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

Amanda Jane Mellet v. Ireland – The Key Points

As readers will know by now, the UN Human Rights Committee today held that Ireland’s abortion law violated Amanda Mellet’s human rights under the ICCPR. The foetus she was carrying was diagnosed with a fatal foetal abnormality. Irish law criminalises abortion except as a last resort to save the pregnant woman’s life, and  thus compelled her to travel to Liverpool for an abortion. This is the first time that any international court or human rights body has found that the criminalisation of abortion is in itself a violation of women’s human rights. The Committee held that the Irish law:

  • Violated her right to freedom from inhuman and degrading treatment because it exacerbated the anguish associated with a pregnancy affected by fatal foetal abnormality. By compelling her to travel, the law deprived her of material and emotional support and appropriate care during and after her abortion. Criminalisation, in particular, compounded the shame and stigma associated with abortion in Ireland. The chilling effects of the Abortion Information Act, which meant that she could not obtain adequate information about terminating the pregnancy abroad,  were a source of further distress during the decision-making process. The process of travel also disrupted her recovery and worsened the grieving process: the Committee focused on her experience of receiving the foetus’ remains by courier, after she had returned to Ireland. The Committee here is providing us with resources to upset that prevailing public discourse which suggests that a pregnancy affected by fatal foetal abnormality is a tragedy; a trial which good mothers must bear with serene nobility. Committee Member Sarah Cleveland described this as “a stereotypical idea that a pregnant woman should let nature run its course, regardless of the suffering involved for her.” The Committee says that, even though the state did not directly inflict harm on Amanda Mellet, its neglect and abandonment of women in this situation  – who are left “isolated and defenceless” – moves situations like hers out of the realm of guiltless tragedy, and into that of state responsibility.
  • Violated her rights to privacy and bodily integrity. The Committee held that the Irish abortion law amounted to an unjustifiable interference with Amanda Mellet’s decision-making around her pregnancy. The State had argued, following the Irish constitutional test, that the interference was proportionate to its aim of balancing the rights of the pregnant woman against those of the foetus. The legality of the interference under domestic law is not important in this context. In addition, the Committee notes that because the law violates the right to be free from inhuman and degrading treatment, the restrictions it places on the right to privacy and bodily integrity could not be considered compatible with international law. Irish law, in its zeal to protect the foetus, has gone too far. In particular, the Committee emphasises that the treatment of Amanda Mellet under law was especially unreasonable because her pregnancy was not viable. Sarah Cleveland wrote: “Requiring the author to carry a fatally impaired pregnancy to term only underscores the extent to which the State party has prioritized (whether intentionally or unintentionally) the reproductive role of women as mothers, and exposes its claimed justification in this context as a reductio ad absurdum.”
  • Violated her right to freedom from discrimination. Amanda Mellet pointed out that women who choose to continue their pregnancies after a diagnosis of fatal foetal abnormality, and deliver a stillborn baby in Ireland receive state-funded care, while those who choose to travel for termination must bear the expense of doing so by themselves. Similarly-situated women are treated differently, with real financial and medical consequences. The Committee accepted that this difference in treatment amounted to discrimination in two ways.
    • First, the law discriminates against women as women. The State had made the facile argument that gender discrimination is confined to circumstances where men and women are similarly situated but men are better treated: by definition, they maintained, it cannot occur in respect of pregnancy because only women can become pregnant. Sarah Cleveland emphasises that the criminalisation of abortion is gender discrimination, because it affects a health service that only women need, and places no equivalent burden on men. In addition, the Committee reminds the state that gender stereotyping of women is in itself a form of gender discrimination.  In this respect, an interesting point from a feminist perspective is the Committee’s observation that the difference in treatment between those women who carry to term, and those who terminate the pregnancy is rooted in stereotypes of women as ‘reproductive instruments’. This point has been canvassed in Irish feminist scholarship for decades. Yad Ben Achour elaborated: “The prohibition of abortion in Ireland, owing to its binding effect, which is indirectly punitive and stigmatizing, targets women because they are women and puts them in a specific situation of vulnerability, which is discriminatory in relation to men. Under this legislation, the author has in effect been the victim of the sexist stereotype, whereby women’s pregnancy must, except where the life of the mother is at risk, continue, irrespective of the circumstances, as they are limited exclusively to their reproductive role as mothers. Reducing the author to a reproductive instrument constitutes discrimination and infringes her rights both to self-determination and to gender equality.”
    • Second the law failed to take into account the socio-economic effects of this differential treatment; in particular the costs of travel and seeking treatment abroad. Several Committee members maintained that the discrimination was not only between women who carried their pregnancies to term and those who travelled, but between those who could more easily afford to travel abroad for abortions and those who like Amanda Mellet, struggled to pay for the travel and the procedure. Sarah Cleveland noted that Article 26 ICCPR “prohibits the unequal access to reproductive health care for low-income and vulnerable populations that results from Ireland’s legal restrictions on reproductive health services.”
  • Violated her right to seek and receive information. Three Committee members held that the Abortion Information Act encourages medical personnel to withhold clear and timely information that women like Amanda Mellet could use to make decisions about their pregnancy and health, and that this in itself is a violation of rights under the ICCPR.

The Committee’s emphasis  on the woman’s entitlement to expect a certain level of compassion, care and attention from the state is very welcome. Amanda Mellet, Termination for Medical Reasons Ireland, their legal advisors and the Center for Reproductive Rights must be commended for their work in bringing this case to the Committee.The government is required to respond to the Committee’s decision within 180 days, outlining the concrete steps which it will take to remedy the identified human rights abuses, and to prevent future similar harm to other women. The ruling will contribute significantly to the existing moral pressure on the government to hold a referendum on the Eighth Amendment (see further discussion by Fiona de Londras here). The Health Minister, Simon Harris, has indicated that he wants to see law reform in this area. However, the government of which he is a member has continued to drag its heels on the issue of abortion law reform.

This post is by Mairead Enright of Kent Law School – m.enright@kent.ac.uk

Amanda Jane Mellet v. Ireland – The Key Points

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.

The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:

The State party asserts that article 40.3.3 of the Constitution represents the profound moral choices of the Irish people. Yet, at the same time, the Irish people have acknowledged the entitlement of citizens to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy. The legislative framework guarantees the citizens’ entitlement to information in relation to abortion services provided abroad. Thus, the constitutional and legislative framework reflects the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the foetus should be protected and balanced against the rights of the woman.

Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here—and the Committee made this quite clear—is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.

Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.

This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.

In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.

Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.

It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this—the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.

But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.

This post is by Professor Fiona de Londras, University of Birmingham School of Law. She can be contacted by email at f.delondras[at]bham.ac.uk 

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

Minority Government, Human Rights, and the Opportunity for Constitutional Dialogue

Dail eireann

Dr Alan Greene

The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to be enacted. Similarly, it can no longer expect to be able to veto opposition legislation or opposition tabled amendments to Government bills. This has a potential to reinvigorate the Oireachtas, enhancing constitutional dialogue, not just between the legislature and the executive, but also between the legislature and the courts in instances where there may be doubts as to the constitutionality of a proposed bill.

 

Constitutional Debate and the Oireachtas

To date, the Oireachtas has essentially treated the Irish courts as having a monopoly on constitutional interpretation. Certainly, there is an arguable case to be made that this is a result of the strong form judicial review seen in the Irish constitutional structure which potentially stymies political debate. The Oireachtas has relied heavily on the expert legal opinion of the Attorney General with in the questionable constitutionality of a bill often used as a reason for the Government to vote it down at an early stage. Despite the clear importance that this evidence has in the overall outcome of the debate, the opinion of the Attorney General is never published.

 

A textbook example of this can be seen in the manner in which the last government voted down Clare Daly’s Bill to allow for the termination of a pregnancy in the case of a fatal foetal abnormality. During the Dáil debate on the Protection of Life during Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, Taoiseach Enda Kenny argued that the bill was quite clearly unconstitutional. Moreover, he refused to publish the advice of the Attorney General on the matter as, ‘It has been a long-standing situation in this country, where the advice given by the Attorney General of the day has never been published.

 

Constitutional Dialogue

In light of this, judicial supremacy as seen in Ireland has been criticised by political constitutionalists who argue that it takes decisions about human rights away from the legislature. Human rights, according to this conception, are ‘the statement of a political conflict masking as the resolution of it’.[1] Instead, human rights should beconceptualised as political contestations that people invariably agree over. The resolution of such disputes should, as a result, be done by the representatives of the people in the democratic branches of government.

 

Even notable bastions of political constitutionalism have, however, come around to the idea of some degree of judicial protection of human rights. The UK’s Human Rights Act 1998 (HRA) is seen as conceptualising a ‘third way’ between judicial supremacy on the one hand and parliamentary supremacy on the other.[2] Moving away from this adversarial conceptualisation of the legislature and judiciary, instead, it seeks to foster a dialogue on rights between courts and the British Parliament with the final say resting with Parliament. It does this through requiring courts to interpret legislation compatibility with the European Convention on Human Rights (ECHR) so far as it is possible to do so, and also gives courts the discretionary power issue a declaration of incompatibility when it believes it cannot reconcile the statutory provision in question with the ECHR. The resolution of this incompatibility therefore resides with Parliament. Dialogue is also created through the work of the Joint Committee on Human Rights (JCHR) and the requirement under s19 of the HRA for government ministers to issue a declaratory statement before Parliament that a bill is compatible with the Convention.

 

Such attempts at constitutional dialogue are not alien to Ireland. Ireland’s equivalent to the HRA – the European Convention on Human Rights Act 2003 – mirrors closely the interpretive obligation and the declaration of incompatibility provisions of the HRA, thus leaving the resolution of such incompatible provisions in the hands of the Oireachtas.

 

Indeed, a referral of a bill to the Supreme Court for a pre-emptive test as to its constitutionality under Article 26 of the Constitution is also a possibility for dialogue to take place between the legislature and the judiciary in Ireland as to the scope of constitutional rights. This potential for dialogue has, however, been significantly weakened by the Second Amendment of the Constitution Act 1941 which amended Article 34 to prevent bills deemed constitutional under an Article 26 reference from ever having their constitutionality challenged again. As a result, consecutive presidents – themselves constituent parts of the legislature – have been reluctant to make use of this power. This is particularly so in light of the fact that Article 26 cases are based on hypothetical legal argument, thus lacking the force or urgency of concrete facts to illuminate the actual impact of the legislation in question. The Second Amendment of the Constitution Act 1941 was not enacted by referendum but was instead done through a simple legislative procedure in accordance with the transitory provisions of the Constitution.

 

Moreover, judicial supremacy is not inimical to dialogue on rights. With regards to ordinary challenges to the constitutionality of legislation, while the courts under the Constitution have the final say in an individual case as to the scope of constitutional rights; this does not mean that the courts should or do have the only say along the way. Procedural aspects to constitutional challenges – the presumption of constitutionality, reaching constitutional issues last, and the double construction rule– are all mechanisms by which courts show respect to the Oireachtas’ democratic mandate. In addition, saying that once a judgment of the Supreme Court is issued does the debate stop is problematic. A statement as to the content of a constitutional, convention or other rights provision is rarely, if ever, the final statement as to the condition of law for all time. Human rights do not work like that; law does not work like that. The constitution is a living and breathing document and constitutional dialogue is important for it to evolve.

 

Judicial Supremacy or Executive Supremacy?

Constitutional dialogue, however, has been stymied in Ireland but this is not the fault of judicial supremacy; rather, this argument overlooks the exceptionally strong hold the executive branch in Ireland has had over the legislature. Strong governments have instead used legal opinion as a justification to avoid contentious issues, halting legislation at an early stage before the Oireachtas has gotten a chance to scrutinise the legislation in earnest.

 

Returning to the earlier example of Claire Daly’s private members bill on fatal foetal abnormalities, the constitutionality of this bill was not as clear cut as the Taoiseach suggested. There is, at present, ambiguity in Article 40.3.3° of the Constitution as to whether ‘unborn’ extends to foetuses that have no chance of surviving outside the womb. This very point was raised by the Irish Government before the European Court of Human Rights in D v Ireland. In that case the applicant was pregnant with twins and was informed by her doctor that one foetus has stopped developing after 8 weeks’ gestation and that the other foetus tested positive for Edward’s Syndrome, the median age of survival of which is 6 days. The applicant, ‘unable to tolerate the physical and mental toll of a further five months of pregnancy with one foetus dead and with the other dying’ travelled to the UK for an abortion. She did not consider any legal proceedings in Ireland as her various doctors indicated to her that they ‘appreciated that she was not eligible for an abortion in Ireland’ when she informed them of her decision to terminate the pregnancy.

 

D’s case under Article 3,[3] 8,[4] 10[5], and 14[6] was, however, dismissed as inadmissible by the Fourth Section of the Court on the grounds that she had not exhausted all domestic remedies. The Court upheld the Irish Government’s submission that:

 

It was an open question as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland in the applicant’s circumstances…[A]lthough it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb.[7]

 

Minority Government and Constitutional Dialogue

In actuality, it is not judicial activism or judicial innovation in Ireland that is stymieing debates on rights and constitutionality in Ireland; rather, it is an overly strong executive that has a stranglehold on both houses of the Oireachtas. Legal advice is used as a convenient excuse to kick apparently contentious issues such as reproductive rights to touch.

 

Indeed, inaction can sometimes be louder than action. The UK Government’s failure to enfranchise prisoners despite a declaration of incompatibility under the HRA and a finding of a breach of the Convention from the Grand Chamber of the ECtHR is a concrete example of this. Similarly, the failure for over 20 years of successive Irish governments to legislate for the X-Case could be interpreted as these governments disagreeing with the Supreme Court’s judgment that abortions are lawful in Ireland where there is a real and substantial risk to the life of the mother arising from suicide. Two separate attempts to over-turn this judgment (the proposed 12th and 25th amendments respectively) via a constitutional amendment would also corroborate this; however, it also reveals the importance of an additional voice to the dialogue on rights in Ireland: the direct voice of the people through a referendum.

 

A reinvigorated Dáil therefore has an opportunity to break free from the domination of the executive branch and increase its scrutiny of legislation. No longer can an opinion of the Attorney General act as a de facto legislative veto. Indeed, it may be the case that such evidence may have to be published where it is suitable in order for the Oireachtas to scrutinise its substantive content. Merely claiming that the Attorney General advises that a proposed bill is unconstitutional may convince those subject to the minority government’s whip; however, the opposition benches may require a stronger justification than an appeal to authority. In this way, the Oireachtas can contribute more forcefully to the debate regarding the scope of constitutional rights protection in Ireland.

 

Ultimately, if the Oireachtas disagrees with a judgment of the Courts, it can submit a constitutional amendment to the people for ratification. This process can act as a safety valve, relieving political pressure that may build up in the face of a particularly contentious decision of the Supreme Court. In this way, the temptation to pack the court with ideological counterparts that may be seen in the United States is avoided as there are simpler, quicker, and more reliable ways to over-turn such a judgment.

 

Conclusions

The value of political constitutionalism or republican conceptualisations of human rights lies in processes. It requires legislative processes to be fora for disagreement rather than a mere rubber-stamp government decision-making. The prospect of a minority government is perhaps the best opportunity Ireland has had for such a culture of justification to embed itself in parliamentary processes. Time will tell whether this newly invigorated Dáil with grasp this opportunity.

 

Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. He tweets @DrAlanGreene.

Image credit: https://flic.kr/p/eRVtiA

 

[1] JAG Griffith, ‘The Political Constitution’ (1979)42(1) Modern Law Review 1,14.

[2] Francesca Klug, ‘The Human Rights Act – a “third way” or “third wave” Bill of Rights’ [2001] EHRLR 361.

[3] Prohibition on torture or inhuman and degrading treatment

[4] Right to respect for privacy and family life

[5] Freedom of expression

[6] Prohibition on discrimination

[7] D v Ireland, para 69.

Status

Intensifying the glare of the United Nations’ spotlight

We are pleased to publish this guest post from Ciarán Finlay, Legal & Policy Officer with the Free Legal Advice Centres (FLAC).

The value of shining an international spotlight on domestic human rights issues has long been recognised by civil society organisations working in Ireland. Prior experience has shown that international scrutiny by United Nations (UN) bodies and experts can yield tangible results in the form of positive state action.

However, while domestic actors place much emphasis on periodic reporting to UN Human Rights Treaty Bodies and the Universal Periodic Review mechanism, considerably less focus is placed on engagement with UN Special Procedures mandate holders and taking individual complaints to UN Treaty Bodies. Continue reading “Intensifying the glare of the United Nations’ spotlight”

Intensifying the glare of the United Nations’ spotlight