EUROPEAN COMMISSION Brussels, 30.9.2020 SWD(2020) 306 final COMMISSION STAFF WORKING DOCUMENT 2020 Rule of Law Report

Country Chapter on the rule of law situation in Ireland Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2020 Rule of Law Report











The rule of law situation in the European Union {COM(2020) 580 final} - {SWD(2020) 300 final} - {SWD(2020) 301 final} - {SWD(2020) 302 final} - {SWD(2020) 303 final} - {SWD(2020) 304 final} - {SWD(2020) 305 final} - {SWD(2020) 307 final} - {SWD(2020) 308 final} - {SWD(2020) 309 final} - {SWD(2020) 310 final} - {SWD(2020) 311 final} - {SWD(2020) 312 final} - {SWD(2020) 313 final} - {SWD(2020) 314 final} - {SWD(2020) 315 final} - {SWD(2020) 316 final} - {SWD(2020) 317 final} - {SWD(2020) 318 final} - {SWD(2020) 319 final} - {SWD(2020) 320 final} - {SWD(2020) 321 final} - {SWD(2020) 322 final} - {SWD(2020) 323 final} - {SWD(2020) 324 final} - {SWD(2020) 325 final} - {SWD(2020) 326 final}



Abstract A number of reforms of the justice system were carried out in 2019 or are under preparation. In particular, an independent Judicial Council was established at the end of 2019. While the perception of judicial independence is already high, the Council will contribute to further promoting judicial independence from the executive and legislative powers. Its Judicial Conduct Committee will be in charge of disciplinary proceedings, while the final decision on dismissal of judges remains a prerogative of the Oireachtas (Parliament). A planned reform aims at amending the system for judicial appointment and promotion. It is important that this reform safeguard judicial independence, taking into account the Council of Europe recommendations. A working group is to consider the number and type of judges required to ensure the efficient administration of justice over the next five years. The ongoing review of civil justice could provide an opportunity to improve access to justice in particular through the legal aid system. Digitalisation and the resources of the justice system, including the number of judges, remain a challenge. Ireland has carried out several reforms aiming at strengthening the fight against corruption, in particular through the Criminal Justice (Corruption Offences) Act of 2018. The Criminal Justice Act included several offences relating to corruption. However, it contains a dual criminality provision, which may limit the scope for prosecuting foreign bribery. Ireland has in place a legal and institutional framework on asset declarations and interests, and codes of conduct and tax clearance obligations, which is currently under review. The Public Sector Standards Bill 2015 lapsed with the dissolution of the Dáíl (lower House of the Parliament) in January 2020. The Programme of the new Government contains a commitment to reform and consolidate the Ethics in Public Office legislation. Ireland’s defamation laws raise concerns as regards the ability of the press to expose corruption. A comprehensive review of Ireland’s anti-corruption framework is currently being carried out, and a review of defamation legislation is currently being finalised. Regarding media pluralism, constitutional guarantees and solid regulatory structures operate within a political culture that avoids intervention in editorial content of media outlets and prevents conflicts of interests in terms of media ownership. The media regulator took steps to update and publish information on media ownership on an annual basis. Freedom of expression and the right to access official information, are well established principles. The frequent use and high costs of defamation cases raise concerns. An independent private scheme established and funded by the print media, consisting of the Press Council and the Press Ombudsman, ensures handling of press complaints, on the basis of a Code of Conduct. As regards checks and balances, there is an established practice of consultation on draft legislation by the Government and Parliament, and of ex-ante impact assessments. The scrutiny over private Members' bills that pass a certain stage of the legislative process is similarly developed. The independent Irish Human Rights and Equality Commission is well equipped to carry out its functions. While the space for civil society organisations in Ireland is generally considered open, concerns have been raised by civil society organisations as regards constraints on civil society actions in relation to the impact of the current interpretation of the Electoral Act, which imposes restrictions on funding possibilities for civil society organisations.

I. Justice System Ireland is a common law jurisdiction, whose judiciary is divided into a civil and a criminal branch. The court system comprises a court of final appeal (the Supreme Court), a Court of Appeal, and courts of first instance which include a High Court with full jurisdiction in all criminal and civil matters and courts of limited jurisdiction: the Circuit Court and the District Court organised on a regional basis. Two Special Criminal Courts deal with criminal cases about paramilitary, subversive and organised crimes. Moreover, a number of specialised tribunals operate in different areas including workplace relations . Since December, 2019, all holders of judicial office are members of a newly established Judicial Council. Judicial appointments are made by the President of Ireland, acting on the advice of the Government. The Judicial Appointments Advisory Board is tasked with the selection of suitable candidates for appointment. The prosecution service is not part of the judicial branch. The Director of Public Prosecutions independently enforces the criminal law in the courts. The conduct of trials on indictment is handled by barristers who are nominated by the Director on a case-by-case basis and prosecute in accordance with the Director’s instructions. The Attorney General is the legal adviser to the Government. The legal profession has two types of lawyers – solicitors, represented by the Law Society, and barristers, represented by the Bar of Ireland. The Legal Services Regulatory Authority, an independent body established in 2016, is Ireland’s national statutory regulator for both branches of the legal profession. Independence An independent Judicial Council tasked with safeguarding judicial independence was established at the end of 2019. A lengthy reform process had led to the establishment of Ireland’s first permanent council for the judiciary. Its main functions under the Judicial Council Act are to consider complaints in relation to judicial misconduct, to ensure the continuous education and training of judges and to draft guidelines on certain issues including personal injuries’ damages. For these purposes, the Council has established a number of Committees including a Judicial Conduct Committee, a Judicial Studies Committee, a Personal Injuries Committee, and a Sentencing Guidelines Committee. The Council is composed of all serving members of the judiciary (around 160 judges), with a board consisting of 11 judges: five ex-officio members (the Chief Justice and four court presidents), five judges elected by their peers and one judge co-opted by the other members of the board. The establishment of the Judicial Council could contribute to ensuring the independence and quality of the justice system, in line with the Group of States against Corruption (‘GRECO’) recommendations . The perceived independence of courts and judges among the general public and among companies is high. The level of independence of courts and judges is perceived as ‘fairly or very good’ by 74% of the general population and by 76% of companies . This high level of perceived judicial independence has been consistent over the last years. A planned reform aims at reorganising the system for judicial appointments and promotion. Discussions on this reform have been ongoing for a number of years. In 2017, the Government submitted to Parliament a draft law on this matter, which lapsed with the end of the previous parliamentary term. In the current system, for first-time judicial appointments, the Judicial Appointments Advisory Board (JAAB) recommends to the Minister for Justice and Equality at least seven candidates for each vacancy. The candidates on the list are not ranked in order of priority and the Government is not bound to select from the list only. Promotions of judges are made by the President of Ireland on the advice of the Government and are not subject to the procedure conducted by the JAAB. Concerns were raised by GRECO as regards the wide discretion left to the executive power. The draft law on the Judicial Appointments Commission provided for the setting up of a new judicial appointments commission that would include a non-judicial chairperson, and a majority of lay members. The draft law aimed at restricting the number of proposed candidates to a maximum of three, ranked in the order of the Commission’s preference, for each judicial vacancy. The draft also proposed that all judicial appointments be subject to this procedure (as distinct from the current process which only deals with first-time judicial appointments). These draft provisions could limit political discretion in judicial appointments. However, the envisaged composition of the new commission raised concerns, as it foresaw a majority of lay members. The Programme of the new Irish Government formed in June 2020 contains a commitment to enact the Judicial Appointments Commission Bill within the first six months of its mandate. The Government has committed to engage with stakeholders to make appropriate amendments to the current draft law, to ensure that it enjoys broad support. Such amendments would include ensuring that the Chief Justice is the ex-officio chairperson of the body. It is important that this reform take into account Council of Europe recommendations relating to the composition of the authority taking decisions on the selection and career of judges and its role in the appointment procedure. A new body in charge of disciplinary proceedings against judges has been established, improving accountability of judges. The Judicial Council has established a Judicial Conduct Committee to consider complaints in relation to judicial misconduct, preparing draft guidelines on judicial conduct and ethics for adoption by the Council. Furthermore, the Committee provides advice and recommendations on judicial conduct and ethics. The Committee is composed of the five court presidents as ex-officio members, three judges chosen by their peers, and five lay members appointed by the Government from those recommended by the Public Appointments Service. Prior to this reform, the only disciplinary sanction applicable to judges was the removal from office upon resolutions of both houses of Parliament for cases of ‘stated misbehaviour or incapacity’. However, such a sanction has never been applied. The reform of the disciplinary sanctions regime could lead to improve the accountability of judges; it should preserve judicial independence in line with EU law and taking into account Council of Europe recommendations. Removal from judicial office on disciplinary grounds remains one of the possible sanctions. Where such a sanction is envisaged, the Judicial Conduct Committee will be in charge of making a referral to the Minister for Justice and Equality to bring motions to the houses of Parliament seeking the removal of the judge. Parliament remains in charge of deciding the removal from office of judges and retains its margin of discretion in that regard, which could raise concerns about the politicisation of the process. Finally, the scope of judicial review available in cases of disciplinary sanctions or removal from office is limited to the lawfulness of the procedure only, without a possibility to challenge its substance. The newly established Personal Injuries Guidelines Committee is in charge of compiling general guidelines as to the level of damages that may be awarded by courts. The establishment of this Committee follows a recommendation contained in the Report of the Personal Injuries Commission and aims at promoting consistency in the level of damages. Moreover, the Sentencing Guidelines and Information Committee is tasked with the drafting of sentencing guidelines. While the guidelines are non-binding, the Judicial Council Act requires a court to have regard to these guidelines and to state the reasons for any departure from such guidelines. This provision allows to assess the extent to which the guidelines are being followed and could be used by the appellate courts in determining whether or not the reasons given for the departure are justified. In the implementation of such guidelines due regard should be given to the respect of judicial independence not only from undue influences outside the judiciary, but also from within. Quality The justice system budget and the number of judges remain below EU average. While the budget per capita for the justice system, which was EUR 55.7 in 2018, has constantly increased in the last years, the budget as a percentage of GDP has stagnated. Moreover, a new Courts Act increased the maximum number of ordinary judges of the Court of Appeal from 9 to 15. However, according to 2018 data, the number of judges in Ireland was 160, the lowest number per capita in the EU. The Programme for Government announced in June 2020 includes a commitment to establish a working group to consider the number of and type of judges required to ensure the efficient administration of justice over the next five years. A Review Group has been established to assess the administration of civil justice, with a view to inter alia improve access to justice and reducing the cost of litigation. The Review Group will report and make recommendations to the Minister for Justice and Equality later in 2020. These review could address the concerns raised as regards the resources available for the civil legal aid system and the time needed for the Legal Aid Board to assess eligibility for civil legal aid. Moreover, proceedings before tribunals (e.g. for claims before the Workplace Relations Commission and the Labour Court) are excluded from legal aid, except for the purposes of asylum cases. This was raised as a concern by the Irish Human Rights and Equality Commission in 2019. The Review Group will also look at possible ways to encourage the alternative methods of dispute resolution, which could improve the incentives to use alternative dispute resolution methods for which Ireland currently performs very low. Based on the Review Group Report, the Programme for Government includes a commitment to implement reforms to the administration of civil justice covering matters such as the more efficient and effective deployment of court and judicial resources. Moreover, work on the preparation of a new Criminal Justice (Legal Aid) Bill is at an advanced stage. The purpose of the new legislation is to update and strengthen the system of granting criminal legal aid, including transferring responsibility for the administration of the Scheme from the Department of Justice and Equality to the Legal Aid Board. The Legal Services Regulatory Authority is taking measures to tackle remaining barriers in the legal services market. Since the adoption of the Legal Services Regulation Act 2015, restrictions remain in place in the provision of legal services, hampering competition and thus increasing legal costs. In 2019, the Legal Services Regulatory Authority introduced a new business model framework for Limited Liability Partnerships. A new framework for Legal Partnerships, which can include barrister-barrister partnerships and barrister-solicitor partnerships, is scheduled to be introduced in 2020. A new provision inserted into the Legal Services Regulation Act in 2019 strengthens requirements for solicitors to keep clients updated with accurate information in respect of legal costs. The Authority will also be revisiting the subject of multi-disciplinary practices (involving legal practitioners and other professions) and has opened a public consultation in relation to the possible unification of the professions of barristers and solicitors. Work is ongoing on the digitalisation of the justice system. Ireland scores below EU average on the availability of electronic means, information and communications technology for case management and court activity statistics. The Courts Service has developed a strategic document with the objective of delivering digitalisation and supporting the judiciary in the process. This approach seeks to minimise the number of cases that need to be dealt with by the courts system, requiring attendance at hearings only where necessary, holding and managing hearings and case information digitally, as well as adopting a digital model for the filing of court documents. The Courts Service Online (CSOL) project aims to deliver a single civil case management system to provide a common platform for the civil processes of all jurisdictions. The new system incorporates the facility to make applications and payments online, collect orders and file certain documents electronically. Areas of work benefitting from the new platform include insolvency and small claims, and the procedures in front of the Supreme Court and the Court of Appeal. In 2019, CSOL was further extended to facilitate e-filing of applications to the Office of the Legal Costs Adjudicator. The ongoing review of the civil justice system also looks at reviewing the use of electronic methods of communications, including e-litigation and the extent to which pleadings, submissions and other court documents should be accessible online. Measures have been taken to facilitate the continued operations of courts during the COVID-19 pandemic. In particular, a programme to facilitate remote hearings commenced in April 2020 and the number of virtual hearing sessions has since increased steadily. In addition, the Supreme Court and the Court of Appeal have made extensive use of virtual hearings in appeal cases. As regards criminal proceedings, there has been a raise in remote applications in criminal matters. Remote hearings are increasingly used for remand hearings, bail applications and adjournments where the accused is in custody. A new Act of August 2020 allows for the increased use of remote hearings in civil matters and in criminal appeals. It also extends the possibility of electronic filing and transmissions in civil matters, and the possibility of holding remote meetings. Minor offences continue to be tried in the District Court, albeit with reduced capacity in the courthouses. Priority is given to cases where the accused is in custody. The Courts Service has also prepared a public information video on visiting courts service premises during the period of COVID-19 restrictions.

Efficiency The ongoing review of the civil justice system looks at improving procedures and practices to ensure timely hearings. The average length of proceedings at first instance in the High Court and Circuit Court was around 750 days in 2018, with an increase of around 70 days from 2017 for the Circuit Court. The average length of proceedings in the High Court which hears commercial cases at first instance had increased from 287 days in 2017 to 321 in 2018, while the length of personal injuries cases was around 980 days in 2018. The Government has also pledged to reconsider the number of and type of judges required to ensure timely hearings, in order to address certain efficiency challenges. The criminal trial procedure is in course of revision. A revision of the general scheme of the Criminal Procedure Bill was approved by the Government in June 2015, but the publication of the Bill itself has since been deferred on several occasions. The main purpose of this legislation would be to provide greater efficiency and fairness in the trial process and to reduce delays in the criminal justice system generally. Insofar as possible, all contentious matters concerning the process of the trial and the evidence to be admitted would be settled before starting the process in front of the jury and reducing the likelihood of unnecessary interruptions of the trial for legal argument. This could also benefit the fight against corruption. A compensation scheme for cases of excessive length of court proceedings is still lacking. Legislation establishing a compensation scheme to award damages in the event of protracted court proceedings is required by a European Court of Human Rights (‘ECtHR’) judgment but remains to be tabled in Parliament. The Government approved the draft Bill that provided for a compensation mechanism in the form of a non-court-based remedy. In May 2019, the Parliament Joint Committee on Justice and Equality welcomed the attempt to establish the remedy, but expressed doubts that the non-court based model was the most efficient means to do so. The execution of ECtHR judgement is under enhanced supervision by the Council of Europe’s Committee of Ministers. II.Anti-Corruption Framework The competences and responsibilities for the development and implementation of anti-corruption policies as well as to preventing, detecting, investigating and prosecuting corruption are shared between several authorities. The investigation of corruption offences is the responsibility of the Garda National Economic Crime Bureau, which has set up a specialised Anti-Corruption Unit. The Public Sector Standards Bill 2015 lapsed with the dissolution of the Dáíl (lower House of the Irish Parliament) in January 2020. The Programme of the new Government contains a commitment to reform and consolidate the Ethics in Public Office legislation. The Standards in Public Office Commission (SIPO) is responsible for enforcing the Electoral Acts, the Ethics Acts and the Regulation of Lobbying Act 2015. A comprehensive review of Ireland’s anti-corruption framework is currently under way. The Government announced in its recent Programme to tackle corruption as a result of a comprehensive review of the anti-corruption framework and increase the effectiveness of anti-corruption measures. In the 2019 Corruption Perceptions Index of Transparency International, Ireland scored 74/100 and ranked 8th in the EU and 18th globally. 68% of Irish respondents to the most recent Eurobarometer survey think that corruption is widespread in their country (EU average: 71%), and 25% of people feel personally affected by corruption in their daily lives (EU average: 28%). As regards businesses, 33% of companies consider corruption to be widespread (EU average: 63%). 11% of companies consider that corruption is a problem when doing business (EU average: 37%). 35% of people find that there are enough successful prosecutions to deter people from corrupt practices (EU average: 36%) while 26% of companies believe that people and businesses caught for bribing a senior official are appropriately punished (EU average: 31%) . The legal and institutional framework for fighting corruption has seen some important modifications recently. The most recent revision concerns the Criminal Justice (Corruption Offences) Act , which was signed into law on 5 June 2018 and commenced operation on 30 July 2018. The Act repealed and replaced previous anti-corruption legislation, while also introducing new offences and higher penalties for corruption offences. Following recommendations issued by the Mahon tribunal of inquiry, new offences have been introduced by the Act, such as making payments to a third party whilst being aware that those payments will be used for a bribe. It also includes extensions to the presumptions of corruption, which had been included in the Prevention of Corruption Amendment Act 2001. Corporate criminal liability has been introduced in the revised legislation in 2018, and a track record is still to be established. The criminal procedure legislation has also been revised (see Justice Section). To be noted that the Government announced in June 2020 that a revision of the Criminal Justice (Corruption Offences) Act 2018 is further envisaged in order to increase the efficiency of the white-collar crime prosecution. The competences and responsibilities for the development and implementation of anti-corruption policies as well as for preventing, detecting, investigating and prosecuting corruption are shared between several authorities in Ireland. An Garda Síochána (Police) has the responsibility for carrying out all policing duties in the Irish State, including the criminal investigations in the fight against corruption. An Garda Síochána also has members on secondment to external agencies to support and co-ordinate the investigation of financial crime, including the office of the Director of Corporate Enforcement, the Competition and Consumer Protection Commission, and the Department of Employment Affairs and Social Protection. The investigation of corruption offences is the responsibility of Ireland’s national police service, An Garda Síochána. The Garda National Economic Crime Bureau (GNECB), has set up a specialised Anti-Corruption Unit which has exclusive responsibility for the investigation of foreign bribery and corruption and for the investigation of domestic bribery and corruption of national importance. The Anti-Corruption Unit acts as a centre of excellence for the investigation, prevention and disruption of bribery and corruption, and in this regard the unit provides assistance to other national and local units, when required. The Unit was established to act as organisational lead for the investigation of corruption and bribery. Its operational scope includes prevention, detection, disruption and investigation of cases of bribery and corruption. The Unit proactively seeks out cases and gathers bribery and corruption related intelligence. In relation to the overall resources dedicated to fighting corruption, the Anti-corruption Unit within GNECB is currently operating at limited capacity, with only three out of six positions filled. Following completion of corruption investigations by An Garda Síochána, a file is submitted to the office of the Director of Public Prosecutions, unless the investigation was discontinued due to insufficient evidence. Corruption investigations conducted by the GNECB are supported by relevant national operational units, such as the Financial Intelligence Unit and, regarding the seizure of assets deemed to be the proceeds of crime, the Criminal Assets Bureau, which is an independent multi-agency body. Upon completion, all corruption investigations conducted by An Garda Síochána are referred to the office of the Director of Public Prosecutions (DPP). The DPP has no investigative functions but cooperates regularly with An Garda Síochána and other investigating agencies during the course of criminal investigations, particularly in providing relevant legal and prosecutorial advice. There are also a number of complex corruption investigations where a file will be submitted for legal guidance to the DPP, usually to the Special Financial Crime Unit before the investigation is completed. In June 2019, the Garda Inspectorate began a review into how the Gardaí tackle corruption within their own ranks. An assessment of the anti-corruption structures and procedures in criminal law enforcement is ongoing. In 2018, the Minister for Justice and Equality appointed a former DPP and anti-corruption expert, to chair the review into whether the various State bodies involved in anti-corruption measures are cooperating effectively, with a view to identifying any gaps or impediments. The Review Group is due to present its findings later in autumn 2020. The Government announced in its Programme adopted in June 2020 to tackle corruption and follow-up the review and increase the effectiveness of anticorruption measures. Some high-level corruption cases have been dealt with by Tribunals of Inquiry. Such procedures are generally very lengthy and, in some cases courts, considered the evidence as inadmissible. Tribunals have been labelled ‘a lengthy, expensive but unsatisfactory means of exposing corruption’ by Transparency International Ireland. There have been 10 tribunals since 1991. The Moriarty Tribunal into payments to politicians and the Mahon Tribunal into planning matters, ran for fourteen and sixteen years, respectively. Prevention of corruption and promotion of integrity measures are in place. These are set out in a number of pieces of legislation, including the Ethics Acts and the Regulation of Lobbying Act 2015. The Regulation of Lobbying Act has made it mandatory to make information on lobbying activities and outreach to public officials publicly available on a web-based Register of Lobbying. Established under the Ethics Acts, SIPO is an independent supervisory authority with a number of responsibilities in preventing corruption and conflicts of interest. Inter alia, it is tasked with the administration of the ethics frameworks for the public sector and with lobbying regulation. Under the Regulation of Lobbying Act, SIPO can to investigate non-compliance, and prosecute other contraventions on a summary basis, such as failure to submit a return by the statutory deadline. The part of the Act, which provides for investigation and enforcement provisions entered into force on 1 January 2017. The Register of Lobbying is overseen by SIPO. General rules and procedures concerning conflicts of interest are set out in the Ethics Acts. SIPO publishes guidelines on compliance with the provisions of these Acts. Furthermore, SIPO is responsible for managing the disclosure of interests and tax clearance regimes, as well as for investigating and reporting on possible contraventions of the Ethics legislation. These SIPO functions relate to office holders (including Ministers and Ministers of State), the Attorney General, special advisers and holders of designated directorships and occupiers of designated positions in the public sector. The Protected Disclosures Act, which establishes a comprehensive legal framework for the protection of whistle-blowers and protection against reprisals, is in place since 2014. Transparency International reports that while the enactment of whistleblowing legislation in 2014 was followed by an increase of 115% in persons demanding specialist legal advice or guidance since 2011, some issues remain regarding follow-up action. Results from a Eurobarometer survey show that 32% respondents think that there is no protection for those who report corruption. The investigation and monitoring of ethics compliance faces some legislative and structural obstacles. The Ethics Acts allow SIPO to appoint an inquiry officer to do a preliminary inquiry following a complaint, which may avert reputational damage when the allegations turn out to be without foundation. However, when SIPO launches an own-initiative inquiry, it cannot appoint an inquiry officer. This has the practical impact that the threshold to launch a full investigation on its own initiative is quite high. Furthermore, a full investigation hearing may only proceed when all six members of SIPO are present, while the rest of SIPO’s work can be pursued with a quorum of three members. Resources are also rather limited in view of the wide remit of competence of SIPO. III.Media Pluralism The Irish Constitution names the State as guarantor for the exercise fundamental rights, amongst them freedom of expression and freedom of the press, subject to public order and morality. The Broadcasting Authority of Ireland was established by the Broadcasting Act of 2009. Access to information is covered by the Freedom of Information Acts of 1997, 2003 and 2014, and protection to whistle-blowers is provided by the Protected Disclosures Act of 2014. A consultation on the review of the Irish defamation law took place in late 2016 and the Government taking office in 2020 has pledged reforms in this area. The regulator for audiovisual media services, the Broadcasting Authority of Ireland (BAI) is considered to be effective, transparent and independent. The Broadcasting Act of 2009 contains a number of provisions seeking to ensure that the BAI is legally distinct from the government and functionally independent of government and any other body. Its independence was assessed to be at very low risk by the Media Pluralism Monitor Report on Ireland in 2018-2019 (MPM 2020). The BAI is comprised of nine members. Five members, including the Chairperson, are appointed by the Government following nomination by the Minister for Communications, and four members are appointed by the Government following nomination by the same Minister, but having regard to the advice of a parliamentary committee. The Act sets a high threshold for the removal of a member of BAI by the Government, requiring that ‘resolutions are passed by each House of Parliament calling for his or her removal’. In January 2020, the Minister for Communications introduced a draft Online Safety and Media Regulation Bill in order to transpose parts of the revised AVMSD. The new Governement’s programme envisages to enact the Bill. The revised Audiovisual Media Services Directive (AVMSD) sets out a range of specific guarantees for the independence and effectiveness of national media regulators. Ireland is currently in the process of transposing the revised AVMSD. The new Bill also creates an Online Safety Commissioner and reconfigures the existing BAI into a Media Commission with the responsibility for the entire audiovisual sector (broadcasting, on-demand audiovisual services and online platforms, including social media). The Press Council of Ireland (PCI) and the Office of the Press Ombudsman (PO) consider press complaints. They cover newspapers (print and online), magazines and online-only news publications that are members of the Press Council. The PCI has 13 members. Seven, including the Chair, are independent members appointed following a public competition. The remaining six members are drawn from the press industry. The PCI appoints the PO following a public competition. The PO receives complaints from members of the public and seeks to resolve them by conciliation or mediation. If not possible, the PO will make a decision based on the Code of Practice. The PCI decides on appeals from decisions of the PO and on complaints referred to it directly by the PO.

In 2019 the BAI concluded a contract with Dublin City University to update and publish annually the information on ownership and control arrangements and changes thereto. Irish company law does not require any company, media-related or otherwise, to disclose publicly who holds the beneficial interest in its shares. As regards BAI-licenced radio and television media outlets, the public may consult – at the BAI offices – any contracts signed by the BAI, which include information relating to media companies’ ownership structures. Furthermore, the 2014 Competition and Consumer Protection Act states that in the case of media mergers or acquisitions, the undertakings involved must notify the Minister for Communications of details relating to the ownership of those undertakings. The Act also requires the BAI to prepare and publish a report describing the ownership and control arrangements for undertakings operating a media business in Ireland. Furthermore, the report sets out changes to ownership and control arrangements of such undertakings over the previous three years and provides an analysis of the effects of such changes on media pluralism in Ireland. Two such reports have already been produced: one covering the period of 2012-2014 and the other covering 2015-2017. The revised AVMSD encourages Member States to adopt legislative measures providing that media service providers under their jurisdiction make accessible information concerning their ownership structure, including the beneficial owners. The MPM 2020 Report for Ireland deems transparency of media ownership to be at medium risk, slightly improving from previous assessments due to changes following the transposition of the EU’s Anti-Money-Laundering Directive (November 2018) and the abovementioned Competition and Consumer Protection Act. There are no specific rules on state advertising in media. The MPM 2017 Report for Ireland raised the issue of the lack of specific rules other than standard procurement provisions, concerning the placement of state advertising in media. The legal framework remains the same. Nevertheless, it appears that the only noteworthy issue reported since then was the controversy over local and regional newspapers being asked to publish content promoting a government development plan ‘Ireland 2040’ in a manner that seemed to blur the boundary between editorial and advertising content. The Irish Government has taken a number of measures to ensure that journalistic investigations do not lead to intimidation and reprisals. While Ireland does not have any specific national mechanism aimed at ensuring the safety of journalists, the framework for the protection of journalists appears to be robust. For example, the Protected Disclosures Act 2014 protects workers who speak up about wrongdoings in the workplace. No alerts have been posted in relation to Ireland on the Council of Europe platform to promote the protection of journalism and safety of journalists, since its establishement in 2015. The new Government has pledged to reform the defamation laws. The objective would be to ensure a balanced approach to freedom of expression, the right to protection of good name and reputation, and the right of access to justice. Frequent defamation suits, high costs of defence and high damages awarded by Irish courts are seen as an inducement to self-censorship and a constraint to media freedom, also to the detriment of the fight against corruption. A consultation on the review of the Irish defamation law took place in late 2016 and early 2017, and is currently being finalised with a view to reforming legislation early in 2021 . In 2017, the European Court of Human Rights held, in the context of a EUR 1.25 million award in a defamation case in Ireland, that unpredictably large awards of damages in defamation cases are considered capable, in principle, of having a chilling effect on media’s right to freedom of expression and therefore require particularly careful scrutiny. The case was brought and decided under the Defamation Act 1961. Access to information is overall ensured. The Freedom of Information Acts of 1997, 2003 and 2014 oblige government Departments and other public bodies to publish information on their activities and to make information they hold available to citizens. Compliance with the Act is generally good. The imposition of a fee for freedom of information requests in 2003 diminished the number of requests, but the fee was removed following the 2014 Act. IV.Other Institutional Issues related to Checks and Balances Ireland has a bicameral parliamentary system: Parliament (Oireachtas) comprises a Lower House (Dáil Éireann), and an Upper House (Seanad Éireann). Government Ministers and members of Parliament have the right of legislative initiative. The Constitution states that the Government must answer to the Lower House. Constitutional review is carried out by the High Court with a right of appeal to the Court of Appeal and the Supreme Court. The President may, after consultation with the Council of State, refer a Bill to the Supreme Court for constitutional review. The Irish Human Rights and Equality Commission is Ireland’s national human rights and equality institution. A practice of consultation process of draft Bills and Laws exists. Parliament is not required to hold public consultations when it considers draft legislation, although it regularly chooses to do so, either by a general call for submissions or by engaging with the most relevant stakeholders. Moreover, before the Government publishes a Bill, there is usually a consultation process. The relevant Department may publish a Green Paper setting out the Government’s ideas and inviting opinions from individuals and organisations. Before a Bill is finalised, a general scheme of the Bill may be published. The general scheme of a Government Bill undergoes scrutiny by a parliamentary Committee before the text of the Bill is finalised. The relevant Committee may invite stakeholders to participate by attending meetings to discuss the general scheme of the Bill. At the end of the pre-legislative scrutiny, the Committee produces a report and lays it before the Houses of Parliament. The report makes recommendations on the Bill based on the Committee’s scrutiny. Documents laid before the Houses of Parliament are available to the public online. Private Members’ Bills undergo a similar process of scrutiny by a parliamentary Committee only if they pass the second stage in the Lower House. Policy briefings of the research service of the Parliament include an appraisal of the ex-ante impact assessment prepared by the Government. The research service also prepares policy analysis in relation to private Members’ bills. Legislative measures to tackle the COVID-19 pandemic were adopted via normal legislative procedure, with a focused discussion. These legislative measures include the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020 and the Emergency Measures in the Public Interest (COVID-19) Bill 2020, which grant the Minister for Health extensive powers to restrict the freedom of all individuals in order to prevent the further spread of COVID-19 in Ireland. The emergency powers remain in operation until 9 November 2020, when they will cease to have effect unless a resolution is passed by both Houses of Parliament to approve the continuation of the measures. The High Court has dismissed a challenge against these laws which claimed them to be disproportionate and unconstitutional. The so-called guillotine motions were used on both Acts. Guillotines are used in cases of some urgency where the Houses decide to shorten the time allocated to table amendments, debate a Bill and vote on all remaining stages. In 2019, there were two guillotine questions used out of a total of 53 Acts/Bills enacted that year. Moreover, emergency procedures exist, but have not been used in recent times. The Irish Human Rights and Equality Commission is accredited with ‘A’ status. In its recommendations, the UN Global Alliance of National Human Rights Institutions encouraged the Human Rights and Equality Commission to advocate for adequate funding while safeguarding its financial independence. Ireland has a vibrant and diverse civil society, although funding restrictions have raised some concerns. Civic space in Ireland is open but concerns have been raised by civil society organisations as regards constraints on civil society actions in relation to the impact of a prohibition under the Electoral Acts for donations to be given for political purposes to a candidate, political party/accounting unit, elected official, or third party, by a person other than an Irish citizen, who is not ordinarily resident on the island of Ireland, or by a body corporate or unincorporated body of persons that does not maintain an office on the island of Ireland from which at least one of its principal activities is based. The prohibition applies regardless of the amount. SIPO has interpreted the relevant legislation as also comprising certain activities carried out by civil society organisations, such as advocacy work also outside electoral periods. This has raised concerns among civil society organisations. In January 2019, the Irish Human Rights and Equality Commission published a policy statement on the Electoral Acts and Civil Society Space in Ireland. It outlined concerns that the definition of the terms ‘political purposes’ and ‘third party’ in the Electoral Act are overly broad and include a range of Irish civil society organisations, which are therefore constrained in their advocacy functions. The Irish Human Rights and Equality Commission was of the view that such regulatory measures should avoid placing undue restrictions on wider civil society activity that engages in legitimate advocacy and aims to influence political decision-making, including with regard to human rights and equality issues. SIPO stated that it will look at these matters in the context of a link to elections or referendums, e.g. donations to organisations for the purpose of lobbying to have a referendum. EU law requirements and Council of Europe standards should be duly taken into account with regard to access to funding for civil society organisations.



Annex: List of sources in alphabetical order* * The list of contributions received in the context of the consultation for the 2020 Rule of Law report can be found at (COM website). Amnesty International Ireland, Front Line Defenders, The Wheel, Transparency International Ireland, Uplift and the Irish Council for Civil Liberties (2020), Submission to the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Mr Clément Nyaletsossi Voule. Centre for Media Pluralism and Media Freedom (2020), 2020 Media Pluralism Monitor. https://cmpf.eui.eu/media-pluralism-monitor/mpm-2020 . CIVICUS, Monitor tracking civic space: Ireland. https://monitor.civicus.org/country/ireland/ . Council of Europe: Committee of Ministers (2019), Resolution CM/ResDH(2016)358 of the Committee of Ministers on excessive length of criminal and civil proceedings and lack of effective remedies. Council of Europe: Committee of Ministers (2010), Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities. Council of Europe: Committee of Ministers (2016), Recommendation CM/Rec(2016)4 of the Committee of Ministers to member states on the protection of journalism and safety of journalists and other media actors.

Council of Europe: Committee of Ministers (2017), Recommendation of the Committee of Ministers of the Council of Europe CM/REC(2017)14 on the Legal Status of Non-Governmental Organisations in Europe. Council of Europe (2020), Platform to promote the protection of journalism and safety of journalists. Council of Europe: Venice Commission (2010), Report on the Independence of the Judicial System Part I: The Independence of Judges adopted by the Venice Commission at its 82nd Plenary Session (CDL-AD(2010)004-e). Council of Europe: Venice Commission and OSCE Office for Democratic Institutions and Human Rights (2014), Joint Guidelines on Freedom of Association. Council of the Bar of Ireland (2019), submission to the Joint Committee on Justice and Equality on Access to Justice and Legal Costs of 25 November 2019. Court of Justice of the European Union, judgement of 25 July 2018, LM, C‑216/18 PPU. Court of Justice of the European Union, judgement of 19 November 2019, AK, joined cases C‑585/18, C‑624/18 and C‑625/18. Court of Justice of the European Union, judgement of 18 June 2020, European Commission v Hungary, C-78/18. Courts Service, Long-Term Strategic Vision to 2030: Supporting Access to Justice in a modern, digital Ireland. Directorate-General for Communication (2020), Special Eurobarometer 502: Corruption. Directorate-General for Communication (2019), Flash Eurobarometer 482: Businesses and corruption. European Audiovisual Observatory (2019), The independence of media regulatory authorities in Europe. European Centre for Press & Media Freedom (2020), Mapping Media Freedom. European Commission (2020), EU Justice Scoreboard. European Commission (2018), Country Report Ireland, (SWD(2018) 206 final). European Commission (2019), Country Report Ireland, (SWD(2019) 1006 final). European Commission (2020), Country Report Ireland, (SWD(2020) 506 final). European Court of Human Rights, judgment of 22 December 2009, Parlov-Tkalčić v Croatia, application no. 24810/06. European Court of Human Rights, judgment of 10 September 2010, McFarlane v Ireland, application no. 31333/06. European Court of Human Rights, judgment of 15 June 2017, Independent Newspapers (Ireland) Limited v. Ireland, application no. 28199/15.

European Court of Human Rights, judgment of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, application no. 55391/19, 57728/13 and 74041/13. European Court of Human Rights, judgment of 5 May 2020, Kövesi v. Romania, application no. 3594/19. European Network of Councils for the Judiciary (2020), Contribution from the European Network of Council for the Judiciary for the stakeholder consultation for the 2020 Rule of Law Report. European Parliament (2016), A comparative analysis of media freedom and pluralism in the EU Member States. European Parliament Research Service, Better Regulation practices in national parliaments. Freedom House (2020), Freedom in the World 2020. GRECO (2014), Fourth Evaluation Round – Evaluation report on Ireland on Corruption prevention in respect of members of Parliament, judges and prosecutors. GRECO (2018), Fourth Evaluation Round – Interim compliance report on Ireland on on Corruption prevention in respect of members of Parliament, judges and prosecutors. High Court, judgment of 13 May 2020, O’Doherty & Waters v. Minister for Health & Attorney General. Irish Government (2020), Input from Ireland for the 2020 Rule of Law Report. Irish Human Rights and Equality Commission (2019), Ireland and the Convention on the Elimination of Racial Discrimination, Submission to the United Nations Committee on the Elimination of Racial Discrimination on Ireland’s Combined 5th and 6th Report, October 2019. Irish Human Rights and Equality Commission (2019), Policy Statement on the Electoral Acts and Civil Society Space in Ireland, January 2019. Irish Law Society (2018), Contribution to the Review of the Administration of Civil Justice of February 2018. https://cadmus.eui.eu/handle/1814/61144 . Irish Times (2018), Regional newspapers reject claims about Government ‘advertorials’. https://www.irishtimes.com/news/politics/regional-newspapers-reject-claims-about-government-advertorials-1.3408081 . Personal Injuries Commission (2018), Second and Final Report, Department of Business, Enterprise and Innovation of Ireland, July 2018. Reporters without Borders, Ireland. https://rsf.org/en/ireland . Transparency International (2017), Speak up report. https://transparency.ie/sites/default/files/17.12.13_speak_up_report_ie_final.pdf . Transparency International, 2019 Corruption Perception Index. https://www.transparency.org/en/cpi . Transparency International Ireland (2019), Submission to the Department of Justice and Equality Review Group consultation on anti-fraud and anti-corruption structures and procedures. https://www.transparency.ie/sites/default/files/19.04.26_ti_ireland_wcc_submission_final.pdf . UN Global Alliance of National Human Rights Institutions (2015), Sub-Committee on Accreditation (SCA), Accreditation Report – November 2015.

Virtual country visit to Ireland in the context of the 2020 Rule of Law Report.



Annex II: Country visit to Ireland The Commission services held virtual meetings in June 2020 with: ·Bar of Ireland ·Broadcasting Authority of Ireland ·Chair of the Review Group on structures and strategies to prevent, investigate and penalise economic crime and corruption and former Director of Public Prosecutions ·Department of Justice and Equality ·Garda Economic Crime Bureau ·Garda Síochána Ombudsman Commission ·Irish Council for Civil Liberties ·Judicial Appointments Advisory Board ·Judicial Council ·Law Society of Ireland ·Legal Services Regulatory Authority ·National Union of Journalists ·Office of the Director of Corporate Enforcement (ODCE) ·Office of the Director of Public Prosecution ·Public Appointments Service ·Standards in Public Office Commission (SIPO)

·Supreme Court of Ireland ·Transparency International Ireland * The Commission also met the following organisations in a number of horizontal meetings: ·Amnesty International ·Civil Liberties Union for Europe ·Civil Society Europe ·Conference of European Churches ·EuroCommerce ·European Center for Not-for-Profit Law ·European Centre for Press and Media Freedom ·European Civic Forum ·Free Press Unlimited ·Front Line Defenders ·ILGA-Europe ·International Commission of Jurists ·International Federation for Human Rights ·International Press Institute ·Lifelong learning Platform ·Open Society Justice Initiative/Open Society European Policy Institute