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

by Gearoidin McEvoy.

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

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

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

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

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

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

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

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

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

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

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

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

GSOC, the legislative process, and the privacy rights of citizens: what is the law?  

 We are pleased to welcome this Guest Post from Eimear Spain and Shane Kilcommins.

The Garda Siochana Ombudsman Commission is an independent agency established under the 2005 Garda Siochana Act to deal with matters involving possible misconduct by members of the Garda Síochána. Last month it was revealed that it scrutinised the phone records of two journalists. The Minister for Justice and Equality, Frances Fitzgerald, has appointed Mr Justice John Murray to carry out a review of the legislative framework in respect of access to communications data of journalists. In defending the use of such powers, the current GSOC Commissioners pointed out that it was the legislative body of the State which made Garda leaks a serious offence, and it was also the same body which granted powers to access phone records and internet data to GSOC. As the Commissioners noted: “Gsoc must use any lawful means provided by the legislature ‘to ensure that its functions are performed in an efficient and effective manner…’”.

Surveillance Powers

Surveillance powers are provided for under three main pieces of legislation in Ireland: the use of surveillance and tracking devices under the Criminal justice (Surveillance) Act 2009; the interception of postal packets and telephone conversations (phone tapping) under the Postal Packets and Telecommunications Messages (Regulations) Act 1993; and the use of information that has been generated by various service providers arising from the use of mobile phones and landlines under the Communications (Retention of Data) Act 2011. Under the 2011 Act, a request for disclosure of data may be made if a member of An Garda Siochana is satisfied that the data is required for the prevention, detection, investigation or prosecution of a serious offence. It is clear that the legislature made leaking of data by a member of An Garda Siochana is a serious criminal offence under section 62 of the Garda Siochana Act 2005, thus giving power to request data in any such investigation. 

What are GSOC’s surveillance powers?

Upon establishment in 2005, designated officers within GSOC were conferred with all the powers, immunities and privileges conferred on any member of the Garda Síochána under any enactment or common law in existence at that time or enacted subsequently including powers of entry, arrest, charge, summons, search, detention, questioning, and the taking of bodily samples. The only exclusions were contained in section 98(5) of the Garda Siochana Act, 2005 and related to powers under the Offences Against the State Acts and in relation to phone tapping. GSOC were specifically excluded from having powers under the 1993 Act, with members of the legislature submitting that giving GSOC powers to tap telephones would permit them to act ‘as a separate police force’. Michael McDowell, the then Minister for Justice, was even more explicit: “I would not be comfortable giving the Ombudsman Commission the right to tap the telephones of politicians or journalists in pursuit of its criminal investigations’. GSOC were also subsequently specifically excluded from the 2009 Surveillance Act, section 17 of which expressly provides that the powers under the Act, including surveillance and tracking powers, did not apply to them. This provoked considerable debate in the Dail but a proposed amendment to provide them with surveillance powers was not carried (69 against the proposed amendment as opposed to 63 for it).   

However, GSOC were given powers upon establishment in 2005 under the Postal and Telecommunications Act 1983 (as amended) to request information on the use made of telecommunications services. They were also conferred with powers under the Criminal Justice (Terrorist Offences) Act 2005 which compelled a service provider to comply with a request for disclosure of traffic or location data retained for the purposes of the prevention, detection, investigation or prosecution of crime (including but not limited to terrorist offences). This Act was replaced by the Communications (Retention of Data) Act 2011, which was introduced in the dying days of the 30th Dail. Most recently, section 5 of the Garda Síochána (Amendment) Act 2015, permits GSOC to use surveillance and tracking devices, and to intercept postal packets and telephone conversations, powers which were previously unavailable to them.

What are the potential issues with GSOC’s accessing of phone records under the 2011 Act?

The Communications (Retention of Data) Act 2011 provides under section 6 that a member of An Garda Siochana not below the rank of Chief Superintendent, an officer of the Permanent Defence Forces below the rank of Colonel, or an officer not below the rank of principal officer in the Revenue Commissioners could request data from the service providers under the Act. While GSOC was not mentioned in the section 6 access provision, as the Act conferred powers on members of An Garda Síochána, it is reasonable to argue that GSOC had an implied power under the 2011 Act. Nevertheless such an interpretation raises a number of concerns.

When the legislature confers powers on any agency to suspend or qualify the individual rights of citizens it should, where possible, not do so by implication. In order to maintain the integrity of the right in issue, the legislature should expressly provide the agency with the power, and be in a position, particularly at debate stage, to justify that power in the light of the right at issue. This ensures that limitations on the right have been reflected upon and considered, better ensuring that any limitations are proportionate, the least restrictive in the circumstances, and apply only so far as is strictly necessary. Catch-all provisions, such as that provided for under section 98 of the Garda Síochána Act 2005, do not facilitate or promote reflection about the rights of citizens in the Dáil.

The second concern relates to clarity around the existence of GSOC’s powers to access data under the 2011 Act. Given the value placed by society on the autonomy of the individual, it follows that our laws should be predictable and certain so as to ensure that each citizen has fair opportunity to know the rules and how they will be applied. While it may be implied that the powers conferred upon An Garda Síochána by section 6 were also conferred upon GSOC, it is significant in this regard that section 12 of the Act, which provides for judicial oversight of compliance by the various agencies with powers under the Act, makes no reference to GSOC as one of the bodies subject to review. The Garda Siochana, the Defence Forces, the Revenue Commissioners and, since 2014, the Competition and Consumer Protection Commission are specifically mentioned. If the legislature intended to confer the relevant powers on GSOC, why did it not specifically reference it in the review provision under section 12 given that it did so with the other agencies? Furthermore, legal commentaries on the 2011 Act in the Annotated Statutes and Bar Review did not refer to GSOC in their interpretations of the agencies conferred with powers under section 6 of the 2011 Act. Such gaps do little to enhance comprehension or conceptual consistency; if lawyers are unsure, how does this sit with the ‘fundamental value’ that citizens “should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful”? 

Given such ambiguity, one wonders whether GSOC sought clarification on its interpretation of s.6 of the 2011 Act, particularly in the light of the rights at stake and its absence from the provision for review under section 12. This requirement of certainty takes on an added resonance when the rules in question provide powers to lawfully curtail the individual rights of citizens. Power conferring laws that suspend or qualify rights should – in order to maintain the integrity of the right in issue – be expressly provided for and justified in each instance, rather than included by in a catch-all provision under the 2005 Act which offers a rather imperfect mandate. The European Court of Human Rights has, for example, noted as far back as 1984 that because the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, ‘the  substantive  law  itself…must indicate the scope and manner of exercise of any such discretion with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference’. More recently in Shimovolos v Russia (2011), the European Court of Human Rights held that

‘because of the lack of public scrutiny and the risk of abuse intrinsic to any system of secret surveillance, the following minimum safeguards should be set out in statute law to avoid abuses: the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law’.

In addition to promoting clarity, this demand for positive express legislative authorisation, review and justification can serve the important didactic purpose of reminding the power bearer of how seriously the State takes the rights of its citizens.

The third issue relates to legality, and in particular whether the designated judge has jurisdiction to review the exercise of powers by GSOC under the 2011 Act. It is important to note here that the 2005 Act confers the powers, immunities and privileges of membersof An Garda Siochana on designated officers of GSOC. While the 2005 Act specifically equates personnel within the two organisations, at no point in the 2005 Act is GSOC equated with An Garda Síochána. Section 12 can therefore not be read as providing for a review of compliance by GSOC with the terms of the Act by the designated High Court judge. This is significant, and raises issues about the actual existence of an express legal framework for reviewing GSOC’s practices, together with the lawful authority of an overseer to do so.

Aside from the difficulties relating to the protection of rights, clarity and legality, there are also questions to be addressed in relation to the oversight process between 2011 and 2014. It is not clear what oversight existed in relation to the 2011 Act until 2014. The designated judge under section 12 of the 2011Act makes no reference to GSOC in his 2011, 2012 or 2013 reports. It is only in the 2014 report that the designated judge mentions for the first time that he ‘attended the Office of An Garda Síochána Ombudsman Commission’. The report of 2015 also mentions that GSOC was visited. The legitimate question this begs is whether GSOC was using its perceived powers under the 2011 Act prior to 2014, and, if so, what independent oversight was in place in that period. If it was using its powers under the Act between 2011 and 2014, but was not subject to oversight, does this have consequences for information gathered by GSOC during that period?

If, as seems to be the case, powers to access data records were also exercised by GSOC between 2005-2011, the question of whether there was any oversight of the exercise of those powers also looms large. Again there is no reference to oversight of compliance by GSOC in any publically available reports by the designated judge under the 1993 and 2005 Acts in the relevant period. Such practices would also have to be measured against ECHR jurisprudence, which demands at a minimum that oversight mechanisms in respect of surveillance ‘must be vested with sufficient powers and competence to exercise an effective and continuous control over the surveillance’.  In Klass v Germany the ECtHR noted that “[t]he Court must be satisfied that, whatever system is adopted, there exist adequate and effective guarantees against abuse.”

Conclusion

The right to privacy is viewed as a fundamental right that promotes autonomy and human dignity whilst also ensuring democratic freedom of association and expression. If the essence of such a right is to be protected and valued in a society, it requires that any limitations on its exercise should be justified, laid down in clear laws, apply only so far as is strictly necessary, and have robust, continuous, and effective statutory oversight mechanisms. Even from a simple analysis of the legislative process through which powers of surveillance have been conferred on GSOC, it is not clear that the legislature is taking such rights very seriously in Ireland.

Professor Shane Kilcommins and Dr Eimear Spain lecture at the School of Law at the University of Limerick.

GSOC, the legislative process, and the privacy rights of citizens: what is the law?  

Remembering the Magdalene Women on International Womens’ Day

We are pleased to welcome this post from Claire McGettrick of Justice for Magdalenes. This post is an updated version of a statement given to Oireachtas Retort for an article commemorating Election Day 2016.

Last Sunday, hundreds of people around Ireland honoured the women who lived and died behind Magdalene Laundry walls as part of the fifth annual Flowers for Magdalene commemorations held at various cemetaries around Ireland.  Every year, I walk around the Magdalene graves at Glasnevin prior to the ceremony to ascertain if there have been any changes. It has been six years since the Sisters of Our Lady of Charity claimed they were at ‘an advanced stage in making arrangements for the full and accurate details relating to these women…to be recorded in Glasnevin Cemetery’. In that time, just 10 new names have been added to the High Park gravestones, with no changes in the past 12 months. None of these changes rectify the discrepancies identified by Justice for Magdalenes Research (JFMR) over a year ago.

The very idea of celebrating International Women’s Day under such circumstances seems futile, even disrespectful. Regardless of how you mark International Women’s Day, please take a moment to read the following and consider how it is possible in 2016 for some of our most vulnerable citizens to be treated with such contempt.

On 19th February, we marked the third anniversary of Enda Kenny’s emotional apology to Magdalene survivors. When footage from that day is shown it usually focuses on the moment when the Taoiseach was reduced to tears in the Dáil chamber. Two weeks previously, when the McAleese Report was published on 5th February 2013, there were no such tears. Refusing to apologise, the Taoiseach alleged that because of the McAleese Report, ‘the truth and reality‘ had been ‘uncovered and laid out for everyone to read and to understand‘. Two weeks later, however, the historic apology finally came and thereafter, there was little interest – from media or otherwise (Conall O’Fátharta is a notable exception) – in anything other than the former government’s ‘good news story’, which began and ended with the apology.

Was the Taoiseach’s tearful apology the result of a ‘road to Damascus’ moment that occurred at some point between 5th and 19th February? Or, was it a political decision designed to make the Magdalene problem go away? The experiences of survivors in contact with our organisation would suggest that, unfortunately, it was the latter.

During that two-week period, the Taoiseach came under immense public criticism for his performance on the day the McAleese Report was released. Mr Kenny also faced pressure at cabinet level from his coalition partners, while junior Labour TDs and senators also threatened a walk out from a parliamentary party meeting.

The Taoiseach also had a busy diary between 5th and 19th February. Just days prior to the release of the Report, Senator McAleese resigned on 1st February. On 11th February the Taoiseach met with Nuala Ní Mhuircheartaigh, Senator Martin McAleese’s legal advisor and co-author of the McAleese Report. Also on 11th February, Enda Kenny met a group of Magdalene survivors. On 14th February, the Taoiseach had a meeting at Beechlawn Nursing Home, also the location of the generalate of the Sisters of Our Lady of Charity, who ran the High Park and Gloucester Street laundries in Dublin. The facts surrounding the purpose of this meeting and who was in attendance remain unknown. Two days later on 16th February Enda Kenny travelled to London to meet Magdalene survivors, many of whom left or escaped from the laundries to leave Ireland behind by emigrating to the UK.

On 8th February, JFM was also approached informally by a civil servant in the Department of Foreign Affairs about organising a meeting between the Taoiseach and survivors in contact with our organisation. In accordance with our survivor-centred ethos, we wished to ensure that survivors could make a decision regarding their attendance at such a meeting in an informed capacity. Thus, we responded to the civil servant the same day, requesting a letter from the Taoiseach’s office setting out the purpose of the meeting; the format of the meeting; the agenda for the meeting; who would be present and whether it would be open to all survivors who wished to attend. We also asked what guarantees could be given that survivors would be protected from the media. No response was forthcoming from the Taoiseach’s office and therefore, survivors in contact with JFM did not meet with Enda Kenny during this time.

On the night of the apology, Enda Kenny announced that he had asked Mr Justice John Quirke to make recommendations to government on a scheme for Magdalene Laundry survivors. In June 2013, Mr Justice Quirke published The Magdalen Commission Report and while the financial element of the ex gratia scheme fell far short of what survivors deserve, JFMR nonetheless welcomed it, in recognition of the other recommended benefits and services, particularly the establishment of a Dedicated Unit and the provision of an enhanced medical card which would provide access to ‘the full range of services currently enjoyed’ by HAA Card holders.  We were pleased when the government announced that it would accept all of Judge Quirke’s recommendations.

A month previous to the publication of the Quirke Report, on 22nd May 2013, Felice Gaer, Rapporteur for Follow-up on Concluding Observations at the United Nations Committee Against Torture (UNCAT) wrote to the Irish State as part of the follow-up process on UNCAT’s recommendations in 2011. In this letter, the Rapporteur noted that the McAleese inquiry ‘lacked many elements of a prompt, independent and thorough investigation, as recommended by the Committee [Against Torture] in its Concluding Observations’.  The letter went on to ask the Irish State whether it ‘intends to set up an inquiry body that is independent, with definite terms of reference, and statutory powers to compel evidence, and retain evidence obtained from relevant religious bodies’.

On 8th August 2013, just six months after the apology, the Irish State responded to UNCAT, asserting that ‘[n]o factual evidence to support allegations of systematic torture or ill treatment of a criminal nature in these institutions was found’ by the McAleese Committee and ‘in light of facts uncovered by the McAleese Committee and in the absence of any credible evidence of systematic torture or criminal abuse being committed in the Magdalene Laundries, the Irish Government does not propose to set up a specific Magdalen inquiry body’.

Three years later the government has seriously undermined Magdalene survivor’s trust, as it has cut corner after corner on the implementation of the ex gratia scheme. Survivors are still awaiting the establishment of a Dedicated Unit, a measure that should have been put in place immediately and not after the women, in many cases, have had to navigate the Ex Gratia Scheme alone. Some survivors have difficulty in proving duration of stay because of the religious orders’ poor record keeping, yet incredibly, the government affords greater weight to the religious orders’ contentions than survivor testimony.

The healthcare provisions as outlined in the RWRCI Guide do not provide Magdalene survivors with the same range of drugs and services made available to HAA cardholders. The women who have signed up to the Magdalene scheme thus far were required first to waive their rights to take additional legal action against the State, In return, they were led to expect that they would receive the full range of benefits and services recommended by Mr Justice Quirke.

In July 2015, six months after JFMR called on the HSE to provide survivors with a comprehensive guide to their entitlements under the scheme, the HSE sent survivors a five-page document. The Guide to Health Services under the Redress for Women Resident in Certain Institutions Act 2015, is an insult when compared to the comprehensive 48-page guide provided to HAA cardholders.

The government has failed Magdalene survivors living overseas. In this regard the government has repeatedly said it is ‘examining the practical arrangements’ for the provision of health services to women living abroad, however no timeframe has been given as to when this ‘administrative process’ will be in place. The needs of elderly survivors who are part of our Diaspora appear to have dropped off the State’s agenda.  This is particularly the case for survivors based outside of Ireland and the UK.

And, if survivors who are still alive have dropped off the agenda, unsurprisingly, the deceased do not feature at all.

To-date, JFMR has recorded the details of 1,663 women who died in Ireland’s Magdalene Laundries, almost twice the figure cited in the McAleese Report. The Report does not count the deaths of women who died in the laundries before 1922. Neither does the report count women who lived and died in institutionalized settings, still in the charge of the religious orders, after the laundries closed down. The McAleese Report maintains that the ‘vast majority’ of women who entered the Magdalene Laundries prior to 1922 were no longer in the institutions after the foundation of the State and consequently these so-called ‘legacy cases’ were ‘excluded from the statistical analysis’

Alice K, Agnes D and Maggie M are three of the women who were compartmentalised into the category of ‘legacy cases’ and who were thus omitted from the McAleese Report.

Alice K was twenty-nine years old when she was recorded in the 1911 Census for the Peacock Lane laundry in Cork.  On 26th November, 1961 an Alice O’K died and was interred in the Peacock Lane grave site at St Finbarr’s Cemetery in Cork.  If this is one and the same woman, Alice spent a minimum of 50 years at Peacock Lane.

At the age of twenty-eight, Agnes D appears in the 1901 Census record for High Park Laundry. The 1911 Census was recorded differently at High Park, with only initials used for each woman.  An ‘A. D.’ is recorded as aged thirty-four and from Dublin City. An Agnes D is interred at the High Park burial site at Glasnevin Cemetery in Dublin. She died on 4th August, 1967.  Agnes’s name does not appear on the exhumation licence for High Park and it is unclear whether or not she was one of those exhumed there in 1993.  Again, if this is the same woman, Agnes spent at least 66 years at High Park.

Maggie M is recorded in the 1911 Census for the Good Shepherd Laundry in Limerick at just eighteen years of age.  On 2nd December 1985, Margaret M died and was interred at the Good Shepherd Laundry grave at Mount St Oliver Cemetery in Limerick.  If this is the same woman, Maggie was confined for her entire adult life, a minimum of 74 years in the Good Shepherd Laundry in Limerick. Maggie is doubly excluded from the McAleese Report as she entered before 1922 and died after the laundry closed.

As part of our various submissions to the McAleese Committee, JFMR (then JFM) provided/shared all of its research materials and databases of names on Magdalene graves. Despite having this information, as well as enjoying access to the records of the religious orders, the IDC nonetheless managed to omit certain deaths from the Report and did not identify the discrepancies as outlined by JFMR here. These discrepancies include the fact that 51 women from Gloucester Street Magdalene Laundry whose names are inscribed on three headstones at a particular location in Glasnevin are not buried at that location, but are interred elsewhere.

For JFMR, and our sister organisation Adoption Rights Alliance (ARA), thoughts of celebration are far from our minds. Our work continues in reporting to the United Nations (for example, our submissions to the UN Committee on the Elimination of Discrimination Against Women here and here). We are also assisting with the provision of information to the Commission of Investigation into Mother and Baby Homes and Certain Related Matters and in the coming months we will be making a joint announcement in this regard.

During the week of the general election a vulnerable Magdalene survivor – we’ll call her Bridget – phoned to say she had spent 17 hours on a drip, sitting in a chair in a crowded A&E.  Bridget shed tears of happiness in the Dáil on the night of the apology. She phoned me the next day, concerned about the Taoiseach – ‘the poor man was very upset’ she said. Three years later however, she feels completely hoodwinked. Her lump sum payment is gone – she had debts to clear and had family to look after. Bridget has serious health issues and for her the enhanced medical card is of the utmost importance. She read Appendix G of Judge Quirke’s report and signed away her right to sue the State based on the legitimate expectation that she would receive a comprehensive healthcare suite of services. She certainly expected better than waiting 17 hours in A&E. Bridget has lived a hard life which has been a constant struggle, but she is a fighter – again and again she picks herself up and keeps going. She’s tired however, and keeps asking me when it will be over. The State apology represented hope and she thought the fight was finished on 19th February 2013 – I haven’t the heart to tell her that it’s nowhere near finished, and that the State itself will likely resist her every step of the way.

On this International Women’s Day, take a moment to think of Bridget, Alice, Agnes, Maggie and the other women who were incarcerated in Ireland’s Magdalene Laundries. Indeed, think of all the women who have had to shoulder the burden of progress – Louise O’Keeffe, Joanne Hayes, Eileen Flynn, Ann Lovett, the women infected with Hepatitis C, symphysiotomy survivors, Ms X, Ms Y, Savita Halappanavar, Philomena Lee and the thousands of women whose children were forcibly adopted – to name but a few.

Think of them, remember them and honour them however you see fit.

Remembering the Magdalene Women on International Womens’ Day

Call for Contributions: Paris Climate Agreement

This weekend (12-13 December) was marked by the conclusion of the much-awaited Paris Climate Agreement. The Agreement has been celebrated as ‘historic’ and as a decisive step in committing all states in the fight against climate change. On the other hand, criticisms against its ‘soft’ legal character and unsatisfactory targets have already been voiced.

Law and Global Justice at Durham and Human Rights in Ireland are co-hosting an interdisciplinary online symposium on the Climate Agreement. We are seeking contributions that address questions including (but not limited to) climate change and human rights, the legal character of the Agreement, international law and scientific evidence, the relationship between the Global North and the Global South in the light of historic wrongs, climate change and the question of refugees. We welcome contributions from law, but also from political science, international relations, geography, climate science, sociology, and other disciplines. We would particularly welcome contributions from the perspective of the Global South and of indigenous communities.

Contributions should generally not exceed 1,500 words and should be sent to Ms Ntina Tzouvala (konstantina.tzouvala@dur.ac.uk) by Monday 21st of December. Later contributions will also be considered.

Call for Contributions: Paris Climate Agreement

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

 

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

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

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

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

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

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

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

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

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

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

The day after my visit to the French Senate, I was invited to visit Amnesty International France’s headquarters to discuss the events in the Senate, along with Amnesty’s ongoing My Body My Rights Campaign. Yves Prigent, who is responsible for Amnesty France’s involvement in this campaign, stated that the approach undertaken at the Senate in order to lobby for greater awareness of and pressure to change Ireland’s abortion legislation at European level by appealing to member states’ mutual interest in protecting the lives and health of their expatriates in Ireland, was an ‘ingenious approach.’

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

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

 

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