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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ireland’s Failing Abortion Law: Statutory Interpretation, Human Rights and the Detention of Pregnant Children.

Mairead Enright (@maireadenright)

Yesterday, the Child Care Law Reporting Project published a summary of a District Court case from 2016. A  suicidal teenager’s GP referred her to a consultant psychiatrist. She was pregnant and did not want to be. Under s. 9 of the Protection of Life During Pregnancy Act (PLDPA) the entitlement to access a life-saving abortion must be certified by three doctors (two psychiatrists, at least one of whom has experience in treating pregnant women, and an obstetrician). Their job is to assess whether there is a real and substantial risk to the woman’s life from suicide, which risk can only be averted by terminating the pregnancy. This statutory test, restrictive as it is, mirrors the 8th Amendment as interpreted in the X case – the sources of constitutional law which provide that abortion is only available in Ireland where necessary to save the pregnant woman’s life. Continue reading “Ireland’s Failing Abortion Law: Statutory Interpretation, Human Rights and the Detention of Pregnant Children.”

Ireland’s Failing Abortion Law: Statutory Interpretation, Human Rights and the Detention of Pregnant Children.

RIA Conference on Human Rights and the Social Sciences, June 22nd.

The human rights movement has done a great deal of good in improving the lives of people around the globe, however, as evidenced by recent political upheavals, its embodiment as a contemporary ‘ethics of progress’ is increasingly being questioned. Events such as Brexit point to the role played by cultural and political factors in the realisation of human rights and raise the issue of the role of the social sciences in helping to ensure human rights as a lived reality.

In light of this, the Social Sciences Committee of the Royal Irish Academy is organising a conference on ‘Human Rights and the Social Sciences’ which will take place in Academy House in Dublin on Thursday 22nd June 2017 (10am-4.15pm). Continue reading “RIA Conference on Human Rights and the Social Sciences, June 22nd.”

RIA Conference on Human Rights and the Social Sciences, June 22nd.

Barriers to first trimester abortion care.

We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project.

As the Citizens’ Assembly turn to the ‘when’ of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it is worth summarising the key problems with first trimester focused access.

Barriers to access

A central problem in the timely administration and delivery of high quality care is the existence of ‘barriers to access’. These barriers can be structural, organisational, social, or personal and are usually a combination of a number of factors which prevent those who need care from getting it. By ‘getting’ here it is vital to recognise that patients are not passive – care is a dynamic process of requesting/approaching and being given care.

Importantly for Ireland, barriers to access are not just imposed from above but are embedded in cultures of care. So removing a barrier is more complex than simply funding an abortion clinic (for example) or making abortion legal as while the clinic may exist it may not have trained staff or have staff willing to perform abortions.  

Access and abortion care

In addition to questions about availability of trained professionals, financing of facilities, and proximity, abortion care has to factor in further barriers relating to abortion stigma and attitudes to abortion and women seeking abortion. As a result of abortion stigma, women may not approach care facilities for fear of repercussions. This barrier can be compounded by underlying norms and social factors both within and beyond caring institutions. If, say, a religious organisation which opposes abortion in all circumstances is placed in control of a hospital, a significant barrier to abortion care will inevitably result.

Abortion care access also needs to recognise the ‘timings’ of care-seeking and care-giving. Women may not know they are pregnant until well into the first trimester. Furthermore, health problems (foetal and maternal) become more apparent as pregnancy progresses. Acute care needs may only be detected in the second trimester or later and even then access may be limited by a lack of geographically proximate facilities.

What does this mean for a first trimester focused law?

The key problem with a first trimester law in Ireland is that barriers to first trimester abortion care are not impacted by liberalisation of abortion under 12 weeks gestation. Doran and Nancarrow’s systematic review (http://jfprhc.bmj.com/content/41/3/170.short; paywall) on barriers and facilitators for abortion care in countries where abortion is legal and the Guttmacher Institute’s regular reviews of barriers to care in the United States highlight core barriers which may not be impacted by this sort of change. These are divided into patient and provider perspectives in the table below.

Women’s perspectives Provider perspectives
Lack of proximate services Moral opposition
Lack of appointments/waiting lists Lack of training
Negative attitudes of staff Too few physicians
Associated costs of abortion Staff harassment
Insufficient hospital resources

Synthesis of barriers to first trimester abortion care – from Doran and Nancarrow (2015)

What would this mean in practice?

If a first trimester liberalisation is instituted then the front-line of sexual and reproductive and maternity care in Ireland will need to be closely explored. As research I have already been involved in highlighted (see here: https://mcrmetropolis.uk/blog/what-happens-when-women-have-to-travel-abortion-care-and-lessons-from-ireland/) communication between services in Ireland is not consistent. There are also significant issues relating to the cultures in hospitals – particularly if the Sisters of Charity are to be given ownership of the National Maternity Hospital, the key destination for acute maternal and foetal medicine – which will not be addressed by a legislative change.  

 

Barriers to first trimester abortion care.

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