From top: the Citywest vaccination centre; David Langwallner
Now, you remember children how I told you last Sunday about the good Lord going up into the mountain and talking to the people. And how he said, ‘Blessed are the pure in heart for they shall see God.’ And how he said that King Solomon in all his glory was not as beautiful as the lilies of the field. And I know you won’t forget, ‘Judge not lest you be judged,’ because I explained that to you. And then the good Lord went on to say, ‘Beware of false prophets which come to you in sheep’s clothing, but inwardly, they are ravening wolves. Ye shall know them by their fruits. A good tree cannot bring forth evil fruit. Neither can a corrupt tree bring forth good fruit. Wherefore by their fruits, ye shall know them.’
Lillian Gish in Charles Laughton’s The Night of The Hunter.
On the question of vaccination? Even framing the question that way, in terms of a title, is a reference to a grand tradition of Belles-lettres and has more sinister connotations, none of which I endorse. The question must be resolved by reason, moderation, and argument.
The crucial issue of our woe begotten age has become the taking of a vaccine.
Even to state it thus is to recognise implicitly the decadence and degradation of this dark age. Lives reduced. The binary debate between vaxxers and anti-vaxxers is another example, yet again, of our fraught and divisive times. Our age of tribalism and extremism, where all reason is lost.
Let us try and introduce some complexity and nuance into the discussion, some moderation, and put matters in a socio-political context.
First, one does not have to believe or accept that the vaccine is some slow-burning poison to liquidate people or enforce Malthusian population control in increments, as some do, to doubt its utility.
Quite apart from the side-effects, in terms of blood clots, there is the ineffectiveness of those double vaccinated against variants, with variants to come in a contaminated world.
There is also the fact, in the light of escalated admissions to Israeli hospitals, among others, of the double vaccinated to lead to a measure of scepticism as to, at the very least, the effectiveness of the vaccine apart from other considerations.
The UK are totally split – the innate libertarianism of the Tories evident in Michael Gove’s divertissement into Aberdeen nightclubs, off set against the advice of the scientists and perhaps the economists.
The Americans are not split and, in a ludicrous form of liberal Stalinism, Biden suggests employability is dependent on the vaccine.
Be careful about what you wish for, children.
There are also questions of admissibility and safe passage, or autonomy and choice, in all of this. Must the exercise of choice, however misguided, be punitively sanctioned by refusing a person entry to a particular establishment, a workplace or indeed a travel restriction?
Does the state have the power to enforce this and, the next step, the power to force people to be vaccinated or, even more so, quarantine them for not being vaccinated?
Within the structure and morphology of the argument involving vaccine passports, one should also not be oblivious to just the fact of the restriction of travel and movement but also the amount of data that might be retained in vaccine passports.
This is, as Zuboff references, in The Age of Surveillance Capitalism, and data mining. In a twist of fate, in all this, the American corporation Polenta, with a GNP greater than Greece, sold vaccines to the Greeks in return for access to data.
Wake up, children of the sun, and smell the coffee beans.
In effect, not to see that an act of God or an act of man has enhanced, in the most draconian way, a new anti-human rights universe where choice, autonomy, liberty is being controlled by ever more draconian laws, is to fail to understand the obvious. It is also to fail to understand a culture of amorality and transhumanism.
Now I am a lawyer, and I am surprised and astonished that there has been limited outcry from within the profession and a limited presentation and understanding of the issues.
The core legal right in question is Privacy. Though other rights are relevant.
Forgive me, children of the snowflake, but you must understand the detail. The devil is in the detail.
The right to privacy is one of the unenumerated personal rights in the Irish Constitution and it historically emanated from a piece the legendary American judge Louis Brandeis wrote when his wife was being monitored by the press, the right to be left alone or the right to privacy. (1903)
In Ireland, a version of this right was recognised in McGee v. Attorney General  IR 284, when most of the Supreme Court identified a right to marital privacy. The Court also held that that right was being unjustly infringed by acts, which prevented the plaintiff from importing contraceptives. The Court was impressed by the “universal” nature of the right to privacy – a right which was subject only to rare exceptions.
It is worth noting that, in the United States, a similar case eventually led to the legalisation of abortion. In Griswold v. Connecticut (1965) 381 US 479, the United States Supreme Court held that the right to privacy rendered invalid a law denying married people access to contraceptives. This was subsequently broadened in Roe v. Wade (1973) 410 US 113 to invalidate many statutory restrictions on abortion.
Restrictions on privacy were recognised in Norris v. Attorney General  IR 36, where the plaintiff argued that such a right existed, and that it was breached by the operation of several pre-1937 provisions whose sections criminalised homosexual acts between males, regardless of age or consent.
O’Higgins CJ appeared to accept that a general right to privacy did indeed exist. However, the Chief Justice was also of the view that a right to privacy did not exclude the State from “the field of private morality”; rather, the State had a keen interest in the moral well-being of society and could “discourage conduct which is morally wrong and harmful to a way of life and to values which the State wishes to protect” (at p 64).
The majority were also concerned by public health issues (specifically sexually transmitted diseases), and the fact that homosexuality could be regarded as an attack on the institution of marriage. The “right to be let alone” (a phrase coined in the United States) could not override the common good as protected by the legislative provisions, the judge opined.
Well, such an opinion was dangerous then and even more dangerous now, children of the sun.
Strong dissents were delivered by McCarthy and Henchy JJ. Neither judge could find good reason for the State to intervene in the plaintiff’s private life in the manner permitted under the provisions. In their view, the State had failed to discharge the onus of showing that the maintenance of public order and morality outweighed the plaintiff’s right to privacy – a right that was recognised by both judges.
“There are many other aspects of the right… [which] would all appear to fall within a secluded area of activity or non-activity, which may be claimed, as necessary for the expression of an individual personality, meriting recognition in cases, which do not endanger considerations such as State security, public order or morality, or other essential components of the common good.” (Per Henchy J, at p 71.)
A subsequent challenge to the legislation, also based on the right to privacy, succeeded in the European Court of Human Rights: Norris v. Ireland (1989) 13 EHRR 186.
It might also be noted that the United States Supreme Court, having initially rejected any right to privacy that could protect the right to engage in sodomy (later accepted that the right to privacy had been violated by a Texan law allowing for the prosecution and conviction of a man who had been having consensual sex with another man in the privacy of his home: Lawrence v. Texas 539 US 558 (2003) 41 S W 3d 349.
The right to privacy has, in some jurisdictions, been linked with the right to die, children of the sun.
In Ireland, the issue of withdrawing medical treatment arose in In Re a Ward of Court (withholding medical treatment) (No 2)  2 IR 79.
The Ward had been left in a persistent vegetative state, following an operation and was being fed through a nasal gastric tube. She was mentally incapacitated and could not refuse medical treatment herself or give any indication as to her wishes.
However, the four members of the Supreme Court majority held that patients had a right to refuse medical treatment. Such a right may be seen as related to the rights to privacy and to bodily integrity. In the circumstances of the case, the majority accepted that feeding of the Ward could be withdrawn, while observing that the right to die a natural and dignified death might be seen as the corollary of the right to life.
However, the Court was careful to emphasise that there was no right to have death accelerated, or life terminated. In other words, neither the right to privacy, nor any other constitutional right, would appear to include a right to be “euthanized”.
Hamilton CJ was careful to stress that the Ward’s rights “[did] not include the right to have life terminated or death accelerated and is confined to the natural process of dying. No person has the right to terminate or to have terminated his or her life, or to accelerate or have accelerated his or her death.”
The view of the United States Supreme Court in Washington v. Glucksberg 521 US 702 (1997) is illustrative of this point.
In that case, Glucksberg (a doctor) and others (including three terminally ill patients) challenged Washington State’s ban on assisted suicide. The Supreme Court examined the many reasons for the ban, which included the protection of patients from medical malpractice and the ending of lives due to financial or psychological problems.
The practice was traditionally frowned upon and was still banned in most States. Furthermore, liberty interests which were not “deeply rooted in the nation’s history” did not qualify for protection under the Fourteenth Amendment. The Court concluded that “the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause”.
The Court had been impressed by the rational connection between the ban on assisted suicide and the interests of the State. These included the State’s “unqualified interest in the preservation of human life”, which was reflected in all homicide laws. Furthermore, suicide was a public health issue which particularly affected vulnerable persons and groups.
The State had an interest in protecting vulnerable groups (including the poor, the elderly, the terminally ill and the disabled) from abuse, neglect, and mistakes; the legalisation of assisted suicide might have lead such people to take that option to spare their families a financial burden. The State could legitimately attempt to preserve such people from coercion and “societal indifference”.
Furthermore, the State also had an interest in preserving medical ethics and the integrity of the medical profession.
Finally, there was a legitimate fear that the permission of assisted suicide could eventually lead to voluntary, and even involuntary, euthanasia.
In the English case of R (Purdy) v. Director of Public Prosecutions  UKHL 45;  1 AC 345, the House of Lords recently ordered the respondent to promulgate a policy identifying the facts and circumstances that he would consider in considering whether to prosecute persons, such as the claimant’s husband, for aiding and abetting an assisted suicide abroad.
In the Irish case of Fleming v. Ireland & Ors  IEHC 2, the High Court at last considered these delicate matters. This landmark case concerned a 58-year-old woman suffering from advanced multiple sclerosis who was completely dependent on others and virtually immobile. The plaintiff wanted to die and needed assistance to do so.
The Divisional Irish High Court (following Rehnquist CJ in Washington v. Glucksberg) held:
“[T]here is a real and defining difference between a competent adult patient making the decision not to continue medical treatment on the one hand – even if death is the natural, imminent, and foreseeable consequence of that decision – and the taking of active steps by another to bring about the end of that life of the other. The former generally involves the passive acceptance of the natural process of dying, a fate that will ultimately confront us all, whereas the latter involves the active ending of the life of another – a totally different matter.”
The court expressed several other concerns about the practice of euthanasia from an analysis of expert evidence heard by it:
– “Cases of wrongful diagnosis of terminal illness are not unknown.”
– “It is impossible to predict with accuracy the duration and course of a terminal illness. A patient who is told by his or her clinician that his or her demise was measured in weeks might well have a different view of physician-assisted suicide if it were ultimately to transpire that he or she could live for another year or more.”
– “The definition of what pain is intolerable may vary from person to person and does not easily lend itself to objective assessment.”
– The court expressed concern for vulnerable groups, a point as we shall see that pervades the judgement.
– That certain categories of patients, with no visible signs of depression or other mental health issues, and who did not belong to any of the traditional categories of vulnerable groups, would place themselves under pressure to hasten their death in this fashion in a subtle manner that might often elude detection such as they might be a burden on their family.
After assessing the evidence of various experts, some of which the Court found more impressive than others, the Court concluded:
“The Court finds that the State has provided an ample evidential basis to support the view that any relaxation of the ban on assisted suicide would be impossible to tailor to individual cases and would be inimical to the public interest in protecting the most vulnerable members of society.”
The court noted that any other conclusion would compromise, perhaps fundamentally, the protection of human life and dignity and that:
“It might well send out a subliminal message to vulnerable groups – such as the disabled and the elderly – that to avoid consuming scarce resources in an era of shrinking public funds for health care, physician-assisted suicide is a “normal” option which any rational patient, faced with terminal or degenerative illness, should seriously consider.”
The High Court rejected a recent Canadian case Carter v. Canada (Attorney General)  BCSC 886 which had recognised euthanasia, on the basis that the case did not sufficiently disentangle the difference between compelling someone to have medical treatment (which is constitutionally forbidden) and active participation by another in the intentional killing of another, which even if genuinely and freely accepted could never be condoned.
The High Court also suggested that that the Canadian court’s assessment minimised the risks in other jurisdictions which have physician-assisted suicide. The High Court, by contrast, found that the incidence of legally assisted death without explicit request in the Netherlands, Belgium and Switzerland is strikingly high and that the burden on the family caused by illness was one of the reasons advanced.
The Supreme Court indicated that:
“Nothing in this judgment should be taken as necessarily implying that it would not be open to the State, if the Oireachtas were satisfied those measures with appropriate safeguards could be introduced, to legislate to deal with a case such as that of the appellant. If such legislation was introduced, it would be for the courts to determine whether the balancing by the Oireachtas of any legitimate concerns was within the boundaries of what was constitutionally permissible. Any such consideration would, necessarily, have to pay appropriate regard to the assessment made by the Oireachtas both of any competing interests and the practicability of any measures thus introduced.”
On the substantive issue, the essence of the Supreme Court judgment is contained in the following passage finding against the plaintiff/appellant:
“The protection of the right to life cannot necessarily or logically entail a right, which the State must also respect and vindicate, to terminate that life or have it terminated. In the social order contemplated by the Constitution, and the values reflected in it, that would be the antithesis of the right rather than the logical consequence of it. Thus, insofar as the Constitution, in the rights it guarantees, embodies the values of autonomy and dignity and more importantly the rights in which they find expression, do not extend to a right of assisted suicide. Accordingly, the Court concludes that there is no constitutional right which the State, including the courts, must protect and vindicate, either to commit suicide, or to arrange for the termination of one’s life at a time of one’s choosing.”
A related issue is whether one might be obliged to undergo life-saving medical treatment, in direct contravention of one’s wishes or religious beliefs.
In Children’s University Hospital, Temple Street v. CD and EF  IEHC 1 (“the Baby AB case”) Hogan J, in assessing an earlier case called Fitzpatrick, stated that:
“It probably suffices for present purposes simply to say that the right of a properly informed adult with full capacity to refuse medical treatment – whether for religious or other reasons – is constitutionally protected: see, e.g., Fitzpatrick v. FK (No.2)  IEHC 104,  2 I.R. 7.”
In Northwestern Health Board v. W  3 IR 622 – “Baby Paul case”, the question at issue related to the PKU ‘heel prick’ test, which is carried out on babies when born. The issue before the Supreme Court was whether the parents of a 14-month-old child could be required by the court to permit the hospital to conduct the test on the child.
The majority of the Supreme Court found that in certain exceptional circumstances arising from a “failure of duty” by the parents, the State could be justified in overriding the wishes of the parents.
To allow the State to intervene, in less than exceptional circumstances, would permit the involvement of the State in the “micro-management of the family”. This would not be desirable:
“That would give the State a general power of intervention and would risk introducing a method of social control in which the State or its agencies would be substituted for the family. That would be an infringement of liberties guaranteed to the family. Decisions which are sometimes taken by parents concerning their children may be a source of discomfort or even distress to the rational and objective bystander, but it seems to me that there must be something exceptional arising from a failure of duty … before the State can intervene in the interest of the individual child.” (per Denham J).
Hardiman noticeably agreed and, in that intuitive way of his, pointed out to me at an Innocence Project reception that my views were wrong.
I entirely agree he was right about this. The darling wee man. Though not right about everything, I think he would share my outrage, as to what is now happening.
So, the Irish Courts, the Canadian Courts, the EU Courts, the American Courts have all considered this issue. Among others, and in formal legal terms, the conclusions are clear enough.
The privacy right can only be exceptionally interfered with and the only justification of state coercion in public order terms, in the context of the virus, is public health. But of course, that argument must be met with whether and to what extent the interventions are measured and proportionate and for that matter the extent of the crisis or ongoing crisis.
Parents choosing for their children to have or not to have vaccine should not be condemned as irresponsible per se. Whether that choice is religious, familial or in terms of an assessment of the inconclusive literature, their choices, both for themselves and their offspring, should be respected.
It is noticeable how the judiciary collectively and intra-jurisdictionally were very reluctant to interfere in life-or-death decisions, not least abortion or euthanasia and I think they were probably prudential in this respect. That said, some of such matters are now governed by legislation and be careful what you wish for an indeed have voted for.
A related issue also subsumed within the privacy right is data retention.
In Digital Rights Ireland Ltd (C-293/12) v. Minister for Communications, the European Court of Justice declared the EU Data Retention Directive to be invalid. The Directive required Irish mobile operators to log details about users’ locations, emails, text messages and internet usage.
The ECJ opined that the said the Directive “interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of data”. Furthermore, the Court found that data retention under the Directive “entails an interference with the fundamental rights of practically the entire European population”.
The Court noted that the data to be retained made it possible (1) to know the identity of the person with whom a subscriber or registered user has communicated and by what means, (2) to identify the time of the communication as well as the place from which that communication took place and (3) to know the frequency of the communications of the subscriber or registered user with certain persons during a given period.
That data, taken as a whole, had the potential to provide very precise information on the private lives of the persons whose data was retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented.
The Court took the view that, by requiring the retention of that data and by allowing the competent national authorities to access that data, the Directive interfered in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data.
So, the retention of data invokes privacy considerations as does the vaccine passports.
There is a collective dehumanisation or transhumanist demonisation going on. It is almost as if our politicians of all hues are figures in Dostoevsky the Devils where nihilism becomes transcendent and worldwide the beginning of a project to create a bought corporate fascist state or rather a global internment. Safe in your remote spaces. Depoliticised, disengaged and exploited.
And let us not be too optimistic about the judiciary as their ability to protect people closes.
In the great Nobelist Portuguese writer Jose Saramago book Blindness (1992), he anticipates our collective present predicament where blindness becomes a communicable disease and an epidemic. The effect is escalating panic.
Individuals are quarantined and dehumanised. The concepts of fairness and the rule of law disintegrate. Inept authorities run wild. Asylums are created for those quarantined.
Possibly the greatest Irishman Swift in “A Modest Proposal”, (1729) a crucial text for these dangerous times, argues ironically and satirically for the killing and eating of babies as a way of solving the surplus population of Ireland the implicit argument being that, rather than hell on earth and death by attrition, the short solution is the best. Infanticide coupled with abortion as a method of population control.
Now Swift, the great polemicist and humanitarian, was appalled at Ireland then, as I am now. Now our surplus population and children are put into foster care or dumped on the street.
Bankruptcies and evictions controlled by a new form of Malthusian capitalism except now transnational creating a segmented and divided society. A society of them and us. An unbalanced division. With farmers writing suicide notes for their children as the banks foreclose. And just as Nero fiddled while Rome burned, the courts do nothing.
Worse than nothing, they augment and contribute to the problem by upholding the activities of vulture funds and worse again venerate the success of debt collection barristers. An inverse universe the veneration of infamy.
Japan is relevant in this context as part of that culture has always tolerated the other life violation that stokes the ire of right-wing conservatives and that is euthanasia as a way of disposing of those who are no longer useful and productive members of society.
So in the film “The Ballad of Narayana” (Imamura 1983), the elderly person goes to the mountain place to die. She is surplus and that, of course, is true in Ireland now. The side-lining and insidious disposal of the elderly. The exporting or marginalising of those that are not one of us.
And how much of this is real or not? How much ineptitude or deliberation? Well, children of the sun, in the kingdom of the blind man, the one man is king. Be sceptical and invoke your rights. These paltry sheds of paper may be all you have left.
So, resist attempts at compulsory vaccination for you and your children, understand side-effects and be sceptical about an agenda that is profiting big pharma.
Children of the sun, awake snowflakes, from your slumber.
Which is not to say there is not a public health crisis but whether it is limited to covid or the societal effects of same, I am unclear.
Read Seneca, children of the sun, and then prepare for action and do not worship false gods, religious or secular.
David Langwallner is a barrister specialising in public law, immigration, housing and criminal defence including miscarriages of justice. He is emeritus director of the Irish innocence project and was Irish lawyer of the year at the 2015 Irish law awards. His column appears here every Tuesday and Friday. Follow David on Twitter @DLangwallner