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The problem of deprivation of liberty as a vindication of rights

This presentation explores conflicts of constitutional rights, the detention of children and adults as vindications of welfare, non-detention vindication of welfare rights, and the nature of constitutional welfare rights.

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The problem of deprivation of liberty as a vindication of rights

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  1. The problem of deprivation of liberty as a vindication of rights Alan D.P. Brady TCD Law School The Constitution at 80 University of Limerick 11 November 2017

  2. Overview • Conflicts of constitutional rights • Detention of children as vindication of welfare • Detention of adults as vindication of welfare • Non- detention vindication of welfare rights • The character of constitutional welfare rights

  3. Conflicts of constitutional rights • People (DPP) v Shaw (1982) • Attorney General v X (1992) • Rights come into conflict • Harmonise if possible • Establish priority if not possible

  4. Detention of children as vindication of welfare • DG v Eastern Health Board (1997) • Child’s rights could not all be vindicated • Liberty gave way to welfare rights (G v An BordUchtála(1980) • Conflict of rights in one person • Concerned penal institution, not therapeutic detention (FN v Min Ed (1995) • DG v Ireland (2002) – Art 5

  5. Detention of adults as vindication of welfare • Inherent jurisdiction detention • HSE v JO’B (2011); HSE v VF (2014); HSE v JB (2015) • Vindicating rights – no capacity • On application of the State • Mental Health Act 2001 – HSE v MX (2011) • Wardship detention – Re D (1987); Re FD (No 2) (2015); Re AM (2017) • S.9 Courts (Supp Prov) Act 1961 • Vindication of the person

  6. Non- detention vindication of welfare rights • If vindication of welfare rights can require detention, what else can it require? • PMcD v Gov X Prison (2015) • Possibility of vulnerable persons jurisdiction • TD v Min Ed (2001) • Mandatory order and Policy • VQ v Judge Horgan (2016) • TD not applicable to s.47 Child Care Act 1991 • Statutory powers? – Wardship

  7. The character of constitutional welfare rights • Positive obligation – detention and treatment • Positive obligation – treatment only? • Hohfeld – claim-right vs liberty/privilege • Not a liberty/privilege if can require detention • Claim-right – duty • All detention applications moved by the State • Vindication of welfare rights on person’s application? • If not, are these rights at all?

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