The Labour Party #repealthe8th Proposals: An Analysis

By Professor Fiona de Londras, University of Birmingham | E: | T: @fdelond

Today the Labour Party became the second party to outline its plans for repeal of the 8th amendment and the possible legislation that would follow constitutional change (the first was the Green Party, whose proposals I analysed here). The proposals seem to have temporarily disappeared from the Labour page, but the Heads are uploaded here.

I must start this post by saying that, together with nine others (Mairead Enright, Vicky Convway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Claire Murray, Sheelagh McGuinness, and Sorcha uí Chonnachtaigh) I was involved as an independent expert in the Labour Women Commission on Repeal of the 8th Amendment. This Commission comprised a political group, a medical group, and a legal group. Our job, as the legal group, was to propose a piece of law that might act as a “model” for post-amendment legislating, listening to the views of the medical experts and feeding into the political decision-making processes of the political group.

Our involvement did not mean that the political group would automatically endorse our proposals, or that the Labour Party’s policy objectives would determine our proposals. Inevitably, the context in which we undertook the task of drafting such a law informed our approach to it, and we explain the thinking behind our draft law here. The draft law itself was published open access here. As is clear from the analysis that follows, the final proposals from the Labour Party adopt some, but not all, of what we proposed (just as the Green Party proposal did), and we all remain at the disposal of other political parties to discuss the proposals as they (we hope) formulate their policies on abortion coming up the general election. Continue reading

The Green Party’s Reproductive Rights Policy: An Appraisal

By Professor Fiona de Londras, University of Birmingham E: T: @fdelond

The Green Party has released a reproductive rights policy in advance of the general election. The policy is very welcome, and is a further indication that reproductive justice is likely to be a central issue in the forthcoming election. The policy is especially interesting in that it speaks to a broad reproductive rights policy, endorsing better maternity care and more choice in maternity and birthing options, and committing to access to safe and affordable contraception, which is a very welcome development. The publication of this policy also speaks to the Green Party’s decision to support repeal of the 8th Amendment by means of a referendum, although its support is given “on the condition that the Government have provided draft legislation which will be put in place if the referendum passes”. It is on this proposed law that I want to concentrate here. Continue reading

Why Thinking about ‘Effectiveness’ Matters for Rights in Counter-Terrorism

It is striking that counter-terrorism tends to be treated as an informal exception to the ‘normal’ expectations of public policy and administration: measures are rarely subjected to full ex post facto review with appropriate access to information, evidence-based law- and policy-making is more or less absent, and the classic ‘learning loop’ ‘good old fashioned public administration’ seems rarely to be completed. This has clear implications for rights: the debates about necessity, impact and effects often remain at the level of rhetoric and key claims are unsubstantiated, while counter-terrorist measures frequently violate individual rights and act as the platform for systemic ‘downgrading’ of the content of core rights such as fair trial and privacy. Addressing these patterns requires systemic, heuristic and operational reform, but one starting place is the concept of ‘effectiveness’ and the role it plays in counter-terrorism discourses.  Continue reading

Call for Papers: Irish Yearbook of International Law

IYILThe editors of the Irish Yearbook of International Law welcome submissions for publication in the Yearbook.

Articles should not be published or under consideration for publication elsewhere.

An annual, peer reviewed publication, the Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer submissions will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.

Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Professor Siobhán Mullally ( and Professor Fiona de Londras ( by 30 June 2015. (Submissions are also accepted on a rolling basis).

Anyone wishing to review a particular title in the Yearbook’s book review section is also invited to contact the editors. Further information on the Yearbook (including style guide) is available at the IYIL website. The Irish Yearbook of International Lawis published by Hart-Bloomsbury and is also available on HEIN Online.

CfP: Irish Yearbook of International Law

IYILThe editors of the Irish Yearbook of International Law welcome submissions for publication in the Yearbook.

Articles should not be published or under consideration for publication elsewhere.

An annual, peer reviewed publication, the Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer submissions will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.

Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Professor Siobhán Mullally ( and Professor Fiona de Londras ( by 30 June 2015. (Submissions are also accepted on a rolling basis).

Anyone wishing to review a particular title in the Yearbook’s book review section is also invited to contact the editors. Further information on the Yearbook (including style guide) is available at the IYIL website. The Irish Yearbook of International Law is published by Hart-Bloomsbury and is also available on HEIN Online.

Is the Marriage Equality Referendum about Human Rights?

weddingringsOver the last few weeks, campaigning on Ireland’s marriage equality referendum has been taking place in earnest. While the ‘yes’ side entered the formal referendum campaign with a steady lead in the polls and has long been well organised, the ‘no’ side has emerged rapidly and, in some ways, chaotically, scoring successes along the way (for example, through amendment of the proposed Irish language text).

The ‘no’ campaign has certainly been gaining traction. This is not unusual in constitutional referenda, when the burden of establishing that the status quo ought to be changed lies firmly with the ‘yes’ campaign, as it should do. In some ways, the ‘no’ campaign may seem unstructured, disorganised and ad hoc; after all, it has no particular supra-structure to shape it as all major political parties support the referendum (which in itself is not at all unusual) and the Irish Association of Catholic Priests has elected to take a neutral position. Furthermore, the ‘no’ side seems to comprise everything from prolific letter writers, to the Iona Institute, to Bruce Arnold sending ‘private study papers’ (which appears to more or less be a structured ‘letter’) to members of the Oireachtas, all raising such a range of arguments that they are difficult to address in a coherent way. These arguments include everything from the utter canard of assisted human reproduction and surrogacy (excellently dismissed by Conor O’Mahony here), to the bizarre suggestion that somehow children raised by married same-sex parents will not have grandmothers. However, in my view, the campaign against marriage equality—and the infrequently-articulated ‘real’ concern in many people’s minds—is not about children, or family, or even marriage; it is about the ‘specialness’ of heterosexuality.

Marriage is now pretty much the only thing that is ‘special’ about heterosexuality; it is the only institution from which the state expressly excludes people who are in same-sex relationships (the majority of whom identify as, and are perceived as being, gay or lesbian). With the exception of s. 37, which is being addressed, discrimination in employment is no longer possible; people who identify as LGBT exist in every profession, job and field of work. Discrimination in the provision of goods and services is prohibited. The Children and Family Relationships Act 2015 addresses questions of adoption and family form for same-sex parents and their children. Marriage is all that is left. Marriage is all that is now exclusively heterosexual.*

For me, this is what the marriage equality referendum is really about.

By voting ‘yes’, one will signal that they do not believe that heterosexuality or opposite-sex attraction ought to have exclusive access to the constitutionally recognised and protected status of ‘marriage’. By voting ‘no’, one will indicate the contrary. That is not a matter that relates to the nature of marriage as a constitutional or legal question; it is one that relates to one’s belief about the nature of different sexual orientations.

The reality is that in deciding this matter by means of constitutional referendum, a minority population is asking the heterosexual majority to give up some of their privilege; to recognise their fellow citizens and inhabitants of Ireland as equally entitled to enter into the constitutionally-recognised institution of marriage. This is why the marriage equality referendum is correctly referred to as a referendum about human rights.

Numerous representatives of or adherents to the ‘no’ side argue that, as there is no “human right to gay marriage”, this is not a referendum about human rights at all. They are right to say that Article 12 of the ECHR, for example, does not expressly protect a right to enter into same-sex marriage, although they neglect to note that it may be interpreted as doing so as a European consensus on marriage equality emerges. They also fail to mention, for example, the EU Charter of Fundamental Rights which purposefully does not limit the right to marry to opposite-sex couples. However, even beyond the potential of these texts, the fact that this referendum is about recognition means that it is inherently about rights.

The great British Idealist, T.H. Green, famously wrote that “rights are made by recognition”. While not wanting to over-simplify his recognition thesis, for Green a right is dependent on “a society of men who recognise each other as isoi kai homoioi”, i.e. as equals. The marriage equality referendum is almost as explicit an example of this as one can imagine; it is a minority community asking the majority to recognise them as equals by opening up the last zone of exclusion and giving full effect to their constitutional citizenship. This is why even people who, for political and feminist reasons, may have difficulties with the institution of marriage per se, have been so vociferous in their support of the ‘yes’ campaign; because they see that this is a referendum about more than marriage. It is, truly, about equality; equality of esteem, equality of access, equality of citizenship.

Marriage equality will not end homophobia; it will not, on its own, make Ireland an equal society. To achieve that requires far more than marriage equality and a far broader reform agenda. But a ‘yes’ vote on May 22nd would be a statement about the kind of country we want to be; do we want to be a state in which we recognise that sexual orientation is not an acceptable basis for any kind of exclusion, or do we want to maintain the exclusionary and unequal status quo?

People are entitled to vote however they wish on May 22nd; the nature of our system of constitutional change is such that the minority seeking emancipation from oppressive or exclusionary laws and practices permitted or mandated by the Constitution must subject themselves to the will of the majority. We must, as Green would say, request recognition as equals. However, when deciding how to vote it is important that we recognise that a ‘no’ vote involves more than ‘merely’ upholding an historical or ‘traditional’ conception of marriage. It is a decision of the electoral majority to maintain heterosexual privilege and to perpetuate inequality.

That is what this referendum is really about.

That is why it is fundamentally a question of human rights.

* Of course, gay and bisexual people can marry someone of the opposite sex. However, by describing marriage as exclusively heterosexual I mean that it is only possible, in Irish law, between one man and one woman expected to engage in a sexual relationship, i.e. that it is built on an expectation of ‘typical’ behaviour determined by heterosexual social norms.

Foetal Life, Natural Death, and the 8th Amendment

constitutionThis morning three members of the High Court are hearing an application from the parents of a woman in her mid-20s who, following a brain trauma, lies clinically dead in a midlands hospital and whose doctors have declined to turn off life support as she is pregnant. For these doctors (and, it now emerges, two other sets of doctors in recent years) there is simply no certainty as to whether they are permitted to turn off life support given the right to life of the foetus. This case highlights the extent to which the 8th Amendment permeates all medical decision-making relating to the care of pregnant women.

By granting a constitutionally protected right to life to the unborn foetus, the Constitution has embedded a ‘two patient’ approach that, where the pregnant woman is effectively deceased but the foetus is not, inevitably morphs into a ‘one patient’ approach. This one patient, however, is dependent for life on the body of the deceased woman and thus questions of difficult and harrowing proportions arise.

At issue, in this case, is not a classical Article 40.3.3 ‘competition’ of the right to life of the pregnant woman versus the right to life of the foetus. Sadly, without constant intervention, the pregnant woman in this case cannot and will not continue to breath. Rather, the primary conflict of rights is between the pregnant woman’s right to die a natural death (recognised in Re A Ward of Court (No 2)), privacy and bodily integrity on the one hand, and the right to life of the unborn foetus on the other.

In that same case, Denham J. (as she then was) characterised the right to life as the pre-eminent personal right, but of course this does not mean that it always and inevitably acts as an absolute trump. Rather, the Court must decide whether sustaining the pregnant woman’s lie artificially is ‘practicable’; after all, what Article 40.3.3 provides is that the state “guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right” (emphasis added). One important question for the High Court today, then, will be whether or not sustaining life for the amount of time required to vindicate the right to life of the foetus is practicable. In this respect, medical evidence as to the point at which delivery would be safe will be important. Whether or not the Court takes into account the statistical likelihood of survival and statistical likelihood of severe disability to help to determine the point of appropriate intervention (barring any medical emergencies in the meantime) will be especially interesting, but these certainly seem to me to be important elements in determining practicability.

Questions of proportionality are also likely to arise and to be influenced by these considerations as to medical practice. Even if the right to life is a pre-eminient right, the Court will surely ask whether the interferences with the woman’s constitutional rights in order to vindicate the foetal right to life are proportionate. The question of proportionality will come down, in all likelihood, to a determination of the extent of the interference which implicates matters of how long her life will have to be sustained considered by reference to the likelihood of optimal health outcomes for the foetus.

In short, the High Court today (and, perhaps, the Supreme Court on appeal tomorrow) will have to make a decision as to just how long a hand the 8th Amendment reaches into medical care in this country. It is clear that this is not a case that is governed by the Protection of Life During Pregnancy Act 2013. That Act deals only with situations in which there is a risk to the life of a pregnant woman that might be averted through abortion. This is clearly not such a case. However, the 8th Amendment is far broader than abortion, whatever its original intended reach might have been. The fact that medical professionals have felt utterly unable to make a medical decision to cease life support, with the support of the patient’s family, because of the legal uncertainty that surrounds the life of a foetus which is at such an early point of gestation as to be far from viable sharply illustrates the consequences of having constitutionalised the ban of abortion through the use of such far-reaching language.

On this blog Máiréad Enright has previously cautioned against describing cases arising under the 8th Amendment as tragic. In her words,

‘Tragedy’ is often a word we use to signal detachment, from exceptional and rare suffering brought about by fate – events that we can only gawp at from a distance. But this particular set of circumstances is, in an important sense, the product of a constitutional amendment which was never fit even for its proponents’ purpose, and which has been punishing women for far too long.

This case is difficult. It is sad. It is harrowing. But it is not a tragedy. It is a product of a constitutional amendment that is unsustainable, unliveable and in urgent need of repeal.

Options for Constitutional Reform #repealthe8th

This joint post by Máiréad Enright and Fiona de Londras draws heavily from Enright & de Londras, “’Empty Without and Empty Within’: The Unworkability of the Eighth Amendment after Savita Halappanavar and Miss Y” (2014) 20(2) Medico-Legal Journal of Ireland __ (forthcoming)

The current constitutional framework for abortion, stemming from the Eighth Amendment, inflicts significant harm on women. However, notwithstanding that, some argue that there is nothing to be done. An assortment of arguments about ‘political will’ assume that because the electorate has voted on ‘the abortion issue’ three times, there is no legitimate scope for a referendum to repeal the Eighth Amendment and reform the constitutional position. In this post, we argue that a referendum is required for the purposes of constitutional regeneration and then consider two options for constitutional reform, arguing that rather than simple repeal, repeal and replacement of the Eighth Amendment would be the appropriate approach.

Justifying a Fourth Referendum

In its submissions to international human rights treaty bodes and the European Court of Human Rights, as well as its responses to the pronouncements of these bodies on Ireland’s abortion law regime, the Government tends to claim that the current law in Ireland reflects the sovereign will of the people, basing this claim on the fact that it emanates from a series of constitutional referenda on abortion. It is possible to unpick this argument from a critical perspective: one could point to the dysfunctional political processes that generated the Eighth Amendment in the first place, to the limitations of the referendum questions put to the electorate, or to the expanse of time and cultural change that stands between us and 1983. However, even leaving these arguments to one side and accepting the Eighth Amendment and subsequent abortion referenda as legitimate expressions of political will, there are compelling reasons for holding a fourth referendum on abortion.

Our argument is a simple one of constitutional renewal: a ‘forward looking argument’. When we have faced positions like the current one before, in which stagnant processes of constitutional interpretation by the judiciary or other state agents, have produced an unworkable legal framework not in-keeping with the broader spirit of the Constitution, we have held referenda to begin again. This is how we added the rights to travel and the rights to information to the Constitution, for example. The Children’s Rights Referendum is one key recent example. The Citizenship Referendum in 2003 was, arguably, another. Furthermore, where a constitutional status quo seems considerably at odds with popular demands for a revised constitutional settlement, the principle of popular sovereignty upon which the Irish Constitution rests, and which was reflected in the Constitutional Convention held last year, militates towards reform.

It seems incongruous to accede to popular demands for referenda on minor changes to voting age and presidential term, for example, and to simultaneously continue to refuse the people an opportunity to vote in a liberalising abortion referendum.

Furthermore, the current operation of the Eighth Amendment is the product of suffocating trends in interpretation of the constitutional text, both in the courts and elsewhere. We appear to have developed a constitutional regime that allows women’s lives to be put at risk in ways that are very difficult to justify except outside a very restrictive reading of the Constitution: as Ruth Fletcher has argued, phrases such as ‘equal right to life’ and ‘as far as practicable’ could be interpreted in a more imaginative and liberal way to deal with, for example, fatal foetal abnormality and abortion in situations of clear unviability. However, interpretive interventions of this kind are highly unlikely, and mere adjustment of the PLDPA cannot adequately address the harm imposed on women by the constitutional status quo. Furthermore, the current law on abortion in Ireland is inconsistent with our international obligations, as noted by the UNHRC earlier this year.

Thus, there are compelling democratic, practical, and legal reasons for holding a constitutional referendum to reform Irish abortion law, however the question of the form that such a referendum might take remains an open one. There are two clear options for effective reform by means of constitutional referendum: ‘simple’ repeal of relevant constitutional provisions, and replacement of current provisions with new provisions expressly outlining the availability of abortion in Ireland. Both options raise some particular questions and challenges, and both would require legislation in order to give them proper effect should the referendum in question be successful.

Option 1: ‘Simple’ Repeal

Some pro-choice campaigners advocate a simple repeal of the Eighth Amendment, in the hopes that this would de-constitutionalise abortion, and return it to the legislative sphere. In effect, the argument goes that removal of Article 40.3.3 would leave the Constitution protecting a general right to life, without express reference to unborn life, and that in any subsequent litigation the Supreme Court would take the referendum result as indicating an intention to abolish the constitutional prohibition on abortion. Excising the constitutional provision would rid Article 40.3.3 of any further effect, ostensibly leaving the contours of abortion law for political settlement in the Oireachtas.

However, it is not necessarily clear that the effect of repeal would be quite as straightforward as this suggests. It may well the case that the Constitution contains loose threads, which might influence judges in a later case so that the Constitution may be said to contain a meaning not anticipated by the repeal campaign. Assuming that the effect of repeal is prospective only, there is an argument, based on dicta from a number of cases, that the foetus in utero enjoyed a constitutional right to life prior to the insertion of Article 40.3.3: this is certainly suggested in G v. An Bord Uchtala [1980] IR 32, and the judgments of Walsh J in McGee, McCarthy J in Norris and Barrington J in Finn v. The Attorney General [1983] I.R. 154.

Should Article 40.3.3 be removed from the Constitution there is a possibility that this jurisprudential conceptualisation of the right to life as include a right to be born might be revived to assert a constitutional right to life of the unborn, which would then have implications for the autonomy and bodily integrity of pregnant women and might well constitutionally constrain abortion law reform. Although unlikely, given that the express purpose of a repealing amendment would be to de-constitutionalise abortion, this nonetheless remains a possibility.

The X Case illustrates the practical, political and legal challenges that can flow from judicial interpretation of constitutional texts relating to abortion, and indeed the possibility of unanticipated consequences of seemingly straightforward constitutional amendments, so that a ‘simple’ repeal without the insertion of any clarifying provisions carries with it remote, but real, risks of the judicial re-constitutionalisation of abortion.

Option 2: Repeal and Replacement

The second option for constitutional reform is the repeal and replacement of Article 40.3.3 in order to make clear the constitutional position relating to abortion in a manner similar to the 15th Amendment (on divorce). Bearing in mind that an overly detailed constitutional provision can hamstring subsequent legislative efforts and make law reform burdensome, a relatively modest approach to a replacement provision would seem advisable.

This could be achieved by replacing the current text with an express right to bodily integrity together with the right to life, which the state would pledge to vindicate and protect, followed by a secondary provision employing the ‘Nothing in this constitution shall operate…’ formula to explicitly permit the introduction abortion.

A formulation of this kind should place beyond doubt the deconstitutionalisation of abortion per se while leaving the precise parameters for the provision of abortion to be determined through the political sphere and for subsequent revision and reform if appropriate and desired. It should also preclude the state from upholding a law which is inconsistent with international human rights law and comparative practice in the field of abortion law, on the basis that it represents the ‘will of the People’. It should ensure, accordingly, that governments must take full political responsibility in domestic and political spheres for their decisions as to the availability of abortion in Ireland.

Blognival #repealthe8th

Over the course of today, Human Rights in Ireland will host a blognival on #repealthe8th with posts that engage directly with the questions around legal reform of abortion in Ireland to those that draw the links between abortion law in Ireland and the multiple layers of repressive law and policy that apply to women’s bodies regarding pregnancy and reproductive autonomy.

Conference on EU Counter-Terrorism, Dublin, 13 October

On 13 October, 2014 the SECILE Consortium will hold a major conference in Dublin on the impact, legitimacy and effectiveness of EU counter-terrorism. The conference represents the culmination of almost 18 months’ work by the consortium investigating questions such as ‘how can we measure impact, legitimacy and effectiveness of counter-terrorism measures in the EU?’, ‘what is the scale and scope of EU counter-terrorism activities?’, and ‘what happens to human rights in the making, implementation and review of EU counter-terrorism?’. A short outline of the project is here, and the reports from the project so far can be downloaded on the website here. This short video gives a taster of the conference.

The conference on October 13 both presents these findings and places them in a  wider context. Starting with a keynote address from Ben Wizner of the ACLU, the conference will go on to critically assess both the results of the research and what they suggest about key questions of counter-terrorism, rights, social cohesion, and operational security for the member states of the EU and the EU itself.

Registration is free and the conference will take place in the European Parliament Building in Dublin. In order to manage catering as well as space, we ask people to register through the EventBrite page here. Tickets are now limited, but we will attempt to issue further tickets over the coming weeks.