Notes on Judge Harding-Clark’s Report on the Symphysiotomy Payment Scheme.

Judge Maureen Harding-Clark’s report on the much-criticised Symphysiotomy Payment Scheme was published two days ago. It is 275 pages long – 133 of commentary from the judge, 142 of extracts from medical literature and hospital records. Judge Harding-Clark was in an important position. She assessed applications from almost 600 women who believed that they had been subject to symphysiotomy. She oversaw searches of hospital records, and medical tests designed to verify their claims, and she allocated redress payments accordingly; 50,000 euro to those who could show they had had a symphysiotomy, 100,000 euro to those who could link that symphysiotomy to ongoing health consequences, and so on. Her report does more than describe the functioning of that role. It situates the scheme she oversaw in the context of an extensive defence of the uniquely Irish practice of non-emergency symphysiotomy. It is not the independent report survivors of symphysiotomy are entitled to under human rights law. The media have read it as diminishing SOS’s claim that the non-emergency substitution of symphysiotomy for Caesarean section without consent, as practiced in Ireland, violated many women’s human rights. However, this coverage has been insufficiently critical of this report. Here are just some of the report’s problematic features:

Lifelong Injury: The judge repeatedly stresses that she did not find that symphysiotomy ‘as a matter of near certainty created lifelong suffering’. ‘Near certainty’, is not, of course, the ordinary civil standard applied to causation in personal injuries. The report does not show that symphysiotomy was a benign operation. Over 35% of successful applicants to the scheme were able to demonstrate that they suffered significant disability which, on the balance of probabilities were caused by a symphysiotomy, and which had lasted more than three years. The judge emphasises that these were not the kinds of injuries (difficulty walking, incontinence) which were typically associated with symphysiotomy in the media; nevertheless, the disabilities listed in her report are distressing and significant. While the judge stresses that she was ‘generous’ in helping women ‘over the line’, all of these women were able to prove their injury either with original medical records (by no means easy to get after decades), or by medical examination conducted under the direction of the scheme. The remaining 65% were able to satisfy the judge that they had undergone symphysiotomy, and all of them will have suffered significant pain, and perhaps disabilities which lasted less than three years.

In any event, the judge’s focus on lifelong disability diminishes the experience of the operation itself. Indeed, it is striking that the report only discusses the performance of a symphysiotomy in the clinical language of scalpels and sinews. Women’s first person testimony of the operation, by contrast, emphasises fear, pain far beyond the normal expectations of labour, distress and powerlessness. Although the majority of the 55 applicants who had symphysiotomies before labour began did not suffer significant disability, all of them laboured through a damaged pubic joint. Prevalence of life-long injury is not the only measure of the harm done by symphysiotomy.

‘Unfounded Claims’ and Difficult Activists. Much has been made of the judge’s finding that 185 applicants to the scheme could not make out their claims. The report devotes a chapter to these women. It also spends considerable time on applicants who, whether or not they succeeded in proving symphysiotomy, could not satisfy the scheme that they had suffered significant disability Of course, we don’t as yet know who these women were or how they would describe their experience of the scheme. We should not forget that 399 women received awards, and that many women died before the scheme came into operation. That a large number of claims failed should not deter us from examining whether successful applicants have been properly treated, by the scheme or by the state. However, there are also serious shortcomings in how the report presents the issue of unsuccessful claims.

First, in some cases, the judge’s perception that claims were inaccurate affected the scheme’s procedure. For example, the judge finds evidence of a lack of candour by women, or of inaccurate diagnoses by doctors, in the recent medical reports of radiographers and GPs furnished to the scheme – and explains that this problem was so significant that it justified her insistence on preferring contemporaneous records of symptoms to more recent ones. To the same effect, the judge suggests that solicitors or campaigners assisted women to prepare statements to the scheme according to templates which made repeated use of similar ‘lurid’ or ‘harrowing’ motifs and adjusted women’s symptoms to fit media reports. She contrasts these applications with those which women prepared ‘personally’. However, while the judge provides anecdotes, she does not number the problematic complaints, rank them in terms of seriousness, or give a sense of how widespread these issues were.

Second, the language the judge uses to describe unsuccessful applicants is entirely inappropriate in a report of this kind. At worst they are chastised for buying into ‘conspiracy theories’, for ‘unreasonable’ reactions, for their anger and disappointment. At best, they are patronised as ‘suggestive personalities’ ‘amenable to … emotional contagion’ and subject to ‘acquired group memory’ developed through involvement in campaigning organisations; or elderly women sent into ‘turmoil’, not by their experience of symphysiotomy or by the government’s attitude to it, but by irresponsible  ‘media reports’. The judge says:

it is very probable that the combination of a traumatic birth experience and exposure to other women’s stories has created a self convincing confabulation of personal history. Another inference is that the possibility of financial payment has  influenced suggestible women and their family members into self- serving adoption and embracing of the experiences described by others or in the media and created psychosomatic conditions.

The tone and length of this discussion sits uneasily with the judge’s insistence that a ‘compassionate and generous’ approach was taken to assessing claims which suffered from these perceived flaws. Most disturbingly, the report alleges, without explanation, that several prominent campaigners for justice for women subjected to symphysiotomy ‘who have been active in representing themselves as victims to the media’, as well as several of the 28 women still pursuing personal injuries litigation in respect of their symphysiotomies, were found not to have undergone the operation at all. The most well-known campaigning organisation; SOS, denies that any of its prominent members were unsuccessful applicants to the scheme. The judge gives an impression of suspicion of campaigning organisations and their lawyers. This attitude is underscored by this section on women’s correspondence with the judge: happy women concerned with family rather than campaigning, who are spending money on ‘spoiling themselves’, rather than on the amelioration of pain and disability.

I was ultimately glad that most exaggerated accounts were ignored and compassion was applied to these women who perhaps were influenced by others to make the statements. This led to some of the more pleasurable moments as judicial assessor when I read the warm letters and notes from the women who wrote to me after they received their awards to tell me that they were certainly intent on spoiling themselves a little. Several very happy applicants rang to tell me how they were going to spend their money. One lady was buying a special hat. One applicant lifted my heart when she told me that she had never had any money in her savings account. Now she looked at her bank account every morning, for the sheer pleasure of seeing the amount of money in the account in her own name. One delightful applicant invited me to tea at her house and one wrote a poem of appreciation. Most women who wrote, told me that it gave them huge pleasure to be able to help their children or their grandchildren with their awards

The report’s approach undermines human rights campaigners, group organising, and social justice lawyering in one fell swoop, perhaps forgetting that without the work of these organisations the redress scheme – however flawed – would not have been set up at all, and many women would not have been able to access it.

Reproduction, Birth and Women’s Bodies. The pro-natalist tone of the report is striking. For example, the judge repeatedly explains that even though many applicants to the scheme complained of difficulty and pain in sexual intercourse for a year after the operation, most women who received awards under the scheme went on to have multiple further pregnancies; the first within 12-18 months of the symphysiotomy. Thus a  young woman’s damaged sex life, leading to more babies, equates to  a ‘good recovery’. Of course, this is less evidence of the acceptability of symphysiotomy than of the general unavailability of contraception in Ireland until the 1970’s. This analysis suggests that the healthy female body is one that holds up to repeated childbirth, whether that childbirth was chosen or not. This impression is solidified by later references to ‘voluntary infertility’; a medical term which works to pathologise women who managed not to have more babies. Indeed, the report strives to normalise a model of reproductive life rooted in women’s suffering. For example, it notes the difficulties in distinguishing between injuries caused by symphysiotomy (which may deserve redress), and the presumptively acceptable injuries caused by having a dozen children, difficult forceps births, or one or more protracted, exhausting labours (which never can). Later, the report patronises women who applied to the scheme and were found not to have undergone symphysiotomy, attributing their memories to ‘confabulation’. The judge suggests they mistook other traumatic birth experiences for symphysiotomy. Here the wrongfulness of symphysiotomy is clearly being assessed against a backdrop of normalised suffering and obstetric violence. Arguably these ‘mistaken’ applications demonstrate a deeper problem in the history of childbirth in Ireland, which the exceptionalisation and defence of symphysiotomy only serve to mask. Finally, the report mentions that some women who underwent symphysiotomy were ‘extremely grateful to have a lovely healthy baby’. This is one of several examples of places in the report where the judge fudges the elementary difference between symphysiotomy as a last-resort, emergency, life-saving procedure, and symphysiotomy as an elective procedure, substituted for C-section. A C-section might also have given the same women the same healthy baby.

Testimony – Direct quotation from women’s testimony only appears in the context of discussing and contradicting unsuccessful applicants’ submissions; representing their statements as part of a clumsily orchestrated attempt to mislead the scheme. A long list of fragments, for example, appears at pages 100-101 of the report.  There is no  detailed discussion of successful applicants’ testimony. By contrast, the report contains over 100 pages of direct quotation, often lengthy, from documents and statements made by doctors who performed symphysiotomies.

Religion: Like the High Court and Court of Appeal  in Kearney and Farrell  the judge finds that there were medical as well as religious justifications for the Irish practice of symphysiotomy. In one breath the report says that there was no evidence of ‘a religious as opposed to an obstetric reason’ for performing symphysiotomy, and explains that its development in Ireland was connected to a unique need to avoid potentially dangerous repeat C-sections in circumstances where contraception was not available and sterilisation was not performed. There is a stubborn refusal here to recognise that religion is as much a matter of structural power as individual religious belief. Religion was present in the development of symphysiotomy even where its proponents did not use religious language This was because contraception was not available and sterilisation was not performed because medical practice and the law of the land reflected religious mores. The report suggests that contraception ‘was not countenanced’ by women in a country where the majority ‘happily embraced’ Catholicism,  so that symphysiotomy developed in response to women’s spiritual needs. This analysis, of course, forgets that women were not given the choice, as a matter of law, to control their fertility and that there is ample evidence that those women who could do so used contraception illegally, whether it sat easily with their consciences or not.  The expectation that women should have repeated pregnancies, and should be willing to suffer for them, at the hands of expert men, was a matter of vernacular religion which cannot be reduced to happy preference. The Irish practice of non-emergency symphysiotomy was, therefore, a response to a particular set of state and religious structures which facilitated harmful medical practice. There was not the same reliance on symphysiotomy in the same types of case in any other country, precisely because that set of state and religious structures did not exist. And precisely because it existed in Ireland, certain Catholic doctors had an outlet to develop and legitimate that practice. As the Court of Appeal recently confirmed, non-emergency symphysiotomy was championed by only one school of obstetric thought in Ireland, and acceptance of practice varied from doctor and doctor and from hospital to hospital: it is doubtful whether it would have achieved any purchase without the driving engine of institutional Catholicism.

Human Rights Violations: The judge finds that symphysiotomy as practiced in Ireland was not ‘a deliberate act of torture’. She makes this finding (sweeping across hundreds of cases) on the basis that symphysiotomy was used to improve maternal outcomes rather than with ‘any intention to inflict pain’. Doctors ‘did their best‘. Like the Walsh report and the Farrell and Kearney cases, this report finds that the development of symphysiotomy in Ireland was, at certain times, within the (generous) bounds of documented acceptable medical practice, albeit some doctors strayed beyond those bounds in practice. For the judge, that is enough to show that important legal claims can be laid to rest. Here she shows a stunning narrowness of legal imagination. Contemporary human rights scholarship recognises that obstetric violence is a real and complex human rights issue.  Even if a medical practice can be therapeutically justified in principle, we must consider how it is employed in the context of pregnancy and labour. In the case of symphysiotomy, consent is the crucial issue. It has not been possible to canvas consent in High Court cases, for procedural reasons relating to evidence and lapse of time. Neither does the redress scheme seek to address the issue of lack of consent.  The Walsh report, although flawed, accepted that medical culture in Ireland at the time was such that women’s informed consent to obstetric procedures was not always sought. Judge Harding-Clark’s report directly contradicts this finding – she simply states that she does not believe that women were not told that a symphysiotomy would be performed on them. From a human rights perspective, this observation is useless.

In the forced sterilisation case of VC v. Slovakia the European Court of Human Rights held that the Article 3 prohibition against inhuman and degrading treatment can be violated where an accepted therapeutic practice is paternalistically imposed on a patient without adequate consent. It was irrelevant that the medical staff in that case did not act  in bad faith, or with the intention of ill-treating the patient – it was enough that they disregarded her autonomy. And even had she not suffered physical pain, mental distress is sufficient to prove inhuman and degrading treatment. In view of the violation, the state was also obliged under Article 3, to carry out an effective investigation. The court further found a violation of the Article 8 right to private life, because of the impact of the surgery on the woman’s reproductive life. In the right case, where it is proven that doctors chose a particular medical practice for discriminatory reasons, they might also find a violation of the Article 14 right to freedom from discrimination. The standard of informed consent is higher than mere ‘knowledge’. Both VC and the CEDAW Committee in AS v. Hungary, stress, for example, that obtaining the patient’s signature is not enough. Consent must be voluntary and informed, and in non-emergency circumstances the patient must be given enough time to consider the treatment, weigh her options and refuse. Special care must be taken with patients who are vulnerable; such as women in labour. Protection of consent goes beyond simply being given the name of the procedure about to be performed on you, or having it explained after it has already been performed.

Conclusion. It is a mistake to think of the story of symphysiotomy as one about ‘bad doctors’. It is a story about bad systems of knowledge, and bad cultures, which corner women, induce compliance, deny their autonomy and thereby wound them. Those cases are extraordinarily difficult to litigate because the assumptions which drive the old system persist in judicial reasoning and are exacerbated by an adversarial framing. Outside the courtroom, we can find the same problems. What is striking about this report is that it uses constructs from those systems and cultures – valorising reproduction however painful, stoking a suspicion of women who claim their human rights, privileging medical literature over first person testimony – to silence protest. It deserves closer, and more critical reading and discussion.

Notes on Judge Harding-Clark’s Report on the Symphysiotomy Payment Scheme.

The Practical Implications of Miller v SSEEU for Brexit: Nine Reflections

Like many others, I have been thinking about and discussing Miller (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768) with colleagues today. This is the decision from the High Court that the Government cannot trigger Article 50 in order to begin the process of withdrawal from the EU without getting Parliamentary authorisation first.

Put very shortly (and without wanting to get too far into the details of the reasoning per se), this is because the Court found that, as a constitutional statute and one that created domestic rights and anchored EU rights, the European Communities Act 1972 could not be turned to naught by the Executive. The prerogative power had been constrained by this Act, and it was not within the royal prerogative to make even international treaty decisions (such as withdrawing from the EU) that would disturb this domestic statute. In other words, parliamentary authorisation is required before Article 50 is triggered and the formal process of leaving the EU can begin.

There are already, and will in the coming days, be lots of analyses on the reasoning per se from a constitutional law perspective (see, for example, the reflections of Paul DalyKenneth Armstrong and Aileen McHarg). My purpose here is to offer a few reflections more broadly on the implications of the judgment, especially for those more interested in its practical meaning for Brexit than in its (unquestioned) broad constitutional significance per se. Continue reading “The Practical Implications of Miller v SSEEU for Brexit: Nine Reflections”

The Practical Implications of Miller v SSEEU for Brexit: Nine Reflections

Having Our Voices Heard – the Official Languages Act foreshadowing the Recognition of Irish Sign Language for the Deaf Community Bill

by Gearoidin McEvoy.

Ireland is no stranger to language rights. Language has, since the birth of the Free State, been an integral part of national identity. Many will be aware of the curious position of Irish held in the 1937 Constitution, as the first official language of the state, having preference legally over English. The position of Irish, perhaps initially as an indicator of separatism between our former colonial power has gone on to protect a person’s right to use their first language.

Language services are essential to realising one’s right to use their mother tongue. For the vast majority of Irish speakers, Irish is an option and not a necessity. If a situation warrants the use of English, however, it is more than likely that an Irish speaker will be completely competent and capable. In many cases it is a necessity for Irish speakers to use English because the services provided are slow, ineffective or unobtainable. Irish speakers are repeatedly forced to speak English, or to accept diluted versions of rights and procedures, regardless of the constitutional protections in place since the foundation of the state. And while this constitutes a violation of the rights granted to Irish speakers under the Constitution, Irish speakers are indeed left with English as an alternative.

However consider if a person cannot speak English. How can they access public service such as the courts or education? In all likelihood, this may occur every day in Ireland in respect of migrants who have not learned English. However, consider now a person who cannot speak at all, or lacks the capacity to speak English, Irish or any other spoken language, for that matter. The Deaf community in Ireland face this problem every day. And their struggle to have their voices heard, their language recognised acts as a barrier to some of their most basic rights.

On a European level, only four states have provided for constitutional recognition of sign language, with other states offering varying degrees of provision for sign language legislatively. Under the European Charter for Regional or Minority Languages, the first document of its kind specifically dedicated to acknowledging and protecting minority languages, no states have opted to protect any form or sign language and the dedication to protecting “spoken” languages may very well pose an obstacle for any attempts to do so. In fact, it is only the International Convention on the Rights of Persons with Disabilities that provides any concrete international requirement for states to recognise and protect speakers of sign language.

However, the importance of recognising sigh language cannot be understated. Language is the medium through which we access our human rights – without understanding a trial, a custodial hearing or a police officer, can it really be said that a person has been given a fair trial? Without understanding a doctor before an emergency medical procedure, can a person be said to have given their consent? These may be dramatic examples, but if, for example, a Deaf person cannot take a driving test because there is no instructor or examiner capable of training or testing them, then surely this would amount to discrimination on the basis of a disability, or perhaps, language. As the Justice and Equality Committee itself has stated

The current experience of the Irish deaf community is one of extreme marginalisation due to the lack of sign language recognition and provision. This manifests itself not just in their personal lives but in their interactions with the organs of the State, including the education system, the health service, the courts system and the national parliament itself.

In the past few weeks there has been great advances in the possibility of recognition of Irish Sign Language as an official language in Ireland. The provisions of the Recognition of Irish Sign Language for the Deaf Community Bill, 2013 (the Bill) go a long way towards minimising the discrimination and lack of services available to the Deaf community in Ireland, and the move towards the Bill becoming law is generally met with great optimism.

However, there is little evidence to suggest that these new provisions, however positive they may seem, will be realised in actuality. Irish speakers have been screaming into the void for recognition and equality for almost a century and there is repeated failure to provide proper services to them. For example, the recent state introduction of postal codes resulted in more complaints to the office of the Coimisinéir Teanga than ever before since it came into being in 2004. This was largely due to the translation of people’s names and addresses to English when the Irish versions had largely only ever been in use and demonstrated an example of the difficulty faced by individuals while merely attempting to use their own name when dealing with public authorities. This is not the first time the Coimisinéir Teanga has encountered such problems. In fact, in the 2014 Annual Report from the office of the Coimisinéir Teanga, misspelling of names in Irish was considered a problem “occurring on a daily basis”. This may even constitute a violation of Article 8 – the right to private and family life – of the European Convention on Human Rights (ECHR) pursuant to the case of Bulgakov v. Ukraine. The case involved a man who, after Ukrainian independence in 1991, had his passport issued with the Ukrainian version of his name, despite his name being Russian. Although the European Court of Human Rights (ECtHR) found no violation of Article 8, this was due to the fact that there were procedures in place nationally that would have allowed him to change his passport name. However, in Ireland there is no statutory requirement to correct the Irish spelling of a persons name and a local authority may refuses to correct it without national consequence. The State continues to disregard such basic rights of Irish speakers despite the introduction of legislation in 2003, painting an ominous prospect for the hopes of remediating the “extreme marginalisation” experienced by the Deaf community.

The lax attitude to enforcing language rights for the Irish language is evident not only from the annual reports from the Coimisinéir Teanga, but also from the high profile resignation of the first Coimisinéir in 2014. The Irish Sign Languages Bill contains extremely positive articles and it appears as though it will greatly impact the lives of the Deaf community. However, when compared with the Official Languages Act 2003, the Bill appears to be less detailed and imposes vague requirements on public bodies.1 The Bill does not give constitutional status to Irish Sign Language. In respect of Irish, it has often been only the Constitution that has provided a saving grace for language rights. With only a legislative backing, it seems unlikely that Irish Sign Language would fare better than its minority language counter-part of Irish. Whether or not the Bill will come into law as it is currently drafted remains to be seen, but the real question is whether or not the Bill will make any difference. The Official Languages Act 2003 has had little effect on the manner in which Irish is treated by government authorities and the provision of Irish language services remains sporadic at best. This is in the face of a population who, for the most part, have English to fall back on if needs be. The Deaf community may not be so lucky, however, and although there are those who have residual hearing and those who can communicate aurally, there are those in the community who cannot and for whom Irish Sign Language is a necessity. Considering the difficulty experienced by Irish speakers to even use their names with official state bodies, it does not bode well for the expectation of a linguistic utopia for the Deaf community on the implementation of the Irish Sign Language Bill.

1 Compare, for example, Article 9 of the Official Languages Act 2003 with Article 8 of theRecognition of Irish Sign Language for the Deaf Community Bill 2013

Having Our Voices Heard – the Official Languages Act foreshadowing the Recognition of Irish Sign Language for the Deaf Community Bill

Benefit Sanctions and Coercion Within the Irish Welfare System

We are pleased to welcome this guest post from Charles O’Sullivan, doctoral candidate at Maynooth University.

In recent days, the Department of Social Protection (DSP) has announced that since January 1st of this year, 4,242 jobseekers have been subjected to penalties for refusal to engage with services, refusal to take up an offer of training or education, or failure to attend meetings. These benefit sanctions can involve a recipient receiving €44 less per week, and where the failure persists after the sanction has been imposed for 21 days, social welfare payments may be withdrawn in full for a period of 9 weeks. In some instances, a complete ejection from the welfare system is possible.

This figure represents a low in comparison to the roughly 6,500 sanctions applied throughout 2014, but far in excess of the 359 issued in 2011. It must also be born in mind that sanctions can now be applied for far lower infractions, such as failure to upload a CV to a government website, demonstrating the degree of coercion now in force.

This increased emphasis on sanctions overlaps with several years of prolonged austerity within Irish society, and what is now a government focused on the continued retrenchment of public services for ideological reasons. Consequently, welfare recipients are required to overcome ever more burdensome procedural hurdles in order to access increasingly limited funds. Callan et al have previously highlighted that those under 25 years of age, single parents, and low-income families with multiple children have suffered the most with each new series of welfare reforms, and have seen their entitlements cut far more than others. The gendered dimension of these cuts must also not be overlooked, as single parents, most of whom are women, are 35% more likely to fall into poverty than other groups. From the perspective of applying sanctions, Adler notes that in the UK groups such as these, as well as the disabled, and immigrants with low levels of English comprehension will be more likely to receive them. This means that the already vulnerable are not only targeted in relation to cuts in welfare rates but also in how much they are policed. Inevitably this will lead to higher levels of deprivation among these groups.

Secondly, the DSP emphasises that any sanctions imposed are proportionate. The result is that the highest penalty of €44 will only be applied to jobseekers in receipt of the top rate of €188 per week, while those receiving, for example, a lower rate of €84.50 would see their benefit temporarily reduced to €64 per week for the prescribed period of time. However, even if one ignores that these are more likely to be imposed on the already vulnerable, that sanctions can be applied to the lowest rates of payment is particularly troublesome.

A further potential consequence is that in forcing jobseekers to stretch their resources even further while sanctioned, they may be less able to comply with the necessary conditions and that this will result in additional sanctions. Research interviews conducted in Scotland show evidence of this, as well as the potentially significant amount of time spent by welfare recipients in order to avoid sanctions which could be spent on something more productive (such as searching for employment).

Finally, the idea that these sanctions are likely to encourage higher rates of compliance and employment is highly problematic. Sanctions essentially act as a means of ejecting, either partially or wholly, the recipient from the welfare system, and make it more difficult for them to engage with the labour market. Research from the United Kingdom found that those who left the welfare system following the imposition of sanctions often do so without having obtained employment, meaning that many are simply left without state income supports. Other research has found that those who do find employment are more likely to take up low-skilled labour, attracting far lower rates of remuneration, and with less certainty as to tenure and working conditions. This also presupposes that there is a high demand for such labour, and where the supply of jobseekers exceeds the demand for them in the labour market, it emphasises that in spite of clear structural deficits it is somehow the jobseeker who is responsible for their continued unemployment. Where higher levels of support are given, even if it means a person being unemployed for longer periods, this can lead to better outcomes in terms of transitioning into employment and the kind of employment they will find.

The legal basis upon which these sanctions can be challenged is somewhat limited for individuals on whom they are imposed. The Constitution itself does not specifically provide for a right to social welfare. Article 45 does allude to the directive principle of supplying income supports and protecting the vulnerable but is not justiciable as a cause of action, and is simply a guiding principle for social policy. Minister for Social, Community and Family Affairs v Scanlon [2001] IESC 1, saw the Supreme Court find that existing rights such as the right to property in Article 43.1 may also not be invoked, as any entitlement to social welfare benefits is created through ordinary legislation alone. Nor do legal principles such as estoppel or ‘reasonable expectation’ create a presumption of entitlement as established in Galvin v Minister for Social Welfare [1997] 3 IR 240, and Wiley v Revenue Commissioner [1993] ILRM 482 respectively. Such a challenge would also be impractical for an individual of limited means regardless of how likely or unlikely it is to succeed.

The case of Hurley & Ors v Secretary of State for Work and Pensions saw the English High Court find that a limit being placed on the amount of welfare benefits an individual can receive is indirectly discriminatory where they act as the carer for a person with a disability, based on Articles 8 and 14 of the ECHR. In theory a similar challenge could be brought here, but may still face a judiciary that is deferential to the way in which the State allocates funds and which views welfare payments as a solely statutory right.

Any appeal of sanctions triggered at a national level is as such limited to the appeals mechanism set out in the Social Welfare (Consolidation) Act, 2005 and its supporting instruments, with appeals being lodged through the the Social Welfare Appeals Office, based on the procedure established in Section 318 of the 2005 Act.

It is possible that the systemic issues with sanctions could be raised under the Covenant on Economic, Social and Cultural Rights. As McLachlan recently highlighted, the results of the United Kingdom’s periodic review from the Committee on ESCR were quite unfavourable with regard to benefit sanctions and their detrimental effect on the lives of welfare recipients. During Ireland’s own review last year, this issue was not raised, but it would be possible for civil society and other social actors to raise this issue in future in the hopes of a similar outcome. This would require that the circumstances in Ireland are of a comparative standard and are clearly demonstrable. However even this would require that the State is amenable to altering the current system, as a being found to have violated rights within the Covenant would not immediately trigger the need for changes by itself. Consequently, any substantive, systematic changes require a political will that seems to be absent at present.

Benefit Sanctions and Coercion Within the Irish Welfare System

The rights of the unborn: a troubling decision from the High Court?

Mairead Enright (@maireadenright)

Does the unborn have rights other than the right to life enshrined in the 8th Amendment?

It is clear that, under Irish law, foetuses cannot have any greater rights than children already born.[1] However, recent cases have raised the prospect that they have some of the same rights and interests as born children. In PP v. HSE,[2] for instance, the High Court referred to the ‘best interests’ of the foetus who has no prospect of survival outside the womb, analogising its position to that of a child on life support. It is not clear that the ‘unborn’ (the entity recognised or created by the 8th Amendment) is, for constitutional purposes, a child like any other. Recently, the courts have been asked to consider whether foetuses carried by Irish citizens have particular rights other than the right to life, which the state should take into account in assessing whether to deport their non-citizen fathers. Another, broader, way of putting this question is to ask whether the unborn’s rights derive exclusively from the 8th Amendment, or whether it may also enjoy rights grounded in other parts of the Constitution.

The position: foetuses may be treated as having constitutional rights other than the right to life.

In E[3] (the case of Kunle Eluhanla) Irvine J. applied an old common law maxim that the unborn should be treated as born in law where its interests require it. This meant that the Minister for Justice, in deciding whether to deport E’s father should have treated the then unborn  E as if he was born. In practice this meant that Michael McDowell as Minister for Justice should have taken into account E’s rights to the society and support of his parents, amongst many others. In taking this step Irvine J. paid particular attention to the fact that the Minister had been notified of E’s impending birth at the time he made his decision, but ultimately decided to make his order just 9 days before E was born. Irvine J. was struck by the injustice of allowing the Minister to take capricious advantage of the circumstances of pregnancy and childbirth, noting that if E had been born prematurely, the Minister would have had to take his existence and needs into account in making the decision.

She held that the unborn,in cases of this kind, can be treated as having all of the personal rights of the citizen under Article 40.3 of the Constitution.These rights were enumerated in G v. An Bord Uchtala[4] (a case about ‘illegitimate children’) and include the ‘right to bodily integrity, the right to be reared with due regard to religious, moral, intellectual, physical and social welfare, to be fed, to be educated, to work and to enjoy personal dignity… ’. As Irvine J. noted, these are the “natural and imprescriptible rights of all children”, now recognised in Article 42A of the Constitution.

The Ugbelese position: the rights of the foetus are confined to those conferred by the 8th Amendment.

In the later case of Ugbelese,[5] by contrast, Cooke J. took the position that the unborn does not have any rights other than the right to life.[6] Cooke J. argued that Irvine J. over-extended the common law maxim mentioned above, which he argued had previously only been used in a backward-looking way, to allow financial recovery for injuries suffered in the womb, and not to allow assertion of future rights before birth.

In any event, he argued that her decision was inconsistent with the Constitution. For Cooke J. the purpose and effect of the 8th Amendment is to definitively set out all of the rights of the unborn .Indeed, whereas Irvine J. derives the unborn’s rights to family life from Article 40.3, Cooke J. notes that the 8th Amendment is a specific amendment to that Article, indicating that the unborn is not intended to enjoy those personal rights as born citizens do. Before 1983, he argued, there had been some limited judicial discussion of the rights of the unborn (McGeeFinn v. AG and G v. An Bord Uchtala), but these were not definitive: the Amendment was intended to clear up this uncertainty. The Amendment does not give any rights to the unborn other the right to life (which for Cooke J. also  implies the right to bodily integrity; the right to protection from any wilful interference with the natural course of gestation.)   Any additional rights of the child are prospective and inchoate until birth, when they can be exercised in society and community as an independent person.

So, after Ugbelese, the High Court had taken two distinct stances on this question. Recently, Humphreys J. decided between them.

Humphreys J. chooses the position: the IRM case.

In IRM v. MJELR,[7] Humphreys J. was asked to determine whether the State in deciding whether to deport the father of unborn child of an Irish citizen is obliged to consider the unborn’s future rights to family life as well as its the right to life enjoyed under the 8th Amendment.

Humphreys J prefers the reasoning of Irvine J. in E, and holds that in deportation cases, the state must consider the family rights that the unborn will enjoy in the future. He rejects the Cooke argument in Ugbelese (above) that the 8th Amendment was intended to completely embody all of the unborn’s rights. His judgment criticises Cooke J. at length for his excessively ‘literal’ reading of the 8th Amendment,[8] which Humphreys J. contends is incompatible with the principle that the constitution is to be read as a whole.[9] In addition, whereas Cooke J. presents the 8th Amendment as resolving a problem of uncertainty about the status of the unborn in Irish law pre-1983, Humphreys J. argues that the obiter statements about foetal life in McGeeFinn v. AG and G v. An Bord Uchtala clearly indicate that the rights of the unborn pre-dated the Amendment, and were simply confirmed or supplemented by the Amendment.

Humphreys J. goes on to specify the following rights of the unborn:

  • Humphreys J. agrees with Irvine J. that the unborn may be treated as having a right to family life. Irvine J. derived this from the personal rights provisions of the Constitution in Article 40.3. Since her judgment was delivered, the people have added a new provision to the Constitution and Humphreys J. relies on it here. He holds that Article 42A (the Children’s Rights Amendment) by its specific reference to “all children” is intended to protect unborn as well as born children. To bolster this interpretation, he cites several examples of laws which use the phrase ‘unborn child’, and emphasises that ‘expectant parents’ recognise the unborn as a child.[11] He criticises the state’s arguments to the contrary for excessive literalism.[12] Humphreys J. recognises that the unborn will not enjoy all of the rights contemplated under Article 42A, insofar as it cannot effectively exercise them. But this in itself does not unseat the argument that the unborn is a child for constitutional purposes. In this respect, he analogises the unborn to the profoundly disabled born child.[13]  
  • He also argues (probably obiter) that the unborn has the right to health, and not merely the right to bodily integrity as a corollary of the right to life.[10] The difference between Cooke J. above and Humphreys J. here is a matter of degree, but Humphreys J. argues that the foetus has a right to be protected from injury to health as well as from the health/bodily integrity consequences of exposure to a risk to life. This principle, if extended to an appropriate case, could have an impact on women’s decision-making in pregnancy outside of the abortion context. See further here.
  • In support of his extension of the rights of the unborn beyond the right to life, he notes that the unborn is already recognised as having a number of statutory and common law rights additional to the right to life, including:
    • The right to litigate.
    • The right to succeed to property.
    • The right to sue in tort, once born, for injuries sustained in the womb.
    • The right to health and welfare, which implicitly grounds the Child and Family Agency’s practice in child protection cases where there are concerns around a pregnant woman’s capacity to care for her child once born.
    • The right of a stillborn child to recognition of his/her identity.
    • At an international level, Humphreys J. cites paragraph 9 of the UNCRC as establishing the unborn’s right to special protection and care before birth. Notably, he does not discuss the European Convention on Human Rights, which does not recognise rights of the unborn.

Humphreys J’s judgment reflects an obvious frustration with a state which wishes, in his view to have its cake and eat it – holding the unborn as sacrosanct but not affording it any rights which would inconvenience the state. However, in respect of family life, this is not a judgment about the constitutional rights which the foetus automatically enjoys in the womb. Humphreys J. did not have to resort to the legal fiction used in E because IRM was framed as a test case on the very question of the extent of the rights of the unborn in deportation cases. However, his judgment, like Irvine’s judgment in E is designed to compel the state to have regard to ‘the prospective situation which is likely to unfold, and particularly such rights arising from a child’s status as a citizen as are likely to exist, rather than the state of affairs as it exists as a snapshot on the date which the Minister’s decision is made in isolation from matters which are imminently prospective as a matter of likelihood’.[14] He argues that under the old decision in East Donegal Co-Operative v. AG the state is required to guard against prospective threats to constitutional rights.

What does this mean for campaigns for liberalisation of Irish abortion law?

Some of the language employed in Humphreys J’s judgment is worryingly reminiscent of pro-life literature. At various points he refers to the state as ‘sneering’ at the rights of the unborn; notes that all adults were ‘unborn’ once, and argues that the unborn must be a child in principle because happy expectant parents think of their pregnancies in this way.The troubling analogy drawn between foetuses and profoundly disabled born children noted above also calls to mind anti-abortion campaigners’ appropriation of disabled people’s experience. Ultimately, his failure to consider, even in passing, the wider repercussions for women of his approach to the unborn is cause for concern. However, even if his judgment is good law (and a Supreme Court which takes a more restrained approach to constitutional interpretation is unlikely to think so), it is of limited relevance to the campaign for repeal of the 8th Amendment.

  1. These cases are not decisions about foetuses. They are decisions about Irish citizen children who were already born when the judges heard their cases. The judgments consider deportation decisions made in respect of their fathers before their births.
  2. These cases are not about the rights which foetuses have before they are born. As discussed above, they are clearly cases about the state’s duty to consider their future post-birth rights when considering deportation of their fathers.
  3. These decisions are products of a laudable judicial effort to preserve limited space for parent-child relationships within an unjust immigration system which has for a long time demonised migrant family-making. They cannot sensibly be extended beyond that context.
  4. The constitutional problem at stake here is very different from that which arises when a woman needs an abortion. Humphreys J. and Irvine J. have attempted to acknowledge rights of the unborn which are, in the immigration context, entirely congruent with the rights of the prospective parents. (Similarly, the examples of additional common law or statutory rights of the unborn listed by Humphreys J. directly advance the interests of born persons connected to the unborn, and either do not conflict with the rights of the pregnant woman, or are carefully balanced against those rights.) In addition, the right recognised in these cases need only be ‘considered by the state’. The rights of the unborn cannot absolutely restrict the state’s entitlement to deport its parent: the burden on the state here is very light. By contrast, in constitutional terms, abortion involves a direct and serious conflict between the rights of the unborn and the rights of the pregnant woman. These cases do not tell us anything in principle about how such conflicts should be resolved.
  5. It is especially difficult to imagine how Article 42A might be applied to abortion after repeal of the 8th. Courts are generally careful to confine the application of constitutional provisions to the areas of social life which they were intended to regulate, particularly where morally controversial activities are concerned.[15] The campaign to add Article 42A to the Constitution focused on establishing children as rights-holders independent of their parents. It did not centre on abortion and so it is reasonably clear that the people in voting on Article 42A did not intend it to apply to this context.
  6. If the unborn enjoys additional personal rights, they are not absolute rights. Outside of the direct abortion context, the courts have repeatedly stated that in interpreting the unborn child’s rights (including in deciding how and when the unborn child’s right to life applies) the courts must bear the countervailing rights of the mother – particularly her rights to bodily integrity and privacy – in mind.[16]
  7. There is an argument that, even if the 8th Amendment were repealed, these additional rights of the unborn and the right to life of the unborn could nevertheless survive within the Constitution. For example, post-repeal, we might see the Supreme Court affirm the existence of those rights in an Article 26 reference or in a constitutional challenge to future abortion legislation. A similar argument has already been made in respect of judgments like McGeeFinn v. AG, Norris and G v. An Bord Uchtala (see the disagreement between Cooke J and Humphreys J. above). Even if this argument holds some weight (and the weight it holds would depend on the preferences and makeup of the Supreme Court at the time) it is unlikely that it would cause  future post-8th abortion legislation to be struck down as unconstitutional. The Constitution is a living document which is to be interpreted in light of prevailing ideas and concepts (McGee v. AG). Successful repeal of the 8th Amendment, particularly in the context of a campaign which has and will emphasise the rights and experience of women, would send a strong signal to the Supreme Court that the Constitution was longer to be interpreted as it is under the X case. A future Supreme Court, considering post-repeal abortion legislation, is likely to be concerned with a balancing of the rights of foetus and pregnant woman, rather than with the application of a near-absolute foetal right to life. Amendment or replacement of the 8th, to provide an explicit constitutional right to abortion could, of course, help to restrain the judiciary in this area.
  8. Any argument that these judgments are an uncomplicated victory for human rights depends on ignoring serious questions of race and gender inequality. For instance, it appears that the rights recognised in E and IRM only apply to the unborn children of Irish citizens – this is the legacy of the citizenship referendum. The Supreme Court had already established that the right to life of the unborn child of non-citizens cannot pose an obstacle to its mother’s deportation.[17] In addition IRM recognises the rights of the unborn while dismissing the argument advanced on behalf of the pregnant woman that her mental health might require her partner’s deportation to be stalled so that he could be present to support her at the birth of her child.[18] A woman will also need to prove something approaching risk to life, or inhuman and degrading treatment related to the deportation before her pregnancy can operate to stall her own deportation.[20]  

Footnotes:

[1] Baby O [2002] 2 IR 169

[2] [2014] IEHC 622. See further http://humanrights.ie/gender-sexuality-and-the-law/pp-v-hse-futility-dignity-and-the-best-interests-of-the-unborn-child/

[3] [2008] IEHC 68

[4] [1980] IR 32, 69

[5] Ugbelese [2009] IEHC 598. was preferred by Hogan J. in A v MJELR [2001] IEHC 397. E was cited approvingly by MacEochaidh J in FO v. Minister for Justice [2013] IEHC 236 and again in Dos Santos v. Minister for Justice [2013] IEHC 237, appearing to equate the rights of the unborn child in the context of deportation with the rights of children generally.

[6] Cooke J. also argues that he is not bound by the judgment in E because Irvine J. did not intend her judgment to be determinative of the constitutional issue of the rights of the unborn.

[7] 29 July 2016

[8] p.31

[9] p. 21

[10] p. 22

[11] p.29

[12] p.30

[13] p.30

[14] p.33

[15] See e.g. Baby O [2002] 2 IR 169 and Roche v. Roche [2009] IESC 82

[16] Baby O [2002] 2 IR 169 (right to bodily integrity); Ugbelese [2009] IEHC 598 (right to travel and privacy); PP v HSE [2014] IEHC 622 (right to dignity in death)

[17] Baby O [2002] 2 IR 169. See further Ruth Fletcher here.

[18] p. 19.

[19] p. 38

[20] Aslam v. MJELR [2011] IEHC 12

The rights of the unborn: a troubling decision from the High Court?

Progress Report on the Northern/Irish Feminist Judgments Project.


Screenshot 2016-07-11 13.28.36

The Northern/Irish Feminist Judgments Project brought together a collective of academics and practitioners to write the “missing feminist judgments” in appellate cases which have shaped Irish and Northern Irish law. Beginning in 2014, we held a series of events, to support and publicise the work of the Project. We held four ‘Drafting Workshops’ at which our Judges presented versions of their “missing judgments” for discussion and feedback. To accompany the Workshops, we curated a series of interdisciplinary panels, which facilitated broader reflection on aspects of gender, identity and the law in Ireland and Northern Ireland.

Book

We are pleased to announce that our book will be published in January 2017. The book is available for pre-order here and a table of contents is available here.  Pre-publication versions of some of the book’s contents are available online:

Events and Outreach

In March, the Transitional Justice Institute at the University of Ulster hosted a discussion on the project which featured contributions from the first women judges of the Northern Irish High Court; Mrs. Justice Keegan and Madam Justice McBride. The project has also featured at events including Law, Revolution and Sovereignty at NUIG (a video of Mairead Enright’s talk is here), the Gender, Sexuality and Law Research Seminar at Northumbria University and  ‘Abortion and Reproductive Justice: The Unfinished Revolution‘ in Belfast. Aoife O’Donoghue spoke about the project onNearFM. At DCU, students participating in the Aoife King Internal Moot drew on lessons from the feminist judgments project. We also featured in the University Observer.

Further Information

For further information, email irishfeministjudge@gmail.com. The project website is at www.feministjudging.ie or you can follow us @irishfjp on twitter.

Progress Report on the Northern/Irish Feminist Judgments Project.

The UN and the Eighth Amendment

This letter is cross-posted from today’s Irish Times.

Sir, – The UN Human Rights Committee has found that Amanda Mellet’s right to be free from cruel, inhuman or degrading treatment, her right to privacy, and her right to equality before the law were violated because Irish law did not allow her to access abortion in Ireland in a case of fatal foetal abnormality.

It has held that Ireland must amend its abortion law, including the Constitution if necessary, to ensure compliance with the International Covenant on Civil and Political Rights (ICCPR), including ensuring effective, timely and accessible procedures for pregnancy termination in cases of fatal foetal abnormality in Ireland.

The Taoiseach and others have noted that the findings of this committee are not “binding”.

Here are six legal and policy reasons why Ireland must take good faith steps to implement the findings and comply with its international obligations:

1) In 1989, Ireland voluntarily ratified the ICCPR. Under international law, it must now comply with the treaty in good faith. It cannot invoke its Constitution, or any other domestic law as rationale for failure to comply (Articles 26 and 27 of the Vienna Convention on the Law of Treaties).

2. Although the UN Human Rights Committee does not have the status of an international court, Ireland has accepted its competence to hear individual complaints and to give authoritative interpretations of the ICCPR. Its members are impartial and independent. Ireland recognised the committee’s competence to issue determinative interpretations of the convention when it ratified the ICCPR and its optional protocol.

3) When Ireland subjected Ms Mellet to cruel, inhuman or degrading treatment, it committed an internationally wrongful act. International law, including the ICCPR, requires it to remedy this wrongful act, provide reparations and guarantee non-repetition. Ireland cannot invoke provisions of its domestic law as rationale for a failure to do so (Article 2 of the International Covenant on Civil and Political Rights; Articles 1, 3, 30-32 of the Principles on Responsibility of States for Internationally Wrongful Acts).

4. It is immaterial to Ireland’s responsibility under international law that the relevant treaties have not been incorporated into domestic law or that as such the decisions of the committee are not necessarily enforceable in Irish courts. Under international law a lack of enforcement options under domestic law, or the fact that under domestic law the committee’s decision is not binding, can never be used as justification for non-compliance.

5) If Ireland does not remedy the harm suffered by Ms Mellet and guarantee non-repetition it will place Irish medical professionals in profoundly difficult ethical situations and place them at risk of complicity in cruel, inhuman or degrading treatment.

6) If Ireland does not remedy the harm suffered and guarantee non-repetition it will leave itself open to repeated future litigation against the State before the UN committee or other international bodies, including the European Court of Human Rights.Until the legal framework is brought into line with Ireland’s international legal obligations, the likelihood is that women will continue to engage with international legal institutions to seek recognition of rights violations, remedy, and guarantees of non-repetition.

– Yours, etc,

Prof. Fiona de Londras, University of Birmingham Law School
Mairead Enright, Lecturer in Law, University of Kent
Prof. Christine Bell, University of Edinburgh Law School
Prof. Fionnuala ni Aolain, University of Ulster Transitional Justice Institute
Prof. Siobhan Wills, University of Ulster Transitional Justice Institute
Prof. Aoife Nolan, University of Nottingham Law School
Prof. Laurence O. Gostin, Georgetown Law School
Prof. Oscar Cabrera, Georgetown Law School
Lilian Abriniskas, Women and Health in Uruguay
Mónica Roa, Colombian Attorney, Global Advocate, Expert on Reproductive Rights.
Sharon Pia Hickey, Teaching Fellow, Global Gender Justice Clinic, Cornell law School
Ailbhe Smyth, Coalition to Repeal the 8th
Niamh Allen, Head of Membership and Development, National Women’s Council of Ireland
Helen Guinane, Parents for Choice
Senator Ivana Bacik
Professor Tamara Hervey, School of Law, Sheffield University
Dr. Rosa Freedman, Senior Lecturer in Law, University of Birmingham
Dr. Aoife O’Donoghue, Senior Lecturer in Law, Durham University
Dr. Paul O’Connell, Reader in Law, SOAS London
Dr. Rose Parfitt, Lecturer in Law, University of Kent
Dr. Eilionoir Flynn, Senior Lecturer in Law, NUI Galway
Rumyana Grozdanova, Lecturer in Law, University of Liverpool
Dr. Anne-Marie Brennan, Lecturer in Law, University of Liverpool
Dr. Illan rua Wall, Associate Professor in Law, Warwick University
Dr. John Reynolds, Lecturer in Law, NUI Maynooth
Dr. Bríd Ní Ghráinne, Lecturer in Law, University of Sheffield
Dr. Sorcha McLeod, Lecturer in Law, University of Sheffield
Dr. Michelle Farrell, Senior Lecturer in Law, University of Liverpool
Maeve O’Rourke, Barrister
Dr. Natasa Mavronicola, Lecturer in Law, Queen’s University Belfast
Ntina Tzouvala, Lecturer in Law, Durham University
Dr. Liam Thornton, Lecturer in Law, UCD
Dr. Stefanie Khoury, Postdoctoral Research Associate, University of Liverpool
Dr. Kathryn McNeilly, Lecturer in Law, Queen’s University Belfast
Dr. Catherine O’Rourke, Senior Lecturer, Transitional Justice Institute, University of Ulster
Dr. Alex Schwartz, Lecturer, Queen’s University Belfast
Dr. Sheelagh McGuinness, Senior Lecturer in Law, Bristol University
Dr. Vicky Conway, Lecturer in Law, Dublin City University
Prof. David Whyte, University of Liverpool
Dr. Ruth Fletcher, Senior Lecturer in Law, Queen Mary University of London
Jennifer Schweppe, Lecturer in Law, University of Limerick
Professor Rosemary Hunter, Queen Mary University of London
Dr. Amel Alghrani, Lecturer in Law, University of Liverpool
Dr. Anne Neylon, Lecturer in Law, University of Liverpool
Dr. Katherine O’Donnell, Associate Professor in Philosophy, UCD
Colin Murray, Senior Lecturer in Law, Newcastle University
Dr. Sinead Ring, Lecturer in Law, University of Kent
Dr. Elizabeth Campbell, Senior Lecturer in Law, University of Edinburgh
Dr. Fergus Ryan, Lecturer in Law, NUI Maynooth
Dr. Louise Crowley, Senior Lecturer in Law, UCC
Dr. Catherine O’Sullivan, Senior Lecturer in Law, UCC
Dr. Sara Ramshaw, Senior Lecturer in Law, Exeter University
Dr. Alan Greene, Lecturer in Law, Durham Law School
Jane Rooney, PhD Candidate in Law, Durham University
Eilish Rooney, Senior Lecturer, Transitional Justice Institute, University of Ulster
Muireann Meehan Speed, PhD Candidate, Oxford University
Dr. Sorcha Ui Chonnachtaigh, Lecturer in Ethics, Keele University
Dr. Edel Quirke, PhD in Law
Eileen Crowley, White & Case LLP
Wendy Lyon, Solicitor
Orla Ryan, Barrister
Kate Butler, Barrister
Dr. Joan McCarthy, Lecturer in Healthcare Ethics, UCC
Goretti Horgan, Lecturer in Social Policy, University of Ulster
Suzanne Guilloud, Barrister
Claire Nevin, Human Rights and Social Affairs Adviser for the EU Delegation to the Council of Europe (personal capacity)

The UN and the Eighth Amendment

Call for Papers: State Accountability for Vulnerability

On September 9th 2016, the Socio-Legal Research Centre, Dublin City University will host its biennial law and society conference. Following on from the success our inaugural conference on Judges, Law and the Irish Constitution in 2014, the theme of this year’s conference is State Accountability for Vulnerability. The purpose of the conference is to analyse the response of the Irish State to present and historic vulnerability caused or exacerbated by public policy. The conference will have two streams, one which examines the detail of vulnerability in defined areas. A second examines the various accountability mechanisms which have or could be used to acknowledge the State’s role in creating and/or contributing to this vulnerability and to provide remedies to victims/survivors.

The conference will bring together academics, practitioners; judges; politicians; representatives from NGOs and other civil society organisations and postgraduate students. We welcome submissions from any discipline on issues relevant to the conference theme. Papers should address aspects of the theme in at least one of the following categories:

Historic institutional abuse;
Disability;
Ethnic minority groups;
Asylum Seekers, migration and direct provision;
Vulnerability caused by austerity;
Medicalised vulnerability;
Vulnerability arising from gender;
Vulnerability while in the care of the State;
Vulnerability and crime;
Investigative mechanisms for accountability;
Accountability mechanisms;
Strategic litigation;
Reparative schemes.
Abstracts for papers should be submitted to the conference convenors at the following email address dculawconference@gmail.com

The deadline for submission is Friday June 24th 2016.

Abstracts should be a maximum of 300 words and should fit within the conference theme. While practice-oriented papers are encouraged, they should engage with more general historical, socio-legal or theoretical dimensions. As well as considering the academic merit of the abstracts, the assessors will also consider whether the proposed paper fits with the general theme and specific categories. We aim to notify applicants of our decisions by Thursday June 30th 2016.

A selection of papers from our previous conference Judges, Politics and the Irish Constitution were compiled in an edited collection and published by Manchester University Press. This book will be officially launched on the evening of the conference. We hope to produce a similar peer-reviewed edited collection from the papers presented at this conference.

Plenary Speakers:

Prof Nina A. Kohn, Syracuse University College of Law

Prof Titti Mattsson, Lund University

Lord Lester of Herne Hill, QC

Noeline Blackwell, Dublin Rape Crisis Centre

Conference Convenors

Dr James Gallen, Socio-Legal Research Centre, DCU

Dr Tanya Ní Mhuirthile, Socio-Legal Research Centre, DCU

Key Dates

24/06/2016 Submit abstract
30/06/2016 Notification of assessors
09/09/2016 Conference

Call for Papers: State Accountability for Vulnerability

UK at the CESCR: A Focus on Benefit Sanctions

We are pleased to welcome this post from Isla McLachlan, of Durham University.

The UK’s periodic examination by the Committee on Economic, Social and Cultural Rights (CESCR) is underway. After years of austerity there is a plethora of damaging policies for the Committee to interrogate.

One of the most pernicious – and often unseen – policies that the CESCR will have before it is the ‘benefit sanctions’ system. A ‘benefit sanction’ is the cessation of an employment related social security payment when claimants do not meet conditions placed upon them. Given that claimants are often vulnerable and in challenging situations and conditions have become increasingly stringent, the current sanctions system is almost certainly in violation of obligations under the International Covenant on Economic and Social and Cultural Rights.

Over the past year, Law students from Durham Human Rights Centre worked withThrive Teesside, a charity in Stockton on Tees, to put together an assessment on the impact of these sanctions in the North East of England. The report that was produced found that the UK is not measuring up to ICESCR standards well.

Right to Social Security

On the Right to Social Security, it was found that the UK is in violation by failing to progressively realise the right at an appropriate rate, and in fact has imposed retrogressive measures. This is evidenced, for example, by the number of those with a mental health condition who were subject to a sanction rising from 35% in 2009 to 58% in 2013. There has also been a decrease in number of individuals who can seek redress has because of narrow mechanisms of redress and drastic cuts to legal aid.

Beyond these sometimes difficult to demonstrate obligations, the UK has additionally failed to ‘ensure that the social security system will be adequate, accessible for everyone and will cover social risks and contingencies’ (General Comment 19). Most vulnerable claimants are unable to access much of the support that is available. Many are required to visit a Job Centre and ‘sign on’ in inaccessible location, which causes them to miss appointments and be sanctioned.

The UK is required by the CESCR to:

‘provide appropriate education and public awareness concerning access to social security schemes, particularly in rural and deprived urban areas, or amongst linguistic and other minorities’.

However, in the current system most claims must be completed through an online form, causing difficulties for claimants who struggle with literacy or do not have access to the Internet. This, in turn, causes a lack of awareness of appeal procedures and of hardship funds. Even when individuals do appeal, they may often have to go without basic unemployment payments in the interim.

Further, sanctions reduce claimants’ ability to pay priority bills and buy food, and may impact claimants’ eligibility for housing benefits or council tax rebate. As a result, claimants’ living standards are reduced. Increased feelings of isolation, anxiety, and depression are common.

Consider these hardships against the fact that around 40% of benefit sanctions decisions last year were overturned. The stark figure suggests that sanctions were often unjustly applied. In human rights terms, the State is giving insufficient priority to its obligation to provide even the minimum essential level of social security to enable people to acquire essential housing, healthcare and food.

Discrimination

Benefit Sanctions have been shown to affect the vulnerable in an indirectly discriminatory way. 58% of sanctioned Employment and Support Allowance (ESA) claimants are vulnerable people with a mental health condition or learning difficulty. This represents a 668% increase in benefit sanctions against people with mental health difficulty on ESA over the last four years.

In addition, a lack of flexibility in the system means that the differing needs of vulnerable people are not being recognised. Vulnerable individuals are not given proper support to communicate their requirements and concerns during Job Centre meetings. As a result, individuals are unable to negotiate a fair Claimant Commitment (the ‘contract’ to which they are later bound) on realistic terms.

Furthermore, individuals are often unable to receive the most appropriate advice and left unaware of what support or adjustments are available. Within the system, Disability Employment Advisors help with ‘work preparation, recruitment, interview coaching and confidence building’. However, the onus is on claimants to disclose their disability to their work coach and ask about the process and the next steps. As many claimants have an uncomfortable relationship with the JobCentre, this disclosure often doesn’t take place. As a result, claimants are frequently not referred to, or are unaware of, Disability Employment Advisors.

Right to Work

Another area where the CESCR might call into question the UK’s performance is in relation to the right to work. Aspects of the right to work, including providing ‘technical and vocational guidance and training programmes,’ have arguably not been complied with.

Thrive Teesside told us very clearly that the sanctions scheme and a lack of training meant that individuals were being pushed (or shoved) towards the labour market. This approach is not having positive results, as individuals are being put in the workplace without having the necessarily skills and capabilities. This puts individuals in an unfair position and ends in a damaging experience. It works against some vulnerable groups whose difficulties and skills may not be properly articulated and understood.

Although there are some opportunities for training, apprentice schemes pay well below the minimum wage and aren’t always available. The ‘Work Choice’ scheme is tailored to suit the needs of each individual disabled person and provides specialised support to find employment and to keep employment once a job has been found and started. However, underfunding means that very few people will be able to get a place on the scheme, with only 13,000 places available each year.As a result, claimants continue to be reliant on the Job Seekers Allowance system and are more likely to face sanctions.

Conclusion

There are multiple ways in which the UK, as a State party to the ICESCR, has not designed this aspect of social security policy in a human rights compliant manner. The benefit sanctions scheme is causing real hardship for vulnerable individuals in the area of the North East of England that we examined. As the CESCR carries out its examination of the UK it will be interesting to see how far it goes in finding violations of the Covenant.

You can read the full report herand follow the UK’s examination on twitter at #CESCR and #ICESCRUK16

UK at the CESCR: A Focus on Benefit Sanctions

Irish Journal for European Law: CALL FOR PAPERS 2016

The Irish Society for European Law recently re-launched the Irish Journal of European Law as an e-journal. The Journal, which has been published since 1992, is a leading international journal on European law edited by Irish scholars and practitioners. The 2014 and 2015 volumes are available on the Society’s website at https://www.isel.ie/journal.

The Journal – which is blind peer-reviewed – is now issuing a call for original papers for its 2016 volume. Long articles (indicative length 8,000 – 12,000 words) and shorter articles (3,000-4,000 words), and analyses of any length of recent developments are invited.

While submissions on Irish-European legal issues are of special interest, the Journal welcomes submissions on all areas of European law. In addition to the more traditional form of academic article, comment and opinion pieces on European-Irish affairs with a legal dimension will also be considered. 

Submissions are to be sent to ijel.submissions@gmail.com by Monday 15 August 2016 in WORD format, size 12 font, single spaced. The referencing style guide is OSCOLA Ireland, which is available online at:

http://www.legalcitation.ie/page5/files/OSCOLA%20Ireland%202011.pdf

Irish Journal of European Law

https://www.isel.ie/journal

Co-Editors: Anna-Louise Hinds & Diarmuid Rossa Phelan; Members of the Editorial Board: Una Butler, Karole Cuddihy, Catherine Donnelly, David Fennelly, Sonja Heppner, Anna Hickey, Clíodhna Murphy

Irish Journal for European Law: CALL FOR PAPERS 2016