … should be specific … and should be capable of objective verification.

Beware !!

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Israel – A Criminal, Apartheid State & Its Own Worst Enemy !

Posted by CJ Walsh

2010-10-01:  On 22nd September, 2010 … the United Nations Human Rights Council issued the following Report (Document Reference A/HRC/15/21) …

‘ Report of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance.’

Report Summary (in full):

This report was prepared by the fact-finding mission established by the Human Rights Council, in resolution A/HRC/RES/14/1 of 2 June 2010, to investigate violations of international law, including international humanitarian law and human rights law, resulting from the interception by Israeli forces of the humanitarian aid flotilla bound for Gaza on 31 May 2010 during which nine people were killed and many others injured.

The report sets out background information relating to the interception of the flotilla as well as the applicable international law.

The fact-finding mission conducted interviews with more than 100 witnesses in Geneva, London, Istanbul and Amman.  On the basis of this testimony and other information received, the Mission was able to reconstruct a picture of the circumstances surrounding the interception on 31 May 2010 and its aftermath.  The report presents a factual description of the events leading up to the interception, the interception of each of the six ships in the flotilla as well as a seventh ship subsequently intercepted on 6 June 2010, the deaths of nine passengers and wounding of many others and the detention of passengers in Israel and their deportation.

The report contains a legal analysis of facts as determined by the Mission with a view to determining whether violations of international law, including international humanitarian and human rights law, took place.

The fact-finding mission concluded that a series of violations of international law, including international humanitarian and human rights law, were committed by the Israeli forces during the interception of the flotilla and during the detention of passengers in Israel prior to deportation.

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Report Conclusions (Section V in full):

260  The attack on the flotilla must be viewed in the context of the ongoing problems between the Israeli Government and the Palestinian Authority and People.  In carrying out its task, the Mission was exposed to the depth of conviction on both sides of the correctness of their respective positions.  Similar disasters are likely to reoccur unless there is a dramatic shift in the existing paradigm.  It must be remembered that might and strength are enhanced when attended by a sense of justice and fair play.  Peace and respect have to be earned not bludgeoned out of any opponent.  An unfair victory has never been known to bring lasting peace.

261  The Mission has come to the firm conclusion that a humanitarian crisis existed on the 31 May 2010 in Gaza.  The preponderance of evidence from impeccable sources is far too overwhelming to come to a contrary opinion.  Any denial that this is so cannot be supported on any rational grounds.  One of the consequences flowing from this is that for this reason alone the blockade is unlawful and cannot be sustained in law.  This is so regardless of the grounds on which it is sought to justify the legality of the blockade.

262  Certain results flow from this conclusion.  Principally, the action of the IDF (Israeli Defence Forces) in intercepting the Mavi Marmara in the circumstances and for the reasons given on the high sea was clearly unlawful.  Specifically, the action cannot be justified in the circumstances, even under Article 51 of the United Nations Charter.

263  Israel seeks to justify the blockade on security grounds.  The State of Israel is entitled to peace and security like any other.  The firing of rockets and other munitions of war into Israeli territory from Gaza constitutes serious violations of international and international humanitarian law.  But action in response which constitutes collective punishment of the civilian population in Gaza is not lawful in the present or any circumstances.

264  The conduct of the Israeli military and other personnel towards the flotilla passengers was not only disproportionate to the occasion but demonstrated levels of totally unnecessary and incredible violence.  It betrayed an unacceptable level of brutality.  Such conduct cannot be justified or condoned on security or any other grounds.  It constituted grave violations of human rights law and international humanitarian law.

265  The Mission considers that several violations and offences have been committed.  It is not satisfied that, in the time available, it can say that it has been able to compile a comprehensive list of all offences.  However, there is clear evidence to support prosecutions of the following crimes within the terms of article 147 of the Fourth Geneva Convention:

  • wilful killing ;
  • torture or inhuman treatment ;
  • wilfully causing great suffering or serious injury to body or health.

The Mission also considers that a series of violations of Israel’s obligations under international human rights law have taken place, including:

  • right to life (article 6, International Covenant on Civil and Political Rights) ;
  • torture and other cruel, inhuman or degrading treatment or punishment (article 7, ICCPR; Convention Against Torture) ;
  • right to liberty and security of the person and freedom from arbitrary arrest or detention (article 9, ICCPR) ;
  • right of detainees to be treated with humanity and respect for the inherent dignity of the human person (article 10, ICCPR) ;
  • freedom of expression (article 19, ICCPR).

The right to an effective remedy should be guaranteed to all victims.  The Mission must not be understood to be saying that this is a comprehensive list by any means.

266  The Mission notes that the retention by the Israeli authorities of unlawfully seized property remains a continuing offence and Israel is called upon to return such property forthwith.

267  The perpetrators of the more serious crimes being masked cannot be identified without the assistance of the Israeli authorities.  They reacted in a violent manner whenever they thought that anyone was attempting to identify them.  The mission sincerely hopes that there will be co-operation from the Israeli government to assist in their identification with a view to prosecuting the culpable and bring closure to the situation.

268  The Mission is aware that this is not the first time that the Government of Israel has declined to co-operate with an inquiry into events in which its military personnel were involved.  On this occasion the Mission accepts the assurances of the Israeli Permanent Representative that the position which he was directed to follow was in no way directed towards the members of the Mission in their personal capacities.  It is nonetheless regrettable that, on yet another occasion of an enquiry into events involving loss of life at the hands of the Israeli military, the Government of Israel has declined to co-operate in an enquiry not appointed by it or on which it was significantly represented.

269  The Mission regrets that its requests to the Permanent Mission of Israel for information were not entertained.  The reason initially given was that the Government of Israel had established its own independent panel of distinguished persons to investigate the flotilla incident.  The Mission was told that for that reason and also because the Secretary-General (of the United Nations) had also announced the establishment of another distinguished panel with a similar mandate, that “an additional Human Rights Council initiative in this regard are both unnecessary and unproductive”.

270  The Mission did not agree with that position and for that reason suggested to the Permanent Representative of Israel that he should direct to the Council and not the Mission a request that the Mission defer submitting its report to permit other enquiries to complete their tasks.  The Mission has not received any direction from the Council to date and considers that it would have been obligated to respond positively to any such directive from the Council.

271  In the light of the fact that the Turkel Committee (Israeli Inquiry) and the Secretary-General’s Panel have not concluded their sittings, the Mission will refrain from any remarks which are capable of being construed as not allowing those bodies to complete their tasks “unfettered by external events”.  The Mission confines itself to the observation that public confidence in any investigative process in circumstances such as the present is not enhanced when the subject of an investigation either investigates himself or plays a pivotal role in the process.

272  Elsewhere in this report, the Mission has referred to the fact that it found it necessary to re-interpret its mandate because of the manner in which the resolution appointing it was couched.  It is important in the drafting of matters of this sort that the impression is not given of the appearance of any pre-judgment.  The Mission took particular care, at the first opportunity, to indicate that it interpreted its mandate as requiring it to approach its task without any preconceptions or prejudices.  It wishes to assure all concerned that it has held to that position scrupulously.

273  All the passengers on board the ships comprising the flotilla who appeared before the Mission impressed the members as persons genuinely committed to the spirit of humanitarianism and imbued with a deep and genuine concern for the welfare of the inhabitants of Gaza.  The Mission can only express the hope that differences will be resolved in the short rather than the long-term so that peace and harmony may exist in the area.

274  Nine human beings lost their lives and several others suffered serious injuries.  From the observations of the Mission, deep psychological scars have been inflicted by what must have been a very traumatic experience not only for the passengers but also the soldiers who received injuries.  The members of the Mission sympathise with all concerned and, in particular, with the families of the deceased.

275  The Mission is not alone in finding that a deplorable situation exists in Gaza.  It has been characterized as ‘unsustainable’.  This is totally intolerable and unacceptable in the 21st Century.  It is amazing that anyone could characterise the condition of the people there as satisfying the most basic of acceptable standards.  The parties and the international community are urged to find the solution that will address all legitimate security concerns of both Israel and the people of Palestine, both of whom are equally entitled to “their place under the heavens”.  The apparent dichotomy in this case between the competing right of security and the right to a decent living can only be resolved if old antagonisms are subordinated to a sense of justice and fair play.  One has to find the strength to pluck from the memory rooted sorrows and to move on.

276  The Mission has given thought to the position of humanitarian organizations who wish to intervene in situations of long-standing humanitarian crisis where the international community is unwilling, for whatever reason, to take positive action.  Too often are they accused as being meddlesome and, at worst, as terrorists or enemy agents.

277  A distinction is made between activities taken to alleviate crises and action to address the causes creating the crisis.  The latter action is characterized as political action and therefore inappropriate for groups that wish to be classified as humanitarian.  This point is made because of the evidence that while some of the passengers were solely interested in delivering supplies to the people in Gaza, for others the main purpose was raising awareness of the blockade with a view to its removal, as the only way to solve the crisis.  An examination should be made to clearly define humanitarianism as distinct from humanitarian action, so that there can be an agreed form of intervention and jurisdiction when humanitarian crises occur.

278  The Mission sincerely hopes that no impediment will be put in the way of those who suffered loss as a result of the unlawful actions of the Israeli military to be compensated adequately and promptly.  It is hoped that there will be swift action by the Government of Israel.  This will go a long way to reversing the regrettable reputation which that country has for impunity and intransigence in international affairs.  It will also assist those who genuinely sympathise with their situation to support them without being stigmatised.

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The Following Earlier Text in the Report Should Also be Noted …

(Section III) E.  Consequences for Israeli Citizens of Participation in the Flotilla

Factual Description and Findings

250  The Mission found the following facts to have been established to its satisfaction.

     (a) Detention and criminal prosecution of Israeli citizens

251  Passengers with Israeli citizenship were separated from other passengers on arrival in Ashdod.  After interrogation, they were informed that they would be detained and face charges under Israeli law, including attempting to kill a soldier, seizing arms, shooting from a soldier’s gun, organizing violence and being present in a military zone.  Although taken to a different prison, they had similar experiences as the other passengers including sleep deprivation and denial of access to a lawyer.

252  On 1 June 2010, the Ashkelon Magistrate’s Court remanded in custody four Palestinian Israelis: Mr. Muhammed Zeidan, Chairman of the High Follow-up Committee for Arab Citizens of Israel; Sheikh Raed Salah, the Head of the Islamic Movement of Israel (northern branch); Sheikh Hamad Abu Daabe, Head of the Islamic Movement in Israel (southern branch) and Ms. Lubna Masarwa of the Free Gaza Movement.  On 3 June 2010, the same court decided to release the group with certain conditions, including a period of house arrest until 8 June, prohibition from leaving the country for 45 days and the posting of a bond of 150,000 Shekels by a third party.

253  The four people have not since been indicted, but the file is still open and the charges have not been withdrawn.

     (b) Reprisals against an elected member of the Knesset

254  One member of the Israeli Knesset, Ms Haneen Zouabi, was a passenger on the Mavi Marmara.  Ms. Zouabi was not detained, but was extensively interrogated.

255  As a result of her participation in the flotilla, the Knesset voted on 7 June 2010 to remove three of the parliamentary privileges available to Ms. Zouabi as a Member of the Knesset: her privileges in overseas travel; her diplomatic passport; payment of any legal fees in case of removal of her parliamentary immunity from criminal prosecution.  The Knesset held several sessions on the issue of her participation in the Flotilla during which there were racist and sexist remarks and physical threats made against her.  Some parliamentarians have also called for her to face criminal prosecution and measures, such as revoking her membership in the Knesset, were discussed.  The Israeli Minister of Interior accused Ms. Zouabi of treason and requested authorization from the Attorney General to revoke her citizenship.  To date, no criminal proceedings have been initiated against Ms. Zouabi.  Since her participation in the Gaza Flotilla, Ms. Zouabi has received many death threats.

256  The Inter-Parliamentary Union’s Committee on the Human Rights of Parliamentarians adopted a confidential decision at its 130th session in July 2010, holding the punishment of Ms. Zouabi for exercising her freedom of speech by expressing her political position to be unacceptable and calling on the Knesset to reconsider its decision.

257  The Mission refrains from any comment on any domestic legal proceedings which may be sub-judice.  However, the Mission notes that these actions against Israeli citizens could give rise to certain violations of Israel’s international human rights obligations, including freedom of expression, political participation rights and rights to due process.

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Autumn Scenes At Glendalough – Ripples Through Time ?

Posted by CJ Walsh

2009-12-07:   The beauty of the Irish countryside is hard to beat.  A few dry days are all we need … and to be able to see the sun occasionally !   Make that … more than occasionally !!

Colour photograph of 'Upper Lake at Glendalough' - Autumn Scene. Click to enlarge. Photograph taken by CJ Walsh. 2009-10-26.
Colour photograph of ‘Upper Lake at Glendalough’ – Autumn Scene. Click to enlarge. Photograph taken by CJ Walsh. 2009-10-26.

It is breathtaking to imagine the Climatic & Geological Upheavals – hundreds of thousands of years ago – which created the Valley of Two Lakes: ‘Gleann Dá Locha’ in Irish, or ‘Glendalough’ in English.

Colour photograph of 'Autumn Trees' at Glendalough, County Wicklow, Ireland. Click to enlarge. Photograph taken by CJ Walsh. 2009-10-26.
Colour photograph of ‘Autumn Trees’ at Glendalough, County Wicklow, Ireland. Click to enlarge. Photograph taken by CJ Walsh. 2009-10-26.

 It is comforting to know that we once had – hundreds of years ago – a Better System of Irish Law: ‘Féineachas’ in Irish, or more commonly known as ‘Brehon Law’ in English.

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Murphy Commission Report on Child Sexual Abuse in Dublin

Posted by CJ Walsh

2009-11-30:  The Dublin Archdiocese (Murphy) Commission of Investigation was established to report on the handling by Church and State Authorities of a representative sample of allegations and suspicions of child sexual abuse against clerics operating under the aegis of the Roman Catholic Archdiocese of Dublin during the period 1975 to 2004.

The Commission, which continues its investigations, is chaired by Judge Yvonne Murphy.  There are two other members of the Commission: Ms. Ita Mangan and Mr. Hugh O’Neill.

The Dublin Report (the first of many ?) … was submitted to Mr. Dermot Ahern T.D., Minister for Justice, Equality & Law Reform on 21st July 2009.

Dublin Report Paragraph #1.113 (Page 28) – Conclusion

‘ The Commission has no doubt that clerical child sexual abuse was covered up by the Archdiocese of Dublin and other Church Authorities over much of the period covered by the Commission’s remit.  The structures and rules of the Catholic Church facilitated that cover-up.  The State Authorities facilitated the cover up by not fulfilling their responsibilities to ensure that the law was applied equally to all and allowing the Church Institutions to be beyond the reach of the normal law enforcement processes.  The welfare of children, which should have been the first priority, was not even a factor to be considered in the early stages.  Instead the focus was on the avoidance of scandal and the preservation of the good name, status and assets of the Institution and of what the Institution regarded as its most important members – the priests.  In the mid 1990s, a light began to be shone on the scandal and the cover up.  Gradually, the story has unfolded.  It is the responsibility of the State to ensure that no similar Institutional immunity is ever allowed to occur again.  This can be ensured only if all Institutions are open to scrutiny and not accorded an exempted status by any organs of the State.’

The Department of Justice, Equality & Law Reform has been very sloppy in the manner that it has presented the Dublin Report on the Department’s WebSite.  For your convenience, therefore, the Full Original Report is presented here as a single PDF File …

Date of Original Report: 21 July 2009.  PDF File, 3.98 Mb.

Murphy Commission Report on Child Sexual Abuse in the Roman Catholic Archdiocese of Dublin

Click the Link Above to read and/or download the Full Original Report

December 2010

Murphy Commission Report: Tony Walsh – ‘Fr Jovito’ – Portions

Click the Link Above to read and/or download PDF File (155 kb)

July 2013

Murphy Commission Report: ‘Patrick McCabe’ Redacted Material (Chapter 20 – Pages 1-10 Only)

Click the Link Above to read and/or download PDF File (2.2 MB)

Important Note:  The Full Chapter 20 PDF File, with the ‘Patrick McCabe’ Redacted Material … recently re-issued on 12 July 2013 … has 99 Pages and weighs in at a whopping 19.31 MB !   It can be downloaded from the Department of Justice & Equality WebSite … http://www.justice.ie/en/JELR/Pages/PB13000293

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Those Individuals … whether members of Church or State Authorities … who have been named and shamed in the Dublin Report … or who will be named and shamed in connection with the Dublin Report … must resign, and be brought to justice.

If our ‘State’ is serious about the Protection of Children … Ireland must NOW fully and effectively implement the 1989 United Nations Convention on the Rights of the Child … which entered into force, i.e. became an International Legal Instrument, on 2nd September 1990.  LATER is no longer acceptable !

This is a fundamental foundation for a Comprehensive National Framework of Child Protection Related Legislation, Standards and Guidance Documents, with the necessary accompanying Administrative Provisions and Monitoring Measures.

1989 United Nations Convention on the Rights of the Child

 Click the Link Above to read and/or download the UN Convention (PDF File, 112kb)

Of much interest … the VIENNA DECLARATION AND PROGRAMME OF ACTION, adopted by the World Conference on Human Rights on 25th June 1993, stated …

‘ The World Conference on Human Rights, welcoming the early ratification of the Convention on the Rights of the Child by a large number of States … urges universal ratification of the Convention by 1995 and its effective implementation by States Parties through the adoption of all the necessary legislative, administrative and other measures and the allocation to the maximum extent of the available resources … ‘

Ireland signed the Convention on 30th September 1990 … and ratified the Convention on 28th September 1992.

As of today’s update, 16th July 2011, Ireland has still not properly implemented the UN Convention on the Rights of the Child.

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Update 2011-07-16 … one more recently published report !!

Commission of Investigation – December 2010

Report into the Catholic Diocese of Cloyne

Click the Link Above to read and/or download PDF File (2.37 Mb)

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POSTSCRIPT

2011-10-09:  The Irish Minister for Children and Youth Affairs, Ms. Frances Fitzgerald T.D., launched the Amnesty Ireland Report: ‘In Plain Sight’ in the Royal Hibernian Academy (RHA), 15 Ely Place, Dublin … on the morning of 26 September 2011.  The research for this report was undertaken by Dr. Carole Holohan, and the report was commissioned by Amnesty International Ireland.

Key Findings of Amnesty’s ‘In Plain Sight’ Report (2011)

This report has five key findings …

     1.  No clear lines of responsibility make true accountability impossible.

This report demonstrates how the absence of clear lines of public and private responsibility in the provision of services, along with the absence of effective accountability mechanisms, allowed the abuse of children to continue unchecked.  In the case of residential institutions, it wasn’t that the system didn’t work but rather that there was no system.  While both the perpetrators of crimes against children, and the institutional Church within which they operated, hold responsibility for this abuse, State authorities also failed in their duty to monitor residential institutions effectively, to act appropriately when abuses by agents of the Catholic Church in communities came to light, and to take action to prevent the continuation of abuse.

     2.  The law must protect and apply to all members of society equally.

The Reports on child abuse highlight how the law did not serve or apply to all members of Irish society equally.  The most obvious example of this is how children who were placed in residential institutions were branded as criminals as a result of the court committal process, while the majority of perpetrators of abuse have not been held to account by that same criminal justice system.  Despite the severity of the crimes revealed in the Ferns, Ryan, Murphy (Dublin) and Cloyne Reports, which range from physical assault to rape, very few perpetrators have been convicted.  Furthermore, no criminal charge has been laid against those in positions of authority in the Catholic Church who concealed crimes against children and allowed known sex abusers to continue to have access to children and to continue to abuse with near impunity.  The Reports raise serious questions about the rule of law, given the evidence of deferential treatment shown to priests and bishops by members of the Gardaí.

     3.  Recognition of children’s human rights must be strengthened.

This report includes a human rights analysis of the abuses detailed in the Ferns, Ryan, Murphy (Dublin) and Cloyne Reports.  The sexual abuse in the diocesan reports, and the sexual, physical and emotional abuse, the living conditions, and the neglect described in the Ryan Report, can be categorised as torture, and cruel, inhuman and degrading treatment under human rights law.  The Reports also demonstrate that children’s rights to private and family life, the right to a fair trial and the right to be free from slavery and forced labour were contravened, as was their right to education and to physical and mental health.  The invisibility of children in law, policy and public debate is directly related to the fact that children do not have express constitutional rights.  It is essential that the rights of the child be made explicit in the Irish Constitution and that the paramount importance of the rights of the child be explicitly enshrined in law.

Children do not represent a homogenous social category and children from different subsections of society have very different experiences.  The majority of children in industrial schools were placed there as a direct result of the poverty of their families.  We must not ‘other’ any groups of children.  Particularly vulnerable groups of children today include children in care, Traveller children, children in the criminal justice system, children with mental health problems, children experiencing homelessness, children living in poverty, and asylum-seeking children.

     4.  Public attitudes matter – Individual attitudes matter.

The Reports identify the impact of deference to the Catholic Church on how people responded to abuse and suspicions of abuse.  Fear, an unwillingness and an inability to question agents of the Church, and disbelief of the testimony of victims until recent times indicate that wider societal attitudes had a significant role to play in allowing abuse to continue.  The end of deference to powerful institutions and the taking of personal responsibility on behalf of all members of society will initiate some of the changes that are necessary to prevent the occurrence of human rights abuses.

Wider societal attitudes to children who experienced residential institutions were often negative and hostile.  The prejudice and discrimination they experienced led many to emigrate, leading to the further disintegration of families who had already been divided when the children were placed in institutions.  We must be aware of the impact of prejudice and negative attitudes towards marginalised groups in our society.  Negative attitudes towards children in the criminal justice system, people with disabilities, asylum seekers and people with mental health problems makes life more difficult for members of our society who may already be vulnerable.

     5.  The State must operate on behalf of the people, not on behalf of interest groups.

The Reports demonstrate how the State had a deferential relationship with the Catholic Church.  The complaints of parents, children and lay workers about problems and abuses in residential institutions were dismissed by Department of Education officials, while the reputation of religious orders was defended by Ministers and T.D.’s in the Dáil.  While Taoiseach Enda Kenny’s recent criticism of the Vatican suggests a less deferential attitude to the Catholic Church, transparency in the operations of all arms of the State is necessary to prevent interest groups from exerting undue influence.  In all spheres, political actions must have at their core the best interests of the wider population and not sectional interests.

26 September 2011 – Amnesty International Ireland

In Plain Sight: Responding to the Ferns, Ryan, Murphy and Cloyne Reports

Click the Link Above to read and/or download PDF File (2.57 Mb)

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Another Faulty Tower – John Cleese, Where Are You ?

Posted by CJ Walsh

2009-10-07:   A Cautionary Tale for Clients/Client Organizations … from across the Pond … and a serious lack of Technical Control over the processes of Building Design and Construction …

Where there is no proper Technical Control … can there ever be an appropriate safety factor to incorporate into the design  ?

And before it’s too late … how is it possible to establish that there is no proper Technical Control ?

An artistic rendering of the oval-shaped Harmon Hotel & Spa, in Las Vegas, Nevada (USA), at its original designed height of 49 stories.
An artistic rendering of the oval-shaped Harmon Hotel & Spa, in Las Vegas, Nevada (USA), at its original designed height of 49 stories. Click to enlarge.

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2009-10-26 … ‘Who’s to Blame for Faulty Foster Tower ?’ … by Tony Illia, Architectural Record (archrecord.construction.com) …

Despite the recession, CityCenter continues to rise on the Las Vegas Strip, with several buildings scheduled to open later this year.  One project that certainly has not turned out as planned is the 400-room Harmon Hotel Tower, designed by Foster & Partners, which will be nearly half its estimated height due to construction defects.  The problems have escalated into finger-pointing between project parties, resulting in legal actions and project reviews that are still under way.

The 28-story oval-shaped high-rise broke ground in July 2006.  Pacific Coast Steel, a San Diego-based subcontractor to Perini Building Co., improperly installed reinforcing steel inside link beams on 15 floors, a Clark County Building Department investigation revealed.

The problem should have been caught by inspectors, but a third-party California inspection firm, Converse Consultants, falsified 62 daily reports between March and July of 2008, stating that the steel was properly installed, according to county inspectors, who also missed the problems.

The defects were discovered in July 2008 by the project’s structural engineer, Halcrow Yolles Structural Engineer, temporarily halting construction and leading to the Harmon’s redesign.  Owner MGM Mirage declined to disclose the cost of the errors.

This April, Pacific Coast Steel paid $14,105 in fines after a Nevada State Contractors Board investigation discovered ‘workmanship’ issues.  As part of a settlement, the firm did not admit fault.  In August, Converse Consultants was suspended from seeking new work in Southern Nevada for six months, and its inspectors had their qualifications revoked or suspended.

The subcontractor says Foster & Partners is partly to blame.  “Perini stands by its opinion that design conflicts contributed to the Harmon Hotel structural issues and that portions of the structural drawings, as designed and permitted, contained elements of reinforcing steel that could not be installed as drawn,” said Perini President Craig Shaw in a statement.

The Harmon’s design called for pouring top portions of 2.4m thick link beams at the same time as the floor slab, which is a tricky procedure given the tight and exact spacing of reinforcing rebar.  However, the contractor made installation adjustments in field.  Stirrup hooks, in some cases, were spaced incorrectly and extended past the floor, prompting workers to cut them off so it wouldn’t show, the county inspectors say.

Corrective work and a structural building redesign are in progress.  The building will safely reach 28 stories; pricier work would be needed to meet the originally designed height of 49 stories, say project officials, who would not elaborate.  Foster & Partners declined to comment for this story.

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Human Rights Must Have ‘Real’ Meaning in a Civilized Society !

Posted by CJ Walsh

2009-10-07:  As previously discussed … but deserving much repetition … the 2006 United Nations Convention on the Rights of Persons with Disabilities (CRPD) became an International Legal Instrument, i.e. entered into force, on 3rd May 2008.

This UN Convention simply aims to ensure that persons with disabilities are able to access human rights on the same basis as everyone else in society.  And rights are no more than an elaboration of the responsible basic needs of all human beings.

It is worth recalling that the 1948 Universal Declaration of Human Rights was directly born out of the large-scale death, human misery and environmental destruction of the Second World War in Europe, North Africa, the Middle-East … and throughout Asia and the Pacific.

Human Rights must have – do have – ‘real’ meaning in a civilized society !

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Israel signed the UN Disability Rights Convention on 30th March 2007.  At the time of writing, it has not yet signed the Convention’s Optional Protocol.  Israel has definitely not ratified the Convention or the Optional Protocol.

[To be fair, Ireland is in exactly the same position as Israel.  Why am I not surprised ?!?]

With regard to Situations of Risk, e.g. a fire emergency in a building … or Humanitarian Emergencies, e.g. the Gaza Conflict from December 2008 to January 2009 … the language of Article 11 in the UN Convention is very clear and straightforward:

” States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.”

On 3rd April 2009, the President of the UN Human Rights Council established the United Nations Fact Finding Mission on the Gaza Conflict with the mandate “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”

The President appointed Justice Richard Goldstone, former judge of the Constitutional Court of South Africa and former Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, to head the Mission.  The other three appointed members were:

  • Professor Christine Chinkin, Professor of International Law at the London School of Economics and Political Science, who was a member of the high-level fact finding mission to Beit Hanoun (2008) ;
  • Ms. Hina Jilani, Advocate of the Supreme Court of Pakistan and former Special Representative of the Secretary-General on the situation of human rights defenders, who was a member of the International Commission of Inquiry on Darfur (2004) ;   and
  • Colonel Desmond Travers, a former Officer in Ireland’s Defence Forces and member of the Board of Directors of the Institute for International Criminal Investigations.

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The Report of the Fact Finding Mission on the Gaza Conflict was presented to the Human Rights Council, in Geneva (Switzerland), on 29th September 2009.

The following is a short extract from that Report …

Section A – XVII  The Impact of the Blockade and of the Military Operations on the People of Gaza and their Human Rights

I  Persons with Disabilities (Paragraphs 1283-1291)

1283   Information provided to the Mission showed that many of those who were injured during the Israeli military operations sustained permanent disabilities owing to the severity of their injuries and/or the lack of adequate and timely medical attention and rehabilitation.  Gaza hospitals reportedly had to discharge patients too early so as to handle incoming emergencies.  Other cases resulted in amputations or disfigurement.  About 30 per cent of patients were expected to have long-term disabilities.

1284   WHO reported that by mid-April 2009 the number of people with different types of permanent disability (e.g. brain injuries, amputations, spinal injuries, hearing deficiencies, mental health problems) as a result of the military operations was not yet known.  It reported speculations that there might be some 1000 amputees; but information provided by the WHO office in Gaza and based on estimates by Handicap International indicated that around 200 persons underwent amputations.

1285   While the exact number of people who will suffer permanent disabilities is still unknown, the Mission understands that many persons who sustained traumatic injuries during the conflict still face the risk of permanent disability owing to complications and inadequate follow-up and physical rehabilitation.

1286   The Mission also heard moving accounts of families with disabled relatives whose disability had slowed their evacuation from a dangerous area or who lived with a constant fear that, in an emergency, their families would have to leave them behind because it would be too difficult to evacuate them.

1287   One testimony concerned a person whose electric wheelchair was lost after his house was targeted and destroyed.  Since the residents were given very short notice of the impending attack, the wheelchair could not be salvaged and the person had to be taken to safety on a plastic chair carried by four people.

1288   The Mission also heard a testimony concerning a pregnant woman who was instructed by an Israeli soldier to evacuate her home with her children, but to leave behind a mentally disabled child, which she refused to do.

1289   Even in the relative safety of shelters, people with disabilities continued to be exposed to additional hardship, as these shelters were not equipped for their special needs.  The Mission heard of the case of a person with a hearing disability who was sheltering in an UNRWA school, but was unable to communicate in sign language or understand what was happening and experienced sheer fear.

1290   Frequent disruptions in the power supply had a severe impact on the medical equipment needed by many people with disabilities.  People using wheelchairs had to face additional hurdles when streets started piling up with the rubble from destroyed buildings and infrastructure.

1291   In addition, programmes for people with disabilities had to be closed down during the military operations and rehabilitation services stopped (for instance, organizations providing assistance were unable to access stocks of wheelchairs and other aids).  Many social, educational, medical and psychological programmes have not yet fully resumed.

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