The Gazette 1978

THE INCORPORATED LAW SOCIETY OF IRELAND GAZETTE JANUARY/FEBRUARY 1978 VOL 72 NO. 1

ANNUAL GENERAL MEETING OF THE SOCIETY

a.m. to 8.00 p.m., and a scrutiny was subsequently held. The result of the ballot was as follows:— The valid poll was 932. The following candidates received the number of votes placed after their names and were elected. John F. Buckley 629; Bruce St. John Blake 609; Joseph L. Dundon 606; Mrs. Moya Quinlan 571; William Anthony Osborne 555; Walter Beatty 554; Anthony E. Collins 544; Patrick C. Moore 536; John Carrigan 519; Michael V. O'Mahony 519; Maurice R. Curran 517; Adrian P. Bourke 517; Donal G. Binchy 514; Thomas D. Shaw 510; Patrick F. O'DonneU 497; Gerald Hickey 489; Peter D. M. Prentice 489; Michael P. Houlihan 478; Francis D. Daly 469; William D. McEvoy 469; Raymond T. Monahan 456; William Brendan Allen 451; David R. Pigot 450; John B. Jermyn 449; Miss S. Carmel Killeen 434; Thomas J. Fitzpatrick 426; Gerard M. Doyle 413; Richard J. Branigan 406; Laurence K. Shields 387; Laurence Cullen 378, and Ernest J. Margetson 372. The foregoing were returned as ordinary members of the Council for the year 1977/78. The following members also received the number of votes placed after their names:— Eamonn P. King 367; Andrew Donnelly 359; Francis P. Gleeson 354; James O'Keeffe 324; Eric Brunker 260; Philip E. McCourt 218; and Raymond V. Downey 181. The President declared the result in accordance with the ballot. Report of the Council Before discussing the Annual Report of the Council and of the Committees printed in the October Gazette, the President gave the address printed on page 173 of the November Gazette. The President then invited discussion of the whole Annual Report taken en bloc. Mr. T. Desmond McLoughlin protested that while the annual accounts of the Society had reached him in the normal course, the Gazette had not. Referring to the Accounts showing the state of the Society's finances up to April last, Mr. McLoughlin enquired as to the necessity to seek further contributions to the Compensation Fund which had risen to almost £500,000 while the demands on the Fund over the last four year period had averaged less than £20,000 a year. He suggested that the contributions be discontinued or, if not, that they be applied to some other purpose. He also questioned the expenditure of £4,750 for an Insurance Premium which appeared for the first time in the Compensation Fund Account. The President explained that, under the policy, should a claim arise exceeding £250,000 the Society would be indemnified to the amount of the excess, subject

The President, Mr. Bruce St. John Blake, took the Chair at 2.30 p.m. on Thursday, 24th November, 1977, in the Members' Room, in Blackhall Place, Dublin. The President suggested that the Notice convening the meeting be taken as read. This was agreed to unanimously. Mr. John Carrigan proposed, and Mrs. Moya Quinlan seconded that the minutes of the last Annual General Meeting held on 25th November, 1976, as published in the December, 1976, Gazette, pages 205 to 207, be taken as read. This was agreed to unanimously, and the minutes were duly signed. Mr. Thomas Costelloe, retired County Registrar of Wicklow, stated that he had not received a ballot paper. The Director General stated that, as far as he was aware, a ballot paper had been issued to all paid up members, but he would check the matter. The President stated that this matter was regrettable. The President moved that the Council's Balance Sheet, which had been circulated, should be adopted. The adoption of the Balance Sheet was then duly proposed by Mr. John Nash, and seconded by Mr. Christopher Hogan and passed unanimously. Mr. Gerald Hickey proposed and Mr. P. C. Moore seconded the motion that Messrs. Coopers & Lybrand be appointed Auditors for the coming year. This was agreed to unanimously. Report of the Scrutineers A meeting of the Scrutineers appointed at the Ordinary General Meeting of the Society in Wexford in May, 1977, together with ex-qfficio scrutineers, was held on 17th November, 1977. Nominations for ordinary membership of the Council were received from 38 candidates, all of which were declared valid. The scrutineers accordingly directed that their names be placed on the ballot paper. The following candidates were duly nominated as Provincial Delegates in accordance with Bye-Law 29(a) of the Society, and were returned unopposed:— Ulster: Peter Murphy (Ballybofey) Leinster: Christopher Hogan (Kilkenny) Connaught: Patrick J. McEllin (Claremorris). In Munster, there was a contest between two candidates for the post of Provincial Delegate, and the following candidates received the number of votes placed after their names:— Patrick Glynn (Limerick) 101; James O'Keeffe (Skibbereen) 73. Mr. Glynn, was accordingly declared elected. A meeting of the scrutineers was held on Thursday, 17th November, 1977. The poll was conducted from 10.00

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GAZETTE

JANUARY/FEBRUARY 1978

to a ceiling of £1 million. The President further stated that, as regards the Compensation Fund one must ensure that there will be adequate funds to meet any contingency that may arise. Mr. Gerard Doyle pointed out that £25,000 was the statutory minimum. The President stated that the eventual target was £1 million which could only be achieved gradually. An Insurance Premium was provided to indemnify the Scheme, and he explained the difficulties with regard to indemnity in answer to Mr. T. C. Gerard 0*Mahony. The Director General stated that Reports were prepared up to 30 September in every year, and that every effort was made to get these Reports out in time. Mr. William A. Osborne replied to specific details asked by Mr. Colm Price about the Balance Sheet. Mr. John Gleeson then made the point that, as the bulk of the English Law Reports would be kept in future in Blackhall Place, there would be no possibility of a Solicitor arguing any case which would require these authorities in the Four Courts. Mr. Michael CMahony mentioned that the American Law Reports were not available at the Bar library and that when they were needed, they had to be brought down from the King's Inns. Mr. Gleeson pointed out that it is only very rarely that American Law Reports were required in arguing cases in our Courts and that they would not be nearly as indispensible as the English Law Reports. He said that he had learned that the Director General had informed the English Law Society, in response to a query, that it was expected that when the new courses of training for young Solicitors came into operation, the new Solicitors would be much more likely to argue their own cases. He expressed the opinion that they would be very much impeded from doing so under the proposed division of the Library. Mr. John Buckley in reply, stated that, although the main Library would be in Blackhall Place, it was intended to provide a Library for practitioners in the Four Courts. He mentioned in detail the Reports, Journals and Textbooks which a Library Sub-Committee had recommended should remain in the Four Courts. Bound copies of the Journal of the European Communities will be kept in the Four Courts while a microfilm edition will be available in Blackhall Place. As the Four Courts Library would be essentially a practitioner's Library, additions would only be made in the light of experience gained. Mr. Gleeson emphasised that if books were required in Court urgently, it would be most inconvenient to have to collect them in Blackhall Place. While Mr. Hurley, the Librarian of the Law Library, had a personal arrangement with Mr. Gavan Duffy to exchange books, this arrangement could hot be extended. It was essential to emphasise that English Reports were used in the Courts every day. Mr. Brendan Allen replied that Counsel could obtain those Reports for themselves from the Law Library, and that it was essential for solicitors to have a professional law library. Mr. Quentin Crivon expressed concern at the failure of the Society to reply to correspondence written by members. In particular he cited a case of a complaint which had been made by one member against another in January, 1974, anchnoted that-in this particular case, no action appeared to have been taken by the Society in respect of the complaint and repeated letters elicited only acknowledgment cards. Mr. Crivon pointed out that if the public made a complaint against a Solicitor, the Solicitor concerned would be expected to reply to the Society within seven days as otherwise drastic action would be threatened, and sometimes carried out. Members were

entitled to receive service for which they paid handsomely. The President replied that he would take up the" complaint with the Chairman of the Registrar's Committee. Mr. David Plgot, in replying, said that as Chairman of the Registrar's Committee he would ensure that the complaint was fully investigated. The following motion was proposed by Mr. Gerald Hlckey, Chairman of the Finance Committee, and seconded by Mr. Walter Beatty. That bye-law 3 of the Society be revoked and that the following bye-law be submitted: "The annual membership subscription shall be — For a practising member who has been admitted to the roll of Solicitors for three years or upwards, £40; For a practising member who has been admitted to the roll of Solicitors for less than three years, £20; For all other members, £10; Or such sum or sums as the Society in General Meeting may from time to time determine, and shall be payable in advance on 6th January, in each year or on acceptance as a member provided that a new member accepted and joining the Society for the first time after 1st July in any year shall be required to pay only half the appropriate subscription to the following January 5th and such new member shall be entitled to vote at the then ensuing election for the Council provided that he shall have been a member at least the week before the date of the election". Mr. Hickey explained that unfortunately the increased subscription was absolutely essential in order to balance the budget. Mr. Patrick Noonan objected strongly to the increase since country members had to pay town agents. Mr. Francis Daly and Mr. Adrian Bourke asked whether, in view of the fact that country members would not use the facilities in Blackhall Place regularly, a plan could be devised whereby a lower subscription could be applied to them. Miss Carmcl Kfllecn, as a local authority Solicitor, also objected to the increase. She maintained that such Solicitors should be allowed membership at half fee. Mr. Hickey stressed that the Finance Committee had considered this matter in depth, and had reached the conclusion that these increases were absolutely necessary. The annual subscription for non-practising Solicitors remained at £10.00 but it was not possible to accede to any further reductions in subscription. In reply to Mr. Thomas Costelloe, Mr. Joseph Dundon stressed that the amount of the Compensation Fund had been lowered. It would not be right to differentiate between city and country members, and it was essential in order to maintain the unity of the profession that there be one subscription for all. The President then put this resolution before the meeting, and it was declared passed. The date of the next Annual General Meeting was fixed for 11.00 a.m. on Friday, 17th November, 1978. The Director General explained that the Council Meeting would be held at 2.30 p.m. on that day and that in future the Annual Dinner Dance of the Society would be held on the Friday evening instead of Thursday. Mr. Thomas Costelloe and Mr. T. C. Gerard O'Mahony asked the Meeting to take note of the continuous services which Mr. Gavan Duffy had rendered and was rendering to the members in providing an efficient up-to-date service in the Library. The President said he sincerely appreciated the remarks of those paying tribute to Mr. Gavan Duffy and expressed the hope that his services would continue to be available

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to the profession in the future. His remarks were received with applause. The motion that the President do vacate the Chair, and that Mr. Dundon, Senior Vice-President, take the Chair was passed. Mr. T. D. McLoughlin proposed, and Mr. Quentin Crivon seconded, the motion that the thanks of the Society be conveyed to Mr. Bruce St. John Blake for the services he had rendered to the Society as President. The motion was adopted with acclamation. Mr. Dundon requested Mrs. Quinlan to draw the winning tickets of the lottery arising from the funding project of Blackhall Place. Numbers representing prizes of £250, £500, and £1,000 were duly drawn. The Meeting then terminated.

APPOINTMENT OF COMMITTEES FOR 1977- 78 Registrars & Compensation Fund T. D. Shaw, Chairman; W. B. Allen, P. F. O'Donnell, A. Smyth, M. V. O'Mahony, Miss C. Killeen, T. J. Fitzpatrick, L. K. Shields, E. J. Margetson. Finance, Premises, Services & Costs B. St.J. Blake, Chairman; W. Beatty, Vice-Chairman & Chairman, Premises Sub-Committee; M. Curran Chairman, Services Sub-committee; W. A. Osborne, Chairman, Costs Sub-committee; P. D.M. Prentice; J. Carrigan; T. D. Shaw. Parliamentary D. Binchy, Chairman; W. B. Allen, Vice-Chairman; J. B. Jermyn, P. C. Moore, T. J. Fitzpatrick, R. Flynn, R. J. Branigan, J. Carrigan, B. Russell. Professional Purposes M. P. Houlihan, Chairman; D. Pigot, Vice-Chairman; L. Cullen, C. Hogan, R. Monahan, P. Murphy, R. O'Donnell, A. E. Collins, P. Glynn, G. Mills, E. J. Margetson, G. M. Doyle, C. Killeen, B. St. J. Blake, P. McEllin, F. Lanigan, J. Maher. Public Relations W. D. McEvoy, Chairman; P. F. O'Donnell, Vice- Chairman; J. Buckley, Chairman, Publications Sub- committee; D. Binchy, F. Daly, M. V. O'Mahony, P. Murphy, T. Jackson, R. J. Branigan. E.E.C. & International Affairs J. B. Jermyn, Chairman; A. Bourke, A. E. Collins, J. Fish (non Council), G. J. Moloney, P. C. Moore, R. T. Monahan, B. A. McGrath (Past President), A. F. Smyth, L. K. Shields. Policy J. L. Dundon, Chairman; B. St. J. Blake, W. A. Osborne, J. Carrigan, P. D. M. Prentice, T. J. Fitzpatrick, W. Beatty, G. Hickey, Mrs. M. Quinlan, M. P. Houlihan, W. D. McEvoy, J. B. Jermyn, D. Binchy, M. Curran, T. D. Shaw. Education M. Curran, Chairman; J. Buckley, Vice-Chairman; A. Bourke, F. Daly, W. D. McEvoy, P. D. M. Prentice. Company Law Committee B. O'Connor, Chairman; W. Beatty, A. Collins, M. G. Dickson, M. Finlay, R. Flynn, H. Fry, M. Irvine, P. Kilroy, J. O'Dwyer, L. K. Shields.

Re-elected Members of the Council Mr. Thomas Fitzpatrick (Cavan) Mr. Ernest J. Margetson (Dublin). New Ordinary Members of the Council Mr. Richard J. Branigan (Drogheda) Mr. Francis Daly (Cork)

Mr. Laurence K. Shields (Dublin). Dublin Solicitors* Bar Association Mr. Thomas Jackson, 28/30 Burlington Road, Dublin 4. Mr. Rory O'Donnell, 71 Wellington Road, Dublin 4. Mr. Andrew F. Smyth, 1 Upper Ely Place, Dublin 2. Southern Law Association Mr. Robert Flynn, 44 South Mall, Cork. Mr. Gerald J. Moloney, 7 George's Quay, Cork. Mr. Richard Grattan Roberts, 30 South Mall, Cork. Mr. Brian W. Russell, 58/59 South Mall, Cork.

Northern Ireland Representatives Mr. Leslie H. Boyd (Limavady) Mr. G. Lennox Cotton (Belfast) Mr. William B. Cumming (Ballymena) Mr. James G. Doran (Belfast) Miss Thomasina McKinney (Belfast)

Retiring Members of the Council Mr. Francis Lanigan (Carlow) Mr. John Maher (Dublin) Mr. John J. Nash (Thurles) Mr. Patrick Noonan (Athboy).

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THE EUROPEAN SOCIAL CHARTER AND ILLEGITIMACY

By Tom O'Connor, Solicitor

Undoubtedly this inactivity by the Committee of Ministers is one of the reasons why the European Social Charter has failed to acquire the same attention both of the general public and of legal commentators as has the European Convention on Human Rights. To see this "one has only to compare the scattered and repetitive literature concerning the Charter with the enormous quantity of books, monographs and articles produced in connection with the European Convention on Human Rights listed in a Bibliography published in 1969, with its two supplements of 1970 and 1972, which contain more than 120 pages of entries". 4 But what of the working of the European Social Charter? Briefly, it may be described as follows: 1. Every two years the Contracting States must submit detailed reports in a form to be determined by the Committee of Ministers (Art. 21). Generally these biennial reports detail the application of the Charter within the jurisdiction of each of the Contracting States and what progress, if any, has been made since the last report. 2. This report is then examined by an Independent Committee of Experts who are "of the highest integrity and of recognised competence in international social questions, nominated by the Contracting Parties". 3 These experts examine the reports and draw up their own conclusions. The conclusions could be said to be the most objective views and criticisms of the compliance or non compliance (as the case may be) by a Contracting State with the provisions of the Charter and consequently they warrant the most serious consideration by all parties concerned. 6 3. The Governmental reports and the conclusions of the Independent Committee of Experts are then sent to a Sub-Committee of the Governmental Social Committee (Art. 27) — in a sense, a Governmental Committee of Experts. As this Committee is composed of one representative from each of the Contracting Parties, it will obviously try and justify the action, or perhaps more appropriately the inaction of the relevant Contracting Parties in the light of criticism proferred by the Independent Committee of Experts. 4. The next stage is for the Parliamentary Assembly (composed of a certain number of representatives from each of the national parliaments of the Contracting States) to consider at its public hearings the reports and the conclusions of the two committees and to formulate its own opinion on same. Unfortunately the Assembly does not have the power to compel the Committee of Ministers to make a recommendation to a Contracting State; it can only urge them to do so. 5. It is with the Committee of Ministers (composed of the Foreign Ministers of each member State of the Council of Europe) that the final and most important stage lies and it is they who decide whether or not an appropriate recommendation is to be made. 7 Making such a recommendation clearly implies that the Contracting Party has failed to comply with one or more of the provisions of the Charter which it had previously undertaken to comply with. Although, as earlier pointed 5

Of the 85 Conventions and Charters drafted by the Council of Europe, the two most important and best known are the European Convention on Human Rights and the European Social Charter. However, because of the latter's framework and particularly its machinery for enforcing the obligations it has imposed on the Contracting States it could not be said to have the same individual appeal to the national members of those States. Unlike the European Convention on Human Rights there is neither an Independent Commission nor Court but most important there is no method by which an individual can bring an application to an independent body to compel his national State to abide by the provisions of die Charter. Yet "in spite of its flexibility, the European Social Charter is an international Treaty whose provisions are binding on those States which have ratified them. The provisions of Part IV of the Charter dealing with supervision of application are thus a king pin in the whole edifice of European Social Law founded upon the Charter. Supervision is arranged with the co- operation of a number of bodies; the committee of Independent Experts, with the participation of an International Labour Organization representative, the Government Committee on the Social Charter, the Consultative Assembly and the Committee of Ministers which may make any necessary recommendations to any of the Contracting Parties". 1 In order to grasp more fully the implications of the European Social Charter, it will be necessary to give at least some brief description of the functions performed by each of the above bodies. It is important to note that though the European Social Charter was signed on 16th October, 1961, it did not come into force until 26th February, 1965, as the required number of ratifications were not achieved until that date. As with the signing and ratifying of the European Convention on Human Rights, Ireland was one of the first countries to ratify the European Social Charter, thereby setting a precedent for its fellow European Countries. Bearing this point in mind it is indeed ironic that Ireland's first four biennial reports dealing with the situation of children born outside wedlock with regard to inheritance showed that we weré by far the worst country of the Contracting States in this sphere. The comments of the Independent Committee of Experts on these reports (see later in this article) were more severe than those pertaining to the reports submitted by any of the other Contracting States. Like the European Convention on Human Rights, the Committee of Ministers has a key role to play in the application of the European Social Charter.To this extent one could argue that politics enter into the application of both the Convention and the Charter, although this must -foe To a very limited extent with."regard to the former because of the independent role of the Commission and the Court. The argument is however very sustainable with regard to the European Social Charter evidenced by the fact that the Committee of Ministers have not yet made any Recommendation to a "defaulting" Contracting State despite strong views expressed by the Independent Committee of Experts 2 and the Parliamentary Assembly. 3

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out, no such recommendation has yet been made (and the Charter has been in force since the 26th February, 1965), the Committee of Ministers has had to endure very strong pressure from both the Parliamentary Assembly and the Independent Committee of Experts.' When one considers the difficulty encountered by a European (albeit Governmental) body such as the Committee of Ministers in trying to secure harmonisation in various social, legal and economic fields, without at the same time incurring the wrath of the Government of a Contracting State, their inaction can to some extent be understood but most certainly not condoned. Still, despite this inaction it cannot be denied that the Charter has produced many concrete results and it should be remembered that "the primary purpose of the Social Charter is not the indictment of the Contracting Parties but an attempt to raise the standard of living and promote the social well being of their populations". 9 The success and achievements of the Social Charter were remarked on by the Independent Committee of Experts in their conclusions to the second biennial report and they expressed satisfaction at the manner in which some laws and administrative regulations had been amended to comply with undertakings entered into in accordance with the Charter. 10 The Charter and Illegitimacy With regard to the more specific provisions of the Charter and particularly its application to illegitimate children, one should first refer to the distinction between Articles 16 and 17. Art. 17 in fact is the relevant article in this context, although one could also argue that Art. 16 covers the position of the unmarried couple living together and their child. Art. 16 is headed "The right of the family to social, legal and economic protection" and provides as follows: "With a view to ensuring the necessary conditions for the full development of the family which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means". It would seem however that the "family" in this context is one founded on the institution of marriage 11 and this is reinforced by the reference to "benefits for the newly married". Interestingly enough, the European Commission has held that the term "family life" under Art. 8 of the European Convention on Human Rights includes the relationship of both a mother to her illegitimate child 12 and that of the natural father to his illegitimate child. 13 However, at the same time, the term "family" under Art. 12 of the Convention would seem to have a more restrictive meaning and although this point has not yet been resolved by the Commission, it would appear that this article is similar to Art. 16 of the European Social Charter in that it is confined to a lawful family founded on the institution of marriage. 14 In any event, the Independent Committee of Experts have treated the subject of illegitimate children and the unmarried mother under the provisions of Art. 17. This Article is headed "The right of mothers and children to social and economic protection" and provides that, "With a view to ensuring the effective exercise of the right of mothers and children to social and economic protection, the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services". 19 6

It will be noted that there is one very important difference or rather omission in the heading of Art. 17 as opposed to that in Art. 16 (apart from the reference to "family" in the latter and the reference to "mothers and children" in the former) — namely the omission of the word "legal". Does this mean that the family under Art. 16 is entitled to social, legal and economic protection whilst the mother and child under Art. 17 are only entitled to social and economic protection? On the face of it the answer would appear to be in the affirmative and a resolution of the Committee of Ministers 16 entitled "Social Protection of Unmarried Mothers and their Children", would seem to support this argument as it refers specifically to Paragraph 17 of Part 1 and Art. 17 of Part II of the Social Charter in urging the Governments of Member States to promote and encourage help and financial assistance for single pregnant women and mothers who are on their own. The Resolution does not refer to any legal rights whatsoever which leads one to pose the following questions: (a) Did the Committee of Ministers consider that legal rights could be encompassed by the provisions of Paragraph 17 of Part 1 and Article 17 of Part II of the Charter? (b) If so, was it for political reasons that they decided not to mention those rights? They may have hoped that the "defaulting" Governments would have noted the Independent Committee of Experts Report and have taken steps to rectify the position without the necessity of their hav i ng to make a f o rmal Re s o l u t i on or Recommendation. (c) As the Committee of Ministers have not made any Resolution or Recommendation regarding the legal rights of unmarried and single mothers, does this mean that the Social Charter is not meant to embrace these rights vis-a- vis those persons? One may say that this constitutes discrimination between the family, under Art. 16, who are entitled to social, legal and economic protection and the mother and children (irrespective of marital status and family relations) under Art. 17, Part n , and Paragraph 17, Part I, who are only entitled to social and economic protection; however I doubt if this argument would hold much substance as the anti-discriminatory clause contained in the Preamble to the Charter only guards against discrimination in the enjoyment of social rights. The Committee of Experts Report relating to Ireland The Independent Committee of Experts examined the position of children born out of wedlock under Art. 17 of the Social Charter and in Ireland's case they examined, inter alia, "the general legal position of illegitimate children and protection of unmarried mothers". 17 How- ever the Sub-Committee of the Governmental Social Committee in rejecting the Independent Committee of Experts conclusions in this matter made specific reference to the exclusion of the word "legal" from Art. 17 and in fact based their argument on this point: " . . . the Committee wished to point out that Art. 17 unlike Art. 16 did not mention legal protection . . . i t . . . felt that the problems arising from family law and from the law of inheritance did not enter into the sphere of Art. 17". 1 ' The whole argument of course depends on whether or not one regards social and economic rights as being intertwined with legal rights as to be inseperable therefrom. Certainly the Preamble to the Social Charter clearly shows that it is meant to complement the human rights and fundamental freedoms set out in the European Convention on Human Rights but whether this means

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these provisions to amount to an unreasonable discrimination against children bom out of wedlock. It could not understand why such a child should have no "legal status" and it considered the limitation of the child's inheritance rights to be so restrictive as to seem almost punitive". 22 In the light of this rather forceful statement, it is curious that the Parliamentary Assembly did not deal with this point in its Opinion 23 on the third report of the application of the Charter when urging the Committee of Ministers to make a recommendation to the Irish Government (and the Governments of some of the other member States) for stricter application of certain specified articles of the Social Charter. They did however refer to the general legal position of illegitimate children in the light of Art. 17 of the Charter but without reference to any specific State. Unfortunately though, their statement in this respect is rather vague and evasive but it is still worthy of note and clearly indicates the general feeling amongst European parliamentarians on any discrimin- atory treatment of illegitimate children: "The opinion of the Governmental Committee deserves consideration but can doubtless be modified. Where the legal status of children born out of wedlock entails such obvious and substantial discrimination as manifestly to impair their economic and social situation, it might be argued justifiably that the State in question has not taken 'all appropriate and necessary measures' as required under this provision" 24 (i.e. Art. 17). The Assembly then went on to say that "it would be helpful for the Committee of Experts to clarify its standpoint on this matter". Clearly this non-committal viewpoint falls almost directly between the arguments, discussed earlier, on the corelation of social and economic rights on the one hand and legal rights on the other hand; however, at the same time, it could be said to indicate more of a leaning towards the views of the Independent Committee of Experts than towards those of die Governmental Sub- Committee which again reveals the importance of the former body. The conclusions of the Governmental Sub-Committee, like those of the Parliamentary Assembly, on the views expressed by the Independent Committee of Experts regarding illegitimate children, did not deal specifically with any one country but were couched in general terms and whilst they did not agree, as was earlier pointed out, that the subject came within the sphere of Art. 17, they did remark that "the rapid and progressive elimination of any discriminatory treatment arising from legal differences between various categories of children should be included in a Contracting Party's programme". 25 It is not known to what extent the Irish Government's programme is in conformity with that assertion, although there is evidence that further reforming legislation will be introduced along the lines of Sect. 28 of the Family Law (Maintenance of Spouses and Children) Act, 1976. However it will probably first await the report of the Law Reform Commission who are presently examining the legal position of illegitimate children. Certainly the Dail and Seanad Debates which preceded the passing of the said Act give much hope for the introduction of further and more far reaching reform. The comments, of Mr. Cooney, the then Minister for Justice, are particularly noteworthy: [The Family Law (maintenance of Spouses and Children) Act 1976] "is part of a continuing reforming process, some of which has already begun but more has to come. One of the areas in which reform has yet 7

that a clear distinction must still be drawn between the two sets of rights is very much open to argument. Mr. Voogd in his explanatory memorandum to the Social Charter states that "social rights are inseparable from civil and political rights", 19 whereas Mr. Jacobs in referring to the distinction between the United Nations Covenant on Economic Social and Cultural Life and its Covenant on Civil and Political Rights (both of which may respectively be compared with the European Social Charter and the European Convention on Human Rights) clearly distinguishes the two standards of rights: " . . . a distinction had to be drawn between two different classes of fundamental rights. Social and economic rights, although they appear in the Universal Declaration, are less universal in the sense that they constitute standards to be attained, depending on the level of economic development. They require action by Governments whereas civil and political rights often require protection against executive action". 20 Whatever stand one takes in this argument, I think it cannot be denied that the two sets of rights complement one another and this was clearly evident in our own legal system after the passing of the Social Welfare Act, 1973. This Act for the first time introduced social welfare payments for the unmarried mother and thereby complemented, if not outmoded, her then existing legal rights. Whilst the argument may continue indefinitely without the protagonists, and particularly the Independent Committee of Experts and the Governmental Sub-Committee, reaching any definite agreement, it is to be hoped that Governments will not ignore the objective and carefully considered conclusions of the body. It is indeed sad that the Irish Government would seem to have ignored most of the conclusions of the Independent Committee of Experts dealing with the situation of children born outside wedlock with regard to inheritance. After the second biennial report which covered the period 1968 and 1969, the Committee, whilst acknowledging that Ireland was developing a meaningful family policy, considered that a recommendation should be addressed by the Committee of Ministers to the Irish Government urging it to intensify and extend its laws in this area as the then existing situation revealed serious gaps and inadequacies in respect of, inter alia, the general legal position of illegitimate children and the protection of unmarried mothers. The only reforming piece of legislation introduced since then was that dealing with maintenance, 21 which in the limited area that it covered was a significant development as it equated the rights of unmarried and single mothers and their illegitimate children with those of lawfully married mothers and their legitimate children. It is surprising that further developments have not been introduced particularly when one has regard to the scathing criticism of the Independent Committee of Experts: "As to the general legal position of children bom out of wedlock, the Committee particularly observed that the second Irish report explicitly states that illegitimate children have no legal status unless and until it has been conferred on them as a result of action taken under the Adoption Acts or the Legitimacy Act, 1931. The first report also shows that under the Legitimacy Act, 1931, it is only where the mother of a child born out of wedlock dies intestate without leaving any legitimate issue surviving, that the child becomes entitled to the same interest in the mother's real and personal property as if he had been born in wedlock. The Committee considered

GAZETTE

JANUARY/FEBRUARY 1978

to be made is in regard to the illegitimate child, his rights to support, to inherit and his general legal status". 36 If this proposed legislation is not enacted in the near future, then it is to be hoped that the Parliamentary Assembly and even more so the Committee of Ministers, will play a far greater and more influential role in exerting pressure on our Government to introduce this "rapid and progressive elimination" of discriminatory treatment levied on illegitimate children. Whilst not wishing to detract from the important role the Charter has played in achieving greater social, legal and economic unity amongst the Contracting Parties, 27 it must be pointed out that it has not had the same dynamic effect which it could otherwise have had were it endowed with a more independent method of control. At present, the Charter is too much influenced by political motives which undoubtedly leads to a dampening effect on the effective exercise of its provisions. It was stated by the Council of Europe itself in an introduction to the Social Charter in 1967 that the social level of most Member countries at that time was sufficiently high for the rights proclaimed by the Charter to be respected within the jurisdictions of those countries; 2 * since it is now some eleven years since that statement was made, perhaps the time is nigh for the Committee of Ministers to adopt a more forthright role in ensuring that as many of those rights as possible are indeed respected within the territory of each of the Contracting States. Art. 17 clearly provides a base upon which to embark on this new role! This article is an extract from a paper being prepared in pursuance of a Council of Europe Fellowship for legal studies and research. However the views expressed are those of the author solely. 1. Council of Europe Doc. 3276 revised. 2. See Report of Independent Committee of Experts dealing with situation of children born outside wedlock with regard to inheritance, Doc. Exp/Ch Soc (75)7. 3. Parliamentary Assembly Opinion No. 71 (1975) Paragraph 4. 4. From an essay on the European Social Charter by M. Evans in "Fundamental Rights" a volume of essays to commemorate the 50th anniversary of the founding of the Law School in Exeter 1923-1973 (Sweet & Maxwell). 5. Art. 25(1) of the European Social Charter. 6. See Opinion No. 57(1971) Paragraph 5 & 6 of the Parliamentary Assembly which notes in most praiseworthy terms the important role played by the Independent Committee of Experts. 7. Art. 29 provides that a recommendation can only be made on a two thirds majority of those members entitled to sit on the Committee of Ministers and after consultation with the Parliamentary Assembly. 8. See 3 above. 3. See Evans at 4 above, p. 288. 10. See Appendix 1 of the Second Report of the Governmental Committee on the European Social Charter, Doc. CG/Ch Soc (72) 40 which sets out the results of the examination of the biennial Governmental Reports by the Independent Committee of Experts. Ireland is shown as having increased by 100% in "satisfied provisions" since the first biennial report. The next highest figure is Norway with an increase of 30%. 11. Contrast with Art. 41 of Bunreacht na hEireann. 12. Applications 514/59, Yearbook 3, p. 169. 13. Applications 7289/75 and 7349/76 (as yet unreported). 14. See (a) "The European Convention on Human Rights", by Francis G. Jacobs at p. 162; (b) "The Application of the European Convention on Human Rights" by J.E.S. Fawcett at p. 226; (c) "Privacy and Human Rights" ed. by A.M. Robertson. 15. This Article should be read in conjunction with Paragraph 17 of Part I of the Charter which provides that "mothers and children, irrespective of marital status and family relations, have the right to appropriate social and economic protection". 16. Resolution (70)15 adopted by the Minister's Deputies on 15th May, 1970. 17. See 2 above, p. 7. 18. Doc. CG/Ch Soc (74) 14, pp. 7-8. 19. Doc. 3276 revised, p. 4. 20. "The European Convention on Human Rights" by Francis G. Jacobs at p. 4. 8

21. Sect. 19 of the Courts Act, 1971, and Sect. 28 of the Family Law (Maintenance of Spouses and Children) Act, 1976. 22. See 2 above, p. 8. 23. No. 71(1975). 24. Explanatory Report to Opinion No. 71 (1975). 25. See 18 above, p. 8. 26. Dail Debates Vol 284 No. 1, p. 162. See also the remarks of Mr. Collins then shadow spokesman on Justice and now Minister for Justice at p. 8 of the said report. 27. It should also be noted, as was remarked upon by the Independent Committee of Experts, that the standards to be attained by the Charter are sometimes of a very high level. 28. European Social Charter booklet issued by the Directorate erf* Information of the Council of Europe.

INTERNATIONAL BAR ASSOCIATION The Section on Business Law of the International Bar Association is arranging a Seminar on "Extraterritorial Problems in Insolvency Proceedings" to be held at the Brussels Europa Hotel, Brussels, on Thursday, April 13th and Friday, April 14th, 1978. The Rt. Hon. Lord Shawcross, G.B.E. Q.C., will be in the Chair and the main speaker will be Professor Hans Hanisch of the University of Geneva. Representatives of the E.E.C. Commission will describe the European position concerning the two topics, "The Debtor's Assets Situated Abroad in Domestic Bankruptcy" and "Composition and Discharge in International Insolvency Cases", especially with regard to the Draft E.E.C. Bankruptcy Convention. In addition, lawyers from Europe and other countries will discuss the legal position under their national laws. The fee is Belgian Francs 6,000 for members of the I.B.A. and Belgian Francs 7,500 for non-members, and includes documentation, luncheon and refreshments on both days.

All enquiries should be made to: The International Bar Association, Byron House,

7-9 St. James's Street, London SW1A 1EE. Tel: (01) 930 6432/3. Telex: 8812664INBAR G

Criminal Justice (Legal Aid) (Amendment) Regulations, 1978 On February 15, 1978, the Minister for Justice made an Order entitled Criminal Justice (Legal Aid) (Amendment) Regulations, 1978, S.I. No. 33 of 1978. These Regulations, which are retrospective to 28th September, 1977, provide for changes in the fees and expenses payable to solicitors under the Criminal Legal Aid Scheme. Increased fees are prescribed in respect of hearings in the District Court and the hearing of appeals to the Circuit Court. The fees in all other cases will be related to those payable to defence counsel. Increased fees for prison visits and increased travelling expenses are also prescribed and provision is made for the payment of reasonable disbursements.

JANUARY/FEBRUARY 1978

GAZETTE

CONVEYANCING: INVESTIGATION OF TITLE TAXATION REQUISITIONS II by Roderick Buckley, Solicitor (Part I of this Article which appeared in the December, 1977, Gazette, dealt with Death Duties and Capital Acquisitions Tax.)

WEALTH TAX The Wealth Tax Act 1975 imposed an annual charge to Wealth Tax at the rate of 1% of the net market value of the taxable wealth of individuals, discretionary trusts and private non-trading companies as of 5th April 1975 and each subsequent 5th April. The Minister for Finance in his Budget Speech on 1st February 1978 has announced the abolition of Wealth Tax with effect from 5th April 1978. Wealth Tax will therefore not be payable in respect of the year 1978, and 5th April 1977 will be the last valuation date for the tax. However, so far as is known at present, requisitions regarding Wealth Tax will continue to be relevant up to 5th April, 1983, as Wealth Tax unpaid in respect of 5th April 1975, 1976 or 1977 will continue to be a charge on real property comprised in the assessable person's wealth for 6 years after the relevant valuation date. In order to decide whether Wealth Tax was payable on a property it may be necessary to consider whether the owner of the property as of 5th April 1975, 1976 or 1977 was a Discretionary Trust or Private Non-trading Company within the meaning of the Act. The definition of Discretionary Trust is contained in Section 1( 1) of the Wealth Tax Act, as amended by Section 49 of the Finance Act 1977. The definition is extremely wide and includes many trusts which would not normally be considered as Discretionary Trusts. For practical purposes it can be taken that almost every trust is deemed to be a Discretionary Trust, and where trustees appear on the title of a property on 5th April 1975, 1976 or 1977 a Certificate of Discharge from Wealth Tax should normally be obtained. The definition of a Private Non-trading Company is contained in Section 6 of the Wealth Tax Act, as amended by Section 50 of the Finance Act 1977. A company will be a Private Non-trading company if and only if it satisfies all of the following criteria: (i) The number of shareholders (excluding employees who are not directors of the company and any shareholder who is such as nominee of a beneficial owner of shares) is not more than 50; (ii) It has not issued any of its shares as a result of a public invitation to subscribe for shares; (iii) It is under the control of not more than five persons (an individual, his relatives, nominees and partners being all deemed to be a single person); (iv) Its income in the twelve months preceding the valuation date consisted wholly or mainly of investment income, i.e., income which if the company were an individual would not be earned income within the meaning of Section 2 of the Income Tax Act 1967; (v) Its property on the relevant valuation date consisted wholly or mainly of property fromwhich that investment income is derived. A body corporate which would otherwise be a Private Non-trading Company is deemed not to be a Private Non- trading Company if either

(a) It is under the control of a body corporate which is not a Private Non-trading Company or (b) the market value of the company's property on the relevant valuation date is represented as to not less than 90% thereof by the market value of shares in or debentures of a body corporate which is not a Private Non-trading Company and of which the first body corporate has control. This latter provision applies only in respect of the 1977 valuation date. Most Irish companies other than those quoted on the Stock Exchange will fulfil the first three requirements for a Private Non-trading Company. In order to determine whether the company is liable to Wealth Tax it is then necessary to look at whether most of its income in the twelve months preceding the valuation date, was unearned, for example, dividends or rent, and whether its property on that valuation date consisted mainly of property producing that unearned income. This latter requirement is included so as to provide exemption in respect of a company which is primarily a trading company and whose assets consist mainly of trading assets but which in a particular year makes little or no trading profit and might otherwise be deemed to be a Private Non-trading Company if it was in receipt of a small amount of unearned income. The exemption in favour of companies under the control of a body corporate which is not a Private Non trading Company is intended to exempt investment subsidiaries of publicly quoted companies or of other companies that are not Private Non-trading Companies. Some companies which are essentially trading operations find it convenient to have the trade carried on by an Operating Subsidiary, all of whose shares are owned by a holding company. If the Operating Subsidiary were to pay a dividend to the holding company and if the various other requirements outlined above were fulfilled, then the holding company would be liable to Wealth Tax as a Private Non-trading Company. The exemption at (b) above is intended to favour such a company. Property situated in Ireland is liable to Wealth Tax, regardless of the residence or domicile of the individual, Discretionary Trust or Private Non-trading Company owning the property. The only circumstance in which property in Ireland is not liable to Wealth Tax is if it is owned by an entity other than an individual, Discretionary Trust or Private Non-trading Company, for example, if it is owned by a publicly quoted company or by a company whose income in the twelve months preceding the relevant valuation date derived mainly from trading. Section 19 (1) of the Wealth Tax Act provides that tax due in respect of the taxable wealth of an assessable person shall "be and remain a charge on any real property comprised in the taxable wealth of the person." Unlike the corresponding provisions for death duties and Capital Acquisitions Tax, Section 19(1) does not restrict the charge on any particular item of real property to the Wealth Tax payable in respect of that particular property. The entire unpaid Wealth Tax of an assessable person is 9