Blog Carnival: Spatiality and Abortion Travel

On 27 February 2018 the Institute for Advanced Studies at the University of Birmingham hosted a workshop, organised by Fiona de Londras and Sydney Calkin, on ‘Spatiality and Abortion Travel’. This was generously hosted by the Long Room Hub in Trinity College Dublin.

Focusing primarily on Ireland, the day considered abortion travel and the ‘spaces’ between abortion law and the reality of access to abortion across disciplines and countries.

Over the course of this week we will publish one post per day presenting some of the insights from the workshop. The hashtag is #abortiontravel

Blog Carnival: Spatiality and Abortion Travel

Repeal and Replace?

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

Repeal and Replace?

Repeal or Replace?

Fiona de Londras | @fdelond

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

Repeal or Replace?

An Abortion Law Immune from Constitutional Review?

Fiona de Londras @fdelond

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

An Abortion Law Immune from Constitutional Review?

Call for Papers: Irish Yearbook of International Law

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

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

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

Call for Papers: Irish Yearbook of International Law

Problems in US Preclearance in Ireland? Lawyers & Others who can help

Throughout the day I have been contacted by lawyers and others who are ready and able to help anyone caught up in the administration and application of the Executive Order in Irish airports. Here is the list. If you want to be added to it, please either let me know on twitter (@fdelond) or make it known in a comment to this post. We will keep updating this list.

NGOs
FLAC will try to arrange representation for anyone who needs it; contact them at www.flac.ie or directly on twitter @flacireland

The Immigrant Council of Ireland will also help anyone who needs it; contact at www.immigrantcouncil.ie or directly on twitter @immigrationIRL

Doras Luimní can offer support to anyone caught up in the application of the EO in Shannon Airport (Examiner report); contact them through their website

Solicitors

Gareth Noble @GarNob and all at KOD Lyons Solicitors www.kodlyons.ie

Albert Llussa, Daly Lynch Crowe and Morris Solicitors, The Corn Exchange, Burgh Quay, Dublin 2, T:+35316715618, +35314749134, E: albert@dlcm.ie, , W:

Miriam WIlson-Hughes @Griff101

Matthew Kenny of O’Sullivan-Kenny Solicitors was in touch to offer help from the firm

John Anthony Devlin of Barron Morris Solicitors

Simon McGarr of McGarr Solicitors

Cahir O’Higgins Solicitors info@coh.ie Tel: 018744744

Stephen Collins, Irish Refugee Council (see comments)

Barristers
The Bar of Ireland runs a Voluntary Assistance Scheme for NGOs in need of assistance from barristers; we are sure they would help: @BarofIrelandVAS email: vas@lawlibrary.ie

Anne Fitzpatrick

Gavin Elliot @sgelliot

Emma Slattery @epslattery

Patricia Brazil 

Garrett O’Halloran

Colin Smith

Patricia Sheehy Skeffington

Rory Treanor

Aoife McMahon

David Lennon

Julie O’Leary

Ann K Stapleton

William McLoughlin

Roger Cross

Paralegals, Legal Research, General Legal Knowledge
Jo Willis @jobw

Maria Hennessy @MP_Hennessy

Joan O’Connell hello@joan.ink  @clicky_here

Catherine Thullier (see comments below)

Ciara Ní Ghabhann

Donna Lyons, researcher & attorney-at-law (New York) lyonsdm@tcd.ie

Patricia MacBridge @IRLpatricia

Academics 
Jennifer Schweppe (Limerick) @jschweppe 

Darius Whelan (UCC) @dariuswirl

Siobhan Mullally (UCC) @smullallylaw

Fiona de Londras (Birmingham) @fdelond

Media, logistics and PR
Louise Williams @loureports

Practical Knowledge of CBP & Immigration

Colm Falherty @CJayFla

Colin Lenihan @colinlenihan

Problems in US Preclearance in Ireland? Lawyers & Others who can help

The ‘Muslim Ban’: Suggested text for letter to members of the APPG on Ireland and Irish in Britain

Irish citizens resident in the UK may be interested in hear that there is an All Party Parliamentary Group on Ireland and the Irish in Britain, the members of which are often receptive to correspondence from Irish citizens. Below is a text that might be useful for people who want to correspondent with them on the matter of the so-called ‘Muslim ban’ recently enacted in the United States of America.

Dear

Given your membership of the APPG on Ireland and the Irish in Britain, I am writing to you as an Irish person living in the UK to bring your attention to particular concerns relating to the so-called Muslim ban implemented by President Donald J. Trump.

As you may know, the Executive Order is to be applied in US preclearance areas, including in Dublin and Shannon Airports, as well as by air carriers worldwide. I am sure you will also be aware that an increasing number of UK residents travel to the US via Ireland, particularly to avail of the preclearance arrangements there.

I am writing to you to ask you to make enquiries of the Prime Minister and relevant other Ministers as to:

  1. Assurances that have been sought by the UK government from the Irish government that the rights of EU citizens, including UK citizens, while travelling through US preclearance in Irish airports are being fully protected.
  2. Details of representations from the UK government to the government of the United States of America to ensure its full compliance with international refugee law and international human rights law.

All over the United States this weekend lawyers and others have protested against this unlawful, cruel, Islamophobic and xenophobic attempt to undermine the rule of law. I ask you to ensure that the UK government stands with them.

Given the urgency of the situation, I would appreciate your swift response.

Yours sincerely,

The ‘Muslim Ban’: Suggested text for letter to members of the APPG on Ireland and Irish in Britain

US Preclearance and the ‘Muslim ban’: Write to the IHREC

Here is a suggested text to the Irish Human Rights Commission for those who would like them to take steps available to them to assess whether the public bodies’ human rights duty under s. 42, IHREC Act 2014 is being complied with. 

Emily Logan, Chief Commissioner

Irish Human Rights & Equality Commission

16-22 Green Street

Dublin 7

D07 CR20

publicinfo@ihrec.ie

Dear Ms. Logan and members of the Irish Human Rights and Equality Commission,

As you will be aware, the US Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” is applicable in US Preclearance areas in Dublin and Shannon Airports.

Both the Agreement between the Government of the United States of America and the Government of Ireland on Air Transport Preclearance (2008) and the Aviation (Preclearance) Act 2009 make clear that an Garda Síochána and Customs and Excise officials of the Revenue Commissioners are involved in the administration of the preclearance arrangements and area.

I am writing to ask you to take the appropriate steps to assess whether all Irish public bodies involved in the administration of the preclearance area and agreement are acting in compliance with their duties under s. 42 of the Irish Human Rights and Equality Commission Act 2014.

Yours sincerely,

US Preclearance and the ‘Muslim ban’: Write to the IHREC

US Preclearance and the ‘Muslim ban’: Write to your TD

We suggest below a draft letter that people concerned with the application of the Executive Order in US pre clearance in Irish airports might find useful should they wish to write to TDs in relation to it. Of course, people should adjust it to reflect their preferred language and approach to the issue, but we hope it might be useful.

Dear

I am writing to you [as a constituent [and] citizen] to express my deep concern about the continued operation of the Aviation (Preclearance) Act 2009 and associated agreements in Irish airports during the administration of President Donald J. Trump.

In the first week and a half of his presidency we have already seen Trump attempt to subvert the Immigration and Nationality Act 1965 in order to apply discrimination in immigration and undermine international refugee law through Executive Order. As a result of the preclearance agreement between Ireland and the USA, this Order is being applied on Irish soil and in Irish airports. As you will be aware, Article II(1) of that agreement makes it clear that Irish law continues to apply in those preclearance areas. The application of this Order may result in, for example, EU Citizens with dual citizenship with a listed country experiencing nationality based discrimination, facilitated by Irish law, in clear contravention of the TFEU. I remind you also that it is not  possible effectively to renounce citizenship in Iran, Syria, Libya and Yemen.

I remind you that under the 2009 Act, those turned away at preclearance are at the frontiers of the state and must be treated in accordance with Irish law. The Irish state also has obligations of non-refoulement which may arise. Furthermore, any Irish officials including Gardaí who may be involved in any way in policing the preclearance area are obliged as always to act in full compliance with the Constitution and with the ECHR.

Even if Congress supports President Trump’s policies through legislation, thus amending the 1965 Act inasmuch as that is constitutionally permissible, Ireland must ensure that rights under the Irish Constitution continue to be protected in these preclearance areas, and that violations of international law are not facilitated through the application of the agreement.

Bearing all of the above in mind, I would be grateful if you could please seek from the Taoiseach and appropriate minister, and provide me with, details of the following:

A. Measures that are being taken to ensure that unlawful discrimination is not being undertaken or facilitated at Irish airports through the application of Trump policy in preclearance areas.
B. Measures that the Irish government is taking to ensure that international refugee law is not subverted through the application of Trump policy in preclearance areas.
C. Mechanisms in place to ensure Ireland’s obligations under the TFEU, the ECHR and other applicable international law are fully complied with in preclearance areas.
D. Procedures for withdrawal from the preclearance agreement and bases upon which withdrawal would be contemplated by the Irish government

All over the United States this weekend lawyers and others have protested against this unlawful, cruel, Islamophobic and xenophobic attempt to undermine the rule of law. I ask the Oireachtas and the Irish government, in my name, to stand with them. I also ask you to ensure that Ireland provides protection to people seeking asylum from Syria, in particular, who President Trump seeks to preclude from receiving refugee status in the United States.

Given the evident urgency of the matter, I look forward to your swift response.

Yours sincerely,

US Preclearance and the ‘Muslim ban’: Write to your TD

The Practical Implications of Miller v SSEEU for Brexit: Nine Reflections

Like many others, I have been thinking about and discussing Miller (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768) with colleagues today. This is the decision from the High Court that the Government cannot trigger Article 50 in order to begin the process of withdrawal from the EU without getting Parliamentary authorisation first.

Put very shortly (and without wanting to get too far into the details of the reasoning per se), this is because the Court found that, as a constitutional statute and one that created domestic rights and anchored EU rights, the European Communities Act 1972 could not be turned to naught by the Executive. The prerogative power had been constrained by this Act, and it was not within the royal prerogative to make even international treaty decisions (such as withdrawing from the EU) that would disturb this domestic statute. In other words, parliamentary authorisation is required before Article 50 is triggered and the formal process of leaving the EU can begin.

There are already, and will in the coming days, be lots of analyses on the reasoning per se from a constitutional law perspective (see, for example, the reflections of Paul DalyKenneth Armstrong and Aileen McHarg). My purpose here is to offer a few reflections more broadly on the implications of the judgment, especially for those more interested in its practical meaning for Brexit than in its (unquestioned) broad constitutional significance per se. Continue reading “The Practical Implications of Miller v SSEEU for Brexit: Nine Reflections”

The Practical Implications of Miller v SSEEU for Brexit: Nine Reflections