The Citizens Assembly Proposals: A Draft Bill

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

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

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

The Citizens Assembly Proposals: A Draft Bill

What Women Don't Need

This is an edited version of a 10 minute informal talk I gave at the recent Coalition to Repeal the 8th conference, ‘What Women Need’.

The theme of this conference is ‘What Women Need’. My aim today is to tell you something about the sort of abortion legislation women do not need, but may well get, once the 8th Amendment is repealed. I do think that it would be possible to draft transformative post-8th legislation to regulate abortion in Ireland; legislation which might help to bed in women’s access to  care as part of a long-term process of movement to lightly regulated free, safe and legal abortion (see a recent talk here). But my topic today is something else.

I want to talk instead about the initial suggestions we have seen from members of Fine Gael and Labour about the sort of abortion legislation they would support if they were in office in a future government. These suggestions might be called ‘moderate’ or ‘middle ground’. They are made by TDs who tend to preface their statements with phrases like ‘I’m pro-life but…’ or ‘I am not in favour of abortion on demand but…’. My aim today is to provide an analysis of the legal imaginary underpinning that purported ‘middle ground’ – a ‘spotter’s guide’ to its key features.

I need hardly remind you, of course, that any proposal which does not comply fully with international human rights norms, cannot properly be described as ‘moderate’, except perhaps from the perspective of the established exceptionalist Irish approach to abortion law, which assumes that only a brutally conservative form of regulation can give effect to the Irish people’s supposed deep moral investment  in how pregnant persons conduct their lives.  Any legislation which does not provide for a period of access to abortion at the woman’s request in early pregnancy is far from the European middle ground. If you want to know what minimalist, middle ground legislation, which takes account of the complexity of the abortion issue and the full panoply of the state’s obligations under various bodies of human rights law,  might look like, I suggest the ‘General Scheme of the Abortion Access Bill 2015‘,  which a group of us drafted for Labour Women (but which they decided they could not adopt).

It is very interesting to watch the advance process of legitimating the supposed ‘middle ground’ unfold. Yesterday, the Taoiseach announced, invoking the usual abhorrence of ‘abortion on demand’, that he would not commit to a referendum on the 8th in the lifetime of the next government without giving consideration to what would replace it.  This sort of talk is something of a trend for this government. It repeatedlyexceptionalises abortion as a uniquely divisive and profound moral issue. In parliamentary debate the government presents pro-choice proposals for speedy reform as ill thought out, irrational,  and undemocratic. The government says it will not be ‘rushed’ when pro-choice TDs ask it to respond to devastating cases.  Often, the government – somewhat paradoxically – invokes the ‘bitter experience’ of thereferendum that lead to the Eighth Amendment to argue against its speedy replacement.

Note that the Taoiseach didn’t invoke conservative Catholic ideology yesterday (though his reference to ‘abortion on demand’ as the thing to be avoided implies a profound distrust of women’s decision-making). Instead he takes a supposedly ‘neutral’ approach relying on the assumption that repeal of the 8th generates a void or gap which must be filled, and that the filling of that gap will be a uniquely complex task. In his reliance on this discourse of uncertainty, the Taoiseach is able to present himself as steady and responsible. At the same time, he has not made any firm commitment to a process of research, consultation and law reform towards appropriate legislation.  He won’t commit to a referendum, in other words, for fear of an imagined looming void which he refuses to address. (Of course, there is no void per se. The PLDPA and associated medical law would remain in force until challenged or repealed, and the government could in any case prepare legislation for implementation to be brought into force immediate aftermath of the removal of the Amendment from the Constitution. If there is dangerous uncertainty in the law, it is the actually-existing dangerous uncertainty of the 8th Amendment-X case- PLDPA regime.)

Moreover, the Taoiseach’s focus on uncertainty works to close off discussion of the positive dimensions of the post-8th legal landscape. He offers no positive assessment of the shape of the constitution in women’s rights terms once the 8th Amendment is repealed. He does not point out how difficult it would be to justify criminalisation of abortion, for example, if the 8th Amendment could no longer be invoked to provide supposed constitutional impetus. He offers no sense of the tremendous potential – referenced by Anne Furdei of BPAS at this conference – for Ireland to use repeal to propose a new kind of abortion law, which demonstrates attention to and learning from the creative legal strategies which have been developed in other jurisdictions in the decades since the Amendment passed.

Having erected the spectre of overwhelming uncertainty, the ‘moderates’ will propose legislation which they claim is designed to provide clarity and reassurance to an unsettled public. You should look out for three key features in the drafting of any such legislation.

1) A retreat to the familiar and 8th Amendment lite or PLDPA plus. The discourse of uncertainty discourages creative research-based engagement with new legal approaches to the regulation of abortion, and encourages reliance on established, if dangerous, legal resources. The point of repealing the 8th Amendment is to rid our law of the unworkable, foetocentric rules it has been allowed to generate, and replace them with a regime which gives effect to women’s constitutional and other human rights. If language and concepts inspired by existing law are allowed to survive, zombie-like, the campaign for repeal then we must wonder whether repeal can be of more than symbolic importance. The Labour party’s recent proposals for a post 8th Amendment abortion law contain a disturbing example of retention of X case principles. These proposals suggest that a woman would be entitled to an abortion in early pregnancy if she could demonstrate a ‘real and substantial risk’ to her health. The phrase ‘real and substantial risk’ is a direct borrowing from the X case. We know that this phrase has proved very difficult to interpret in cases in which women’s lives are at risk and there is no reason to believe it will fare any better outside of the life-saving context. The borrowing of this language indicates the extent of the 8th’s impact even on supposedly liberalising legal thinking – it demonstrates a mindset in which the unborn remains a substantive legal subject, and women must be held accountable for any decision with serious implications for the survival of the pregnancy. Where we might expect to see substantive exploration of how general commitment to the protection of foetal life should be balanced against women’s many constitutional rights (or indeed reference to the concrete medical conditions which impact women’s pregnancies and which require a response from the law) we find instead an uninterrogated presumption that women come second, even the the absence of the 8th.

2) Restrictive language masquerading as providing certainty. If uncertainty is presented as the problem which abortion legislation must resolve, then politicians may be tempted to assume that precision in language is the solution. The search for black and white language is seductive but often misguided – particularly if new legislation continues to follow a medical indications model (under which a woman can access an abortion only because she or her foetus can be diagnosed with a particular type of medical condition rather than because she wants one). This was the difficulty whichbedevilled Clare Daly’s fatal foetal abnormality Bill  with TDs who opposed the Bill insisting that abortion could only be constitutional if a doctor could say with certainty that the foetus would not survive birth – an impossible standard.

3) Legal formalism. You should expect to see that excessive focus on the form and language of new legislation comes at the expense of attention to how the law will work in practice. We already know that the PLDPA and the X case judgment have failed at the level of interpretation – the law has been read down in ways which actively harm women. This has happened for two reasons. First, Irish medical culture – as evidenced by the cases  of Savita Halappanavar, Ms Y and PP v HSE, and as highlighted by the resistant activism of Doctors for Choice – emphasises obedience to the most conservative possible interpretation of the law, even when that interpretation is unreasonable from an ethical perspective because it does harm to the patient. Second, Irish legal culture, particularly within government and the civil service, is technocratic, conservative, litigation focused, and marked by excessive deference to the Attorney General as the most important interpreter of the Constitution. During the PLDPA debates, the government sought to connect to questions of the eventual implementation of the Act by inviting short testimony from elite medical and legal experts. Despite this, there is an obvious lack of government-led research or investigation into how abortion legislation would intersect with the lived reality of dominant Irish maternity care practices. In the General Scheme of the Abortion Access Bill 2015 we identify several crucial such gaps in public knowledge. If they are not filled, we will effectively be legislating into a black hole. (The government cannot even tell us, for example, how many terminations carried out under the PLDPA were abortions, and how many were so-called early deliveries.)

What Women Don't Need

This referendum is about more than same-sex marriage for those of us who are calling for a Yes…

 We are pleased to welcome this cross-post from the Anti-Racism Network.

 Articles such as the one published this week in the Irish Times ignore our existence, but we are here, and for every one of us calling publically for a Yes vote, there are many, many more. This week we have seen articles in the Observer, in The Irish Times and in a new enterprise calling itself  theliberal.ie that speculate on how those in the migrant communities in Ireland who have citizenship will vote in the marriage referendum on Friday. The Irish Times, reprinting an article first published in the Observer last Sunday, pulls spurious figures out of the air: “tens of thousands of Christian immigrants who have become Irish citizens” and even “up to 200,000 immigrants” may “help swing the vote in favour of No on May 22”. (““New Irish” Christians gather to vote No in referendum”, Monday 18th May). These articles paint a picture of African people in Ireland especially as one unvaried, homogenous group.

It is common, as Irish people know, for migrants to be seen as stereotypes rather than as we really are, in all our diversity. The media tries, in articles like this, to pigeon hole us, the “New Irish”, in a particular way that does not truly reflect who we are. We in the migrant communities in Ireland are diverse and our paths to this country and our experiences before and during our journey here were also many, and have shaped how we live our lives now, in the present. Some of us are Christian, some Muslim; some of us are of no religion, some atheists. Some of us are straight, some LGBT. Some of us have come here to escape persecution and threats to our lives and the lives of our families because of our political views, our ethnicity, our gender; to flee the slow death of poverty, to escape war, to make a better life for ourselves and our families, and some of us to escape persecution because we are LGBT.
That is why this referendum is about more than same-sex marriage for those of us who are calling for a Yes vote in the migrant communities. Voting Yes on Friday is about opening up to the other who may be different to you or me. It is about overcoming suspicion of anyone who doesn’t behave or look like ‘us’. Racial and ethnic minorities in this country know what it feels like to be discriminated against and held suspect because of our skin colour, our accent, our way of life, our religion. Voting Yes will help this country that is now our home to move away from the intolerant Ireland that was not a place for non-white people, and closer to a future where we can all be accepted as we are.
To show that many of us in the migrant communities, LGBT and straight, support Yes for Equality, a number of us came together to make a video with Anti-Racism Network Ireland (ARN) calling for a Yes vote on Friday. Articles such as the one published this week in the Irish Times ignore our existence, but we are here, and for every one of us calling publically for a Yes vote, there are many, many more.
In common with all citizens in Ireland, for those of us who can vote the referendum this is our chance to define the country we want to live in. Let’s go and vote, but let’s vote for the future, not for the past
This referendum is about more than same-sex marriage for those of us who are calling for a Yes…

Roundup of Online Legal Commentary in favour of Marriage Equality. #marref

Good Morning. In case you missed any of it, here is some of the best recent expert legal commentary in favour of a ‘yes’ vote in Friday’s marriage equality referendum.

Meanwhile, we at HRinI send all our appreciation (and hopes for a celebration on Saturday) to our friends, family and colleagues who have advocated for a ‘Yes’ vote during a very difficult campaign. 

Roundup of Online Legal Commentary in favour of Marriage Equality. #marref

Final Workshop in the Northern/Irish Feminist Judgments Project.

judges

The programme for the 4th and final set of drafting workshops in the Northern/Irish Feminist Judgments Project is now online here. Events take place next month at Griffith College and UCD. The Northern/Irish Feminist Judgments Project brings a new critical methodology to bear on Irish and Northern Irish legal studies. A collective of academics and practitioners have come together across 4 workshops to write the “missing feminist judgments” in appellate cases which have shaped Irish and Northern Irish law. The Project will publish an edited collection of “missing judgments” in 2016. We expect that it will be an important resource for teachers and students of law, practitioners and activists for many years to come. This workshop features contributions from leading feminist legal academics based in Ireland and Northern Ireland, and includes collaborations with the Irish Women Lawyers’ Association, and with the artists Jesse Jones and Sarah Browne. If you would like to attend any part of the Thursday or Friday events, please email irishfeministjudge@gmail.com. We especially welcome input from practitioners and activists with expertise in the areas covered by the draft judgments being presented at the workshop  (see programme at link above).

Final Workshop in the Northern/Irish Feminist Judgments Project.

Maynooth Law School: The Gaza Strip: Military & Legal Perspective

mayuni_logoThe Gaza Strip: Military & Legal Perspectives

A Public Lecture by Col. Desmond Travers

When: Monday, 23 March 2015, 6:30pm – 8pm

Where: Renehan Hall, South Campus, Maynooth University

Desmond Travers is a retired Irish army colonel who served with a number of UN peacekeeping missions in the Middle East and the Balkans. He is now a director of the Institute for International Criminal Investigations in the Hague, where he trains and supports teams involved in the investigation and prosecution of war crimes, crimes against humanity and genocide. Colonel Travers was a member of the Fact-Finding Mission on the Gaza Conflict that was deployed by the United Nations in 2009, following Israel’s ‘Operation Cast Lead’ in the Gaza Strip. A similar independent international investigative mechanism, the Commission of Inquiry on the Gaza Conflict, was created by the UN following Israel’s ‘Operation Protective Edge’ in the summer of 2014, with a mandate to investigate all violations of international humanitarian and human rights law. This commission is scheduled to present its report to the UN Human Rights Council on 23 March 2015. Drawing on his experiences as a military investigator and legal-political analyst in the context of the Middle East, Col. Travers will provide his reflections on this latest investigative process and on Israel’s use of force in the Gaza Strip last summer, as well as his analysis of current and future developments in Palestine/Israel.

Attendance is free and all are welcome; please email law@nuim.ie to register.

Maynooth Law School: The Gaza Strip: Military & Legal Perspective

UCD Seminar: Smart Power and US Counter-Terrorism: The Sound Bite and The Reality

UCD EadieUCD Human Rights Network invites you to a seminar with Dr Pauline Eadie on Smart Power and US Counter-Terrorism: The Sound Bite and The Reality. The seminar will take place at 1pm on Friday, 6th March 2015, in the Harty Boardroom, 1st Floor, UCD School of Law. All are welcome.

 

Dr. Pauline Eadie is an Assistant Professor at the University of Nottingham. Where she is also Deputy Director of the Institute of Asia Pacific Studies (IAPS). She has published widely on issues of terrorism and security. She is currently working on an edited collection to be published with Routledge’s Global Security Studies series entitled Military Transformation in the West and Asia: Security Policy in the Cold War Era. Dr. Eadie has travelled widely in the Philippines. She is author of Poverty and the Critical Security Agenda, which looks at the case study of the Philippines. She has recently been awarded a major grant from the ESRC/Dfid for a three year research project entitled ‘Poverty Alleviation in the Wake of Typhoon Yolanda’. This project will look at coping strategies, rehabilitation and resilience.

UCD Seminar: Smart Power and US Counter-Terrorism: The Sound Bite and The Reality

Call for Submissions: The Rights of Older Persons

Irish Community Development Law Journal is a peer reviewed onlCLM logoine journal, published twice a year by Community Law & Meditation (formerly Northside Community Law & Mediation Centre) in Coolock, Dublin. The journal seeks to offer a platform for interaction that encourages greater scholarly and academic collaboration in the areas of social policy, law and community development, promoting the practice of community economic development law and policy in Ireland and learning about these initiatives in other countries.

The deadline for submissions is Friday 10th April 2015

This edition will explore the theme of the older person in the context of law, human rights and advocacy.  Is the older person’s voice sometimes disregarded or devalued in society?  The aim of this edition is to discuss a number of key legal and policy issues of relevance to older persons.  Suggested areas of interest include, but are not limited to, retirement and employment rights, discrimination, elder abuse, assisted decision-making and capacity, elder mediation, the rights of grandparents, minimum adequate income, legal practice and advocacy in the context of older persons.

This edition seeks to examine the issues arising for the older person and the rights engaged, to stimulate debate, to encourage reflective practice, to highlight casework and evidence, and to engage a global audience.

Submissions are welcome from practitioners and academics working across a broad spectrum of professions and academic disciplines.

If you are interested in writing an article, a book review or case‐study, please email: editor@communitylawandmediation.ie

To access previous editions of the journal and for more information, go to our new website here

Call for Submissions: The Rights of Older Persons

Gendering the Practices of Post-Conflict Resolution: Investigations, Reparations and Communal Repair

UU TJIThe Transitional Justice Institute (TJI), Ulster University  is delighted to announce its 8th annual Summer School on Transitional Justice on the theme of:

Gendering the Practices of Post-Conflict Resolution: Investigations, Reparations and Communal Repair

 The Summer School will be held from 22-26 June 2015 at the Jordanstown campus of the Ulster University, located on the north shore of Belfast Lough, Northern Ireland. The Summer School is a week-long residential course, consisting of a series of interactive lectures, workshops and roundtable discussions.  It is aimed at both postgraduate students and practitioners working in the field of transitional justice and human rights.

The academic component of the summer school is also complemented by a social programme which provides the opportunity for participants to get to know a little about the local area. A number of social events such as: a murals tour in Belfast, film screenings and a Summer School dinner at Belfast Castle are included in the programme.

The leaflet includes a programme outline and application details, which can be found here.

Gendering the Practices of Post-Conflict Resolution: Investigations, Reparations and Communal Repair

Update on the Northern/Irish Feminist Judgments Project.

The Northern/Irish Feminist Judgments Project brings a new critical methodology to bear on Irish and Northern Irish legal studies. A collective of academics and practitioners will come together to write the “missing feminist judgments” in appellate cases which have shaped Irish and Northern Irish law. (Click here for details of those involved and here for details of the cases to be rewritten).

We have held two events so far: drafting workshops at the University of Ulster and at Queen’s University Belfast. At our Drafting Workshops, the academics acting as judges for the project present their draft judgments. They speak about the challenges they have encountered in re-writing the judgments in important Irish and Northern Irish cases, and about their aspirations for the re-written versions. Below are some of the podcasts we have made of their talks so far, together with links to the original judgment in each case, judges’ contact details and additional resources. Academics teaching these cases, or other students of judicial reasoning, are likely to find the discussions useful, and we welcome your feedback. The podcasts are usually about 25 mins long.

Feminist judging provides a means of re-imagining the role of the judge. It requires us to  adhere to the rules of precedent and custom that typically bind judges, while demonstrating that it is possible to decide even very difficult cases in ways that take proper account of feminist concerns. For example, a feminist judgment, in reciting the facts of the case, might provide more detail on  a woman litigant’s experience. It might take judicial notice of feminist “common knowledge”. Or it might aim to give legal meaning to feminist conceptions of equality, autonomy or selfhood.  (Click here for further discussion of the principles of feminist judging and their significance for Irish and Northern Irish legal studies.) Listening to one or two of the podcasts is one of the best ways to figure out what all of that means.

The next Drafting workshop is in UCC on February 5 and 6. The programme for the day is here. If you would like to attend, please email irishfeministjudge@gmail.com. Our final workshop will be held at UCD and Griffith College Dublin in mid April. You can follow proceedings @irishfjp.

Podcasts

Aoife O’Donoghue and Ruth Houghton on McGimpsey.

Catherine O’Rourke on In re White

Colin Murray on In re E (the Holy Cross case)

Eoin Daly and Deirdre McGowan on Flynn v. Power

Claire McCann on SPUC’s Application

Kathryn McNeilly and Sarah Ramshaw on Re Family Planning Assoc. of Northern Ireland

Lorna Fox-O’Mahony on NPBS v. Lynd

Olivia Smith on Stokes v. CBS Clonmel

Patrick Hanafin on Roche v. Roche

Julie McCandless on A and B v. An NHS Trust

Maebh Harding on the PKU Test case

Update on the Northern/Irish Feminist Judgments Project.