Irish Centre for Human Rights Blog

Guest Post: Pearce Clancy is a graduate of the LLM Peace Operations, Humanitarian Law and Conflict, Irish Centre for Human Rights, and NUI Galway, School of Law. He currently works as a Legal Researcher with Al-Haq, a Palestinian human rights organisation based in the occupied Palestinian territory.

The Control of Economic Activity (Occupied Territories) Bill aims to prohibit the import and sale of goods originating from illegal settlements in occupied territory, bringing Ireland in line with its international obligations under, inter alia, the Draft Articles on State Responsibility for Internationally Wrongful Acts, the Fourth Geneva Convention, and UN Security Council Resolution 2334 (2016). The Bill has emerged as a “sticking point” in negotiations to form the next Irish government, with Fianna Fáil and the Green Party in favour of its inclusion in the Programme for Government, and Fine Gael opposed.

Fine Gael’s opposition is based on the legal opinion of the Attorney-General, Mr Séamus Woulfe, which seems to have been shared with journalists at the Irish Independent but otherwise remains confidential. The legal opinion states that the Bill is contrary to EU law and “quite vague”, thus at risk of constitutional challenge. The arguments linked to EU law have been dispelled by international law experts including Professor James Crawford, now Judge at the International Court of Justice (ICJ). Those of unconstitutional vagueness, however, have been left unaddressed. Tánaiste and Minister for Foreign Affairs and Trade, Simon Coveney, has voiced his concern on this point in Dáil Eireann:

“I should also mention briefly some other legal and constitutional difficulties identified with the Bill, including the use of ministerial regulations to extend the scope of the Bill, aspects of the extraterritorial application of this Bill, and constitutional difficulties around the legal certainty and capability of enforcement of some criminal offences contained in the Bill.”

This post examines the background to debates on the striking down of criminal offences in the name of constitutional vagueness and legal certainty, and seeks to assess whether such concerns on the part of the Attorney-General and Tánaiste are well-founded.

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The typical point of departure for a discussion regarding the topic of legal certainty for criminal offences is King v Attorney General [1981] IR 233, wherein the Supreme Court struck down s.4 of the Vagrancy Act 1824, which criminalised loitering with intent to commit a crime. The issue arose as the suggested metric for establishing intent to commit a crime on the part of the loiterer was to consider their “known character”. Commenting on this, Kenny J said:

“It is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be convicted only of offences which have been specified with precision … [and] are expressed without ambiguity … both governing phrases “suspected person” and “reputed thief” are so uncertain that they cannot form the foundation for a criminal offence.”

Thus, the cause for concern in the vagueness of the offence set out in s.4 was in the potential for exploitation and the threat of the arbitrary abuse of power. As noted by Henchy J in King:

“[the concern is the] breadth and arbitrariness of the discretion that is vested in both the prosecutor and the judge”

While the general rule against constitutional vagueness is well accepted in common law systems, commentators have viewed its basis in the Irish Constitution as flawed; while it would appear that the Court in King placed it generally within Article 38 concerning the trial of offences, it has been observed that no concrete textual basis was identified, seemingly being taken as self-evident.[i] Nonetheless, it is generally considered to be an “entrenched and important constitutional value”.[ii]

The issue of legal certainty was also raised in Dokie v DPP [2010] IEHC 110, concerning s.12 of the Immigration Act 2004, which criminalised the failure of non-nationals to produce passports or other such documents without providing a “satisfactory explanation”. Kenny J held that the term “satisfactory” rendered the provision unconstitutional due to its inherent vagueness and uncertainty, allowing for unpredictable and arbitrary assessments to be made by individual members of An Garda Síochána.

Similarly, in Douglas v DPP [2013] IEHC 343, the Court was faced with s.18 of the Criminal Law Amendment Act 1935, as amended by the Criminal Law (Rape) (Amendment) Act 1990. In this case the defendant had been charged for “massaging his penis through his clothes on two occasions at a café at a Dublin shopping centre”,[iii] thereby falling afoul of s.18, criminalising “near and in sight of any place along which the pubic habitually pass as of right or by permission, any act in such a way as to offend modesty or cause scandal or injure the morals of the community”. Referring to “scandal” and “morals of the community” as being “hopelessly and irremediably vague”, Hogan J struck down the complained of components of the Act as unconstitutional based on the principle set out in King, and later struck down the provision in its entirety in McInerny & Curtis v DPP [2014] IEHC 181.

Just last year, Charleton J outlined the concept in Sweeney v Ireland [2019] IESC 39, quoted here:

“What therefore is the test for vagueness? Even after analysis, through the breaking down of an offence into definitional elements, if the result is obscurity of application to fact or impossibility of interpretation so as to find a consistent solution, then a criminal statute may be said to be vague. Where a law may be interpreted one way for those in favour of the police or other authorities and another for those in disfavour, there is impermissible vagueness. Ambiguity which defies definition through interpretation and the application of precedent undermines legal certainty.”

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In line with the above jurisprudence, the question to be asked is whether or not the language used in the Bill is unduly vague or provides an undue amount of discretion to the authorities in ascertaining whether or not charges are to be brought. As the Attorney-General and Tánaiste have not clarified exactly what aspects of the proposed offences were the subject of concern, it is unclear what aspect of s.6-9 was being referred to; thus, it must be assumed that the Attorney-General and Tánaiste are concerned about the offences in a broad sense.

The criminal offences proposed by the Bill are found in s.6-9, and include the importation and sale of goods developed in illegal settlements, the provision of settlement services, and the extraction of resources from a relevant occupied territory; the terms “resources”, “settlement goods” and “settlement services” are defined in Article 2 of the Bill, whereas “relevant occupied territory” is defined in Article 3. Further, the Bill’s definition of “relevant occupied territory” is hardly idiosyncratic, being contingent upon, and making explicit references to, the Fourth Geneva Convention, the opinions and decisions of international tribunals, including the ICJ and the International Criminal Court, as well as designation by the Minister of Foreign Affairs and Trade. As such, it is noteworthy that the occupied Palestinian territory doubtlessly applies, having been recognised as occupied territory by, inter alia, the ICJ, UN Security Council, and Irish government.

It is important to note the lack of terms such as “proximate”, “reasonable” or “gross”, which Prendergast describes as creating a “flexible standard”; rather, the Bill presents clear indicators of settlement status, based upon authoritative assessments of specialist international bodies, as well as clear, objective parameters for when individuals, natural and legal, are in breach of these offences (e.g. by selling or attempting to sell; importing or attempting to import). There does not appear, in other words, to be much room for ambiguity, or the arbitrary and unjust exertion of State power through the provisions of the Bill. Thus, it would seem that the Attorney-General and Tánaiste were mistaken in their concern for the constitutionality of the Bill on grounds of vagueness. Drawing unfortunate parallels with the State’s reluctance to restrict trade with apartheid South Africa, continued opposition to the Bill on such grounds would be little more than chasing after a legal red herring, a time-consuming and ultimately counterproductive exercise in the face of the continued annexation of East Jerusalem and the occupied Syrian Golan, the impending annexation of illegal Israeli settlements elsewhere in the West Bank, and what Mr Michael Lynk, the UN Special Rapporteur on the situation of human rights in Palestine, has called a “21^st century apartheid“.

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[i] Oran Doyle, ‘Administrative Action, the Rule of Law and Unconstitutional Vagueness’ in Cahillane, Gallen and Hickey (eds) Judges, Politics and the Irish Constitution (MUP, 2017) 239.

[ii] David Prendergast, ‘Douglas v DPP and the Constitutional Requirement for certainty in Criminal Law’ (2013) 50(2) The Irish Jurist 236.

[iii] Ibid., 237-238.