Repeal and Replace?

In the last week, while the members of the Oireachtas were making statements in response to the report of the Joint Committee on the 8th Amendment as well as the Citizens’ Assembly recommendations which it discussed, the spectre of repeal and replace has arisen again. The Citizens’ Assembly recommended the repeal of the 8th Amendment and its replacement with a provision “explicitly authorising the Oireachtas to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman”. It is broadly agreed that in doing so the Assembly was reflecting a concern with the possibility of residual constitutional foetal rights existing that might, through subsequent litigation, be found to frustrate or circumscribe the Oireachtas in legislating for abortion. The Joint Committee acknowledged that concern but, finding the risk of it materialising in ‘real life’ marginal, proposed instead a ‘repeal simpliciter’ that would delete Article 40.3.3 and not replace it with anything. We now hear that both the Taoiseach and, potentially, leader of Fianna Fáil Micheál Martin are concerned with the possible ramifications of repeal simpliciter, so that repeal and replace is firmly ‘back on the table’. In this post I outline (a) whether this is necessary, and (b) if it were to be pursued what the options are. Continue reading “Repeal and Replace?”

Repeal and Replace?

Shifting Sands Under the Abortion Debate

This guest post is contributed by Donnchadh O’Conaill, a post-doctorate researcher at the Department of Philosophy in the University of Fribourg, Switzerland. It is written and contributed in a personal capacity.

This week the Dail meets to discuss the Oireachtas Committee ‘s recommendation that abortion be allowed on request up to 12 weeks into a pregnancy. This is likely, though by no means certain, to form the basis of a proposal to remove the Eighth Amendment from the Constitution. The committee’s recommendation was a politically momentous decision, but one which may have even greater significance in shaping the direction of the national debate to come.

Until recently much of the narrative around repealing the Eighth Amendment had focused on certain types of cases and on specific grounds on which abortion might be justified. These cases included fatal foetal abnormalities and pregnancies which occur as a result of rape or incest.[i] Stories describing these cases are undeniably powerful. They are by no means the only kinds of case which have been discussed, but they have been central to the growing movement for repeal. Continue reading “Shifting Sands Under the Abortion Debate”

Shifting Sands Under the Abortion Debate

Liberty, the ICCL, and other NGO groups’ landmark challenge against the UK Government’s mass surveillance

Today, 10 human rights organisations including the Irish Council of Civil Liberties (ICCL) brought a court challenge against the lawfulness of the UK Government’s mass digital surveillance regime. They argued at the European Court of Human Rights that the UK government’s ability to access people’s private communications, without their knowledge or consent, is unlawful. The case is founded on Articles 8 (the right to privacy), Article 10 (the right to freedom of expression and information), and Article 14 (against discrimination) of the European Convention on Human Rights.

This is not the first time ICCL has challenged the UK’s surveillance systems. In 1999, ICCL, Liberty and British-Irish Rights Watch brought another challenge to the Strasbourg Court in relation to the UK Ministry of Defence’s system of surveillance. In its 2008 judgment, the Court found that the UK system was in breach of the right to respect for private and family life under Article 8.

Almost ten years later, the present case concerns the  existence of digital surveillance programs that are now far more extensive and powerful. Edward Snowden revealed through released documents in 2013 that governments across the world are using modern technology to collect our private communications in bulk. The UK has intercepted and stored all communications entering and leaving the UK via fibre-optic cables.

Here in Ireland, fibre-optic cables are also alleged by Snowden released documents to have been intercepted. The Snowden documents show specifically how the framework of cables connecting Ireland to digital information beyond its borders are being tapped by the UK government.

Apart from everyday citizens, the UK government is also watching human rights organisations aligned with the ICCL, giving rise to grave concerns about the impact of surveillance on democratic freedoms. In particular, we now know that they’ve spied on the South African Legal Resources Centre, a rights group connected with the ICCL through the International Network of Civil Law Organisations (INCLO). INCLO is 13 independent national human rights organizations in the global North and South.

This level of interference in our private activities via digital surveillance is unprecedented. Through access to our digital data, governments can now easily see where we’re going, who we’re talking to, and what interests we have. All without our knowledge or consent. The ICCL stands against these encroachments on our fundamental right to privacy.

Several INCLO members have also joined Tuesday’s court challenge against the UK’s international surveillance regime, including the Legal Resource Centre, Liberty, the American Civil Liberties Union, the Egyptian Initiative for Personal Rights, and the Canadian Civil Liberties Association.

As Martha Spurrier, Liberty’s Director has written of the mass surveillance: ‘No democratic state has ever deployed it against its citizens and human rights advocates and remained a rights-respecting democracy’.

The Snowden files have shown the world the power and potential threat that modern mass surveillance poses to our privacy and to democratic freedoms. We at the ICCL and our international human rights colleagues understand that it is necessary to work together to safeguard privacy rights on a global scale. We will continue to fight, at the European Courts and elsewhere, against the erosion of our hard earned democratic rights via government programs of mass digital surveillance.

Elizabeth Farries is the Information Rights Program Manager for both the Irish Council of Civil Liberties and the International Network of Civil Law Organizations. She is also a PhD Candidate researching digital privacy rights and cybermisogyny at the Trinity College Dublin.

Liberty, the ICCL, and other NGO groups’ landmark challenge against the UK Government’s mass surveillance

What Ireland can gain from international guidance on Article 19 UNCRPD

Human Rights in Ireland is delighted to welcome this guest post from Aine Sperrin. Aine is a PhD student at the Centre for Disability Law and Policy, NUI Galway, where her research focuses on achieving the right to independent living for people with intellectual disabilities in post-conflict states. This blog has been written by Aine in a personal capacity and does not represent the opinions or positions of any organisation with which she is associated.

This year marks the tenth anniversary of Ireland signing the United Nations Convention on the Rights of Persons with Disabilities (CRPD). This landmark has been seized upon by disability advocates to highlight the delay in recognition of their rights. It has prompted a resurgence of rights awareness and reignited a public discussion on the standards of services and lack thereof for persons with disabilities.

Independent living is an activity which the majority of us perform every day. It is fundamentally based on utilising the resources and supports necessary to live our daily lives in the way which we see fit. The concept evolved when patriarchal, segregated medical models of disability services were rejected by persons with disabilities in the 1960s in the United States. The ethos of the Independent Living Movement demanded choice and control over one’s own services and recognition of society creating disabling barriers. Continue reading “What Ireland can gain from international guidance on Article 19 UNCRPD”

What Ireland can gain from international guidance on Article 19 UNCRPD

Repeal or Replace?

Fiona de Londras | @fdelond

There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don’t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 “should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman”. In doing this, it is very clear that the Assembly was concerned to ensure that the Oireachtas would have the power to introduce wide-ranging abortion law reform should it wish to do so; this is evident from the legislative recommendations it then went on to make. Whether the Assembly meant that the Oireachtas should be given an express power to legislate, or whether it meant that the Oireachtas should have the power to create law that would be immune from constitutional challenge is unclear: I discussed this here. What is clear, though, is that the Assembly wanted there to be no dispute about the power of the Parliament to make law for abortion. Why, then, did it recommend repeal rather than replace? Continue reading “Repeal or Replace?”

Repeal or Replace?

An Abortion Law Immune from Constitutional Review?

Fiona de Londras @fdelond

In yesterday’s hearing of the Committee on the 8th Amendment to the Constitution talk turned to the idea that a new constitutional provision might be crafted and introduced which would provide that any law on abortion would be immune from constitutional challenge. In his presentation to the Committee, David Kenny made it clear that this was what he took the Citizens’ Assembly to have meant by its recommendation. In my evidence I posited a different interpretation, namely “as a proposal designed to make explicit the power to legislate for abortion to the extent recommended in the legislative proposals made by the Assembly”. On reflection, either understanding is probably sustainable. Reading the transcripts of the Assembly again, I still consider that the concern with ensuring the Oireachtas had “exclusive” competence to make law for abortion was intended to ensure absolute clarity about the power to legislate for the issue, but it could also be interpreted as saying that in doing so the Oireachtas should be empowered to make a law that would be immune from constitutional review. If the latter interpretation were pursued, would this be desirable and what would be the implications? Continue reading “An Abortion Law Immune from Constitutional Review?”

An Abortion Law Immune from Constitutional Review?

Should the pro-choice movement support a new constitutional provision on abortion?

In the run-up to the Citizens’ Assembly deliberations on abortion, there was a lot of discussion on the possibility of a ‘compromise’ or ‘moderate’ solution. Many envisaged (and feared) that instead of recommending outright repeal of the Eighth amendment, the assembly would instead recommend inserting a replacement clause that would permit slightly less restrictive abortion laws, but still enshrine specific, limited grounds for abortion. Indeed, such a supposedly moderate position was probably contemplated by the government as something that a mythical ‘middle Ireland’ might accept. Along with many others, I was adamant that it was a terrible idea to enshrine abortion restrictions of any kind at the constitutional level. This would have the effect of copperfastening a potentially oppressive regime for another generation.

And so the early debate was dominated by the question of ‘repeal versus replace’. Ultimately many of us were surprised that the Assembly deliberations unfolded along very different lines. In the first place, the Assembly clearly rejected the idea of inserting any revised abortion restrictions within the Constitution itself, partly because the majority rejected such restrictions, bar time limits, full stop. However, it also declined to recommend straightforward deletion of the Eighth amendment, which has essentially been the demand of the prochoice movement to date. Instead, it seems to have been influenced by the view that the revised text of the Constitution, minus the ‘eighth’, could still be interpreted as including residual rights for the ‘unborn’, and that this could be used to challenge liberalizing legislation of the kind it recommended. Therefore, it recommended inserting a new constitutional clause which, in the working of the Assembly report, would clarify that it is ‘solely’ within the power of the Oireachtas to legislate on ‘any rights of the unborn’ and ‘any rights of the pregnant woman’.

Continue reading “Should the pro-choice movement support a new constitutional provision on abortion?”

Should the pro-choice movement support a new constitutional provision on abortion?

Replace v Repeal and the Politics of Legal Certainty

Mairead Enright @maireadenright

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

Replace v Repeal and the Politics of Legal Certainty

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

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

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

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

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

Call for Papers: Irish Yearbook of International Law

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

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

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

Call for Papers: Irish Yearbook of International Law