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.
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.
Yesterday the UN Human Rights Committee released its Concluding Observations on Ireland’s compliance with the ICCPR, following hearings in Geneva on which Máiréad Enright blogged here and here. Those Concluding Observations made difficult reading, especially—although not exclusively—as regards the (historical and contemporary) treatment of women in Ireland. One of the main loci for the Committee’s attention was abortion.
It is now just over a year since the Protection of Life During Pregnancy Act 2013 was introduced, and regulations for how the Act is to work are more recent still. That Act, as is well known, took a cautious and conservative approach to ‘legislating for X’, unjustifiably differentiating between processes for abortion in cases of risk of suicide and other risks to life, excluding abortion in cases of fatal foetal abnormality, and instigating an especially cumbersome process for assessing whether a woman is entitled to elect for an abortion in Ireland in any given circumstance. The Government’s position was that this was as much as the Constitution would permit, and the Act starkly reveals the political reality of trying to achieve legislative consensus between coalition parties that have divided views on the issue and in a climate of political caution, if not fear, about addressing the issue at all.
However, as the Concluding Observations show, even with this Act in place Ireland’s treatment of abortion is unduly restrictive when measured against international human rights standards; so much so, indeed, that Ireland has recently been characterised as a ‘cultural relativist’ in the context of abortion by Rosa Freedman—a claim that is difficult to dispute. Of course, that ‘cultural relativism’ flows from the constitutional position.
As it stands, it is not possible for Ireland to legalise abortion in cases of rape or incest, for example, and is arguably not possible to do so in respect of fatal foetal abnormality. The equal regard with which the Constitution treats the life of the pregnant woman and the foetus means that accessing an abortion in Ireland must be cumbersome to some extent, as the state has an obligation to protect unborn life. And so, as Minister Frances Fitzgerald said yesterday, Ireland has a distinct constitutional and legal position on abortion. That does not, however, mean that abortion law reform in Ireland is not possible. It simply means that meaningful reform requires constitutional change, and constitutional change can only come about in one of two ways: judicial activism or referendum.
Judicial activism to further liberalise Ireland’s abortion law is effectively unimaginable at this point for two reasons: (i) the text of the Constitution is so clear that the only space in which interpretation seems possible is in respect of fatal foetal abnormality where there is an argument that the constitutional text permits of abortion; and (ii) the strength of feeling on abortion is such that the judiciary will be understandably reluctant to stretch its interpretive muscle, not least given the capacity of cases on abortion to become political footballs for decades (such as X has done in Ireland and Roe continues to do in the United States). Judicial activism on abortion law can, then, be more or less discounted. This leaves just one option: constitutional amendment.
The key weakness in the Irish government’s claim that the current constitutional position reflects a deep seated moral position on abortion held by the people of Ireland is that there has never been a referendum that offered the People the opportunity to truly liberalise abortion law in this jurisdiction. Abortion referenda have inserted the express right to life of the unborn in the Constitution, inserted the right to travel for and receive information on abortion, and failed (twice) to prohibit abortion where the risk to life to the pregnant woman permitting of an abortion emanates from a risk of suicide. Never once have we been asked, for example, to permit abortion in cases of rape or incest, not to mention to simply remove abortion from the Constitution and allow the political process to determine the limits of abortion availability as it does in so many other jurisdictions.
The reasons why such a referendum has not occurred are, of course, deeply political: politicians are terrified of touching the issue of abortion, abortion-related lobbying and discourse in Ireland are unedifying in the extreme, and a number of political parties support the status quo and do not want constitutional change. However, the longer we deny the People the opportunity to determine whether we support the current constitutional position, the thinner the justification for Ireland’s culturally relativist position becomes.
A referendum on repealing the 8th Amendment or on introducing constitutional permissions for abortion in cases of rape, incest, fatal foetal abnormality and (expressly) suicidal ideation would seem to be the appropriate way forward. However, the political risk for any one party to put its head above the parapet and commit to such a referendum is not insignificant.
Thus, my modest proposal is that all of the major parties would reach a pre-election pact that regardless of who wins the General Election in 2016 and subsequently forms a government—whether in coalition or alone—the next government will hold a referendum on abortion early in its term. Such cross-party consensus would achieve three important things:
(i) It would neutralise the political risks of committing to holding a referendum
(ii) It would allow each party to maintain its own position on whether it would campaign for ‘tá’ or ‘níl’ in the referendum
(iii) It would create sufficient time for the referendum question to be designed, drafted and prepared without being overly influenced by the political position of any particular party.
Such a pact would buck the orthodox approach to constitutional referenda in Ireland, but in this context that may not be such a bad thing, for what is certain is that we cannot continue to avoid the inevitable ugly and difficult debate on abortion that such a referendum would bring while continuing to claim that Ireland’s position on abortion is based on a domestic moral consensus reflected in the constitutional text.
Today the Court of Justice of the European Union struck down the EU’s Data Retention Directive as a disproportionate interference with fundamental rights (full judgment).
The Directive required European telecommunications companies to retain so-called ‘metadata’ for a minimum of 6 and maximum of 24 months (with exact retention periods determined by national legislation). The state could then access the retained data in cases of serious crime (including counter-terrorism) and, again, national legislation determined the precise workings of such access in the member states. In a major study of the Directive carried out by Ben Hayes and Chris Jones for the SECILE project, significant levels of variation across the member states of the European Union were identified in the working of the data retention scheme. The Directive was today deemed invalid ab initio but data retention is considered a very valuable criminal justice and counter-terrorism tool by security and policing agencies in Europe. This suggests that the EU may move relatively quickly towards a new data retention scheme. Bearing that in mind, it is instructive to look at the Court’s findings, which lay out clearly where the Directive was found lacking and, as a result, can be said to offer important guidance in the drafting of any possible new Directive. Continue reading “CJEU Strikes Down Data Retention Directive”
This morning when I logged into Facebook I saw a post from Women’s Aid Dundalk announcing that the refuge there is to close. The full announcement reads as follows:
It is with regret that we inform you that Women’s Aid Dundalk Refuge will close on the 27th of June 2014. We have been in negotiations with Louth Local Authority since March 2013 in relation to the initial proposed 66% reduction in Section 10 funding to our service. Despite our best efforts, we were informed on the 26th of March 2014, that due to a National directive, a maximum of €20000 will be allocated to Women’s Aid Dundalk for the provision of refuge in 2014. €20000 represents a 75% reduction in 2012 funding and is not sufficient to operate the refuge. This decimation of funding has left us with no alternative but to close.
It is our firm belief that the refuge continues to be a necessary response to women and children experiencing Domestic Violence. We could not accommodate 293 requests for refuge in 2013. The Louth, Cavan and Monaghan region is currently operating 38% below the Council of Europe’s recommended level of refuge provision. Our closure will increase this to 57% below the recommended level of refuge provision.
Council of Management, Women’s Aid Dundalk
This announcement should be of grave concern. As a result, women in that area who need refuge from domestic violence (and frequently also the children whom they bring with them from violent homes) will become even more vulnerable. Furthermore, the closure of such supports—which are heavily dependent on the state and, indeed, which act as mechanisms by which the state provides support and protection to women—calls into question compliance with international human rights law. Continue reading “Women's Refuges and the Obligation to Protect Women from Violence”
On March 20 & 21, Durham’s Law and Global Justice research group holds a Modern Law Review Seminar on the theme of ‘Law and Negotiation in Conflict’.
The relationship between law and negotiation is increasingly at the forefront of the international agenda. International organisations whose role includes the mediation of peace, such as the Mediation Support Unit of the United Nations, and the European Union, are seeking to understand the relationship between mediation, law and justice in conflict and post conflict societies. While such organisations acknowledge that international law places normative constraints on the practice of peace making, they also recognise that key principles of mediation, such as consent, inclusivity and local ownership, are crucial to the success of negotiated peace processes. These questions have risen to the top of international policy agendas, but there is to date a lack of academic scrutiny of how the relationship between law and negotiation itself it to be negotiated. Research to date has focused on discrete aspects of the relationship between law and negotiation, such as the role of human rights in peace agreements, or in setting transitional justice priorities. It has not addressed the overarching question of the relationship between law and negotiation that underpins these divisive issues. Continue reading “Law and Negotiation in Conflict: Theory, Policy and Practice”
This is a longer version of a post I was invited to contribute to the Oxford Human Rights Hub Blog and which is published here
Much has already been written about the High Court’s decision in R (Miranda) v Secretary of State for the Home Department including here on HRinI by Colin Murray. In terms of its technical content, the case clearly has a lot to say about the operation of Schedule 7 (which it finds to be proportionate even when it infringes on journalistic freedom of expression) and about the definition of terrorism used in the UK’s legislative framework. Both of these issues are important. While much work has been done on the impact and need for reform of Schedule 7 (see especially Choudhury & Fenwick) there has not been an enormous amount of focus on its impact on journalistic freedom, and the recent decision in R v Gull has reignited concern about the great breadth of the statutory definition of terrorism in the UK (see eg Trapp and English). However, in this short post I want to delve beneath these particular issues and consider the difficult questions that I consider Miranda to raise about how we manage secrecy in the context of counter-terrorism. Continue reading “Miranda v SSHD, Counter-Terrorism and Secrecy”
The Irish Yearbook of International Law is now accepting submissions for the next Volume (Volume VIII). Edited by Professor Siobhán Mullaly (University College Cork) and Professor Fiona de Londras (Durham University) 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 (firstname.lastname@example.org) and Fiona de Londras (email@example.com) by 21 June 2014. 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. Michael Kearney, University of Sussex (M.G.Kearney@sussex.ac.uk).
Today Barack Obama announced the broad parameters of his proposed reforms of NSA surveillance (full text). As I wrote on TheConversation, the detail of the reforms will be crucial to determining whether they will merely tidy up the edges of NSA surveillance or have real, operational effects in limiting surveillance activities. However, what was clear in the speech was that the privileging of prevention in the context of counter-terrorism, and the characterisation of the current terrorist threat(s) as ‘new’, technologically advanced and uniquely challenging, are not about to change. As well as commentary and debate on the proposed reforms themselves, which is already coming in spades (see for example the hashtag #NSAspeech on Twitter for excellent and well-informed contemporaneous reaction), this framing of the speech and the reforms warrants some reflection. Continue reading “Obama’s NSA Speech and the Persistence of Prevention”
Professors Erika Rackley (Durham) and Rosemary Auchmuty (Reading) have announced the commencement of a new research project, which may be of interest to HRinI readers.
The ‘Women’s Legal Landmarks’ project aims to bring together interested feminist scholars from the UK and Ireland to engage in the process of identifying and writing about key legal landmarks for women. These might be one or a series of cases, a statute or campaign, an individual, a monument or event. The landmark must be significant for feminists, even if it only had an impact on a group of women. Indeed, it may not have been positive at the time, yet turned out to be a catalyst for change. Continue reading “Women's Legal Landmarks Project: Call for Proposals”