Abortion Discussion, Part Trois

aloyisious

recedite wrote: »

That's funny, I read that in the opposite way. Basically there will be no effective regulation of social media, because everyone involved has abdicated responsibility.
Social Media is the wild west of advertising, and also in terms of identifying where in the world the payments to the likes of Facebook are being made.
The referendum commission was only initiated a few years ago, for the purposes of ensuring fairness and transparency, but its starting to become irrelevant already.

It'll give the pointers on how to go about routing the abusers of the system, those [including the "holier than thou's" in Leinster House as well] who make fake complaints about lack of transparency and lack of equality in representations, making fake accusations about bias in statutory and semi-state bodies.

david75

So Facebook are implementing a tool to alert Irish users of fake news articles.

That can only be a good thing.

The Liberals Facebook page is doomed if this happens no bad thing.

aloyisious

david75 wrote: »

So Facebook are implementing a tool to alert Irish users of fake news articles.

That can only be a good thing.

The Liberals Facebook page is doomed if this happens no bad thing.

If F/B could do this, then false advertising of facts, figures and allegories could be treated the same way.

robindch

aloyisious wrote: »

It seem's that Facebook and the European Commission are taking an interest in the forthcoming referendum on the 8th in relation to "fake news" and "online bots" spreading misinformation to the Irish Voters.

In news which may be unrelated, the UK's Information Commissioner says her office will seek a search warrant for the discovery of information held by Cambridge Analytica, the analysis outfit set up and/or funded/managed by Breitbart editor, Stephen Bannon, and #45 backer, Robert Mercer, which is suspected of stealing information from millions of facebook accounts, and which seems to have offered to entrap non-compliant politicians, deliver fake news and generally screw with users' minds during the last US presidential election as well as the Brexit vote:

http://www.bbc.com/news/technology-43465700
https://www.theguardian.com/uk-news/2018/mar/19/cambridge-analytica-execs-boast-dirty-tricks-honey-traps-elections
https://www.nytimes.com/2018/03/19/us/cambridge-analytica-alexander-nix.html
https://www.nytimes.com/2018/03/17/us/politics/cambridge-analytica-trump-campaign.html

Last Friday, facebook terminated CA's account and, today, facebook's share value declined today by almost $37 billion dollars - approximately 60% of Irish annual government revenue - on fears that regulators are prepared to intervene in facebook's data harvesting, the resulting psychometric information and ultimately, inadequate data security.

aloyisious

robindch wrote: »

In news which may be unrelated, the UK's Information Commissioner says her office will seek a search warrant for the discovery of information held by Cambridge Analytica, the analysis outfit set up and/or funded/managed by Breitbart editor, Stephen Bannon, and #45 backer, Robert Mercer, which is suspected of stealing information from millions of facebook accounts, and which seems to have offered to entrap non-compliant politicians, deliver fake news and generally screw with users' minds during the last US presidential election as well as the Brexit vote:

http://www.bbc.com/news/technology-43465700
https://www.theguardian.com/uk-news/2018/mar/19/cambridge-analytica-execs-boast-dirty-tricks-honey-traps-elections
https://www.nytimes.com/2018/03/19/us/cambridge-analytica-alexander-nix.html
https://www.nytimes.com/2018/03/17/us/politics/cambridge-analytica-trump-campaign.html

Last Friday, facebook terminated CA's account and, today, facebook's share value declined today by almost $37 billion dollars - approximately 60% of Irish annual government revenue - on fears that regulators are prepared to intervene in facebook's data harvesting, the resulting psychometric information and ultimately, inadequate data security.

F/B must be sh***ing itself with the new data protection laws coming into play in 2 or so months EU-wide, if it can't comply with what is law at the moment. Umm on a side but pertinnt point with the UK leaving the EU, the new EU law might not apply in the UK. The UK Comm seeking a warrant for info should be in teresting as it may be reliant on UK law alone by the time the case comes to court, where-ever that court sits...

robindch

aloyisious wrote: »

F/B must be sh***ing itself [...]

Seems to be alright - while Zuckerberg is maintaining radio silence.

aloyisious wrote: »

With the new data protection laws coming into play in 2 or so months EU-wide, if it can't comply with what is law at the moment. Umm on a side but pertinnt point with the UK leaving the EU, the new EU law might not apply in the UK.

I must be the only person in Europe daft enough to think that there may be a connection - regardless of how slight - between a) EU moves to improve data privacy and data use by social media networks and the use of the same social media networks to encourage pro-Brexit views; b) EU moves to curb tax evasion and the simultaneous bankrolling of the pro-Brexit bandwagon by offshore billionaires and tax frauds; and c) major fines levied by EU courts against a major search engine provider and the same provider's video outlet radicalizing viewers.

recedite

The YouTube algorithm recommends new videos to viewers based on their previous preferences. I don't see anything strange or wrong with that. Yes, it will tend to reinforce the "echo chamber" effect, but it is the person themselves who clicks on the vids. So don't shoot the messenger.

Ditto with Cambridge Analytica. Correct me if I'm wrong, but the opposite side in any campaign could have employed them to help, (or indeed any other similar service provider).
If people choose to surrender full details of their personal lives and personalities to Facebook, and to give Facebook full ownership of that data, then that is their own choice. The business model of Facebook is to use such data for its own profit. That is not a secret.

aloyisious

I don't know if anyone was surprised by the news today that the Oireachtas is debating the referendum issue [incl the question wording of the replacement for the constitution - it seem's to have become much shorter over the past week or so] for the next 3 days but I was. Take the eye off the ball for a few seconds and.....

pauldla

david75 wrote: »

So Facebook are implementing a tool to alert Irish users of fake news articles.

That can only be a good thing.

The Liberals Facebook page is doomed if this happens no bad thing.

I am sorry, I am a little out of the loop and am unable to check for myself; what is the Liberals Facebook page, why might it be doomed and why is that no bad thing?

david75

pauldla wrote: »

I am sorry, I am a little out of the loop and am unable to check for myself; what is the Liberals Facebook page, why might it be doomed and why is that no bad thing?

The liberal is a Facebook page and twitter account run by a chap who is vehemently anti abortion, anti marriage equality etc and who consistently posts emotive and sometimes articles often inflammatory against the above issues and against the Muslim community. It claims to be a news outlet, the name alone ‘the liberal’ clashing wildly with the views it contains, the guy running the page is brother to anti choice spokesperson Cora Sherlock. He has also been in court and charged with plagarising genuine journalists work and when he isn’t doing that he’s fabricating news that is often ‘shocking’ and designed to cause controversy yet can best be described as fake news. He’s also been repeatedly caught running ‘competitions’ to get more likes for his page and faking the winners by setting up fake Facebook accounts to ‘win’.

Most recently the page ran a poll asking ‘do you think the 8th should be repealed?’ And it you selected ‘yes’ it wasn’t an option basically so it was skewing the result to fabricate a No final result.

It’s best avoided as it’s the worst kind of breitbart wannabe ‘news’ source and it attracts people who enjoy that sort of thing. Not the most open minded of people let’s say.

MrPudding

aloyisious wrote: »

F/B must be sh***ing itself with the new data protection laws coming into play in 2 or so months EU-wide, if it can't comply with what is law at the moment. Umm on a side but pertinnt point with the UK leaving the EU, the new EU law might not apply in the UK. The UK Comm seeking a warrant for info should be in teresting as it may be reliant on UK law alone by the time the case comes to court, where-ever that court sits...

I can assure you the new law, the GDPR will apply in the UK. I am up to my eyes in work related to it.

Even post Brexit, unless that UK wants to cause serious harm to business, the UK will have to continue to enforce the GDPR, or something so close to it as to be indistinguishable.

MrP

aloyisious

MrPudding wrote: »

I can assure you the new law, the GDPR will apply in the UK. I am up to my eyes in work related to it.

Even post Brexit, unless that UK wants to cause serious harm to business, the UK will have to continue to enforce the GDPR, or something so close to it as to be indistinguishable.

MrP

OK that answer's another question in my mind... There'd be no point in corporate FB suddenly deciding to move it's Euro HQ from Dublin to UK to avoid the GDPR.

MrPudding

aloyisious wrote: »

OK that answer's another question in my mind... There'd be no point in corporate FB suddenly deciding to move it's Euro HQ from Dublin to UK to avoid the GDPR.

That wouldn’t protect them anyway (if the uk chose not to enforce GDPR). If they, or any organisation, are processing personal data belonging to EEA citizens, then GDPR will apply irrespective of where they are headquartered or operating. And it goes slightly further. If it is a company that does not have any presence in the EEA, but is processing EEA citizen date, then they must appoint a representative in an EU country.

MrP

aloyisious

It might be worthwhile going to RTE player system for the RTE1 9PM TV news. I caught the tailend of a report with the newscaster saying something about President Robinson referring something connected to the abortion referendum to the Supreme Court.

In the report it seem's the AG was commenting about a "dog's dinner" [his words] of a bill going through the Oireachras which is supposed to reform the judicial system here. The bill has a section which removes the AG from the system, at present he serves as a link between the Govt & the judiciary, and he was critical about the new removal piece.

According to the news the AG also commented on the abortion referendum and that the President might refer an aspect of it to the Supreme Court. I presume he was replying to another question there, and that it might be in reference to the Govt legislation as I can't see the president letting the referendum on a specific constitutional wording change proceed to and by the people and then step in and say "I have doubts about the question that was put to you and I am referring it to the Supreme Court".

The weekend papers might explain his thoughts further than the RTE news revealed.

recedite

aloyisious wrote: »

In the report it seem's the AG was commenting about a "dog's dinner" [his words] of a bill going through the Oireachras which is supposed to reform the judicial system here. The bill has a section which removes the AG from the system, at present he serves as a link between the Govt & the judiciary, and he was critical about the new removal piece.

AG is moaning about a dilution of his powers. Its important to note that the AG is himself a political appointee (by the main party in govt.) and that he does not act for "the state" he acts for "the govt." ie the people who gave him the job (so effectively Fine Gael in this case)

What Lord Ross wants to do is to reduce political patronage in the selection of judges, and make it more merit based.
Now they are calling his bill "a dogs dinner" and ironically the EC has allowed itself to be used in a bid to retain the old system. The EC does not seem to understand that Lord Ross's proposals aim to make the appointment of judges more transparent and open.

it is not acceptable for a government to sit back and allow flawed legislation to be introduced in a bid to keep Minister Ross on board. The European Commission has already stated that the Bill does not conform to European standards, which specify that a substantial part of the members of the judicial appointments body should be judges.

https://www.irishexaminer.com/breakingnews/ireland/fianna-fail-calls-to-scrap-judges-dogs-dinner-bill-834106.html
Currently the govt. make the appointments, which in reality probably means the Taoiseach and the AG sitting down in a room with a long list of potential candidates, to discuss who would be the most suitable.

I have no idea what the AG is insinuating about the abortion referendum. If he has something to say, he should speak out.

Hotblack Desiato

https://www.rte.ie/news/2018/0323/949686-attorney-general-judicial-bill/

He also noted that President Michael D Higgins had not referred any bills to the Supreme Court under the "Article 26" constitutional provision during his term of office, but added: "Whether or not he might on the abortion legislation if it were ever passed, if the referendum were passed, we'll wait and see."

I've no idea why the AG would think Higgins might refer an abortion bill to SC.

Given the recent SC decision that the only statement of foetal rights is 40.3.3 and that will be gone post repeal, how could there be any doubt that an abortion bill along the lines proposed might not be constitutional?

Also, President Robinson above??? I don't recall Robinson referring anything related to the 1992 referendums or subsequent legislation to the SC.

Edit : The 1995 legislation on information was referred to the SC and upheld. IMO it takes an extremely restrictive approach to implementing the bare minimum of the decision of the people, and contains much anti-choice virtue signalling.

http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/DE984F5A426E14AA802575F300331389/$FILE/Information_[1995] 1 IR 1.htm

Turtwig

Perhaps he's anticipating the possibility Dana runs for president, wins and refers the referendum bill to Supreme Court before it can get passed into law. Then stages a sit down process and refuses to sign it.

All of this assuming 8th is repealed and Michael D isn't in office for the relevant period.

NuMarvel

Hotblack Desiato wrote: »

Also, President Robinson above??? I don't recall Robinson referring anything related to the 1992 referendums or subsequent legislation to the SC.

She referred the Regulation of Information Act to the Supreme Court in 1995, and they held that the Bill was constitutional.

This meant the Act couldn't be challenged again in court, so that may be what the AG is thinking Higgins will do. But considering we haven't even seen the general scheme of the bill, I think the AG is getting ahead of himself a bit by talking about what the President will do before signing the final version of the bill.

recedite

NuMarvel wrote: »

She referred the Regulation of Information Act to the Supreme Court in 1995, and they held that the Bill was constitutional.

The Court decided that the foundation of Irish Constitutional law was popular sovereignty and rejected the idea that natural law could in any way limit the people's right to amend the constitution

I'm surprised that Mary Robinson challenged the idea that the Irish people could change the Irish constitution whenever they wanted to.

The SC ruled that the people are sovereign, which should have been obvious anyway, IMO. So it would be ridiculous of the AG to suggest at this stage that they are not.

Hotblack Desiato

Turtwig wrote: »

All of this assuming 8th is repealed and Michael D isn't in office for the relevant period.

He referred to Higgins though - and hopefully this legislation will be passed by the Oireachtas as a priority after repeal, well before the end of his current term.

NuMarvel

recedite wrote: »

I'm surprised that Mary Robinson challenged the idea that the Irish people could change the Irish constitution whenever they wanted to.

It was the lawyers appointed by the court who made this argument, not the President. And they probably made this argument because it was the best one they could find given what the constitution says about the substantive issue of the bill. It's not as if they had the option to stand up in court and say they thought the bill was constitutional.

The President doesn't have to say why they are referring a bill to the Supreme Court, they just have to say that they are. After that, it's in the hands of lawyers and judges, as per the Irish constitution.

recedite wrote: »

The SC ruled that the people are sovereign, which should have been obvious anyway, IMO. So it would be ridiculous of the AG to suggest at this stage that they are not.

I've seen nothing that says the AG is suggesting that. All he's done so far is speculate that the President may refer future legislation to the courts. To do so is not contrary to the principle that the people are sovereign and it's not the first time there's been speculation about Higgins referring abortion legislation to the courts.

NuMarvel

Hotblack Desiato wrote: »

He referred to Higgins though - and hopefully this legislation will be passed by the Oireachtas as a priority after repeal, well before the end of his current term.

Assuming the referendum is carried, I think it'll be October at the earliest before any legislation is passed. It took 5 months to pass new legislation after the marriage equality referendum thanks to legal challenges and Dáil holidays, and you can be sure there will be challenges if there's a Yes win in this referendum.

Plus, the legislation by its nature will be more complicated and receive more scrutiny that the new marriage laws had, so that'll push out its passage further.

recedite

NuMarvel wrote: »

It was the lawyers appointed by the court who made this argument, not the President.

They were only appointed because she referred the bill to the SC.
As a barrister, she would have known in advance the argument they were going to have to make. Probably she knew what the result would be too. The whole thing just seems a bit mischievous.

NuMarvel wrote: »

All he's done so far is speculate that the President may refer future legislation to the courts.

Thats not exactly news though, is it?
He seems to be hinting at some impediment specifically related to the upcoming referendum and the proposed legislation afterwards.
I suspect he's just worried that people have forgotten he exists, and wanted to get his name in the news. Maybe its time to ask for for a pay rise or something.

aloyisious

Before I head to bed, I'll post this link to today's edition of the Irish Times referring to what might, or might NOT, be in the Govt's plan for abortion legislation if the 8th amendment is voted out of existence....

https://www.irishtimes.com/news/politics/government-will-seek-to-ban-late-term-abortions-1.3440056

What is notable in the report are these three short paragraphs........

The Government will aim to prohibit late-term abortions except in the case of fatal foetal abnormalities, if the Eighth Amendment is removed from the Constitution.

Abortions which take place on the grounds of a threat to the life or health of the woman would not be permitted beyond viability, usually around the 23rd-24th week of pregnancy.

In those cases, where such a threat to the woman exists, the pregnancy would be ended by an early delivery.

Peregrinus

recedite wrote: »

They were only appointed because she referred the bill to the SC.
As a barrister, she would have known in advance the argument they were going to have to make.

That's equally true of the lawyers who were appointed to argue that the Bill was constitutional, though. There is no basis for assuming that Robinson was in some way supportive of, or responsible for, the arguments on one side but not on the other.

recedite wrote: »

Probably she knew what the result would be too. The whole thing just seems a bit mischievous.

No, there was a real issue here. The Irish constitution contains unusually robust provisions on the protection of fundamental personal rights, and much of the language treats rights as a natural entitlement of human being - not something that is conferred upon them by legal or political acts or by the whim of a sovereign, but something that already exists and that the sovereign/the state is bound to recognise and respect. "The state guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen" - Art 40.3.1. There's nothing about conferring rights on the citizen there.

The Constitution is itself a law of the state, of course, so this view of the role that law plays in relation to human rights applies to the Constitution enacted by the people, just as much as it does to the statutes enacted by the Oireachtas. On this view, you don't have a right to (say) equality before the law because the Constitution says you do; rather, the Constitution says that you have a right to equality before the law because that is a natural right of all human persons, and the Constitution ought to recognise it.

De Valera probably adopted this approach in reaction to the UK tradition, which sees law as the unconstrained acts of the sovereign. On this view, you have a right to equality before the law until the law provides for you to be treated unequally, at which point you no longer have a right.

As you point out, under the 1937 Constitution the sovereign is the people, not the crown, but this doesn't really matter. We still have to decide whether rights are something granted by the people collectively, which can be limited or abolished entirely by the people collectively, or something which inhere in people individually, which the people collectively acknowledge that they must recognise and respect.

Dev went for the latter view.

The significance of this wasn't apparent at the time, even (I'm guessing) to Dev. Internationally, it was not a particularly popular view. But that was to change after the Second World War, when people particularly on continental Europe were casting around for an understanding of the relationship between the state and its people which would be robust in the face of populist erosion of individual rights, as had happened in Europe in the 1920s and 1930s. In this context, the notion of rights as something that inhere in the individual, arise out of their humanity and dignity, are not granted to them by the state, and that the state must respect, seems to have a lot to offer. So there was growing international discourse about this.

Which finally came back to Ireland in the 1960s, where lawyers and judges picked up on it and started to use it. As noted, Art 40.3.1 binds the state to respect the personal rights of the citizen, without attempting to enumerate those rights. Subsequent provisions go on to mention particular rights, e.g. the rights to live, person, good name and property, but there is no suggestion of an exhaustive or comprehensive list. Arguing that the Constitution bound the state to respect, defend etc rights other than those mentioned in particular, the Supreme Court found, and enforced against the state, rights of bodily integrity, marital privacy and more. (The "unenumerated rights".)

All very well and useful if you're trying to import contraceptives, you may think. But the logic of this position is that a natural human right not only exists if the Constitution doesn't mention it; it exists even if the Constitution contains something inconsistent with it. Because of course the Constitution is "a law of the State", and fundamental personal rights precede the law of the State, and must be respected and defended by the law of the State. So the question arises, if the Constitution is amended to say, delete all references to the right to a good name, would the courts hold that, nevertheless, there was still a natural right to a good name, just now one of the unenumerated rights? And would they uphold that even against some other provision in the Constitution?

That remained an academic issue until the 14th amendment came along. Immediately before the 14th amendment, the Constitution recognised the right to life of the unborn. The 14th amendment inserted language to qualify that right by saying, in effect, that it was not to limit freedom to travel, or freedom to obtain information. Could it be argued that those qualifications were ineffective? That neither the Oireachtas nor the people could decide to subordinate one natural human right in this way?

It could be argued, is the answer, and if the argument was sound then the Regulation of Information (Services Outside the State For Termination of Pregnancies) Bill 1995 might be unconstitutional. Probably the weight of academic and legal opinion was against the argument, but the argument was certainly there, and it had been there for many years. It's just that only now did it become a live issue in relation to some actual legislation of the Oireachtas.

I think there were two reasons for referring the Bill to the Supreme Court. The first was, if there was any possibility at all that the Bill would found to be unconstitutional, the sooner this happened the better. It would be best if the constitutionality of the Bill was put beyond doubt, and that's the whole purpose of an Art. 26 reference. The second was that this was a good opportunity to get a question of potentially very wide significance before the Supreme Court.

aloyisious

I suppose [on musing] that this part of Peregrinus post above [As you point out, under the 1937 Constitution the sovereign is the people, not the crown, but this doesn't really matter. We still have to decide whether rights are something granted by the people collectively, which can be limited or abolished entirely by the people collectively, or something which inhere in people individually, which the people collectively acknowledge that they must recognise and respect] might be what Justice Humphreys had in his mind when he made his ruling, a declaration that, in reference to the unborn, the constitution [due to it's wording] contained something unwritten but inherent to the constitution's wording on the lines of "I Exist, I Am Man" and therefor must have the basic right to exist inherently applicable to all others of humankind.

As Peregrinus also recognized above - inter alia - we have the right to decide when it is right to alter the wording of our constitution when the nation's consciousness is pricked by uncomfortable thoughts and realities. The constitution is a thing of fluidity, of words as well as a declaration of rights and obligations, which can changed by us upon necessity.

I'll leave this here now without further additions and edits.....

recedite

Peregrinus wrote: »

The second was that this was a good opportunity to get a question of potentially very wide significance before the Supreme Court.

I see the point you are trying valiantly to argue Peregrinus, but I don't see very much merit in it (and I don't think you do either)
Taking the argument to its logical conclusion, there would be no need for referendums in the first place, because the courts would be sovereign, not the people. They would decide directly which rights people should be entitled to, and which ones they should not be entitled to.

Yes, the concept that human rights already exist as natural rights is a valid one, but who divines or enumerates these rights? The people do, not the judges.
Similarly when somebody is tried in court for a serious offence, who decides whether they are guilty or innocent? The jury does, not the judge.

Anyway, that judgement is out of date. In the modern era (after that Mary Robinson referral) we have allowed the ECHR to become the ultimate arbiter of human rights. So we can no longer amend our constitution in any way that is incompatible with ECHR.
But again it was the people who specified that should happen; in a referendum for the (Nice?/Lisbon?) Treaty (I can't remember which one exactly it was)
Presumably we could repudiate that treaty and go back to being sovereign ourselves, if we wanted to, via referendum (a Brexit).

david75

recedite wrote: »

I see the point you are trying valiantly to argue Peregrinus, but I don't see very much merit in it (and I don't think you do either)
Taking the argument to its logical conclusion, there would be no need for referendums in the first place, because the courts would be sovereign, not the people. They would decide directly which rights people should be entitled to, and which ones they should not be entitled to.

Yes, the concept that human rights already exist as natural rights is a valid one, but who divines or enumerates these rights? The people do, not the judges.
Similarly when somebody is tried in court for a serious offence, who decides whether they are guilty or innocent? The jury does, not the judge.

Anyway, that judgement is out of date. In the modern era (after that Mary Robinson referral) we have allowed the ECHR to become the ultimate arbiter of human rights. So we can no longer amend our constitution in any way that is incompatible with ECHR.
But again it was the people who specified that should happen; in a referendum for the (Nice?/Lisbon?) Treaty (I can't remember which one exactly it was)
Presumably we could repudiate that treaty and go back to being sovereign ourselves, if we wanted to, via referendum (a Brexit).

I’m still trying to figure out how you can be pro life in one thread and pro gun in another. Total headscratcher

Turtwig

david75 wrote: »

I’m still trying to figure out how you can be pro life in one thread and pro gun in another. Total headscratcher

Mod:
This is not really relevant to the discussion at hand. It is a personal comment. Please refrain from further similar remarks.

Peregrinus

recedite wrote: »

I see the point you are trying valiantly to argue Peregrinus, but I don't see very much merit in it (and I don't think you do either)
Taking the argument to its logical conclusion, there would be no need for referendums in the first place, because the courts would be sovereign, not the people. They would decide directly which rights people should be entitled to, and which ones they should not be entitled to.

Yes, the concept that human rights already exist as natural rights is a valid one, but who divines or enumerates these rights? The people do, not the judges.

Yeah, that’s exactly the problem with the notion that natural rights supersede positive law. Who gets to discern what exactly are the superior natural rights? Ultimately that has to be the responsibility of the sovereign which, in Ireland, is the people. And, in a democracy characterised by the rule of law, the people speak through laws, particularly through the Constitution. So the discernment of the people that, e.g., the right of the unborn to life does not limit the right to travel or the right to information binds the Supreme Court.

Which means that if you think the Constitution fails to respect something that you argue is a natural personal right, your remedy is to seek an amendment to the Constitution, not to demand that courts, the executive, etc simply ignore the Constitution. And that means that your objection, and your campaign, is fundamentally a political one, not a legal one.

recedite wrote: »

Similarly when somebody is tried in court for a serious offence, who decides whether they are guilty or innocent? The jury does, not the judge.

Well, not quite the same. In a criminal trial the jury is the ultimate authority on matters of fact (“Did the defendant strike the fatal blow?”) but the judge is the ultimate authority on matters of law (“Is it a defence if he honestly believed that he was acting in self-defence?”). The judge can withdraw a case from the jury, and refuse to let them convict if, as a matter of law, what has been alleged against the defendant does not amount to a crime. And both the judge and the jury are exercising an authority conferred upon them by the sovereign. The jurys is not in some way closer to, or a more authentic delegate of, the sovereign than the judge is.

Whereas in the case of the Constitution, the people are the ultimate legislators. They are not determining what the facts are; they are determining what the law is to be.

recedite wrote: »

Anyway, that judgement is out of date. In the modern era (after that Mary Robinson referral) we have allowed the ECHR to become the ultimate arbiter of human rights. So we can no longer amend our constitution in any way that is incompatible with ECHR.

Well, that’s a bit of an oversimplification. The EConvHR is incorporated into EU law, and of course EU law “trumps” Irish law (including the Constitution) because the Constitution itself says so. But this only operates in relation to areas in which the EU has competence, which is not every area of law.

Which means that in relation to some areas of law the people have designated the Supreme Court as the supreme body charged with protecting human rights by interpreting and applying the Constitution, but in relation to other areas of law they have designated the ECtJ and/or the ECtHR as the supreme body charged with protecting human rights by interpreting and applying the EConvHR.

recedite wrote: »

Presumably we could repudiate that treaty and go back to being sovereign ourselves, if we wanted to, via referendum (a Brexit).

Technically we wouldn’t be repudiating the EU treaties, since the treaties themselves contain an exit mechanism. Nor would this mean that we were “going back to being sovereign”; we are sovereign right now. The authority the European Institutions exercise in Ireland is delegated to them by the sovereign, just as the authority the Supreme Court, the Oireachtas, etc exercise is delegated to them by the sovereign. And, in both cases, it is a delegation that can be withdrawn.