Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here

While debates over the status of the foetus are central to ethical and philosophical discussions of abortion, the freedom of women to choose to have abortions is crucial to political debates on this subject. Dr. Joan McCarthy presented a defence of this freedom, taking as her starting point “the body and the life of the woman or girl who is pregnant”, considered as a moral agent, i.e., as making ethical choices in concrete situations.[1] In assessing the choices such women face, McCarthy draws on two principles: autonomy and justice. Continue reading “Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy”

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

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:

Rosemary Kingston O’Connell

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

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.

The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:

The State party asserts that article 40.3.3 of the Constitution represents the profound moral choices of the Irish people. Yet, at the same time, the Irish people have acknowledged the entitlement of citizens to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy. The legislative framework guarantees the citizens’ entitlement to information in relation to abortion services provided abroad. Thus, the constitutional and legislative framework reflects the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the foetus should be protected and balanced against the rights of the woman.

Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here—and the Committee made this quite clear—is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.

Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.

This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.

In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.

Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.

It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this—the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.

But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.

This post is by Professor Fiona de Londras, University of Birmingham School of Law. She can be contacted by email at f.delondras[at]bham.ac.uk 

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

The Labour Party #repealthe8th Proposals: An Analysis

By Professor Fiona de Londras, University of Birmingham | E: f.delondras@bham.ac.uk | 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 Labour Party #repealthe8th Proposals: An Analysis”

The Labour Party #repealthe8th Proposals: An Analysis

The Green Party’s Reproductive Rights Policy: An Appraisal

By Professor Fiona de Londras, University of Birmingham E: f.delondras@bham.ac.uk 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 “The Green Party’s Reproductive Rights Policy: An Appraisal”

The Green Party’s Reproductive Rights Policy: An Appraisal

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

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