The Labour Party #repealthe8th Proposals: An Analysis

By Professor Fiona de Londras, University of Birmingham | E: | T: @fdelond

Today the Labour Party became the second party to outline its plans for repeal of the 8th amendment and the possible legislation that would follow constitutional change (the first was the Green Party, whose proposals I analysed here). The proposals seem to have temporarily disappeared from the Labour page, but the Heads are uploaded here.

I must start this post by saying that, together with nine others (Mairead Enright, Vicky Convway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Claire Murray, Sheelagh McGuinness, and Sorcha uí Chonnachtaigh) I was involved as an independent expert in the Labour Women Commission on Repeal of the 8th Amendment. This Commission comprised a political group, a medical group, and a legal group. Our job, as the legal group, was to propose a piece of law that might act as a “model” for post-amendment legislating, listening to the views of the medical experts and feeding into the political decision-making processes of the political group.

Our involvement did not mean that the political group would automatically endorse our proposals, or that the Labour Party’s policy objectives would determine our proposals. Inevitably, the context in which we undertook the task of drafting such a law informed our approach to it, and we explain the thinking behind our draft law here. The draft law itself was published open access here. As is clear from the analysis that follows, the final proposals from the Labour Party adopt some, but not all, of what we proposed (just as the Green Party proposal did), and we all remain at the disposal of other political parties to discuss the proposals as they (we hope) formulate their policies on abortion coming up the general election. Continue reading

Book Launch: International Human Rights: Perspectives from Ireland, 8 December 2015

EganOn December 8th 2015,  UCD School of Law will host the launch of Suzanne Egan’s new edited collection International Human Rights: Perspectives from Ireland. The book will be launched by the Chief Commissioner of the Irish Human Rights and Equality Commission (IHREC), Emily Logan.

Location: Gardiner Atrium, UCD School of Law

Time/Date: 6.30pm on 8th December 2015. 


International Human Rights: Perspectives from Ireland examines Ireland’s engagement with, and influence of, the international human rights regime. International human rights norms are increasingly being taken into account by legislators, courts and public bodies in taking decisions and implementing actions that impact on human rights. Featuring chapters by leading Irish and international academic experts, practitioners and advocates, the book combines theoretical as well as practical analysis and integrates perspectives from a broad range of actors in the human rights field. You can access the full table of contents for this book here.  Egan’s collection explores:

  • The philosophical development and challenges to/of human rights;
  • The international human rights framework (UN human rights council; UN Treaty system; EU and ECHR);
  • Implementing human rights in Ireland (Magdalenes, socio-economic rights, rights of the child; human trafficking; religion; privacy; refugee definition; criminal justice, policing and conflict).
  • Implementing human rights abroad (Irish foreign policy and obligations of Irish organisations).

Bloomsbury are offering all registered students (full and part time) a 40% discount on the book, with the discount code: IHR40%. You should enter this code at checkout

FLAC: 2016 Thomas Addis Emmet Fellowship

FlacThe Free Legal Advice Centres (FLAC) is now accepting applications for the 2016 Thomas Addis Emmet Fellowship – a unique opportunity awarded each summer to an Irish law student interested in working on critical social justice issues and developing skills in public interest law practice.

Run in conjunction with the University of Washington, the recipient will spend two months with a public interest law justice centre at the forefront of human rights and social change in Seattle, Washington, gaining hands-on experience of targeted public interest litigation, policy development and campaigns.

The Fellowship is open to all current law students, including students that have studied law as part of their undergraduate degree, postgraduates in law, and students of the King’s Inns or Law Society professional practice courses.

To apply please submit an essay on an area of public interest law of your choice (max. 2000 words) along with a cover letter and CV to by Friday 15 January 2016.

For more information, please download the information sheet.

The Green Party’s Reproductive Rights Policy: An Appraisal

By Professor Fiona de Londras, University of Birmingham E: T: @fdelond

The Green Party has released a reproductive rights policy in advance of the general election. The policy is very welcome, and is a further indication that reproductive justice is likely to be a central issue in the forthcoming election. The policy is especially interesting in that it speaks to a broad reproductive rights policy, endorsing better maternity care and more choice in maternity and birthing options, and committing to access to safe and affordable contraception, which is a very welcome development. The publication of this policy also speaks to the Green Party’s decision to support repeal of the 8th Amendment by means of a referendum, although its support is given “on the condition that the Government have provided draft legislation which will be put in place if the referendum passes”. It is on this proposed law that I want to concentrate here. Continue reading

Carroll on Marrying youth and politics: more than a click away

Aengus Carroll (LL.M) is co-author of State Sponsored Homophobia 2015, a global survey of law for the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). He is ILGA’s member on an Expert Steering Group to the United Nations Development Program (UNDP) and the Office of the High Commissioner for Human Rights (OHCHR) on a Global LGBTI Inclusion Index to run in line with the new Sustainable Development Goals (2015-2030).

Although Irish people of all ages voted yes in the marriage equality referendum on 22 May this year, the numbers demonstrate it was the youth vote that assured its success. Such youth turn-out was unprecedented in Irish political life, and flies in the face of conventional political wisdom that young people are apathetic.

Now that the largely untapped youth voice has clearly resounded across this country and with a general election on the horizon, a variety of campaigners and political parties are looking at how to quickly harness that voice again. Youth mobilisation has become a new holy grail in Irish politics. But what campaigners and politicians fail to see is that the youth mobilisation around the marriage equality referendum was the result of over a decade of youth empowerment and infrastructure building in towns and villages across the country by BeLonG To – Ireland’s LGBT youth organisation. Continue reading

The Importance of the Women-y Fringe-y Excesses of Irish Pro-choice Activism.

Mairead Enright.

In the past year or so, Irish pro-choice protesting has taken on a new vitality. Some pro-choice actors have adopted the language of satire, humour, scandal and disobedience to show up the limits of the abortion regime. I have written before about the abortion pill train (which recently morphed into the abortion pill bus) and Speaking of I.M.E.L.D.A., whose “Delivering the Word” (above) is a must-watch. Most recently, the comedian Grainne Maguire has been encouraging Irish women to “tweet their periods” to the Taoiseach, in an effort to “reclaim the humanity” of the abortion debate and to demonstrate that women are not ashamed to challenge a government which refuses to give up its control over women’s reproductive functions. For their pains, activists who choose these routes to political action are told that their methods are misguided, counter-productive, annoying, and an improper departure from those past feminist tactics which can now be celebrated and valued. The attempted suppression of disruptive political activism around abortion has its mirror in some official retellings of the marriage equality referendum, which close out both the history of Irish queer protest and the central role of working class campaigners and voters, in favour of a soft lens tale of constitutionalism and carefully choreographed deliberative democracy (on which see Anne Mulhall here). Closer to the root of the abortion issue, we find resonances with this government’s official discourse of abortion law reform. Fine Gael, which will not even commit to reforming the law on abortion information, much less to repealing the 8th Amendment,  thrives on its occupation of the “proper” position from which to instigate legal change. When challenged on his reluctance to examine the 8th, the Taoiseach presents himself as unflinchingly guarding ‘the People’s book’ (the constitutional text which perfectly reflects the democratic will of the ‘people’) from the undemocratic hordes and calmly refusing to be “rushed” (after over 30 years) into ill-thought-out law reform. (This paternalistic identification of his government with the measured and careful exercise of proper legal agency is, of course, also reflected its limited abortion legislation, which operates on the presumption that the law must be protected from the dangerous and disobedient agency of hysterical women).

This sort of denigration of those whose demands for legal change do not fit ‘legitimate’ patterns is grounded in a fundamental misunderstanding of the meaning and purpose of political action. I want to draw on Jacques Rancière’s distinction between ‘the political’ and ‘the police’. ‘Police’ here refers not to the police force but to the systems which establish a ‘distribution of the sensible’, dividing us into groups according to our attributed status and functions. These divisions are between the community of the “we” and those who belong outside it; between those who are included and excluded, accepted and unacceptable, and accordingly between the visible and the invisible, the sayable and the unsayable. What we think of as politics – limited deliberation in designated institutional spaces – usually consists in argumentation and negotiation around these divisions, undergirded by some “common sense” or consensus. True politics, by contrast, is about upsetting the dominant distribution of the sensible. Politics takes place when in moments of dissent “the part of no part” – those who normally should not be seen or heard – intervene in the established system of meanings, questioning it, and by that questioning insisting on their equality with others as political subjects and members of a broader “we”. For example, at this year’s March for Choice, the comedian Tara Flynn spoke movingly about Ireland’s abortion regime. In a lighter moment, she noted that reproductive rights campaigns were often construed in the public sphere as a ‘women-y fringe-y thing”. But, she said, of the assembled pro-choice marchers, “we are not some women-y fringe-y part of society, we are society”. That sort of statement gestures in its own way to the intervention of the “part of no part” in the distribution of the sensible – it signifies how those silenced by the dominant public settlement around the abortion issue have insisted on being heard and included in spite of systems of mockery, shaming and discursive degradation which diminish and devalue them. From this perspective, the very point of politics is to disrupt decided orders of power and civility. There can be no ‘proper’ set of political actors who are more entitled or more qualified than others to engage in acts of political subjectivization; to demand a new political place. And equality, similarly, is not a determinate goal which can be finally achieved in any sense,  but something with limitless potential which is presupposed and constantly expressed or verified in our political actions. In intervening in the distribution of the sensible, the ‘part of no part’ refigures political space, making sayable and thinkable that which previously could not be said or thought.

The basic “moderate” claim which circulates within mainstream discourses of abortion law reform in Ireland is that women are not allowed to be ‘angry’ about the 8th Amendment. We are read as angry when we make urgent demands for law reform, or compose or share satirical barbs, or draw attention to the bodily injuries, the despair and pain inflicted by the law. And that attributed anger is dismissed as worthless, even when it may be visionary. As Sara Ahmed says, the refusal of oppressed groups’ attributed anger and the insistence that they ‘go along’ with dominant political modes of work – the insistence on gentler, even happier forms of political action – is a classic tactic of political exclusion. When we are angry, we are accused, not only of the irrationality which should disqualify us from political participation in the first place, but of threatening the smooth communication which supports the political bond. (In this respect, the dismissal of more militant strands of the movement for abortion rights betrays a certain sense of the liberal mainstream’s vulnerability – its fear of fragmentation). But, on Rancière’s account of the political, we create political community through conflict. The apparent incivility of the oppressed is not something to be tamed and disciplined: it is the point of politics. That being so, it is never clear that there is a “right” or “wrong” mode of entry into the political. Contests about the ways in which we can speak properly about issues of central importance to the community matter. And it may be that the more unsettled and scandalised those with the most power to regulate the agreed boundaries of the “we” become, the closer things are to the heart of the political. Moreover, if equality can never be finally achieved, then it is never clear that a political struggle is over. The demands of equality always exceed what has already been achieved. (This is the point of Marlon James’ recent interrogation of the Liberal Limit.)

Those who insist that abortion rights campaigners conduct themselves in ways which do not “annoy” or “upset”, or talk too much about bodies, or otherwise tend to excess, may claim – in the grand tradition of liberalism – to be defending politics’ essential virtue and decorum, and to be guarding the proper way of doing things from untamed or naive outsiders. But in so doing, they are merely attempting to reinforce their own powerful position within the police order; insisting on a politics which can only be conducted on their terms; turning politics into an insurance policy for their own privilege.

Hungary’s Border Control Actions: Past the Borderline of International Law


Bríd Ní Ghráinne is a lecturer in International and Refugee Law at the University of Sheffield. She holds a DPhil from the University of Oxford and an LLM for Universiteit Leiden. She can be contacted at A shorter version of this article is available at the Oxford Human Rights Hub blog.

 As the European refugee ‘crisis’ worsens, the Hungarian government is resorting to more extreme border control measures that test the parameters of international law. The Guardian reported on 17 September that Hungary had fired gas canisters and sprayed water at crowds of frustrated refugees who had briefly broken through the fence that separates Hungary and Serbia. It was also reported that asylum-seekers’ claims were being assessed and rejected ‘within minutes’. These reports have ‘shocked’ the international community, and the purpose of this brief piece is to give an overview of the legal issues engaged.

There are three separate legal regimes that bind Hungary in respect of these events. International law, and in this case, the 1951 Refugee Convention, takes primacy for reasons that will not be discussed in detail here. European Union Law as well as the 1950 European Convention of Human Rights are also relevant as Hungary is party to the EU and the Convention.

Regretfully, history has shown us that rejection at the frontier is not an uncommon response in cases of mass influx of refugees, such as in April 1999, when Macedonia closed its border to Kosovar refugees at the Blace border crossing. Article 33(1) of the 1951 Refugee Convention, to which Hungary became a party in 1989, provides that no-one shall be expelled ‘in any manner whatsoever’ to the frontiers of territories where their lives or freedoms may be in danger. This provision applies to recognised refugees as well as asylum-seekers, and there is strong academic consensus that this provision applies to those presenting themselves at the border, as is the case in Hungary. However, whether the lives of the refugees who have been pushed away from the border with Serbia are now in danger is difficult to tell and therefore it is unclear if Article 33(1) has been engaged on this occasion. If they eventually have to return to Syria (if that is where they came from), then there has certainly been a breach.

A stronger argument can be made that Hungary’s ‘pushback’ actions are in breach of EU and European Human Rights Law. The Dublin III Regulation, which provides that the first EU country in which an asylum seeker arrives has responsibility for determining that asylum seeker’s status, does not render Hungary’s actions legal. Thus if another EU country has been entered prior to arriving at the Hungarian border, Hungary does not necessarily have the right to refuse asylum. Under international law (as opposed to EU law), there is no obligation incumbent upon a refugee to make an asylum claim in the first country of arrival. Further, many of the asylum-seekers trying to cross the Hungarian border would have first arrived in Greece, which does not have a functioning asylum processing regime. Thus Hungary would be responsible for deciding the claim, as set out in the Dublin III regulation. Moreover, the European Court of Human Rights found in the case of MSS v Belgium and Greece [2011] that sending an asylum seeker from Belgium to Greece (in the application of the Dublin Regulation) was in breach of the European Convention on Human Rights. This was because the conditions in Greece violated Article 3 of the Convention, which prohibits torture and inhuman or degrading treatment or punishment

Hungary’s argument that Serbia is a ‘safe third country’ also fails upon scrutiny. The safe third country concept provides that asylum need not be granted in the state in which the application was made, provided an alternative state is willing to accept the refugee. Whether sending refugees to a third country is a breach of international law depends on whether effective protection is available in that country. A report by Amnesty International from July 2015 indicates that this is not the case in Serbia, where amongst other factors, refugee recognition rates are extremely low.

The reports of asylum claims being dealt with within ‘minutes’ as reported by the Guardian are also worrying, particularly because there seems to be no effective appeals system and refugees are given information only in the Hungarian language. These actions are arguably a breach of both the 1951 Refugee Convention and the EU Asylum Procedures Directive (Council Directive 2005/85/EC). Although the 1951 Refugee Convention does not formally set out the procedures involved in the determination of refugee status, Goodwin Gill and McAdam in their text The Refugee in International Law (OUP, 2011) argue that the Refugee Convention’s object and purpose of protection and assurance of human rights strongly support an obligation to adopt of effective internal measures. This was the position of the Executive Committee (ExCom) of the United Nations Refugee Agency (UNHCR), which in its Executive Conclusion No. 8 (XXVIII) (1977) set out a range of procedural guarantees to be followed in the determination of asylum proceedings; including that (i) Applicants should receive the necessary guidance as to the procedure to be followed; (ii) Applicants should be given the necessary facilities, including interpreters and contact with the UNHCR, to submit their case; (iii) failed asylum-seekers should be given a reasonable time to appeal and they should be allowed to remain in the country while appeal is pending.

Similarly, the Asylum Procedures Directive guarantees access to a fair and efficient asylum decision and it explicitly applies to applications made at the border. It mirrors the standards set out by the ExCom above, and goes into significant detail regarding the content of the rights granted, such as the conditions under which an interview must take place and the scope of legal assistance and protection. If the allegations of asylum applications being rejected ‘within minutes’ are true, it is highly likely that Hungarian authorities have not complied with these EU and international legal standards.

Finally, it is necessary to examine the legality of the use of tear gas as reported by the Guardian to force migrants back from Hungary’s border. According to the European Court of Human Rights case of Abdullah Yaşa and Others v. Turkey [2013], the use of tear gas in itself is not necessarily a violation of the Convention where a gathering is not peaceful. In the Yaşa case, the gathering was deemed to be ‘not peaceful’ as the demonstrators were throwing stones, as was reportedly the case with the migrants at the Hungarian border. However, the European Court of Human Rights also found that the use of tear gas can be a violation of Article 3 of the Convention where excessive force is used, for example, where tear-gas grenades are launched (Yaşa), or where tear gas is used on someone deprived of their liberty (Güneş v. Turkey [2012]). As the exact circumstances surrounding the use of the tear gas at the Hungarian border is not clear, it seems difficult to come to a conclusion whether the Hungarian authorities’ actions in this respect were unlawful.

In sum, the actions of the Hungarian authorities in allegedly dismissing asylum applications ‘within minutes’ and in rejecting refugees at the frontier are appropriately condemned as a violation of International, EU, and European Rights Law.




Gay Marriage in Northern Ireland


Northern Ireland Assembly Votes to Legalise Same Sex Marriage” proclaimed the headline in The Guardian. Few headlines have promised so much more than the subsequent story delivers. For in spite of the one-vote majority in favour of a change in the law in Northern Ireland in the Assembly on Monday, the DUP’s invocation of a “petition of concern” (POC) on the issue meant that it was able to veto the introduction of same-sex marriage in Northern Ireland. As Gerry Lynch put it, ‘it still felt like a punch in the plexus to finally secure a democratic majority through years of hard work only for it to be vetoed undemocratically’. With rich irony the Northern Ireland Act provisions designed to protect minority groups against predatory applications of majority power have been turned into a means of stymieing reform aimed at delivering marriage equality.

It wasn’t supposed to be like this. With the spectre of the Northern Ireland Parliament’s permanent Unionist majority dominating the drafting of the arrangements for the Northern Ireland Assembly at the time of the Good Friday Agreement, POCs were intended to maintain consociationalism within Stormont by requiring a super-majority and cross-community support where Northern Ireland’s Unionist or Nationalist parties considered that a measure threatened the interests of their community. The ability of POCs to block any legislative change has instead seen them increasingly applied as a strong-arm tactic to prevent changes to the law with the aim of preserving the status quo or extracting concessions in return for a POC being lifted. DUP measures, indeed, appear to be block signed by party MLAs with the issue to which they are to be applied being added to the form at a later stage. Public confidence in the Stormont Assembly’s ability to address the needs of society in Northern Ireland has plummeted.

Whilst the DUP’s stance on gay marriage might be out of step with opinion polling across Northern Ireland, it remains popular with its own core supporters and so the political incentive to wield a POC (ahead of next year’s Assembly elections) remains strong. But if the democratic institutions in Northern Ireland remain so dysfunctional, will the courts intervene to permit gay marriage? Legal challenges to the limitations are already underway in the Northern Ireland High Court. The UUP leader Mike Nesbitt, whilst describing opposition to gay marriage as being on the “wrong side of history” (whilst maintaining his own vote against change), has told his party conference that he expects the new law to be forced upon law makers through the courts.

Forcing law reform through judicial decision could unblock this particular impasse. The need to react to an adverse court decision might help the Unionist parties to soothe the evangelical elements amongst their support base, being “saleable” as a long-resisted reform that was forced upon the parties. All the better if the judgment is not issued until after the Assembly elections. And for people who want to get married, a win is a win, and they are not likely to sniff at the courts forcing the pace of change.

So should the courts intervene? Under section 6 of the Northern Ireland Act the legislation of the Northern Ireland Assembly is not valid law if it is outside the legislative competence of the Assembly (a concept which includes making a law which breaches ECHR rights). But as the Northern Ireland Assembly has not made a law banning Gay Marriage, just failed to enact one allowing it, the general provisions of the Human Rights Act (and its incorporation of the ECHR into UK Law) will apply.

Whilst the ECHR includes a right to marry (Article 12) the Strasbourg Court has to date refused to rule that it is discriminatory for states not to apply this right to homosexual couples. In July, in its latest judgment on the issue, Oliari v Italy, the Court maintained that as only 11 of the 47 states signatory to the Convention had to date accepted same-sex marriage, there was no European consensus in favour of reading such a right into the terms of the ECHR. Many Unionist politicians picked up on this point in Monday’s debate:

The European Court of Human Rights has ruled that same-sex marriage is not a human right, so this is not a rights issue. (Gordon Lyons, DUP)

There is no human right recognised by the European Convention on Human Rights or the European Court of Human Rights to same-sex marriage. It therefore cannot be and is not a rights issue, nor is it an issue of equality. Rather, there is a worked-up, phoney demand for rights where none does or should exist. There is no equality issue here. (Jim Allister, TUV)

These same politicians will eagerly and angrily decry any effort by the Northern Ireland courts to change the law on human rights grounds. But Article 12 is not the only applicable ECHR right. The Court has established that the relationship of a cohabitating same-sex couple living in a stable partnership falls within Article 8 ECHR’s protection of “family life” (Schalk and Kopf v Austria), this might provide a basis for arguing that, as same-sex marriages concluded in other parts of the UK are treated as Civil Partnerships within the Northern Ireland jurisdiction, the awkward legal transformation of a marriage into a civil partnership as soon as someone steps off a ferry or plane amounts to discrimination.

Moreover, the definition of marriage in Northern Ireland law – “the voluntary union for life of one man and one woman to the exclusion of all others” – rests on a nineteenth century judicial decision, Hyde v Hyde (backed up by secondary legislation – the Matrimonial Causes NI Order 1978). By altering this definition the courts cannot be accused of tossing aside legislation enacted by elected lawmakers, a fact which might embolden any judge concerned about the political backlash resultant from such a decision. They also have a much freer hand in terms of their powers under the Human Rights Act than they would have had if the definition of marriage was contained in primary legislation, if they can be persuaded to move ahead of Strasbourg on the issue of Article 12.

This room for manoeuvre makes the gay marriage cases crucial tests for the role of the courts in Northern Ireland’s system of government. On a range of issues from gay marriage, to the ban on gay blood donations to the strict limitations on abortion, judges in Northern Ireland are increasingly being confronted with cases which highlight the blockages in the Assembly’s law-making process. Some might decide that the time has come to chivvy the Assembly along.





Hearing with the Delegation for Women’s Rights of the French Senate and National Assembly on Ireland’s Abortion Legislation

We are pleased to welcome this guest post from Claire Nevin.

On the 17th January, 1975, France decriminalised abortion with the passing of the Loi Simone Veil. Forty years later, and in stark contrast to a much more liberal European consensus on abortion and international human rights norms, Ireland remains one of a small minority of countries, including Malta and Poland, which stubbornly cling to oppressive abortion legislation. In the case of Ireland, a woman is liable for a fourteen year prison sentence if she aborts in Ireland.

On the 7th September 2015, the Senator for French Expatriates, Olivier Cadic, was in Dublin on a constituency visit. As Senator for French Expatriates, his mandate requires him to visit specifically allocated countries in order to keep up-to-date with matters relating to the French community abroad. The recent forty year anniversary of the passing of the Loi Simone Veil caused him to take an active interest in the continuing criminalisation of abortion in Ireland and he requested to meet with someone who could inform him about the consequences of Irish abortion legislation during his visit to Dublin.

Having recently graduated with a master’s degree in human rights and democratisation from the European Inter-University Centre for Human Rights and Democratisation, where I wrote my master’s thesis on Irish abortion discourse, and having previously met the Senator in 2012 while I was a history student in a Parisian university, he was pointed in my direction. During our meeting, he was shocked to discover the oppressive nature of Ireland’s abortion legislation. He was particularly horrified to hear of tragic cases such as Savita, Ms. Y and PP v. HSE, stating that he was not aware of the full extent of the harm inflicted on women’s lives and wellbeing by the 8th amendment.

Senator Cadic expressed the belief that increased pressure from fellow EU member states could play a positive role in pushing for a change in Ireland’s abortion legislation, as so far, EU member states and the European Court of Human Rights have taken a conservative approach to this issue, based on the argument that Ireland’s exceptionalism regarding abortion falls within its ‘margin of appreciation.’ Senator Cadic wants to play a role in attempting to reverse this trend and promote greater consciousness-raising amongst EU member states that Ireland’s abortion legislation and its resulting consequences constitute an urgent human rights issue that deserves due attention at European level.

Senator Cadic and I decided that appealing to EU member states’ vested interest in protecting the rights of their expatriates was an angle that could convince fellow member states that the continuing criminalisation of abortion in Ireland also affects them and their citizens. In order to achieve this and promote greater awareness of and concern for this issue at European level, we decided to stress that freedom of movement within the European Union and the popularity of university exchanges such as the Erasmus programme, result in women who choose to come to Ireland having less rights than in their home countries.

Following on from our meeting in Dublin, Senator Cadic invited me to Paris to speak at the French Senate in front of Senators and the French Delegation of Women’s Rights about Ireland’s abortion legislation. I was accompanied by  Laurence Helaili, the elected representative for French Expats in Ireland. The aim of the visit would be to establish the role that France could play in promoting greater dialogue between Ireland and fellow EU member states on aligning Ireland’s abortion legislation with European consensus and international reproductive rights norms. The 28th October was chosen for the hearing at the Senate; the 28th October 2015 being the third anniversary of the death of Savita Halappanavar, who died as a result of the ‘chilling effect’ of the 8th amendment on Savita’s doctors ability to intervene and provide her with a medically necessary and potentially life-saving abortion.

The meeting with the Delegation for Women’s Rights, presided over by former Minister for the Environment, Senator Chantal Jouanno, was an extremely productive one. Having listened to my presentation on Ireland’s abortion legislation and specific examples from recent years which demonstrate it to be an inherently flawed and harmful piece of legislation, Senator Jouanno did not hesitate to tell me that she feels ‘very afraid for French women living in Ireland.’ By the end of the day, I was starting to get used to being met with disbelief and indignation as I described and answered questions about Ireland’s approach to abortion. This initially surprised me as I had taken for granted that members of another EU member state’s Delegation for Women’s Rights would have been aware of such a glaring example of exceptionalism on a human rights issue within the European Union.

The Delegation for Women’s Rights were of the opinion that more information and greater consciousness-raising within the European Union would be necessary in order to establish dialogue between Ireland and other member states on the need to repeal the 8th amendment and replace it with medically sound and accessible abortion legislation that coheres with human rights standards in the area of sexual and reproductive health. To that end, the Delegation decided to inform French citizens intending to move to Ireland of the rights that they would no longer have regarding their lives, health and choices, upon arrival in Ireland. This will be done by including a section detailing Ireland’s abortion legislation on the information page for expatriates of the French Ministry for Foreign Affair’s website. Senator Jouanno will also write to the French Ambassador to Ireland so that women already in Ireland can be informed and know that their embassy will support them if they need any information.

The day after my visit to the French Senate, I was invited to visit Amnesty International France’s headquarters in order to see how Amnesty could support and help implement the decisions taken in the French Senate as part of their ongoing My Body My Rights Campaign. Yves Prigent, who is responsible for Amnesty France’s involvement in this campaign, stated that the approach undertaken at the Senate in order to lobby for greater awareness of and pressure to change Ireland’s abortion legislation at European level by appealing to member states’ mutual interest in protecting the lives and health of their expatriates in Ireland, was an ‘ingenious approach’ that Amnesty had not previously considered.

We decided that this work should be expanded and built upon by liaising with the embassies of other EU member states in Ireland, with the aim of establishing cooperation along the lines of that which resulted from my meeting at the French Senate. To that end, I am currently in talks with Irish pro-choice organisations about co-signing a letter with Amnesty International that will be send to embassies in Ireland, encouraging other EU member states to take similar interest in the lives and health of their female expatriates. In the letter, I will request to meet with ambassadors and encourage them to take similar steps to France in ensuring that their expatriates are informed of the risks they run in Ireland as a result of the 8th amendment.

Finally, Amnesty and I also decided that a more political approach would also be advantageous to ensure that the visit to the Senate will resonate with Irish political parties in the run up to the General Election. The letter to the ambassadors will therefore be followed by another letter, also co-signed by Amnesty and pro-choice organisations, which will be sent to all of the Irish political parties to inform them of the steps taken at the French Senate and of the follow on work being done to encourage other member states to take a similar approach. We will highlight the potentially harmful repercussions of such negative perceptions of Ireland abroad, particularly in light of Senator Jouanno’s comment about being ‘afraid’ for French women in Ireland. We will seek responses that clearly outline how parties plan to approach the abortion issue and what steps they will take to align Ireland’s abortion legislation with international human rights standards.


Responding to the Refugee Crisis: Examining the Broader Systemic Context in Ireland

Ireland’s role in responding to the refugee crisis has been the subject of a lot of media attention in recent weeks and months. In particular, the provision of search and rescue assistance by the Irish Navy, and the agreement to receive up to 4,000 asylum seekers as part of the EU resettlement and relocation programme are to be broadly welcomed. In addition, the allocation of funds in Budget 2016 to support relocated asylum seekers has been cautiously welcomed  by the Irish Refugee Council. Leaving aside the sufficiency of the Irish and EU response overall (for example, see commentary on the EU relocation programme by Steve Peers here), important questions remain as to how relocated asylum seekers will be treated on arrival in Ireland.

How will the State avoid repeating the mistakes of direct provision (on which, you can access posts by Liam Thornton and others here)? Moreover, how is it proposed to deal with asylum seekers already in the system, or those who arrive in Ireland spontaneously? Will the recommendations of the Working Group on Improvements to the Protection Process (critiqued by Liam here) in relation to reception of asylum seekers be fully implemented for new arrivals as well as those already seeking asylum in the State? What will happen to relocated asylum seekers who are refused refugee status?

All of these questions form part of the bigger picture of the State’s approach to asylum and immigration matters. In this context, a number of cases which seem to highlight a lack of compassion and humanity in the administration of immigration and naturalisation law come to mind.

Appeals to Minister for Justice’s humanity in PO

In PO v Minister for Justice and Equality [2015] IESC 64, the Supreme Court refused to restrain the deportation to Nigeria of a woman and her nine-year old son, who was born, raised and educated in the State (although was not an Irish citizen). In the context of a prolonged period of unlawful residence in the State (the applicants had had no right to be in the State since 2010), the Supreme Court found that they had no entitlement to remain in Ireland on the basis of Article 8 of European Convention on Human Rights, which protects private and family life.  Given its decision that “no legal rights” were involved, the Supreme Court could not disturb the Minister for Justice’s decision to deport the applicants.

However, a notable feature of the case was the Supreme Court’s appeal to the Minister to exercise her discretion in a humane way, given that “real issues of ministerial discretion may arise in this case, which involve an 8 year old child, and his mother, both of whom have now resided in this State for well nigh on 9 years.”  Laffoy J agreed with these observations of MacMenamin J.  Charleton J also commented: “As a matter of humanity, but not as a matter of law, it is for the respondent Minister to ask herself how she feels it appropriate to consider this matter in the exercise of her discretion.” These comments effectively raise questions as to the ethics of the State’s approach to deportation proceedings.

Impatience in the Supreme Court in Sulaimon

The Supreme Court’s impatience with administrative procedures and decision-making had been clearly expressed in Sulaimon v Minister for Justice, Equality and Law Reform  [2012] IESC 63, in which the Court severely criticised the “contrived” nature of ministerial and departmental attempts to deny a young boy birthright citizenship, on the basis of their calculation of the residence of his father.

Here, a father sought to claim birthright citizenship for his son on the basis that he (the father) had satisfied the three year lawful residence period in the State at the date of the son’s birth. His application was refused on the basis that he was three days short of the required time period. The case turned on a technical point of immigration law concerning the date on which the father’s legal permission to remain had been granted, with the Supreme Court finding in favour of the child that a letter received by the father constituted the permission to remain, rather than the date on which the relevant stamp was placed in the father’s passport.

The severity of the criticism which was levelled at the Department and the Minister by the Court in Sulaimon, in terms of both the handling of the application and the subsequent litigation, was striking. Hardiman J was particularly vocal, stating (at para. 24):

I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship in the country where he has been permitted to reside all his life, a citizenship enjoyed by his father and his sister. If there is a point to the pain and anxiety caused to the child’s family, the expense to which they have been put and the taxpayers’ money which has been spent, it entirely eludes me.

The correspondence received by the father was described by O’Donnell J as “confused and confusing”, and the conduct of the litigation, during which “highly contrived and artificial arguments” were advanced on behalf of the Minister, was seen as unacceptable.

Formalism, legalism and rigidity: the basis for a generous response to refugees?

PO and Sulaimon seem to highlight a legalism, formalism and rigidity in the administrative approach to leave to remain and naturalisation processes. These features are also in evidence in the “discretionary” areas of the more tightly-regulated field of asylum, as shown in a series of judicial reviews in which ministerial decisions on family reunification for refugees have been overturned. Among these was AMS v Minister for Justice and Equality [2014] IESC 65, in which the Supreme Court found that the approach taken by the Minister in refusing family reunification to the mother and minor sister of the applicant (on the basis of the potential financial burden which they would be on the State) was disproportionate. This was the second time that a decision of the Minister in respect of the same case was found to be disproportionate by the courts, the High Court having quashed the first refusal.

It is difficult to see how those due to arrive in Ireland (let alone individuals currently seeking protection or leave to remain, or those who arrive spontaneously at our borders) can be dealt with in a caring, rights-centred manner in the context of a system which demonstrates these features. However, perhaps the outpouring of public sympathy for the plight of those fleeing violence and persecution will provide the impetus for a shift in culture in this regard. Fundamental reform (preferably abolition) of the direct provision system (the weekly allowance of 19.10 per adult and 9.60 per child remains untouched after Budget 2016); the publication of the International Protection Bill (which would start a process of debate and critique of the Bill); and clarification on the procedures which are to be applied to relocated asylum seekers would seem to be a good start.