The Third age

When our laws first began to address the question of age discrimination in employment, many years ago, I confess that my view was that perhaps the State was becoming a little over-indulgent. Now with the passing of time, and with the benefit of a few more years under my belt, I am beginning to see that there is a strong argument for not discriminating against a citizen just because they have reached a certain age.

Age discrimination is very real, and more widespread than many of us realise. A recent study in England found that some employers define an older worker as a woman over 35 and a man over 42.

Bearing in mind that the average age profile of our population is steadily getting older, and the fact that the age for entitlement to a pension is being deferred, (meaning that we will all have to work for longer), it becomes very apparent that a very substantial proportion of our population are in the target area for such discrimination.

There is even a developing branch of law relating to the rights of older people called Third Age law. While many people think of age discrimination as relating to older people, the fact is that ageism may involve a young employee as well. Age bias is about the perception that the calendar age of the individual will in some way limit their ability to perform their work responsibilities effectively.

Age discrimination in practice is a process that is intended to keep persons within a given age limit, whether younger or older, from being able to participate in employment, or to advance through promotion within that employment. Discrimination on age grounds is often regarded as being unimportant and acceptable, and not real discrimination when compared with discrimination on the grounds of race or sex.

One of the reasons that this discrimination stays under the radar is because it is silent and unspoken. Typically in discrimination situations an older job candidate will be brought through the motions of the employment selection process not knowing that they hadn’t a chance of success from the start.

Another reason for the lack of public concern about such discrimination is because those who have never suffered discrimination can never really fully understand the devastating effects it can sometimes have, in personal terms and financial terms. it’s effects are very real and for it’s victims, it may mean the difference between having a career or living on social welfare.

Despite the prevalence of such discrimination most people realise, at least when they think about it, that society has a vested interest in helping older people to stay in work for longer. There is an emerging realisation that the skills and experience gained by a lifetimes work are a valuable resource for our society. It is also becoming obvious that our society will require people to take greater responsibility for financing their own old age, especially as people are living longer. Age discrimination law is just one way in which this can be achieved.

In Ireland our first such legislation was introduced in 1998 and this this has been updated by the Equality Act, 2004, which makes it unlawful to discriminate in employment against anyone on a number of grounds, including age. Anyone who has been discriminated against on such grounds may bring a claim to the Equality Tribunal. Such legislation by itself however cannot change an attitude of discrimination. This can only come with a change in perception, and an acknowledgement that it is the person rather than the age that’s important.

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Protecting our children

I have a niece, living in England, who follows her vocation as a kind and caring teacher of children. She was recently here for a visit, and in conversation was asking about some aspects of our schooling system. One of her questions was to wonder if the law was the same in Ireland as in England where teachers are not allowed apply sun cream on children. It is considered to be inappropriate touching.

I was glad to be able to answer that not only is there no such law in Ireland, neither is there any such law in England. The fact that young people working with children believe that there is such a legal rule demonstrates the level to which misguided pseudo child-protection policies have become part of our accepted thinking.

Effective child protection policies are vitally important. However sometimes these policies manage to adopt the contradictory beliefs that while all children are entitled to care and compassion, it is potentially abusive to the children to actually give them that care and compassion.

Such policies frequently forbid giving a hug to a crying child, giving a pat on the back for doing well, touching the hand or knee of a child to get their attention. These rules have nothing to do with child protection, and everything to do with adult protection. Using such policies under the guise of child protection is doubly abusive of children.

It is child abuse, not child protection, for an adult to stand by and leave a distressed child to suffer and not offer comfort. It is also abusive to readily assume that all children are so morally corrupt that they would, as a matter of course, make false allegations against caring adults.

Every society, naturally, and without laws, accepts the fundamental need to protect children. Laws formalise these protections. One of the most important of these laws is the United Nations Convention on the Rights of the Child. It is a detailed “Bill of Rights” for all children, relating to every aspect of children’s lives. One of it’s key provisions states that all actions concerning a child shall take into account the best interests of the child.

That is important. Taking that provision itself as a starting point it becomes obvious that not only are some of these policies inappropriate, but may be in themselves in breach of child protection laws.

Take the policy of not applying sun cream to a child. Apart from the fact that everyone with an ounce of sense knows the difference between appropriate and inappropriate touching, every child has the right to have their health safeguarded. Unprotected exposure to sun is a serious health risk. A report from the World Health Organisation in 2003 on this states “Children are particularly at risk, as sun exposure during childhood and adolescence appears to set the stage for the development of .. skin cancers later in life… four out of five cases of skin cancer are preventable by sensible behaviour, especially during childhood.”

Exposing a child to such a risk is not, under any circumstances, in the best interests of the child. The thinking which leads to these misguided policies is unsophisticated, and does no credit to the professionalism of those who are entrusted with educating the young of our society.

An equally damaging side effect of this type of suspicious thinking is that once it becomes accepted as the norm, then every innocent act which involves a compassionate person reaching out to comfort a child will become associated with sexual intimacy, and in time it will become socially unacceptable for an adult to touch a child. Even a child could tell us that this doesn’t make sense.

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Freedom of Speech

Some time ago I had the privilege of attending the film premiere of “Forty Shades of Grey” a new film by one of two local, Nicky Larkin and Gary Hoctor.

It was a documentary, without any narrative, exploring some of the issues involved in the Palestine Israeli conflict. The photography is fascinating, not just for its technical skill, but also, in the absence of a guiding narrative, for it’s very potency in communicating ideas and viewpoints.

As a documentary the film did not draw any conclusions and left it to the viewer to form their own opinions on the competing arguments presented. The title itself, “Forty Shades of Grey” highlighted the reality that there is a very wide and diverse spectrum of views on the conflict.

While the film did not champion any particular viewpoint it has still managed to cause a good deal of controversy. Many people have criticized both the film and the publicly expressed views of Nicky Larkin, and the issues have become linked with the Palestinian campaign for a cultural and academic boycott of Israel.

Leaving aside the political issues involved the matter does turn a spotlight on the very important and fragile right in society of freedom of speech. In many parts of the world this freedom does not exist, in others it is heavily censored. In Ireland there is a common assumption that we enjoy the uninhibited right to express our opinions at will. However the reality is that we also have many restrictions on the right to freedom of expression.

Under our constitution there is a provision which guarantees freedom of speech, and, theoretically at least, every person has a right to freely express their opinion no matter how odd or ludicrous that opinion might be. This right however is, as in all matters legal, subject to limitations.

Firstly that guaranteed right is subject the proviso in the constitution that the “ organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State”

Aside from the limitations contained in the Constitution itself there are other legal restrictions on the exercise of this freedom of expression. For instance under the Censorship of Films Acts, and the Censorship of Publications Acts, the expression of ideas may be banned if they fail to meet the criteria of the Censors office. In relation to films, the Official Censor may refuse to grant a certificate that a film is fit for public exhibition on grounds that it is;

‘indecent, obscene or blasphemous or because the exhibition thereof in public would tend to inculcate principles contrary to public morality or would be otherwise subversive of public morality’.

Not all censorship is imposed by law however. Almost all religions impose some restrictions on the freedom to question their teachings and beliefs, and you don’t have to travel to the Middle East to see examples of this.

Some months ago it was revealed that Fr. Brian D’Arcy in Ireland had been censured by the Vatican over articles he wrote dealing with a number of controversial matters, including;  the issue of women priests; why US Catholics were leaving the church; why the church had to take responsibility for clerical child sex abuse; and homosexuality. Censorship by it’s nature is almost always regarded as being repressive, yet on occasion it can be very necessary. The trick is finding the right balance. Any contribution which honestly seeks the truth, however uncomfortable that is, should always be valued by society.

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Out of sight, out of mind

As citizens of this country we are regularly given the opportunity to express our views on the Government, our Constitution, or yet another European Treaty through the ballot box.

The collective will of the citizens decides on matters which may possibly have major implications for this state into the future.

This exercise of direct power by the people through a Constitutional Referendum is relatively infrequent with just over thirty such ballots held since the foundation of the state. The result of those referendums (either referendums or referenda is acceptable) has undoubtedly shaped our present society.

In inviting this assessment of the will of the people there is one group of Irish citizens who do not have the right to vote in a referendum, and they are our emigrants.  This is perhaps particularly unjust when considering  our most recent emigrants, since to a large extent their forced emigration has come about directly as a result of our economic collapse

Under our voting laws they have, in effect, less rights than convicted criminals. The law in Ireland, for many years, has been that prisoners have the right to vote, but since they could only cast their vote at their local constituency ballot box, the right to vote was to a large extent meaningless. However since 2006 the law has been changed to provide procedures which enable prisoners to vote by post. Consequently convicted criminals are amongst the select few in Ireland who have the right to vote by post.

Others with that right include diplomats, members of the Garda, members of the defence forces, and persons suffering from an illness or disability.

Whatever about our enlightened stance in relation to prisoners voting rights, we are almost alone in Europe in denying voting rights to citizens who live abroad. For the moment we share the distinction with Greece of being the only remaining democracies in Europe who deny such voting rights to their citizens, but this will soon change, since Greece is in the process of amending their legislation on this.

“No taxation without representation” is a slogan dating back over two hundred years to the American revolution. The very reasonable argument was that was that if a State was going to place a burden on it’s citizens, such as taxation, then that person should also have the benefits of citizenship, including the right to vote, and the right to choose how the state was to be governed. It now appears that a reversal of that slogan is being used as an argument to deny Irish citizens living abroad the right to vote in Ireland. “ No representation without taxation”, is the contention, on the basis that those who no longer live in Ireland pay no taxes here, and consequently should not have the right to vote.

This is an argument which doesn’t stand up to much scrutiny if you place it side by side with prisoners rights, since few enough prisoners are in a position to make tax returns. Another stated reason for denying emigrants the right to vote was given by an Oireachtas Committee on the Constitution in 2002 which concluded that the right to vote should be confined to those ..who are primarily and directly affected by the actions of the Dáil and of the government”.

At the present time there are few families untouched by involuntary emigration. In these circumstances there is a strong argument in favour of the position that those who have been forced to emigrate by reason of the collapse of our economy may have a particularly pertinent interest in helping to shape the Ireland of the future, on the basis that it also represents their future.

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The sound of silence

Sounds, loud and soft, are an inescapable feature of life. To the extent that sound doesn’t upset or cause distress it is usually acceptable and can add to the quality of life. The air around us is constantly filled with sounds, mostly appropriate to the situation.

A busy city street has it’s own cacophony of sounds, a factory generates the noise of industry, in a rural backwater you expect the sounds of nature mingled with intermittent human activity.

It is when that acceptable balance changes that sound becomes noise. When unwanted sound is imposed on you from outside and it is beyond your control to manage it, it is noise. When it begins to cause distress it is unwanted noise. Sound becomes a problem when it interferes with normal activities such as sleeping, conversation, or disrupts or diminishes your quality of life.

While you can’t see noise, taste it or smell it, it is, as much as air pollution and water pollution, a form of pollution of the atmosphere. Repeated exposure to persistent and escalating sources of sound may at best be an annoyance, at other times it can have major consequences, primarily to your physical and mental health. Noise pollution adversely affects the lives of millions of people.

There have been many studies which have shown that there are direct links between excessive noise and health.  Problems related to noise include stress related illnesses, high blood pressure, interference with spoken communication, hearing loss, sleep disruption, and lost productivity. One of the most distressing of those is sleep disruption.

For the unfortunate person who is being subjected to such unacceptable levels of noise there are some options. The obvious first step is to make contact with those who are responsible for the noise. While sometimes our day to day experience might suggest otherwise, most people are reasonable, and it can be surprising to find that often the noisemaker is simply not aware of the upset they are causing. If that approach fails then the only alternative may be to head down the legal route.

Here again there are a selection of options. The first one is to bring a private civil action against the noisy neighbour under a claim of nuisance. Putting the principles of the law of nuisance very simply, the rule is, If you cause a nuisance, (which includes noise), which causes harm to other people you could be sued by them. The legal remedies under this law are generally damages and, in some cases, injunctions – court orders requiring a noise nuisance to stop or to prevent it from continuing or recurring.

The other alternative is to make a complaint to your local authority. They have the power to investigate complaints about neighbourhood noise, and can initiate court proceedings against the persons or corporation responsible for the noise. The law in Ireland governing this area is contained in the Environmental protection Agency Act 1992 and related legislation. While the law does not specifically mention an exact level or standard of noise that is illegal, it is clear that if neighbourhood noise is affecting the quality of your life, then you have a right to complain.

A functioning society depends on a reasonable approach to give and take, and when that breaks down the law is generally there to redress the balance, and that includes protecting citizens from unreasonable noise pollution.

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Drowning the Shamrock

The association between St Patrick’s day and the consumption of alcohol goes back a long way. In the early days, before it became a public holiday, the day had no legal significance which would distinguish it from any other church holiday. As part of the church calendar since the 1600’s it was a holy day of obligation, and, in theory at least, the main focus of the day was the religious celebration of the life of St Patrick.

Then, in 1903, an Irish Member of Parliament, James O’ Mara, (a Limerick man) introduced the law to have St. Patrick’s day declared a public holiday. The Act was passed, but it quickly became clear that, in bestowing this holiday in remembrance of our national saint, the Honorable Member had not anticipated the unbounded enthusiasm with which many of the populace would celebrate the day. Such was the extent, and excesses, of the annual celebrations which followed that within three years the same M.P. felt obliged to introduce a new law which made it illegal for public houses to open or to sell alcohol on St. Patrick’s day. It is a little surprising that James O’ Mara hadn’t seen this coming, since at around the same time as his public holiday Act he had also introduced legislation in Parliament under the charming title of “The Drunkards (Ireland) Bill”.

At the time of introducing the St. Patrick’s day ban there were serious concerns about the levels of alcohol consumption in Ireland. Reports were commissioned on the subject and, in one of these reports, presented in 1896, the author concluded that in Ireland alcohol abuse was a national trait and suggested that environmental factors were partly responsible, such as the;

“damp climate and inclement weather which caused Irishmen to drink spirits as a stimulant”.

Another reason given for the problem was the very high number of licensed premises in Ireland. For instance, in one village in Roscommon there were eight public houses to cater for the needs of a population of two hundred. After the formation of the Free State there were attempts to amend the law to allow public houses to open on St Patrick’s day but these were not successful. In the Senate in 1924 one Senator, in opposing the amendments, said;

“In some circles it was looked upon as an insult to, and an absolute neglect of the Saint, if a person did not drown the shamrock in his honour. The unfortunate part of it was that in this country the shamrock took a terrible lot of drowning, in some cases with very disastrous results both to the peace of the community and otherwise. It is about time, instead of drowning the shamrock, that we should give the unfortunate plant a chance of survival.”

This prohibition continued until 1960 when the law was finally changed, partly as a result of changing times, but mainly in recognition of the lucrative tourist potential to be gained from the holiday. While the ban was in place loopholes and exemptions had to be found. One perfectly legal way of getting a drink in those days, apparently, was to attend the annual St. Patricks day Dog Show in Dublin. This has been held on the 17th of March since the 1920‘s, and has always had a licence for that day. For this reason it had inevitably attracted an opportunistic element. One story, probably true, recounts that a prominent politician remarked that the event was a great day out, but, the pity was that; “the place is always full of bloody dogs”.

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Big Brother really is watching you

In 1949 George Orwell published his novel Nineteen Eighty-Four depicting a future society governed by a dictatorship which infiltrated every minute aspect of the citizens life. This dictatorship is supported by the Party, which is controlled by the secretive leader “Big Brother”.

It is never clear whether or not Big Brother is a real person or a figurehead invented by the Party. The State through it’s repression and mind control regulates not only the lives but also the thoughts and actions of it’s citizens. The slogan “Big Brother is watching you” is everywhere, presented not in it’s sinister reality but in the guise of a kind and comforting minding of all the citizens.

Individual thought or reasoning are punishable as “Thoughtcrimes” Even inappropriate facial expressions are punishable. For instance, a look of disbelief on hearing some outlandish piece of Party propaganda is a crime. Those inappropriate facial expressions are called “Facecrimes”. One effective way in which the Party keeps citizens under surveillance is through two way devices known as telescreens. The telescreen broadcasts a never-ending stream of propaganda and distorted reality from the Party and Big Brother (familiar?) while simultaneously monitoring every movement and action of the citizen.

Luckily for all of us the bleak future painted by George Orwell hasn’t yet come about, but there are some elements of his society which have more than a passing likeness with some of our modern developments. One of these is the interactive nature of computers, which are, day by day, creeping closer to Orwells telescreens. Surprisingly, the law is to the forefront here, and some people have discovered that there are considerable downsides to an interactive internet. This is because courts around the world are now beginning to allow service of court documents on a defendant via their Facebook page.

This is happening where the defendant cannot be located, or is evading service of the documents. This means that, if you are the unlucky defendant, once you log into your Facebook account the court document is sitting there, waiting for you. You have been served. This is one occasion where turning off the computer and turning it on again will not solve the problem.

For the legal profession this is a huge development, a bit like emerging from a quiet country road onto the fast lane of a motorway. However, and perhaps much more importantly, developments like this are a sobering reflection of the capacity of the law, and ultimately the State, to reach out, through the computer screen, into the privacy of every home.

Add to this development the known (and unknown) amount of surveillance which takes place of your computer use and it becomes apparent that the internet is becoming a two way watching device. Facebook alone now has more than 900 million members, and each log-on by a member adds to the information base available to Facebook. That adds up to an extraordinary amount of personal information. Throw in all the information gathered by search engines, and other social networking sites, and you have an accumulation of worldwide information which even George Orwell didn’t imagine.

Apart from marketing, how can this information be used? Leaving aside conspiracy theories, of which there are many, could law enforcement agencies access this information? The answer is yes, and it is now not uncommon for the police and other law enforcement agencies to gain access to this data, which can then be used as evidence to ground a criminal prosecution. This all leads to the interesting contemplation as to whether or not we are really that far away from the concept of George Orwell’s “Facecrime”?

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