Replace v Repeal and the Politics of Legal Certainty

The Oireachtas Committee on Repeal of the 8th Amendment met publicly yesterday for the first time. Ms. Justice Laffoy presented the report of the Citizens’ Assembly, and took questions on its content. The media, in reporting on the Committee’s proceedings, have focused on Laffoy’s efforts to defend the legitimacy of the Assembly process. In doing so, they have missed a crucial aspect of yesterday’s exchanges: the focus on ‘legal certainty’. As is well known by now, the Assembly recommended replacement of the 8th Amendment, rather than simple repeal. They explicitly voted against replacing the 8th Amendment with another clause expressly dealing with abortion or with the balance to be struck between the rights of the pregnant person and the foetus they are carrying. They recommended a different kind of replacement. Yesterday was an opportunity to clarify why the Assembly had departed from the clear and readily-comprehensible legal and political demand articulated by the Repeal campaign, and to discuss the substance of what they had proposed instead.

The Report of the Citizens’ Assembly is ambiguous on this point. It explains that the Citizens were concerned that Repeal simpliciter would generate an unacceptable measure of constitutional uncertainty, around the rights of ‘the unborn’ in particular. Brian Murray SC, in a perhaps uniquely influential presentation to the Assembly, had set out three possible consequences of Repeal. A future Supreme Court, dealing with a challenge to post-repeal abortion legislation could come to one of 3 broad positions:

  1. The Oireachtas would have total freedom to legislate on abortion as it chooses.
  2. The Oireachtas would be constrained in some way by the implied rights of the unborn, which pre-existed the passage of the 8th Amendment, and which would survive repeal.[1]
  3. The Oireachtas would be constrained in some way by the implied rights of the pregnant person (not only to life, but to bodily integrity, privacy, freedom of conscience and so on) which pre-existed the passage of the 8th Amendment, and which would survive repeal.[2]

In Questions and Answers later, Brian Murray confirmed that he thought that Option 1 was the most likely outcome of repeal. In view of the deference which the courts habitually show to the legislature, especially on ‘contested moral issues’, this was sound advice. However, the Assembly process did not stop at ‘most likely’. Yesterday, Laffoy J confirmed that, in voting for Replace, the Assembly effectively voted to copper-fasten Option 1 as the only possible outcome of removing the 8th Amendment. They were concerned that the consequences for future abortion legislation of Options 2 and 3 (which could be understood as reverting to the pre-1983 position) were too unpredictable. It was not possible to say with precision which constraints the implied rights of the woman and the unborn might place on legislation.

Neither Option 2 nor Option 3, in principle, precludes more liberal abortion legislation, because protection of foetal life, whatever form it takes in the constitution after repeal, will not be absolute. In addition, as is hinted at in Brian Murray’s paper, Options 2 and 3 are not really separate options. A Supreme Court would not have to choose between either the rights of the unborn or those of the mother. These rights should be read harmoniously, and ideally relationally, together. The Supreme Court (and indeed, every other body charged with interpreting the Constitution, including the Oireachtas itself) would have to decide on the appropriate balance to strike between them. Courts in Portugal, Germany, Colombia, Canada and the United States have all engaged in similar balancing acts. It is not possible, of course, to say with precision how the Irish Supreme Court would evaluate abortion legislation under Option 2, Option 3, or some combination of the two. We don’t yet know what post-repeal abortion legislation would say. We don’t yet know who, if anyone, would bring the case to challenge it, or whether it would be examined in an Article 26 reference. So we don’t know what fact pattern the Court would have before it. However, that level of uncertainty is quite ordinary in a constitutional context. The difficulty it creates has been over-stated. For the purposes of legislative reform, we can still make judgment calls about likely outcomes, based on prevailing jurisprudence, precedent and working knowledge of judicial reasoning and conventions. It would have been possible for the Assembly’s experts to give the members time to think about what possible ‘balances of rights’ look like, and to establish the sort of working tolerance of uncertainty that characterises the working lives of constitutional lawyers and the judiciary. However, at no stage was the Assembly given detailed information on how courts in other jurisdictions have engaged in such ‘balancing acts’, or given the opportunity to apply the outlines of a post-repeal constitution to real-life problems or case studies. No such steps were taken to empower the Assembly by grounding abstract constitutional questions in concrete cases. All of these questions were black-boxed, and the black box labelled ‘Legal Uncertainty’.

It is worth pointing out at this stage that Options 2 and 3 can be read as returns to the pre-1983 position (although we could expect, of course, that a Supreme Court deciding a case in 2018 would take account of the enormous social changes that have taken place in Ireland since 1983, and interpret and balance the competing constitutional rights accordingly.) Options 2 and 3, or some combination thereof, represent the post-McGee constitutional position which PLAC, William Binchy and other supporters of the 8th sought to de-commission when they agitated for constitutional reform in 1983. In 1983, some combination of Options 2 and 3 was the anti-amendment, pro-choice status quo. Of course, in seeking to close off Options 2 and 3, the Assembly was not aligning itself with those movements. Rather, as we can deduce from its later, liberal, legislative recommendations, the Assembly wanted to preserve space for pro-choice law-making in line with European norms. Replace is intended to defend that space in ways that, as the majority of Assembly members saw it, Repeal could not.

Yesterday Ms Justice Laffoy was asked five times, in various ways, to justify the recommendation to Replace rather than Repeal, and to explain what additional advantages Replace might confer on our constitutional structures. Was Replace simply, as Ailbhe Smyth has observed, “the Irish for Repeal”: a replacement which removed the 8th Amendment and confirmed the Oireachtas’ existing ordinary power to pass legislation which attracts a presumption of constitutionality? Or did Replace promise another level of security? The Assembly report, rather confusingly, suggested that replace would confer ‘exclusive’ authority on the Oireachtas to legislate for abortion, and to exert ‘total control’ over its regulation. Similar language was used during the Assembly proceedings to reassure members of the Assembly who were uncertain about what they had voted for. ‘Exclusive’ and ‘total’ might have suggested that Replace would somehow (in an unprecedented move) immunize any new abortion legislation from constitutional challenge in the courts (perhaps a fine outcome if you ignore the potential for unintended consequences and imagine that the Oireachtas will pass workable legislation…but a less enticing one if you imagine that it will produce something along the lines of the PLDPA 2013, replete with opportunities for exposing pregnant people to inhuman and degrading treatment).[3] Yesterday Ms Justice Laffoy confirmed that the Assembly in voting Replace was not suggesting that the constitution should be amended to exclude the courts from law-making around abortion. The rights of pregnant people seeking to terminate a pregnancy should not be cast out of the sphere of constitutional interpretation.

So what does Replace do to achieve additional certainty? Ms Justice Laffoy was asked five times. Besides saying that it was important that the Oireachtas do its utmost to create legislation which would pass constitutional muster and not be struck down within ‘weeks’, she could not offer further clarity. She encouraged the Committee to get legal advice on the issue, and expressed her hope that their deliberations would confer ‘legal certainty’ on the abortion problem. I am not suggesting that the Assembly’s role was to draft a replacement for the 8th Amendment, but at the very least its Chair should have been able to explain what the constitutional amendment it proposed means in broad constitutional terms. At the end of yesterday’s questioning, it seemed clear that there was no material legal difference between Replace and Repeal, and no justification for adding new text to the constitution. It may be, certainly, that additional text in the constitution re-affirming the Oireachtas’ ordinary legislative power could help to block any judicial attempt to strike down new legislation, but it is hard to quantify the strategic value of that additional text over and above simple repeal. It is also telling that this form of Replace was offered to the Assembly – Brian Murray also suggested a possible substantive amendment removing the right to life of the unborn from the Constitution.Time could have been given to pro-choice substantive amendments, but instead, consistent with the Assembly’s official aspiration to neutrality, a technical substitute was chosen.

Now, we can read Replace differently, not as a message from the Assembly to the courts, but as a message from the Assembly to the Oireachtas. Arguably one of the chief chilling influences on abortion law reform in Ireland has been governments’, and successive AGs’, own interpretations of the constitution – we have seen this most clearly in the Oireachtas’ repeated refusal to legislate to open up access to abortion in cases of fatal foetal abnormality. The Assembly wanted to send a clear message to the Oireachtas that it should not seek to hide behind restrictive constitutional interpretation; using it as an excuse to reject passing legislation along the lines the Assembly had recommended. But there is no constitutional formula that can compel the Oireachtas to legislate in any particular way. Abortion law reform is now, as always, at the Oireachtas’ door, and technocratic and alienating discussion of ‘legal certainty’ and silver bullet constitutional devices, however entertaining it is for constitutional scholars, only serves to distract from that political issue.

I think Replace – a white elephant with magical affective powers but no particular legal contribution to make – is a symptom of a broader deficiency in Irish legal discourse around abortion. ‘Legal certainty’ has become a motivating idea in Irish abortion law reform because it neatly combines a framing of women’s bodies as uniquely chaotic, with a promise that the right formula of words can bring that chaos under control. In this sense, it is no accident that a judge was considered the ‘appropriate woman’ to lead ‘us’ through the abortion law reform process. We have relied on her, and on other judges – notably Yvonne Murphy and Maureen Harding-Clarke – to bring ‘closure’ to other disputes around women’s bodies in historical cases of abuse and bodily harm. It may be, in the end, that the primary function of Replace was to provide symbolic closure, and in particular, to suggest a level of careful contemplation of constitutional technicalities which distinguishes the ‘reasoned’, balanced, ‘informed’ and ‘civil’ deliberations of the Assembly from stereotypes of the pro-choice movement.

For the Assembly members, ‘legal certainty’ is a pro-choice idea – a brake on the Oireachtas’ historical and embedded cowardice. However, their Replace proposal is too vulnerable to an impossible politics of legal certainty. It is at risk of co-option – of becoming, as it did during the PLDPA debates, a proxy for more conservative desires. When a TD says ‘legal certainty’ he may be expressing solidarity with doctors who profess themselves to be afraid of criminalisation. He may be expressing a weary desire to ‘future proof’ the constitution so that he will never to have to talk about abortion again between now and retirement. He may be expressing a refusal to ‘trust women’; a horror of ‘abortion on demand’. If these inarticulate desires, gathered under the rubric of ‘legal certainty’ become the golden thread connecting the Committee’s constitutional and legislative discussions then the Oireachtas will struggle to produce decent, workable legislation. Instead, it must do as the Assembly’s hard-working and sincere members tried to do despite the shortcomings of its process; to come down out of the realm of constitutional abstraction and think about ‘legal certainty’ as concomitant with legislative freedom and responsibility. Unlike the Assembly, the Oireachtas Committee is willing to hear testimony from expert reproductive rights lawyers. There is finally space to think about ‘legal certainty’ as a feminist value; one affirming pregnant people’s rights to access abortion and other medical treatment in pregnancy in a transparent, secure manner, using processes supportive of their decisional autonomy. There is a chance to avoid subjecting pregnant people to the sort of opaque, incoherent and unsettling governing legislation we passed last time out. We can only hope the Oireachtas is ready to take it.


[1] No consideration was given to the locus standii of the unborn, which presents a real danger to liberal abortion legislation.

[2] This option could, of course, have leant persuasive, if not determinative weight, if the 8th were replaced with a positive right to self-determination in pregnancy. This possibility was not discussed with Assembly members. Instead discussion of bodily autonomy was relegated to the Assembly report’s ancillary recommendations.

[3] We could find an analogy for this sort of effort in the failed Twenty-Fifth Amendment to the Constitution in 2002, which would have enshrined abortion legislation in the Constitution and made it impossible to change without a new referendum – indeed Ms. Justice Laffoy mentioned this briefly yesterday.

Replace v Repeal and the Politics of Legal Certainty

Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

We are pleased to welcome this guest post from Aisling McMahon and Brid Ni Ghrainne.

Abortion is only permitted in Ireland when the life of the mother is in danger, making the Irish abortion framework one of the most restrictive in the world. This week, the Committee Against Torture questioned Ireland about its lack of progress in reforming Irish abortion law[1] and stated that it must explain its human rights obligations to the Irish public before any referendum on abortion.[2] This comes as little surprise as the Irish framework has previously been criticised extensively by four other international human rights committees.[3] The Human Rights Committee has twice found – in Mellet v Ireland[4] and Whelan v Ireland[5] – that Ireland violated Art 7 (right against torture, inhumane or degrading treatment), Art 17 (right to privacy) and Art 26 (right to non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR) for not providing access to abortions to women whose pregnancies suffered fatal foetal abnormalities. The Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have also urged Ireland to change its restrictive abortion framework.

However, no changes have yet occurred. Instead, in response to the decision in Mellet v Ireland the then-Taoiseach Enda Kenny dismissed the Human Rights Committees’ views as not being ‘binding’ and ‘not like the European court’.[6] This exemplifies the confusion that exists regarding Ireland’s international law obligations relating to access to abortion. In response to these recent developments, this post considers: (1) why Ireland should adhere to the views of the respective Committees, and (2) how Ireland can bring its laws into conformity with international law.

Ireland should adhere to the views of the Committees.

The views of the Committees should not be ignored for a variety of reasons. First, although the respective Committees cannot issue binding judgments, they are made up of a group of experts in human rights law and are mandated to provide authoritative interpretations of the respective treaties. Under the international law rule of pacta sunt servanda,[7] Ireland must comply with treaties that it is a party to in good faith.

Second, Article 27 of the Vienna Convention on the Law of Treaties provides that: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.[8] This position was reiterated by the Human Rights Committee in the decisions of Mellet and Whelan, and it promptly dismissed the constitutional protection of the life of the unborn as justifying Ireland’s treatment of the respective women.[9]

Third, a state’s international reputation is undermined by non-compliance with international treaties. For example, a State Party’s failure to implement the Human Rights Committee’s views: “becomes a matter of public record through the publication of the Committee’s decisions inter alia in its annual reports to the General Assembly of the United Nations.”[10] Relatedly, ignoring the views of such Committees, could lead to subsequent complaints being brought and subsequent violations being found, which increases reputational damage to the State.

Ireland’s International Law Obligations

The various Committees have called on Ireland to ensure access to abortion in three specific circumstances: (i) in cases of fatal foetal abnormality,[11] (ii) where pregnancy is the result of rape or incest[12], and (iii) where the woman’s health or life is in danger.[13] In respect of the latter circumstance, Ireland’s present laws do not provide for a right to an abortion where the health as opposed to the life of the mother is at risk and this has been raised as a concern. It should be noted that in highlighting these categories, we are not arguing that these are the only circumstances where abortion should be provided, rather we are arguing that these are the minimum circumstances which have been specified by the relevant Committees where a right to an abortion arises under international law. States have discretion to provide abortion in broader circumstances, and many states already do.

Various committees have also recommended that abortion be decriminalised in all circumstances in Ireland.[14] Finally, the Committees have requested Ireland to clarify the information which can be provided in Ireland on abortion services abroad. Individuals seeking terminations abroad are often faced with a dearth of information on such services as health professionals cannot ‘advocate or promote’ terminations under the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995.

Until Ireland brings its laws in line with its international obligations it will continue to receive criticism from the international community. It is crucial that the Irish public are made aware of these international law obligations so that they can exercise their right to vote in an informed manner when a referendum on abortion finally occurs.

[1] See Irish Family Planning Association, ‘United Nations Torture Committee poses tough questions on Ireland’s abortion laws’ (Press Release, 27th July, 2017)

[2] See, Ellen Coyne, ‘UN challenges Ireland on human rights before abortion vote’ (28th July, 2017) The Times (Irish Edition) p. 1.

[3] This includes, the Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC), and the Committee on Economic, Social and Cultural Rights (CESCR).

[4] ICCPR Human Rights Committee, Amanda Mellet v Ireland, 9 June 2016, UN Doc CCPR/C/116/D/2324/2013.

[5] ICCPR Human Rights Committee, Siobhán Whelan v Ireland, 12 June 2017, UN Doc CCPR/C/119/D/2425/2014.

[6] Pat Leahy, ‘UN abortion ruling is “not binding”, Enda Kenny says,’ (15 June 2016) Irish Times available at

[7] Article 26, 1969 Vienna Convention on the Law of Treaties.

[8] See discussion in Síobhán Mullally, ‘Mellet v Ireland: Legal Status of the UN Human Rights Committee’s ‘Views’ CCJHR Blog (16th June, 2016) available at

[9] See General Comment No 33, The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights CCPR/C/GC/33.

[10] Para 17, General Comment 33.

[11] This includes: Human Rights Committee views in Mellet v Ireland, Whelan v Ireland. See also, Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43 which recommended that terminations be legalised in cases of severe as opposed to fatal impairment of the foetus;

[12] This includes, the Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9. See also, the Committee on the Elimination of Discrimination against Women, Concluding Observations on the 7th and 8th periodic reports of Peru CEDAW/C/PER/CO/7-8, 24 July 2014.

[13] This includes concerns raised by the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014); Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3.

[14] This includes: Committee on the Rights of the Child, Concluding observations on the combined third

and fourth periodic reports of Ireland CRC/C/IRL/CO/3-4; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. The Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3 and the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) which expressed concern over the criminalisation of abortion.

Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

Call for Papers: Irish Yearbook of International Law

The Irish Yearbook of International Law is now accepting submissions for the next Volume (Volume XIII (2018)). Edited by Professor Siobhán Mullaly (incoming at NUI Galway) and Professor Fiona de Londras (University of Birmingham) and published by Hart Publishing, the Yearbook is internationally peer reviewed and publishes longer and shorter articles on all areas of international law. The Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer pieces will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.

Authors are asked to conform to the Hart Publishing house style. Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Siobhán Mullally ( and Fiona de Londras( by October 31 2017. Initial enquiries can be directed to either or both Editors.

People wishing to review a particular title in the Yearbook’s book review section are also invited to contact the book review editor Dr. Dug Cubie, (University College Cork.)

Call for Papers: Irish Yearbook of International Law

Understanding the Increases in Direct Provision Allowance for Asylum Seekers

END DPFrom August 2017, asylum seekers in Ireland will receive increases to the direct provision allowance payments. For adults, this is the first increase to direct provision allowance in 17 years. For children, this is the second increase in direct provision allowance since 2000. Adult asylum seekers and child asylum seekers will now receive €21.60 per week, an increase of €2.50 for adults, and an increase of €6 for children.

In June 2017, I submitted a Freedom of Information (FOI) request to the Department of Social Protection seeking to understand what the rationale for these small increases were. The Department’s response to the FOI request, provides some further understanding as to why the the child direct provision allowances were equalised, however the documentation received fails to provide a clear rationale for the increases in adult direct provision allowances.

Before getting to the most relevant documents, it is important to note that the McMahon Report on direct provision made very few unqualified recommendations: but did in an unequivocal manner recommend that adult asylum seekers be provided with an allowance of €38.74 per week, and children with an allowance of €29.80 per week in June 2015. The increases in direct provision allowance fall far short of this recommendation. (I should acknowledge my significant concerns regarding the McMahon Report and its recommendations from a human rights perspective. See Subprime for excellent analysis on the McMahon Report and its impact. See also Doras Luimni’s analysis of improvements with the direct provision system). In July 2017, the Department of Justice has claimed in its final progress report on the McMahon Recommendations that 98% of all the recommendations from the McMahon report have been implemented, or are in the process of being implemented. Some questions have been raised by NASC in relation to the Department of Justice claims on their 2nd progress report (which stated 92% of all recommendations implemented). Focusing solely on direct provision payment, calculations by Department of Social Protection on 08 June 2017, noted that the cost of implementing the McMahon direct provision increases would be under €3.7 million per year [See document [1] here]. Continue reading “Understanding the Increases in Direct Provision Allowance for Asylum Seekers”

Understanding the Increases in Direct Provision Allowance for Asylum Seekers

Ireland’s Failing Abortion Law: Statutory Interpretation, Human Rights and the Detention of Pregnant Children.

Mairead Enright (@maireadenright)

Yesterday, the Child Care Law Reporting Project published a summary of a District Court case from 2016. A  suicidal teenager’s GP referred her to a consultant psychiatrist. She was pregnant and did not want to be. Under s. 9 of the Protection of Life During Pregnancy Act (PLDPA) the entitlement to access a life-saving abortion must be certified by three doctors (two psychiatrists, at least one of whom has experience in treating pregnant women, and an obstetrician). Their job is to assess whether there is a real and substantial risk to the woman’s life from suicide, which risk can only be averted by terminating the pregnancy. This statutory test, restrictive as it is, mirrors the 8th Amendment as interpreted in the X case – the sources of constitutional law which provide that abortion is only available in Ireland where necessary to save the pregnant woman’s life.

This girl apparently saw only one psychiatrist, who decided that, although she was suicidal and at risk of self-harm, an abortion was not ‘the solution for all of [her] problems at this stage’. On his evidence, involuntary admission proceedings were begun under s. 25 of the Mental Health Act 2001 (MHA). The Health Service Executive (HSE) applied to the District Court to have the girl detained on the grounds that she was suffering from a ‘mental disorder’ (which meant that she was at risk of causing ‘immediate and serious harm to herself or other persons’) and required treatment which she was unlikely to receive unless such an order was made.The order was granted on the consultant psychiatrist’s evidence, and the child was detained in a psychiatric facility. We do not know what treatment it was proposed to subject her to. It was not suggested that any question arose around her capacity to consent.

At the time of making the detention order, the District Court judge appointed a guardian ad litem to represent the best interests of the child. The guardian employed another consultant psychiatrist to assess the detained girl. This second psychiatrist found that the girl was not (or was no longer) suicidal. By this point, the treating psychiatrist in the institution where the girl was detained also agreed that the initial risk of self-harm had abated. The guardian ad litem therefore applied for discharge of the detention order on the grounds that the girl was no longer suffering from a ‘mental disorder’ within the meaning of the 2001 Act, and so there were no grounds for her detention.

It is not known what happened to this girl after her release; whether she was facilitated to travel to seek an abortion to preserve her mental health or whether she was compelled to continue the pregnancy in Ireland. Suppose for a moment that her pregnancy was advanced, and that she was subsequently unable to travel – that she was effectively denied an abortion.  Later in the month, the Minister for Health will report on the number of abortions carried out under the PLDPA, as required by s. 15 of the Act. Refusals will not be reported, which makes it difficult to spot oppressive patterns of obstruction. This case demonstrates that the PLDPA, as it is applied in practice, is incapable of vindicating vulnerable women’s rights. There are three key points:

(i) Was the PLDPA applied here? The prominence of one psychiatrist in the report does not tell us anything by itself. S.9 of the Act says that in order to access an abortion, a woman must have been examined by 2 psychiatrists and an obstetrician; it refers to ‘joint certification’. However, the Department of Health Guidance on the operation of the Act places a lot of power in the hands of the first psychiatrist. S/he may assess the patient alone, without discussion with other doctors. If s/he decides that the statutory test is not fulfilled, the pregnant person may accept that clinical recommendation. Even so, the first psychiatrist must notify the woman of the refusal in writing, of her formal right to review under s.10 of the Act and of her right to a second opinion. It not known what was done to help this, apparently very confused, child avail of those statutory rights (to advocate for her, to fill out paperwork, to clarify her choices and their consequences) once she received a first refusal. It is also important to note that this staged chain of assessment is not set out on the face of the Act – it is the Department of Health’s interpretation. It is not obvious that it is the correct interpretation of the Act: for instance it is strange that a woman’s constitutional right to a life-saving abortion can effectively be overridden by one doctor, but the right to access an abortion cannot be confirmed without the intervention of three. 

(ii) How should the PLDPA interact with the MHA? During the PLDPA debates, the Minister for Health assured the Oireachtas that a woman who did not suffer from a mental disorder within the meaning of the MHA would not be detained merely for requesting an abortion. The Department of Health must guide against any such slippage. The Department of Health Guidance on the Act does not help here. For the avoidance of doubt the guidance should clarify that the PLDPA should be considered first where possible. Even where circumstances require a pregnant person’s temporary detention, the PLDPA process should be commenced as soon as practicable. To take any other position might allow the MHA to be used to bypass the PLDPA. The MHA should not be seen as an alternative to the PLDPA even where the assessing psychiatrist guesses that a patient would not pass the test under s.9. First, if it were, the temptation to allow the MHA to become a conscientious objector’s charter in suicide cases clearly arises. The HSE should ensure that conscientious objection is clearly exercised under s. 17 of the PLDPA, rather than concealed. Second, the Acts should not be treated as triggers for one another. The statutes have different purposes – the MHA test determines the legality of detention for the purpose of treatment, while the PLDPA determines the legality of the treatment itself; the approach to one should not pre-determine the approach to the other. Refusal under the PLDPA should not automatically lead to detention. If, however, the phrase ‘immediate and serious harm…to other persons’ in the MHA is being read – by psychiatrists or by the courts at the urging of foetus’ own guardians ad litem – to include the unborn, the possibility of slippage between the Acts becomes starkly apparent. The government must address this interpretation.

I am not, for a moment, defending the PLDPA process. Under the PLDPA a suicidal woman may be assessed by 6 or more doctors before being granted an abortion. Even when applied properly the PLDPA assessment process may be gruelling. But it is equally indefensible to avoid the process altogether when a woman has requested it, and in so doing to strip her of all rights-protecting procedural safeguards.

(iii) Finally, we might ask when the Department of Health will provide full guidance on what doctors should do when a woman is refused access to an abortion. We know, for example, from the earlier case of Ms. Y, that such a woman may legally be subjected to treatment for the purposes of extending her pregnancy to viability, in order to facilitate later live delivery.  (Ms. Y was threatened with detention). Was it proposed to detain this child for that purpose? The law does not tell doctors how far they may go to preserve a pregnancy if it is determined that a pregnant person is not entitled to an abortion under the PLDPA. (Oddly, lack of ‘legal certainty’ in this respect has not become the same political football as has the same uncertainty around the right to access an abortion). The Department of Health Guidance reminds doctors that, under the Act, they must act ‘as far as practicable’ to preserve unborn life (including inducing labour or delivering early by C-section) without compromising the life (but not the other rights) of the pregnant woman.This girl was detained (apparently to her great shock) and in the process was prevented from travelling. Were appropriate safeguards in place?

This is a grey area, where doctors have been left largely free to exercise their own discretion, and where the state has failed to elaborate on any human-rights based limits. However, the limits are there. Today, for example, we got word of the UN Human Rights Committee’s decision in Whelan v Ireland. The principles are essentially those in Mellet v Ireland; that the Irish criminalisation of abortion, the attendant requirement to travel for non-life-saving abortions, and the associated restriction of abortion information, violate the human rights of women whose foetuses have been diagnosed with fatal foetal abnormality. Whelan is about a case outside the PLDPA regime, whereas this girl’s case was firmly within it. But Whelan, like Mellet, provides means to critique refusals under the PLDPA too. In particular, the defeated arguments advanced by the state in Whelan map how legal attitudes must be altered. First, in Whelan the state attempted to defend drastic and distressing infringements on women’s rights; prioritising unborn life over women’s autonomy. Whelan confirms that, under the ICCPR, the state does not have the power to arbitrarily restrict women’s rights in a broadly drawn attempt to protect unborn life.

Second, Whelan confirms the state does not fulfil its human rights obligations merely by clarifying the law of abortion on the face of statutes, without supporting women to navigate the structures governing that lawful abortion. ‘Legal certainty’, for this government means words on the statute books, not the effective empowerment of women or the alleviation of their distress. This must change. It must change for abortions under the PLDPA as well as for abortions accessed in line with the right to travel.  

Third, women’s rights are violated through omission to adequately support them as much as by the culpable acts of individual state agents. At the same time, the state must restrict opportunities for individual obstructionist interpretations of the abortion laws, as discussed above. This must be done through the provision of proper guidance and training on the implementation of abortion legislation; whether the PLDPA or its inevitable successors.

Finally, it is no longer enough for the state to argue as it did in Whelan  (and A, B and C v. Ireland, D v. Ireland and Mellet)  that women can vindicate their rights (and extend the existing constitutional law) by bringing cases to the High Court. It is for the government to create genuinely workable law – this function cannot be delegated to women at the most vulnerable time of their lives.


Ireland’s Failing Abortion Law: Statutory Interpretation, Human Rights and the Detention of Pregnant Children.

RIA Conference on Human Rights and the Social Sciences, June 22nd.

The human rights movement has done a great deal of good in improving the lives of people around the globe, however, as evidenced by recent political upheavals, its embodiment as a contemporary ‘ethics of progress’ is increasingly being questioned. Events such as Brexit point to the role played by cultural and political factors in the realisation of human rights and raise the issue of the role of the social sciences in helping to ensure human rights as a lived reality.

In light of this, the Social Sciences Committee of the Royal Irish Academy is organising a conference on ‘Human Rights and the Social Sciences’ which will take place in Academy House in Dublin on Thursday 22nd June 2017 (10am-4.15pm).

The idea of the conference is to build bridges between the knowledge domains of the social sciences and those of human rights. Specifically, the aim is to explore the potential of the social sciences to contribute to the critical study of power and inequality in societies where a gulf exists between human rights ideals and lived experiences. To this end, the colloquium will therefore address (i) the differences of approach between the fields of human rights and the social sciences (such as the social scientific emphasis on realism and power) and (ii) their mutually complementary roles (including the role of the social sciences as a ‘critical friend’).

The keynote address will be delivered by Prof. Conor Gearty, LSE who will speak on the topic of ‘Is the era of human rights drawing to a close?’. Other speakers will address issues as diverse as human rights and security, the rights of refugees, and economic and social rights.

The event will attract 4 CPD points and certificates of attendance will be available. Full programme and registration are available here . (

RIA Conference on Human Rights and the Social Sciences, June 22nd.

Asylum Seekers and the Right to Work: The Supreme Court Decision

Supreme CourtBy virtue of section 9(4) of the Refugee Act 1996, asylum seekers are absolutely prohibited from seeking or entering employment in Ireland. This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015.  This provides that an asylum seeker,


(b) not seek, enter or be in employment or engage for gain in any business, trade or profession…

Is this absolute prohibition on asylum seekers from entering, seeking or being in employment unconstitutional. The Irish High Court said no. The Irish Court of Appeal said no (see Maria Hennessy’s analysis of these decisions here).  The Irish Supreme Court has answered yes.

O’Donnell J (and the other six Supreme Court judges who agreed with this decision) have now decided to adjourn proceedings  for six months, after which an order will be made declaring the absolute prohibition of asylum seekers from exercising a right/freedom to work, unconstitutional. The Supreme Court agreed with the Court of Appeal ruling that no challenge existed to this prohibition under the ECHR Act 2003 (which I think is very problematic..) nor the European Union Charter of Fundamental Rights.

As O’Donnell J. noted, the core question that the Supreme Court had to decide could be broken into three core parts:

  1. Whether there is an right to work under the Irish Constitution?

O’Donnell J. decided that yes, there is a qualified right to work under Art. 40.3 of the Irish Constitution. The reason I am saying qualified, is because, in light of earlier jurisprudence, O’Donnell J. has categorised this as a freedom to work, subject of course to other considerations (i.e. qualifications, experience to enable a person conduct the work they want to). The freedom to work goes to the “essence of human personality” (para. 13), even if (para. 15)

Much work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself.

O’Donnell noted that the constitutional recognition of what might be called a right or freedom to work does not entail obligations for provision of work, or even require the Government to adopt economic policies to enable full employment (para. 12).

However, the freedom to work recognises the “essential equality of human persons mandated by Article 40.1” of the Irish Constitution (para. 13).  Interestingly, and the first time ever to my knowledge, an Irish Court (and the Supreme Court no less) has relied directly on a general comment from the UN Committee on Economic, Social and Cultural Rights (para. 16) on the right to work:

The right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity. Every individual has the right to be able to work, allowing him/her to live in dignity. The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/her development and recognition within the community.

The Supreme Court stated that this description is “broadly consistent with that which was the background to the constitution” (para. 16). By exercising a freedom to work, a person can then ensure the protection of his/her other rights, within the family sphere, within the social sphere and within the societal sphere (para. 15). The right to work or more precisely the freedom to work, has been recognised by the Supreme Court as a fundamental part of human personality.

2. Whether  an asylum seeker can rely on this constitutional freedom to work?

The Supreme Court did note that a non- (EU) citizen has no automatic right to work in Ireland, this is subject to permission being granted. However, asylum seekers who are lawfully in the State for the duration of their protection claim, cannot be compared to other migrants who might be seeking a permission to work in Ireland. The right to work which goes to the “essence of human personality”, cannot be absolutely excluded for those seeking asylum. Work is fundamentally connected to ‘dignity and freedom’ (para. 15) and cannot be withheld from non-citizens.  ‘Significant distinctions’ can exist in the field of entry to employment between citizens and non-citizens and the Supreme Court stated the Oireachtas and “(where appropriate) [the] executive” judgment on the precise contours of the right to work for asylum seekers will in the main be respected by the courts.  The Supreme Court noted that the “pull factor” argument is a legitimate argument the Oireachtas may make reference to (para. 18). The Oireachtas may determine that by granting the right to work, it may make it more difficult to remove an asylum applicant who is not entitled to protection. In addition, the Oireachtas may have a power to limit the freedom to work for asylum seekers “to defined areas of the economy perhaps where there is a demonstrated need.” (para 18)

Therefore, while an asylum seeker may have the freedom to work, the Supreme Court decision provides significant scope for the Oireachtas to place limitations on this, and limitations that could not be placed on citizens. Its hard to equate the Supreme Court’s views on what may be permissible limitations, with the Supreme Court noting in para. 20 of its judgment the “damage to the individual’s self-worth and sense of themselves”.

3. What Next?

The Supreme Court decided that “in principle” they were prepared to hold (at para. 21):

where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) ( and re-enacted in s.16(3)(b) of the 2015 Act ) is contrary to the constitutional right to seek employment. However, since this situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some one or other of them, and since that is first and foremost a matter for executive and legislative judgement, I would adjourn consideration of the order the Court should make for a period of six months and invite the parties to make submissions on the form of the order in the light of circumstances then obtaining.

The ball is now firmly in the court of the Oireachtas. However, the Oireachtas must be reminded (contact your TD here), that they are not starting from a blank slate.

First, the Irish High Court has already ruled that maladministration in rendering of a lawful decision on a protection claim may result in damages being awarded to an asylum seeker. Therefore, whatever course of action the Oireachtas takes, lets get this right. There has to be some focus on the ability of our quasi-judicial bodies who determine protection claims to do their work efficiently, but most importantly to be fair to asylum applicants.

Second, It would appear, that if Ireland became part of how European Union society deals with this question, then our Parliamentarians need to look no further than EU law for a solution to this constitutional protection of asylum seekers right to work. The Recast Reception Directive (which Ireland is not bound by), provides asylum seekers a right to work should generally be granted after 9 months where a first instance decision has not been rendered on a refugee/protection claim. The McMahon Working Group on the Protection Process and Directive Provision made a recommendation  (para 5.49) that once the International Protection Act 2015 was operating efficiently, that Ireland abide by this 9-month rule. Whatever the Oireachtas decide, this constitutional right of asylum seekers to have a freedom to enter employment must be effective, and not illusory (borrowing how the European Court of Human Rights insists on the realness of granted rights).

Image credit: Michael Foley

Asylum Seekers and the Right to Work: The Supreme Court Decision

Human Rights-Based Integration Policy and the New “Migrant Integration Strategy”

We are delighted to welcome this guest post from Leanne Caulfield, research assistant at Maynooth University on the IHREC-funded project “Integration Policy in Ireland Through the Lens of Human Rights and Equality”.

In January, Professor Mary Gilmartin and Dr. Clíodhna Murphy (Maynooth University) commenced work on an Irish Human Rights and Equality Commission funded research project which focuses on the development of a human rights-based integration policy framework for public bodies. One aspect of the research involves the collation and analysis of public bodies’ existing policies relating to migrant integration, diversity or interculturalism. In evaluating public bodies’ integration policies, it seems fitting to turn firstly to the Migrant Integration Strategy published by the Office for the Promotion of Migrant Integration in February of this year.

Underpinning Features of the New Migrant Integration Strategy

The first formal strategy for integration was produced in 2008 by the Office of the Minister for Integration. This document, called “Migration Nation”, outlined the principles intended to underpin Irish integration policy. The need for a renewed focus on integration and a more developed and long-term approach was recognised by the Government and resulted in the publishing of the new strategy this year.

The central features underpinning the new strategy are its definition of integration as a broad-based, two-way conception; its focus on a mainstreaming, intercultural approach to policy enforcement; and its foundation on the EU Common Basic Principles for Integration. The strategy also centres on the idea that it is addressing a new phase in Ireland’s integration policy – moving beyond the initial phase of focussing on the needs of those newly arrived in Ireland, to that where many migrants have lived in Ireland for some time but may continue to have needs particular to their migrant status.

The strategy is much more focused on identifying actions rather than setting out guiding principles. The strategy identifies two types of actions. The first type of actions are those applicable to all Government departments which include making information available through signs and translated material, training on intercultural awareness and providing information on how to make a complaint about racist behaviour.

The second type of actions is those which are intended to address particular issues. Some of these are interesting and quite specific – such as the inclusion of a target of 1% for the employment of EEA migrants and people from minority ethnic communities in the civil service (in most cases civil service employment is not open to non-EEA nationals) and the monitoring of current school enrolment policies over time to assess their impact on the enrolment of migrant students. Other actions are broad and nebulous (for example, “encourage businesses to focus on integration”; and “migrants will be encouraged to participate in local and national politics to the extent that these areas are legally open to them”.)

A Human Rights and Equality Focus?

As the research project is focused on developing a human rights and equality-based migrant integration policy framework for public bodies, we were keen to establish the extent to which the Migrant Integration Strategy is either explicitly or implicitly human rights-based.

Express references

“Human rights” are not expressly mentioned in the Migrant Integration Strategy apart from a handful of references which are made only for the purpose of outlining the duty on the Irish Human Rights and Equality Commission. There are no references to upholding human rights standards or ensuring that human rights are enjoyed by all, and human rights principles are not expressly given as a rationale for any of the measures outlined in the strategy. However, there are a small number of express references to “equality” and equality principles. It is stated that the vision of the strategy is to enable migrants or persons of migrant origin to participate “on an equal basis” with those of Irish heritage. The strategy also expresses a commitment to ensuring “equality of opportunity” for second generation migrants although it does not proceed to explain how this will be achieved.

Implicit references

The strategy does contain some implicit references to human rights and equality principles and human rights issues. Commitments are made with regard to the right of participation, as the strategy outlines its vision of enabling migrants or persons of migrant origin to participate on an equal basis with those of Irish heritage. The principle of non-discrimination is also referred to implicitly in the outline of measures aimed at combating racism and xenophobia including intercultural training, ensuring representation of migrants on joint-policing committees, and other measures. However, the strategy also states that provision of generic training across the public service via the shared learning and development curriculum will address specific provision of antiracism and cultural awareness training only “where a need is identified”.

One of the core elements of the strategy’s vision is that “the basic values of Irish society are respected by all”. The strategy also states that integration recognises the right of migrants to give expression to their own culture in a manner that does not conflict with the “basic values of Irish society” placing an emphasis on the need for migrants to conform to Irish values without elaborating on what these values are. As Xanthaki argues, portraying values as simply “Irish” or “European”, as though Irish and European societies are beacons of democracy and fairness, and then expecting migrants to conform to these values, can serve to create a conditional one-way process of integration and to impose an artificial gap between the “host community” and migrant communities.

Positive Aspects of the Strategy

The Migrant Integration Strategy contains several positive features in its vision to achieve integration. The first of these positive points is that aside from some limited and under-explored references to “values”, the strategy does not appear to focus on “cultural integration”. It states that migrants should be enabled to celebrate their national, ethnic, cultural and religious identities (subject to the law). A second aspect is its participatory conception of integration: its vision is that migrants are facilitated to play a full role in Irish society. A third positive point is that the strategy recognises the need for better data on issues facing migrants (action 8).

A further positive feature is that some of the actions deal with long-standing issues of immigration law. Here, the strategy states that a statutory scheme for long term residency will be introduced (action 11). In addition, measures will be introduced to enable registration of non-EEA migrants aged under 16 years (action 14). These measures are to be welcomed. Related to this point is another positive in that the Department of Social Protection is to continue to take measures to ensure that the Habitual Residence Condition for welfare payments is applied correctly and consistently (action 21).

Points of Concern

While the Migrant Integration Strategy has strengths, there are also some points which cause concern. An initial point of concern is that the vision of the strategy includes, as its first priority, that “The basic values of Irish society are respected by all” and that it does not identify what these values are or might include.  A second point of concern is that, as outlined above, there are no express references to human rights principles as such, although some reference to “equality of opportunity”. The limited nature of references to immigration law is a further point of concern. Access to family reunification and the regularisation of undocumented people are some important long-standing issues which are not dealt with in the strategy. The strategy’s commitment to examine the imposition of a citizenship and/or language tests (action 12) is a further point of concern, as such tests act as barriers to integration.

The fact that the strategy does not apply to asylum seekers or undocumented migrants, as it only applies to “EEA and non-EEA nationals, including economic migrants, refugees and those with legal status to remain in Ireland” is unsurprising but nonetheless disappointing. This means that direct provision falls outside law and policy once again.

A final potential point of concern is the lack of any reference to relevant research reports, the ESRI’s Annual Monitoring Report on Integration, academic studies of integration and so on. Perhaps this is to be welcomed as it means that the strategy favours a pragmatic approach. However, this could also result in a lack of coherency and the lack of a developed vision of integration and its implications.

Human Rights-Based Integration Policy and the New “Migrant Integration Strategy”

The Citizens Assembly Proposals: A Draft Bill

Lawyers for Choice has produced a draft bill that gives effect to the Citizens’ Assembly’s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly’s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members’ and not those of Lawyers for Choice.

Regrettably, the Assembly’s deliberations on legislation were confined to grounds for accessing abortion only. Experience worldwide shows that, even where grounds are well-drafted, abortion can be difficult to access. The Oireachtas must pay attention to barriers to access such as obstructions outside of clinics, the circulation of misleading information on abortion, underfunding of services, and conscientious objection. Any final legislation must make provision for these matters.

In addition, we regret that the Assembly was unable to consider the decriminalisation of abortion, which is clearly required by international human rights law. Continue reading “The Citizens Assembly Proposals: A Draft Bill”

The Citizens Assembly Proposals: A Draft Bill

NUI Galway Announce New Director of Irish Centre for Human Rights

NUI Galway has announced the appointment of Professor Siobhán Mullally as the Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights at NUI Galway. Professor Mullally will take up her post in September 2017.

Professor Mullally is currently a Professor at the School of Law, UCC where she also holds the position of Vice-Head of the College of Business & Law. She was recently elected President of the Council of Europe expert group on human trafficking, GRETA. Professor Mullally is also a Commissioner of the Irish Human Rights & Equality Commission and a member of the Permanent Court of Arbitration in The Hague.

For further information see here.

NUI Galway Announce New Director of Irish Centre for Human Rights