THE SPECIAL CRIMINAL COURT, THE IRISH GENERAL ELECTION AND THE PROPOSED FRENCH CONSTITUTIONAL AMENDMENTS

Dr Alan Greene Four Courts

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General Election 2016 has, unsurprisingly, been dominated by the economy. However, an unlikely high-profile issue is that of the existence of the Special Criminal Court. Sinn Féin has thrust this issue into the lime-light with a pledge to repeal it in its manifesto. This has promptly led to attacks from other political parties, drawing attention to Sinn Féin’s connections with the IRA, and particularly the recent high-profile conviction of Thomas Murphy in the Special Criminal Court for tax-evasion. The level of this debate from both sides so far has, however, been wholly unsatisfactory from a human rights perspective. Gerry Adams’ suggestion that the existence of gangland murders shows that the Special Criminal Court does not work is as equally frustrating as Brian Hayes asking Mary Lou Mc Donald as to whether she thinks that Thomas Murphy is a good republican.

The relevance of this debate is not, however, limited to Ireland. Parallels can be drawn between Ireland’s experience of the Special Criminal Court and French Constitutional amendments currently being debated by its parliament. In turn, this can illuminate the key human rights issues at the heart of both states’ emergency responses.

France’s State of Emergency

Less than 72 hours after the attacks on Paris, French President François Hollande  declared that France was at war and stresed the need for sweeping new laws to confront the terrorist threat. Hollande followed this up with the declaration of a state of emergency which was subsequently extended by parliament for a further 3 months. The emergency powers triggered by this declaration date back to 1955 and France’s last declaration of a state of emergency to deal with Algeria’s struggle for independence. These powers – outlined in legislation, not the French constitution – give French police the power to search homes without a warrant, ban protests and other public gatherings, and can potentially ensure control of the press and radio; although these latter provisions have not yet been triggered.

Hollande has also signalled his intention to effect permanent constitutional changes. The motivation for this is to place France’s emergency powers on a constitutional footing, insulating them from the possibility of a successful legal challenge. While France already has a number of constitutional emergency powers in its constitution – for example the militaristic state of siege – these powers are extremely draconian. By placing the existing legislative powers on a constitutional foothold, Hollande is seeking to enable ‘exceptional security measures without having to resort to the most drastic options currently in the Constitution.’

In principle this sounds like a positive development for human rights and the rule of law. The potential for the most draconian of measures that encroach severely on human rights is avoided while at the same time, the state’s response to terrorist threats can be beefed up.

 

Exceptional but not Drastic: The Special Criminal Court

This idea of having ‘exceptional security measures without having resort to the most drastic options currently in the Constitution, is strikingly similar to what the drafters of the Irish Constitution had in mind when constructing the emergency powers system in this state. Ireland’s principal emergency powers contained in Article 28.3.3° of the Constitution essentially allow for the suspension of every article of the constitution in a ‘time of war or armed rebellion’. The only restriction on this power is that the death penalty may not be re-introduced. Ireland was under a perpetual state of emergency from the outbreak of World War II in September 1939 until February 1995 following an IRA ceasefire.

The 1935 Constitution Review Committee upon whose recommendations the Constitution’s emergency powers are based upon also suggested a procedure for less serious emergencies to be included in the draft constitution. Such crises would be when ‘the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order’ and would permit the establishment of non-jury special courts. In this manner the need to declare a state of emergency and the extreme powers that would flow from this would be avoided.

While Ireland’s state of emergency remained in force from 1939-1995, in practice, no emergency legislation was actually on the statute books for much of this time. In contrast, the special courts clause contained in Article 38.3.1° of the Irish Constitution has resulted in the Special Criminal Court becoming a permanent feature on the Irish legal landscape. Indeed, its role has expanded to not only deal with terrorism-related offences but with organised crime. Minister for Justice Frances Fitzgerald also recently agreed to establish a new Special Criminal Court in order to alleviate the backlog in the existing system. In a similar pattern of normalising exceptional powers, the French authorities have already used their new emergency powers, not in the fight against suspected ISIS terrorists, but to place climate change protestors under house arrest during the Paris Climate Summit in December.

A declaration of a state of emergency and the requisite powers that flow from this are serious and present a profound challenge for human rights and the rule of law. Emergencies, however, may also protect human rights by quarantining exceptional powers to exceptional times; thus preventing them from seeping into the ordinary, everyday legal system. Divorcing ‘less-exceptional’ measures from the more extreme measures dilutes the stigma attached to them and increases the propensity for these ‘less-exceptional’ measures to become normalised and permanent. The permanent nature of the Special Criminal Court in Ireland is a testament to this. The current debate as to the continued existence of the Special Criminal Court has, however, been frustrating, ignoring these key concerns and instead focusing on cheap attacks or questionable reasoning.

The Challenge of Terrorism

It is not hard to imagine that a similar situation to Ireland’s Special Criminal Court will arise in France. Hollande has labelled the existing constitutional regime for a state of emergency and state of siege unsuitable for the fight against ISIS. They were designed for a different time and a different type of enemy. Thus while Hollande may have declared ‘war’ on ISIS and subsequently ordered airstrikes on the Islamic state and sought a UN Security Council resolution authorising ‘all necessary measures in compliance with international law’ to tackle ISIS in Syria and Iraq, he nevertheless views this war as qualitatively different from those France has waged in the past.

Declaring war on something implies that the solution is military. It also implies that it is temporary. The constitutional changes proposed by Hollande are, however, to the criminal justice sphere and police powers. Terrorism thus blurs the lines between war and crime. Crime, unlike war, is viewed as a permanent threat that we must live with every day. Counter-terrorist laws therefore are framed as being necessary in order to confront a threat of great magnitude, akin to war; however, they are also framed as being a necessarily permanent change to confront a permanent threat akin to criminality. It is because of this that many of the counter-terrorist measures we’ve seen enacted around the world in the aftermath of 9/11, and indeed the Irish Special Criminal Court are permanent.

A rush to draft laws in the aftermath of a serious crisis, where emotions run high, when people are afraid, and when the temptation to over-react is at its greatest must be resisted. This danger becomes even more heightened when the legal changes are to the permanent constitution of a state. France would do well to heed the lessons from Ireland.

Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. His research focuses on states of emergency, counter-terrorism, and human rights. He tweets @DrAlanGreene

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Deportation, ISIS and the Irish Courts

Four_Courts,_Dublin,_IrelandHuman Rights in Ireland welcomes this guest post from Darragh Coffey. Darragh is a PhD Candidate in the Faculty of Law, Darwin College, University of Cambridge. 

 

The Court of Appeal is currently hearing arguments as to whether a man alleged to have links to the so-called Islamic State (IS) should be deported. While many of the facts of the current case, including the state to which the man is to be deported, remain subject to reporting restrictions, a number of issues are clear: The Government allege that the man in question poses a threat to national security and on that basis seek his deportation. For his part, the man claims that he has previously been tortured in the country to which he is to be sent and that if he is deported he will face a real risk of being ill-treated again due to the allegations of his links to IS, which he denies. Such challenges to deportation orders are not uncommon in European states; a notable example was the United Kingdom’s embattled attempt to deport Abu Qatada to Jordan which was finally successful in 2012.

Like the United Kingdom and all other EU member states, Ireland is a signatory of the European Convention on Human Rights (ECHR). The central legal issue in cases such as this stems from Article 3 of that Convention and the 1989 decision of the European Court of Human Rights in Soering v UK. Article 3 States that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The Soering case established that if an ECHR contracting state expels an individual to another state where substantial grounds exist for believing that he or she would face a real risk of suffering treatment proscribed by Article 3, then the ECHR contracting state would violate that provision by so doing.

The European Court of Human Rights has therefore read an implicit prohibition of return to a risk of torture or inhuman or degrading treatment or punishment into the text of Article 3. Furthermore in 1996 and again in 2008 the Strasbourg Court held that this implicit ban on sending individuals to states where they may be ill treated is absolute. In other words the behaviour of the individual or the threat that he or she poses to the host state, no matter how serious, cannot be taken into account to justify the deportation if there is a real risk that he or she will be ill treated. Article 3 therefore enshrines a very robust and not uncontroversial protection against return to ill treatment.

This means that if, in the case currently before the Court of Appeal, the applicant’s legal team can show substantial grounds for believing that he will be at real risk of torture or inhuman or degrading treatment following deportation, then according to long standing jurisprudence of the European Court of Human Rights –and contrary to the High Court’s finding on Monday– the threat that he poses to Irish national security cannot be taken into account when deciding whether or not he should be deported.  If the existence of such a real risk is established the Irish Government simply cannot deport him to the proposed receiving state without violating Ireland’s human rights obligations under the European Convention on Human Rights. On Wednesday, 30 December, the European Court of Human Rights indicated a rule 39 interim measure to the Irish Government, which means that even if the injunction is lifted by the Court of Appeal the Government cannot, without violating the European Convention, deport the man until his case has been fully heard.

This case provides an example of the friction that can often arise between national security and the protection of individual human rights. In many ECHR contracting states deportation is often the preferred option in national security cases. This is because information indicating that the person is a threat may be inadmissible as evidence in a criminal trial or because such a trial may require the disclosure of information that could jeopardise on-going security operations. Because of these sensitivities some governments feel it vital to maintain the ability to deport individuals identified as threats to national security. The restraint of deportations under the ECHR has therefore long caused consternation among some ECHR contracting states where deportation plays a significant role in counterterrorism policy. This has seen the advent of the negotiation of diplomatic agreements with potential receiving states and the use of special closed-evidence tribunals such as the Special Immigration Appeals Commission in the UK.  The outcome of the current case may raise important questions about how the Irish legal system is equipped to handle such challenges.

Deportation, ISIS and the Irish Courts

Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland

We are pleased to welcome this guest post from Dr Aoife Duffy, Lecturer in International Human Rights Law at the Irish Centre for Human Rights, National University of Ireland Galway

On 10 November 2015, a 66-year-old ex Lance Corporal of the British Army’s Parachute Regiment was arrested in relation to the killing of three individuals who died during Bloody Sunday, which resulted in the deaths of 14 civilians following an anti-internment march in Derry on 30 January 1972. Accounting for conflict related violence and killings committed by the security forces in Northern Ireland has been problematic due to the hegemonic position of official discoures related to conflict, underpinned by various denial strategies, as outlined by Stanley Cohen in his seminal work, States of Denial: Knowing About Atrocities and Suffering. In Northern Ireland, a structure of denial was sustained at various points throughout the UK administration and the military-security establishment, including through close cooperation between between senior officers in the British army and the Attorney General regarding the prosecution of soldiers on serious criminal charges. The General Officer Commanding (GOC) the British Army in Northern Ireland, Sir Frank King, met with the Attorney General on 8 January 1974 and subsequently wrote to one of the most senior officers in the British Army, the Adjutant General Sir Cecil Blacker, based at Ministry of Defence offices in Whitehall, about the meeting. In short, General King was reassured by the position taken by the Attorney General, who informed him in no uncertain terms that ‘not only he himself but also the DPP and senior members of his staff, having been army officers themselves, having seen active service and knowing at first-hand about the difficulties and dangers faced by soldiers, were by no means unsympathetic or lacking in understanding in their approach to soldier prosecutions in Northern Ireland.’ Approximately 350 deaths were caused by state security forces between 1969 and 1994, and the army were responsible for 90% of these killings between 1969 and 1974. 54.1% of those killed by the security forces in Northern Ireland were civilians and 84% of these victims were Catholic. General King was informed that only 10% of the cases submitted to the DPP were prosecuted; that borderline cases (he cited the shooting of Joseph McCann) were routinely dropped, ‘unless there was evidence of brutality or callousness on the part of that soldier or evidence that the soldier had clearly, unjustifiably and substantially overstepped the mark in the use of force.’ Continue reading “Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland”

Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland

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

Book Launch: International Human Rights: Perspectives from Ireland, 8 December 2015

EganOn December 8th 2015,  UCD School of Law will host the launch of Suzanne Egan’s new edited collection International Human Rights: Perspectives from Ireland. The book will be launched by the Chief Commissioner of the Irish Human Rights and Equality Commission (IHREC), Emily Logan.

Location: Gardiner Atrium, UCD School of Law

Time/Date: 6.30pm on 8th December 2015. 

RSVP: law.events@ucd.ie 

International Human Rights: Perspectives from Ireland examines Ireland’s engagement with, and influence of, the international human rights regime. International human rights norms are increasingly being taken into account by legislators, courts and public bodies in taking decisions and implementing actions that impact on human rights. Featuring chapters by leading Irish and international academic experts, practitioners and advocates, the book combines theoretical as well as practical analysis and integrates perspectives from a broad range of actors in the human rights field. You can access the full table of contents for this book here.  Egan’s collection explores:

  • The philosophical development and challenges to/of human rights;
  • The international human rights framework (UN human rights council; UN Treaty system; EU and ECHR);
  • Implementing human rights in Ireland (Magdalenes, socio-economic rights, rights of the child; human trafficking; religion; privacy; refugee definition; criminal justice, policing and conflict).
  • Implementing human rights abroad (Irish foreign policy and obligations of Irish organisations).

Bloomsbury are offering all registered students (full and part time) a 40% discount on the book, with the discount code: IHR40%. You should enter this code at checkout

Book Launch: International Human Rights: Perspectives from Ireland, 8 December 2015

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

Legal Gender Recognition in Ireland

On 15 July, 2015, Ireland became the final European Union Member State to enact legal gender recognition. As has been noted on this blog many times (e.g. here, here and here), under current Irish law, persons living in this jurisdiction do not have any mechanism – statutory, administrative or judicial – for amending their birth certificate and obtaining state acknowledgment of their preferred gender. More than 20 years after Dr Lydia Foy first requested recognition, 13 years after the European Court of Human Rights declared that recognition was a Convention Right and eight years after the Irish High Court found the State in violation of its international obligations, the Irish Parliament has finally created a legal structure which will acknowledge the existence and dignity of trans persons.

The Gender Recognition Act 2015 has travelled a long way to reach its current format and structure (and, as discussed below, there is still significant progress to be made). When the Gender Recognition Advisory Group – a consultative panel established to advise the Government on legislating for recognition – announced its recommendations, the proposed legislation still retained references to surgical interventions, lived-experience, “gender identity disorder” and gender panels. Delivered in 2011, by an advisory body with no trans members, the “GRAG” report appeared at a time when advocates were increasingly applying human rights standards to legal gender recognition. Its highly medicalised recommendations were not only out of step with international best practice, but also failed to engage, in any meaningful way, with the lived-experience of Ireland’s trans community. Amendments, additions and omissions have characterised the legislative process in the intervening years. Surgery and diagnosis were removed, but medical supervision – in the form of a controversial “physicians statement requirement” – remained frustratingly present until earlier this year. The particular situations of married couples and young people have been a source of intense debate. To differing extents, these issues remain unresolved, as do concerns relating to non-binary recognition, intersex persons, gender-specific crimes and the status of trans parents.

Due credit in passing the Gender Recognition Act 2015 must be offered to the two Government ministers, Tanaiste Joan Burton and Kevin Humphreys, who have had responsibility for legal gender recognition since assuming office. In the space of four years, they have achieved what successive Irish Governments failed to do: acknowledge that Ireland’s trans community exists. Both ministers have also come a long way in their own personal understandings of trans issues, and received a warm welcome at Trans Pride in Dublin earlier in the summer. However, the Gender Recognition Act 2015 is, in truth, a testament to the incredible work of Ireland’s vibrant, engaged trans community and their allies (TDs, political groupings, NGO-based groups, and members of the public). Committed, dedicated and strategic advocacy over the past four years has managed to transform GRAG’s recommendations into the progressive legislation enacted on 15 July. While often subject to lurid, highly offensive commentary, the Irish trans community has retained a focused, dignified drive in working to achieve recognition of its membership. This drive has been epitomised by the legal fights waged by Dr Foy. Her courage and resilience has inspired advocates for reform, and rightly won her the European Citizen’s Prize 2015.

As noted, from a comparative prospective, the Gender Recognition Act 2015 is highly progressive. Transgender Equality Network Ireland (TENI) observes that Ireland is only the fourth country in the world (after Argentina, Denmark and Malta) to pass legislation which allows trans persons to obtain recognition on the basis of “self-determination.” Once the new legislation comes into force, trans people will be able to apply for legal recognition based solely on their “settled and solemn intention of living in the preferred gender for the rest” of their lives. Instead of having to show that they have undergone surgery, sterilisation, have a diagnosis or are supported by doctors, applicants for recognition need only confirm that they understand “the consequences of the application” and are seeking state acknowledgement of their own “free will.”

The movement away from the physician’s statement model – announced by the Government after the marriage equality referendum – is extremely important both in practical and symbolic terms. From a practical point of view, it means that trans people, in order to obtain recognition, do not have to rely upon the notoriously difficult healthcare pathways in Ireland. Anecdotal evidence regarding access to gender confirmation treatments in Ireland means that, with a requirement to obtain support from a “primary medical practitioner”, applicants for recognition would likely have faced a waiting period of months, possibly years. In addition, as recognised in numerous EU-wide reports, a significant section of the trans community cannot access even basic healthcare services. Thus, medicalising legal gender recognition – even through medical supervision clauses – would have had the effect of removing enjoyment of recognition from a significant proportion of Ireland’s trans population. However, perhaps more fundamental, a self-determination model respects the autonomy and dignity of applicants for recognition. It acknowledges that trans persons should be the arbiters of their own identity. Living and experiencing their gender, applicants for recognition are best placed to identify their true self. They should not be subject to arbitrary or discriminatory medical assessments.

The scheme (not the current text) of the Gender Recognition Act 2015 is notable for its removal of forced divorce. Under the initial, pre-referendum proposals, trans persons were required to be single or divorced in order to obtain recognition. The stated aim was to avoid unconstitutional marriages. While many people have challenged this historical view of Ireland’s constitution, the Government’s actions were supported by legal advice and thus remained in place. However, following the marriage equality referendum, the forced divorce requirement is no longer an imperative and thus the aim was to remove those conditions completely. However, as the referendum is now subject to legal challenge, the forced divorce requirement has been initially retained. The Government has committed to removing the requirement as part of the enacting legislation for marriage equality. This move has huge significance. It means that trans persons, who remain in a marriage that they do not want to dissolve, are able to maintain and protect the integrity of their legal family.

Of course, the Gender Recognition Act 2014 is certainly not without critique. A major omission is young trans individuals. As noted previously (here and here), trans children and adolescents are not adequately provided for in the new legislation. People under 16 years are completely excluded. Their lives and identities are erased from Irish law. Individuals aged 16 and 17 years are nominally included. However, the legal process for seeking recognition is so onerous – two doctors, parental consent and a court order – that few, if any, applicants will obtain recognition before the age of majority. The negative consequences of excluding children from recognition – mental health concerns, denial of services, peer bullying and violence – are clear and well-known. Yet, so far, the Government has shown little willingness to move.

One light of hope is a promised review in two years time. This will be an opportunity to illustrate the need for increased recognition. It is unclear, however, what the Government believes that it will learn in 24 months time that it cannot already now discover. Numerous young people have spoken openly about their experiences in a legal environment which has no obligation to recognise their true identity. By 2017, an increasing number of States – Norway, Sweden etc – will have allowed children to access recognition. Yet, these countries have already announced their intention to do so and, in some cases, have already published the specific legislation to be enacted. Yesterday, the same day that the Government enshrined the second class status of trans children, the first Trans Youth Forum took place in Dublin. It was an incredible example of the vibrancy and resilience among trans youth in Ireland. Yet, the stories told also reinforced understandings about the real difficulties which trans young people face, and the links which exist between discrimination and the absence of recognition in this country.

The Gender Recognition Act 2015 also fails intersex persons and individuals who do not fall within traditional gender binaries. Although the legislation is intended to cover intersex people (and hopefully will be interpreted as such) the lack of express reference to intersex and the specific mechanisms of the Act may place legal acknowledgement out of reach for many intersex applicants. In addition, an increasing number of Ireland’s trans community identify outside male or female legal classifications. The current recognition model offers no solution or recognition to the problems which these persons encounter. Other jurisdictions have looked at providing third gender options for non-binary persons on identity documents, such as passports. While a third gender or “X” gender option will not address the needs of all non-binary persons, it would be a first, good faith effort on behalf of the Irish state.

The passage of the Gender Recognition Act 2015 is a momentous event. It is another step towards promoting the equality, dignity and full citizenship of all persons. The legislation is certainly not perfect and, in many aspects, remains deeply flawed. However, the movements towards self-determination and away from forced divorce will significantly ease the application process for countless individuals. Self-declaration is a powerful statement of the autonomy and dignity of trans persons. After a long struggle, this is a moment to savour. Moving forward, the fight for full and equal rights will continue.

Legal Gender Recognition in Ireland

The Direct Provision Report: A Missed Opportunity

DP ReportYou can find my preliminary analysis, including a full summary of the core recommendations from the McMahon Report on the Protection Process and Direct Provision System here. 

You can access the McMahon Report here.

From an initial reading and examination of this report, in my view, this is a report of two halves. One half of the report (Chapter 3 in particular) on the protection process and recommendations on the five-year grant of a form of residency status are clear and coherent. Clear recommendations are made as regards status determination and a substantial analysis of the rights of the child (along with other areas). That is not to say that the narrative of the McMahon Report in Chapter 3 is not without its issues (but I will leave this for another day). Throughout Chapter 4 and Chapter 5, highly qualified language and significant caveats infects the totality of recommendations on direct provision accommodation and ancillary supports.

Human Rights Obligations and Direct Provision Accommodation and Supports

From my initial reading of the report, there appears to be two unequivocal recommendations that may impact on those currently in direct provision, who are not resident in the centres for five years: an increase in direct provision allowance and the provision of a locker for each individual adult in direct provision accommodation centres. All other recommendations are subject to significant caveats as regards contractual obligations and implementation restricted in so far as reasonably practicable. For over 15 years, report after report has emphasised the significant violations of human rights that occur on a daily basis for those subject to direct provision accommodation and supports. The McMahon Report, while recommending an increase in direct provision allowance, does not recommend the payment of child benefit to those seeking protection in Ireland.

In my preliminary analysis (available here, pp. 19-26), I argue that the Working Group should have taken into account Ireland’s international obligations, in particular the UN Convention on the Rights of the Child. By not doing so, the McMahon Report entrenches the notion that asylum and protection seekers are less than human, deserving of only the most highly qualified rights in highly institutionalised settings.

Embedding Institutional Living in Direct Provision (see further, pp. 26-31, here)

The recommendations on living conditions and ancillary supports leave much to be desired. The solution to greater protection of protection seekers lies in neither in law nor in strategic litigation. While these are important in achieving broader aims and seeking to use law to promote human rights; only a fundamental re-evaluation of society’s approach to protection seekers in Ireland will result in the recognition of, what Arendt terms, “the right to have rights.” To date law and administration, and now the McMahon Report, will be used to justify exclusion, separation and distancing of protection seekers from Irish society and placing people in the direct provision system. Until there is more fundamental societal introspection, on “the rights of others”, institutionalised and impoverished living for protection seekers will continue. The significant controls over living conditions, eating arrangements’, near total supervision of the parental role, are relatively unchallenged by the McMahon Report. While there are some soft recommendations “in so far as practicable, and subject to any contractual obligations” as regards family living quarters, allocation of rooms to single applicants, possibility for individual or communal cooking, no other societal group has such enforced supervision of intimate aspects of daily lives. Public support for political action in limiting social rights of protection seekers have seen the most restrictive and punitive forms of control utilised within social welfare provision in the modern era.

The Direct Provision Report: A Missed Opportunity

The Direct Provision Report: Recommendations on Improving the Quality of Life for Protection Seekers

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The Working Group have made a number of recommendations as regards improving the quality of life of those in the protection process. These recommendations include, improved financial supports, education and training, health care, further assistance to vulnerable protection seekers and supports to enable person’s transition out of direct provision accommodation.[1]

  1. Unqualified recommendations

Increase rate of direct provision allowance: The working group has recommended an increase in direct provision allowance (DPA) for adults and children. It is recommended that the adult rate to increase to €38.74 and child rate to €29.80 (qualifying child allowance under Supplementary Welfare Allowance).[2] There is an additional recommendation for the Department of Social Protection to reinstate Community Welfare Service officials in direct provision centres[3] and strive for consistency in administration of Emergency Needs Payments.[4]

 

  1. Qualified Recommendations

The Right to Work: Once the single procedure is “operating efficiently”,[5] provision for access to the labour market for a protection applicant, if the first instance protection decision is not provided within 9 months, and the applicant has been cooperating with status determination bodies.[6] The right to work should continue until the end of the protection determination process.[7] Where an applicant does succeed in entering employment, she should make a contribution to her accommodation and food within direct provision, if the right to work is provided and exercised.[8]

Access to Education: For school-going children, access to a homework club (on school grounds or in the direct provision centre) is necessary.[9] There are 60 students aged 15-18 who are currently in direct provision and will sit their leaving cert in 3-4 years time.[10] 100 young people obtained their leaving certificate in the last 5 years and live in DP centres.[11] 21 students sat the Leaving Certificate in 2014. 22 students were scheduled to sit their leaving cert in 2015.[12] For adults (new arrivals, the McMahon Report recommends access to English language education within one month.[13] For those 6 months + in the direct provision system, information on other potential courses open to them should be made available.[14] Universities and colleges should consider applying EU/EEA rates to those in the protection process or leave to remain stage for five years or more.[15] In courses above NFQ Level 4, those in the system for two years or more should be eligible to apply but subject to same conditions as others (i.e. if there is a requirement to be unemployed, and on the “live register”, this would apply to protection seekers).[16] The McMahon Report recognised that this does not impact in any way on those currently in the system.[17] No rationale is provided for the reason as to why it will not apply to current applicants.

 

Healthcare supports: The McMahon Report welcomed the HSE initiative to waive prescription charges, and calls for it to be implemented as soon as possible.[18] A number of health promotion initiatives and information leaflets on health services should be made available to protection seekers.[19]

 

Support for Vulnerable Protection Seekers, including LGBT Protection Seekers: Organisations providing services to protection applicants “should consider training staff in LGBT issues”.[20] The McMahon Report also recommends that representatives of Department of Social Protection should exercise discretion in administering Emergency Needs Payments to “support LGBT people in the system to access appropriate supports and services”.[21] The McMahon Report also recommends that information leaflets to highlight LGBT issues “displayed prominently”, along with RIA Safety Statement highlighting LGBT issues. [22]

 

Supports for Separated Children: All separated children over 16 should have an aftercare plan.[23] Currently, the HSE provide aftercare support to 82 separated children who have reached 18 years.[24] “As far as practicable and subject to their wishes”, separated children moving into direct provision should be accommodated in a direct provision centre near to residential placement or previous foster carers.[25] Training and other supports should be provided to foster carers to assist a young person’s transition to direct provision.[26] The McMahon Report also recommends that the Department of Children and Youth Affairs “should convene” a “stakeholder group” to consider “optimum supports” for separated children, including integration into Irish society.[27]

Linkages with Local Communities: The Government to “give consideration” to including protection applicants in integration strategy and to make funding available for local integration strategies. Consideration to be given to set up “Friends of the Centre” groups[28] and building community linkages. This also includes a suggestion to open up direct provision centres for an “Open Day”.[29]

  Continue reading “The Direct Provision Report: Recommendations on Improving the Quality of Life for Protection Seekers”

The Direct Provision Report: Recommendations on Improving the Quality of Life for Protection Seekers