Amanda Jane Mellet v. Ireland – The Key Points

As readers will know by now, the UN Human Rights Committee today held that Ireland’s abortion law violated Amanda Mellet’s human rights under the ICCPR. The foetus she was carrying was diagnosed with a fatal foetal abnormality. Irish law criminalises abortion except as a last resort to save the pregnant woman’s life, and  thus compelled her to travel to Liverpool for an abortion. This is the first time that any international court or human rights body has found that the criminalisation of abortion is in itself a violation of women’s human rights. The Committee held that the Irish law:

  • Violated her right to freedom from inhuman and degrading treatment because it exacerbated the anguish associated with a pregnancy affected by fatal foetal abnormality. By compelling her to travel, the law deprived her of material and emotional support and appropriate care during and after her abortion. Criminalisation, in particular, compounded the shame and stigma associated with abortion in Ireland. The chilling effects of the Abortion Information Act, which meant that she could not obtain adequate information about terminating the pregnancy abroad,  were a source of further distress during the decision-making process. The process of travel also disrupted her recovery and worsened the grieving process: the Committee focused on her experience of receiving the foetus’ remains by courier, after she had returned to Ireland. The Committee here is providing us with resources to upset that prevailing public discourse which suggests that a pregnancy affected by fatal foetal abnormality is a tragedy; a trial which good mothers must bear with serene nobility. Committee Member Sarah Cleveland described this as “a stereotypical idea that a pregnant woman should let nature run its course, regardless of the suffering involved for her.” The Committee says that, even though the state did not directly inflict harm on Amanda Mellet, its neglect and abandonment of women in this situation  – who are left “isolated and defenceless” – moves situations like hers out of the realm of guiltless tragedy, and into that of state responsibility.
  • Violated her rights to privacy and bodily integrity. The Committee held that the Irish abortion law amounted to an unjustifiable interference with Amanda Mellet’s decision-making around her pregnancy. The State had argued, following the Irish constitutional test, that the interference was proportionate to its aim of balancing the rights of the pregnant woman against those of the foetus. The legality of the interference under domestic law is not important in this context. In addition, the Committee notes that because the law violates the right to be free from inhuman and degrading treatment, the restrictions it places on the right to privacy and bodily integrity could not be considered compatible with international law. Irish law, in its zeal to protect the foetus, has gone too far. In particular, the Committee emphasises that the treatment of Amanda Mellet under law was especially unreasonable because her pregnancy was not viable. Sarah Cleveland wrote: “Requiring the author to carry a fatally impaired pregnancy to term only underscores the extent to which the State party has prioritized (whether intentionally or unintentionally) the reproductive role of women as mothers, and exposes its claimed justification in this context as a reductio ad absurdum.”
  • Violated her right to freedom from discrimination. Amanda Mellet pointed out that women who choose to continue their pregnancies after a diagnosis of fatal foetal abnormality, and deliver a stillborn baby in Ireland receive state-funded care, while those who choose to travel for termination must bear the expense of doing so by themselves. Similarly-situated women are treated differently, with real financial and medical consequences. The Committee accepted that this difference in treatment amounted to discrimination in two ways.
    • First, the law discriminates against women as women. The State had made the facile argument that gender discrimination is confined to circumstances where men and women are similarly situated but men are better treated: by definition, they maintained, it cannot occur in respect of pregnancy because only women can become pregnant. Sarah Cleveland emphasises that the criminalisation of abortion is gender discrimination, because it affects a health service that only women need, and places no equivalent burden on men. In addition, the Committee reminds the state that gender stereotyping of women is in itself a form of gender discrimination.  In this respect, an interesting point from a feminist perspective is the Committee’s observation that the difference in treatment between those women who carry to term, and those who terminate the pregnancy is rooted in stereotypes of women as ‘reproductive instruments’. This point has been canvassed in Irish feminist scholarship for decades. Yad Ben Achour elaborated: “The prohibition of abortion in Ireland, owing to its binding effect, which is indirectly punitive and stigmatizing, targets women because they are women and puts them in a specific situation of vulnerability, which is discriminatory in relation to men. Under this legislation, the author has in effect been the victim of the sexist stereotype, whereby women’s pregnancy must, except where the life of the mother is at risk, continue, irrespective of the circumstances, as they are limited exclusively to their reproductive role as mothers. Reducing the author to a reproductive instrument constitutes discrimination and infringes her rights both to self-determination and to gender equality.”
    • Second the law failed to take into account the socio-economic effects of this differential treatment; in particular the costs of travel and seeking treatment abroad. Several Committee members maintained that the discrimination was not only between women who carried their pregnancies to term and those who travelled, but between those who could more easily afford to travel abroad for abortions and those who like Amanda Mellet, struggled to pay for the travel and the procedure. Sarah Cleveland noted that Article 26 ICCPR “prohibits the unequal access to reproductive health care for low-income and vulnerable populations that results from Ireland’s legal restrictions on reproductive health services.”
  • Violated her right to seek and receive information. Three Committee members held that the Abortion Information Act encourages medical personnel to withhold clear and timely information that women like Amanda Mellet could use to make decisions about their pregnancy and health, and that this in itself is a violation of rights under the ICCPR.

The Committee’s emphasis  on the woman’s entitlement to expect a certain level of compassion, care and attention from the state is very welcome. Amanda Mellet, Termination for Medical Reasons Ireland, their legal advisors and the Center for Reproductive Rights must be commended for their work in bringing this case to the Committee.The government is required to respond to the Committee’s decision within 180 days, outlining the concrete steps which it will take to remedy the identified human rights abuses, and to prevent future similar harm to other women. The ruling will contribute significantly to the existing moral pressure on the government to hold a referendum on the Eighth Amendment (see further discussion by Fiona de Londras here). The Health Minister, Simon Harris, has indicated that he wants to see law reform in this area. However, the government of which he is a member has continued to drag its heels on the issue of abortion law reform.

This post is by Mairead Enright of Kent Law School – m.enright@kent.ac.uk

Amanda Jane Mellet v. Ireland – The Key Points

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?

Minority Government, Human Rights, and the Opportunity for Constitutional Dialogue

Dail eireann

Dr Alan Greene

The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to be enacted. Similarly, it can no longer expect to be able to veto opposition legislation or opposition tabled amendments to Government bills. This has a potential to reinvigorate the Oireachtas, enhancing constitutional dialogue, not just between the legislature and the executive, but also between the legislature and the courts in instances where there may be doubts as to the constitutionality of a proposed bill.

 

Constitutional Debate and the Oireachtas

To date, the Oireachtas has essentially treated the Irish courts as having a monopoly on constitutional interpretation. Certainly, there is an arguable case to be made that this is a result of the strong form judicial review seen in the Irish constitutional structure which potentially stymies political debate. The Oireachtas has relied heavily on the expert legal opinion of the Attorney General with in the questionable constitutionality of a bill often used as a reason for the Government to vote it down at an early stage. Despite the clear importance that this evidence has in the overall outcome of the debate, the opinion of the Attorney General is never published.

 

A textbook example of this can be seen in the manner in which the last government voted down Clare Daly’s Bill to allow for the termination of a pregnancy in the case of a fatal foetal abnormality. During the Dáil debate on the Protection of Life during Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, Taoiseach Enda Kenny argued that the bill was quite clearly unconstitutional. Moreover, he refused to publish the advice of the Attorney General on the matter as, ‘It has been a long-standing situation in this country, where the advice given by the Attorney General of the day has never been published.

 

Constitutional Dialogue

In light of this, judicial supremacy as seen in Ireland has been criticised by political constitutionalists who argue that it takes decisions about human rights away from the legislature. Human rights, according to this conception, are ‘the statement of a political conflict masking as the resolution of it’.[1] Instead, human rights should beconceptualised as political contestations that people invariably agree over. The resolution of such disputes should, as a result, be done by the representatives of the people in the democratic branches of government.

 

Even notable bastions of political constitutionalism have, however, come around to the idea of some degree of judicial protection of human rights. The UK’s Human Rights Act 1998 (HRA) is seen as conceptualising a ‘third way’ between judicial supremacy on the one hand and parliamentary supremacy on the other.[2] Moving away from this adversarial conceptualisation of the legislature and judiciary, instead, it seeks to foster a dialogue on rights between courts and the British Parliament with the final say resting with Parliament. It does this through requiring courts to interpret legislation compatibility with the European Convention on Human Rights (ECHR) so far as it is possible to do so, and also gives courts the discretionary power issue a declaration of incompatibility when it believes it cannot reconcile the statutory provision in question with the ECHR. The resolution of this incompatibility therefore resides with Parliament. Dialogue is also created through the work of the Joint Committee on Human Rights (JCHR) and the requirement under s19 of the HRA for government ministers to issue a declaratory statement before Parliament that a bill is compatible with the Convention.

 

Such attempts at constitutional dialogue are not alien to Ireland. Ireland’s equivalent to the HRA – the European Convention on Human Rights Act 2003 – mirrors closely the interpretive obligation and the declaration of incompatibility provisions of the HRA, thus leaving the resolution of such incompatible provisions in the hands of the Oireachtas.

 

Indeed, a referral of a bill to the Supreme Court for a pre-emptive test as to its constitutionality under Article 26 of the Constitution is also a possibility for dialogue to take place between the legislature and the judiciary in Ireland as to the scope of constitutional rights. This potential for dialogue has, however, been significantly weakened by the Second Amendment of the Constitution Act 1941 which amended Article 34 to prevent bills deemed constitutional under an Article 26 reference from ever having their constitutionality challenged again. As a result, consecutive presidents – themselves constituent parts of the legislature – have been reluctant to make use of this power. This is particularly so in light of the fact that Article 26 cases are based on hypothetical legal argument, thus lacking the force or urgency of concrete facts to illuminate the actual impact of the legislation in question. The Second Amendment of the Constitution Act 1941 was not enacted by referendum but was instead done through a simple legislative procedure in accordance with the transitory provisions of the Constitution.

 

Moreover, judicial supremacy is not inimical to dialogue on rights. With regards to ordinary challenges to the constitutionality of legislation, while the courts under the Constitution have the final say in an individual case as to the scope of constitutional rights; this does not mean that the courts should or do have the only say along the way. Procedural aspects to constitutional challenges – the presumption of constitutionality, reaching constitutional issues last, and the double construction rule– are all mechanisms by which courts show respect to the Oireachtas’ democratic mandate. In addition, saying that once a judgment of the Supreme Court is issued does the debate stop is problematic. A statement as to the content of a constitutional, convention or other rights provision is rarely, if ever, the final statement as to the condition of law for all time. Human rights do not work like that; law does not work like that. The constitution is a living and breathing document and constitutional dialogue is important for it to evolve.

 

Judicial Supremacy or Executive Supremacy?

Constitutional dialogue, however, has been stymied in Ireland but this is not the fault of judicial supremacy; rather, this argument overlooks the exceptionally strong hold the executive branch in Ireland has had over the legislature. Strong governments have instead used legal opinion as a justification to avoid contentious issues, halting legislation at an early stage before the Oireachtas has gotten a chance to scrutinise the legislation in earnest.

 

Returning to the earlier example of Claire Daly’s private members bill on fatal foetal abnormalities, the constitutionality of this bill was not as clear cut as the Taoiseach suggested. There is, at present, ambiguity in Article 40.3.3° of the Constitution as to whether ‘unborn’ extends to foetuses that have no chance of surviving outside the womb. This very point was raised by the Irish Government before the European Court of Human Rights in D v Ireland. In that case the applicant was pregnant with twins and was informed by her doctor that one foetus has stopped developing after 8 weeks’ gestation and that the other foetus tested positive for Edward’s Syndrome, the median age of survival of which is 6 days. The applicant, ‘unable to tolerate the physical and mental toll of a further five months of pregnancy with one foetus dead and with the other dying’ travelled to the UK for an abortion. She did not consider any legal proceedings in Ireland as her various doctors indicated to her that they ‘appreciated that she was not eligible for an abortion in Ireland’ when she informed them of her decision to terminate the pregnancy.

 

D’s case under Article 3,[3] 8,[4] 10[5], and 14[6] was, however, dismissed as inadmissible by the Fourth Section of the Court on the grounds that she had not exhausted all domestic remedies. The Court upheld the Irish Government’s submission that:

 

It was an open question as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland in the applicant’s circumstances…[A]lthough it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb.[7]

 

Minority Government and Constitutional Dialogue

In actuality, it is not judicial activism or judicial innovation in Ireland that is stymieing debates on rights and constitutionality in Ireland; rather, it is an overly strong executive that has a stranglehold on both houses of the Oireachtas. Legal advice is used as a convenient excuse to kick apparently contentious issues such as reproductive rights to touch.

 

Indeed, inaction can sometimes be louder than action. The UK Government’s failure to enfranchise prisoners despite a declaration of incompatibility under the HRA and a finding of a breach of the Convention from the Grand Chamber of the ECtHR is a concrete example of this. Similarly, the failure for over 20 years of successive Irish governments to legislate for the X-Case could be interpreted as these governments disagreeing with the Supreme Court’s judgment that abortions are lawful in Ireland where there is a real and substantial risk to the life of the mother arising from suicide. Two separate attempts to over-turn this judgment (the proposed 12th and 25th amendments respectively) via a constitutional amendment would also corroborate this; however, it also reveals the importance of an additional voice to the dialogue on rights in Ireland: the direct voice of the people through a referendum.

 

A reinvigorated Dáil therefore has an opportunity to break free from the domination of the executive branch and increase its scrutiny of legislation. No longer can an opinion of the Attorney General act as a de facto legislative veto. Indeed, it may be the case that such evidence may have to be published where it is suitable in order for the Oireachtas to scrutinise its substantive content. Merely claiming that the Attorney General advises that a proposed bill is unconstitutional may convince those subject to the minority government’s whip; however, the opposition benches may require a stronger justification than an appeal to authority. In this way, the Oireachtas can contribute more forcefully to the debate regarding the scope of constitutional rights protection in Ireland.

 

Ultimately, if the Oireachtas disagrees with a judgment of the Courts, it can submit a constitutional amendment to the people for ratification. This process can act as a safety valve, relieving political pressure that may build up in the face of a particularly contentious decision of the Supreme Court. In this way, the temptation to pack the court with ideological counterparts that may be seen in the United States is avoided as there are simpler, quicker, and more reliable ways to over-turn such a judgment.

 

Conclusions

The value of political constitutionalism or republican conceptualisations of human rights lies in processes. It requires legislative processes to be fora for disagreement rather than a mere rubber-stamp government decision-making. The prospect of a minority government is perhaps the best opportunity Ireland has had for such a culture of justification to embed itself in parliamentary processes. Time will tell whether this newly invigorated Dáil with grasp this opportunity.

 

Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. He tweets @DrAlanGreene.

Image credit: https://flic.kr/p/eRVtiA

 

[1] JAG Griffith, ‘The Political Constitution’ (1979)42(1) Modern Law Review 1,14.

[2] Francesca Klug, ‘The Human Rights Act – a “third way” or “third wave” Bill of Rights’ [2001] EHRLR 361.

[3] Prohibition on torture or inhuman and degrading treatment

[4] Right to respect for privacy and family life

[5] Freedom of expression

[6] Prohibition on discrimination

[7] D v Ireland, para 69.

Status

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

Dr Alan Greene Four Courts

(http://i.imgur.com/jiRNdIf.jpg)

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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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

Politics and The Policing Authority

mincommMinister Frances Fitzgerald stated in the Seanad last week that she is “committed to delivering a sea change in the oversight of policing.” At the core of the reform package which will supposedly deliver this is the Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015 and the soon to be created Policing Authority. She has stated that this body Continue reading “Politics and The Policing Authority”

Politics and The Policing Authority

Are There Limits to Absolute Privilege?

We are delighted to welcome back Dr. Jennifer Kavanagh of Waterford Institute of Technology with this guest post on the role of the Defamation Act 2009 in discussions about media reporting of Dail privilege.

Introduction

The issue of parliamentary speech and protecting both the speech rights of members of the Oireachtas and the media are important aspects of civil and political rights. The ability of members of the Oireachtas to raise matters of public importance without the ‘chilling effect’ of defamation law is a common feature of western democracies based on a common law tradition.

However, the ability for parliamentary speech which is covered by absolute privilege to permeate the media without restriction and for the media to act in their role as the ‘educators or public opinion’ was questioned. This issue has been highlighted by the recent restriction placed on the reporting of the statements of Catherine Murphy to the Dáil by RTÉ. Even though Mr Justice Donald Binchy has clarified and released a redacted version of the High Court judgment, the impact on political speech of Oireachtas members remains.

 The Role of Oireachtas Members and the Need for Absolute Privilege

The members of the Oireachtas are there to theoretically hold the Government to account. One fundamental part of their role is to air issues of public importance. For this reason it is essential that their speech is not subject to the review of the courts. The protection is known as absolute privilege and means that the statement of members of the Oireachtas in the chambers of either the Dail or the Seanad cannot be considered by a court.

This principle is enshrined in the Constitution. Members of both Houses of the Oireachtas are protected by the Constitution from Court actions in relation to what they say in the House. This type of protection is widely found in democratic states and is considered an important foundation stone for an effective parliament. The Irish version draws heavily from provisions in Westminster. The original version of the protection was incorporated in the Bill of Rights which placed utterances by members of parliament outside of the scope of the courts. Under Article 9 ‘…freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’ Under the provisions of Article 15.13 a TD “shall not, in respect of any utterance in [the Dáil], be amenable to any court”. However a member can be asked to account for what they have said to the House itself.

The provisions of Article 15.13 are reflected in the Defamation Act 2009 which includes what is known as ‘absolute privilege’ in section 17 which states that any statement made in either House is protected. The principle which underpins parliamentary privilege is that members of either house of parliament should be able to raise issues in the public interest without fear of court action.

The rules for debate in the Oireachtas are set by means of Standing Orders and is provided for under Article 15.10 and set out a procedure for the amendment of the Dáil record to reflect a complainant’s side of the story when an abuse of privilege has been found. This procedure under the provisions of Standing Order 59 have proved useful for those that are aware of the process in the past.

The Limits of Absolute Privilege

However there is an issue with the protection reporting such speech in the construction of section 17. If the parallel restriction for speech in court and the reporting of such speech is considered and then contrasted to the protections for parliamentary speech it is clear that there is actually no absolute privilege for reporting the Dáil. This is even more striking when the previous legislation is consulted. Second Schedule, Section 24 of the Defamation Act 1961, provided expressly for the protection of speech when reported from the Dáil.

A fair and accurate report of any proceedings in public of a house of any legislature (including subordinate or federal legislatures) of any foreign sovereign State or any body which is part of such legislature or any body duly appointed by or under the legislature or executive of such State to hold a public inquiry on a matter of public importance.

Impact of Inconsistency

The position of parliamentary speech has now been re-established with the restatement of the order from the High Court judge. However the inconsistency between the drafting of both the provisions leaves the position of the media in doubt. The previous situation where media organisations could not report on the proceedings of the Dáil even though the same statements were freely available on the Oireachtas website and transmissions, showed how the position of the media as ‘organs of public opinion’ were unable to act in their constitutionally mandated role as ‘educators of public opinion’ were unable to tell citizens what transpired in their national parliament. Until the gap between both the 1961 and 2009 Defamation Acts are addressed the possibility of action against the media for statements made in the Dáil will continue.

Are There Limits to Absolute Privilege?

The Embodied Subject: Northern/Irish Feminist Judgments Project

WHB6t5xX_400x400This report of the fourth workshop of the Northern/Irish Feminist Judgments Project is by Sandra Duffy, an LL.M. student in International Human Rights Law & Public Policy at University College Cork.

‘The Embodied Subject’

The fourth workshop of the Northern/Irish Feminist Judgments Project was held in Griffith College Dublin on the 13th and 14th of April 2015. The Project, headed by Aoife O’Donoghue (Durham), Julie McCandless (LSE) and Máiréad Enright (Kent), seeks to add an oft-missed perspective in Northern/Irish jurisprudence by inserting a feminist judge on the bench of the Court in question in each case, and having them write the judgment addressing the issues overlooked or under-considered by the judgments handed down in the case itself.

The theme of the Dublin workshop was ‘the embodied subject’. As with most feminist consideration of the state of embodiment – especially that of women – there is often as much to be found in the silences as in the words. What does the law make of women’s bodies? Where are the gaps in consideration? How does the law address, or not address, the experiences of transgender and queer women – both in legislation, and in judicial opinion? Laws regulating the body, the physical self, can be blind to the social and psychological consequences they carry for the person thus regulated. If the law – as in most of the cases covered during the weekend – operates on a strict sex binary, where those female-assigned at birth are de jure considered female and those deemed male cannot be seen to be de facto female later in life, then the gendered experience of being a woman and experiencing one’s body is the square peg in the law’s round hole. Indeed, as Tanya Ní Mhuirthuile and Ivana Bacik ask in their judgment on Foy v An t-Ard Chláiritheoir, must sex assignation at birth be considered a statement of fact, or a rebuttable presumption?

The female sexed and gendered body forms an object for the law more often than its owner is deemed to be a subject and a participant in those laws. The selection of cases presented in this weekend displayed the judicial attitude to womanhood in all its forms, ranging from reproductive rights to gender recognition to adoption and ownership of one’s identity. The workshop also included cross-disciplinary talks from social scientists and activists which sought to place the question of law and the embodied subject into its fuller social context. The cases under consideration were McGee v Attorney General[1], McKinley v Minister for Defence[2], BJM v CM[3], Foy v An t-Ard Chláiritheoir[4], Barnes v Belfast City Council[5], Zappone and Gilligan v Revenue Commissioners[6], DPP v Tiernan[7], DPP v C[8], CC v Ireland[9], P.M.  v.  St. Vincent’s Hospital[10], and IOT v B[11].

These cases cover a broad spectrum of issues: the directly corporeal (BJM v CM, where the woman in question was treated as a body and nothing more by her ex-husband and the original judge) to the adminstrative (Zappone and Gilligan, two female spouses challenging an inequality in recognition and tax law) to the intersection of the civil right to privacy and the practical impact on health and family from denial of that right (Mc Gee v Attorney General). At times, the original judgments were considered to be broadly fair in their scope, in particular that of McKechnie J in Foy, where the rewriters found themselves in the curious position of being almost satisfied with the original opinion and looking for things to render it complete! Other cases, however, required fundamental change from the ground up. In Máiréad Enright’s opinion in McGee, she found herself breaking down the facts and circumstances of both the plaintifs, the McGee family, and the societal context in which the case took place. Máiréad questioned whether the right to use contraception was correctly identified as a right of the family unit, preferring to see it as a matter of individual privacy. The freedom to regulate one’s family planning could be considered to be a right of ’embodied conscience’ – living one’s civil and political rights through bodily experience.

One particularly egregious original judgment was that in BJM v CM. After having married, BJM was shocked to discover his wife had seriously physical scarring from a bad accident. He claimed that this scarring was physically repulsive enough that he had been tricked into the marriage and that his consent could not be considered informed; therefore, he sought a decree of nullity. Appallingly, this opinion was carried and the Ms’ marriage was annulled. This left CM in a position where she and her family found their lives in upheaval and their seventeen-year household suddenly without legal rights. The feminist judges remarked in particular on the voicelessness of CM throughout the case. The whole proceedings centres around BJM: his feelings and his experiences. CM is reduced to an object over which men are arguing. Indeed, the original judge goes so far as to state that concealing her scarring was to conceal something of ‘the fundamental nature of the person’ akin to a psychiatric illness. CM did not, however, suffer any such irregularity in personality or emotions – but due to her husband’s claimed lack of attraction to her, she was deemed defective enough that BJM could not have given informed consent to marrying her. She is regarded as her body and nothing more. The commentators also spoke about the lack of sexual identity of women before the Irish courts. The Madonna/whore dichotomy is very evident here; CM is either properly modest for not sleeping with BJM before marriage, or she is a dishonest fraud who sought to entrap a man before revealing her ‘dysfunctional’ self. Possibly she is both at once, but we cannot know what she herself was thinking because all the commentary on her life is coming from men – male husband, male doctors, male judge. If the embodied female subject in Irish law has a nadir in terms of respect, BJM v CM may possibly be it.

The interdisciplinary panels interspersed through the delivery of judgments covered issues of women in Irish society ranging from the history of the women politically active around the 1920s in Ireland, to the struggle for women’s right to sit on a jury. They included stories of front-line activism, such as that of front-line campaigner Ailbhe Smyth, and a powerful story from leader of the Survivors of Symphysiotomy support group Mary O’Connor. Most unexpectedly enthralling was the presentation of social geographer Mary Gilmartin, who spoke on ‘Bodies, Borders, and Scales’. She spoke of how the way in which we organise and conceptualise our physical space in society is one of the instruments through which we experience our lives within that society. The hierarchy of our esteem for space, placing cities as centres of power, alienates those without access to such power; similarly, when we consider the world as a collection of ‘more important’ versus ‘less important’ areas, we assign identity to people based on the physical space which they occupy and weigh their existence as more or less relevant than our own. In this way the symbolic value of that person’s physical existence is linked to their assigned place in the world – in Mary’s words, “the body, in effect, becomes the carrier of the border.”

Considering the physical self to own within it the borders of one’s assigned societal identity brings with it another way to understand the experiences of LGBTQ subjects in law. Whether it be a challenge to the legitimacy of one’s marriage or the ability to live without constant worry of being revealed to be transgender, the lives of the queer and trans* community in Ireland have never been easy. The brave women at the centre of the Foy and Zappone and Gilligan cases know that they carry with them the borders imposed on them by society, and in challenging those borders in the courts they opened their lives up to scrutiny and invalidation. The LGBTQ rights campaigns have always involved the assertion of both physical and psychological identity by those involved: the law addresses them solely as the product of their physical bodies in deciding who they are and with whom they may form a family. From a feminist viewpoint, the right to be considered a person in possession of full and equal human rights is essential. The feminist and LGBTQ struggle overlap and intersect, and it is right that we should deconstruct thinking around queer bodies as we do around female-sexed bodies more generally.

In thinking about bodies and their effects and uses, the questions of sexual activity, reproduction, and sexual violence arise. While the third IFJP workshop, in University College Cork, had centred on ‘the mothering subject’, this workshop looked at the effects of sexual regulation in Ireland on the woman as an individual as opposed to the carrier/mother of a child. Contraception was spoken of in the McGee judgment, and Máiréad also gave a colourful account of the condom-smuggling trade over the border in the 1970s. Caroline Fennell and Louise Kennefick had written their opinion on the DPP v Tiernan case, in which a sentence for rape was challenged and questions related to the law of sentencing overall arose. The feminist judges took issue with the views of Finlay CJ in the case, noting that his judgment contained stereotyped views of women and drew distinctions between different circumstances in which rapes occur. They wished to focus more on the role and experience of the victim-witness as an autonomous actor in the trial process (leading them to consider, also, the propriety of using feminist principles to argue for retributive justice for a victim). Eilinóir Flynn and Sinéad Ring looked at another case involving sexual autonomy, that of DPP v C. This case was based on the law around consent to sexual acts. The judges gave a thoughtful, complex look at the idea of consent both per se and as it can be regulated/proven in court. Foremost, again, were the ideas of autonomy and agency of the consenting party. They also noted that discussions of consent, as in this case, can be very heteronormative – just another way in which the embodied self finds itself playing a pre-determined role before the law.

The issue of corporeality is inseparable from the experience of being a woman in a sociolegal context. On a personal level, I took from this workshop a broader understanding of my existence before the law, along with the challenges of viewing the consequences of my own embodiment and that of others with a critical eye. From a wider perspective, being able to read a case with an eye to how the biological sex and true gender of the participants is an exercise which illuminates some repeating themes in Irish law: the body, the mother, the sexuality, the autonomy of choice.

[1]    [1973] IESC 2 (Máiréad Enright (Judge) & Emily Cloatre (Commentator))

[2]    [1992] 2 IR 333 (Joanne Conaghan (Judge) & Fergus Ryan (Commentator))

[3]    [1996] 2 IR 547 (Aideen Ryan & Katie Dawson (Judge) & Christine Ryan (Commentator))

[4]    [2007] IEHC. 116 (Tanya ní Mhuirthile (Judge) & Ivana Bacik (Commentator))

[5]    [2012] NICA 19 (Marie Fox (Judge) & Fiona Cooke (Commentator))

[6]    [2006] IEHC 404 (Fiona de Londras (Judge) & Siobhán Wills (Commentator))

[7]    [1988] 1 I.R. 250 (Louise Kennefick & Caroline Fennell (Judge) & Liz Campbell (Commentator))

[8]    [2001] 3 IR 345 (Eilionóir Flynn &  Sinéad Ring (Judge) & Anna Arstein-Kerslake (Commentator))

[9]    [2006] IESC 33 (David Prendergast (Judge) Cian O’Concubhair (Commentator))

[10]  [2003] IR 321 (Mary Donnelly (Judge) & Claire Murray (Commentator))

[11]  [1998] 2 IR 321 (Katherine O’Donnell & Claire McGettrick (Judges), James Smith (Commentator))

The Embodied Subject: Northern/Irish Feminist Judgments Project

O'Conaill on the 'Logic' of 'No' #marref

Don Photo smallWe are pleased to welcome this guest post from Donnchadh O’Conaill (left). Donnchadh is a Lecturer in Metaphysics at the University of Leeds. In the autumn he will be moving to Helsinki to take up a postdoctoral position on The Epistemology of Metaphysics project.

The referendum on same-sex marriage has thrown up a variety of arguments from both sides, including empirically-based claims and discussions of specific points of law. Writing as someone from a philosophical background, I was more interested in the logical manoeuvrings on either side. The pattern of the debate has been for the No side to produce the wider variety of arguments; against appeals to equality, they have offered a number of reasons to justify the different treatment afforded to same-sex and opposite-sex couples. In what follows I shall discuss three arguments offered by proponents of a No vote.

The issue of surrogacy and the possible harms to children and surrogate mothers were prominently discussed in the final weeks of the campaign. By and large the Yes side have dismissed this as a red herring: there is at present no law covering surrogacy in Ireland, and the proposed constitutional amendment would not introduce one. Prof. William Binchy introduced a new twist on this worry. Rather than arguing that surrogacy should be prohibited, he suggested that a Yes vote could prevent a future government from introducing such a prohibition:

The syllogism that a court would confront is as follows: married couples have a right to procreate; married couples include two gay men, who can procreate only by means of a surrogate arrangement; therefore, a law restricting or, a fortiori, banning such an arrangement would be unconstitutional as it would prevent the gay men from procreating by the only means open to them (Irish Times, May 12th).

There is little philosophers like better than a good syllogism. Prof. Binchy’s isn’t a bad one, but I fear it is not the syllogism he needs. The first premise, that married couples have the right to procreate, has been questioned by Oran Doyle and Conor O’Mahony; certainly, it does not seem as secure as Prof. Binchy’s article might lead one to believe. But let us grant it, and let us assume also that this right extends as far as a right to access surrogacy if that is the only means by which a couple can procreate. Given the first premise, in the event of a Yes vote Prof. Binchy’s conclusion would follow. The trouble is that this conclusion has little to do with the result of the referendum. If married couples have the right to procreate, and if this right extends as far as a right to access surrogacy by those who cannot procreate in any other way, then this right must already be enjoyed by those heterosexual married couples who, for whatever reason, cannot procreate biologically and cannot adopt children. If Prof. Binchy’s syllogism holds true in the case of two gay men, then it seems it must hold true in the case of some heterosexual couples also. In that case, the hands of any future government have already been bound, regardless of the result of the referendum.

A more unusual argument was put forward by Prof. John A. Murphy, who described the proposed amendment as “constitutional nonsense” (Irish Times, May 13th). He suggested that

if the referendum is passed, Article 41, heretofore unambiguously and exclusively heterosexual, will also recognise a homosexual couple “as the natural primary and fundamental unit group of Society . . . a moral institution possessing inalienable and imprescriptible rights , antecedent and superior to all positive law”. Moreover such a couple will be guaranteed protection by the State “as the necessary basis of social order and as indispensable to the welfare of the Nation and the State” (Article 1.2).

It is not entirely clear how Prof. Murphy’s argument is meant to proceed. On a literal reading, he is suggesting that if the referendum is successful, the homosexual family or a homosexual couple would itself become the primary and fundamental unit of society. This would be an outlandish result, but the idea that this is what would happen should the referendum be passed is based on a bizarre misreading of the constitution. Article 41 uses the term ‘the Family’, which is an abstract singular term – it does not refer to any particular family or to any group of families, but to the social institution of that name. At present under Irish law this institution includes married heterosexual couples raising their own children, married couples raising children they have adopted, and married couples who have no children. In the event of a Yes vote this institution would include homosexual as well as heterosexual couples. That is, homosexual families would be legally recognised as belonging to ‘the natural and primary unit group of Society’. This is very different to saying that a homosexual couple would itself become this unit.

It may be that Prof. Murphy meant to express a different thought: that in the event of a Yes vote, the Family would include homosexual couples, but that it is “grotesque nonsense” that such a couple could be among the fundamental units of society. This reading has the advantage of not attributing to Prof. Murphy the bizarre interpretation of the constitution I have just outlined, but as an argument against same-sex marriage it is scarcely in better shape. For Prof. Murphy owes us a reason for thinking that it is nonsense for a homosexual couple to be among the fundamental units of society. The fact that such a couple would be incapable of procreating or raising their own children would not suffice, given that numerous childless heterosexual couples already belong to the institution of the Family. Of course, one might say that such couples do not deserve any special constitutional status, but in that case the result of the referendum would again be irrelevant to one’s concerns.

The final argument I shall consider has been put forward by a number of advocates on the No side; it can be understood as concerning the meaning of marriage, or the relationship which is claimed to hold between marriage and procreation. A number of commentators have suggested that if same-sex marriage is legalised, this relationship would be weakened or even broken completely. Some critics have denied that there is any such relationship, but it is more interesting to assume that one does exist, and to inquire into what its nature might be.

Whatever the relationship between marriage and procreation is, it is surely not the case that the ability or willingness to procreate is a necessary condition for a couple to be married. Rather, the suggestion must be that the relationship between procreation and the social or legal institution of marriage holds in such a way that couples who are neither willing nor able to procreate can still marry. The problem is that on this understanding, it is hard to see how allowing same-sex couples to partake in the institution would weaken or break this relationship. The institution of marriage would still provide precisely the same opportunities and support for those who wish to procreate within it – it would just be open to a slightly larger number of people who cannot (by themselves) procreate.

There are a number of possible responses available to the proponent of the procreative link, but the main one which has been put forward in the referendum debate is that marriage must be oriented towards procreation, even if it happens that procreation does not occur or is not biologically possible. For instance, Bishop Kevin Doran claims that “What makes marriage unique is the orientation of this committed relationship to the procreation and care of children”. The suggestion is that same-sex relationships could not be oriented towards procreation, though they may share many other features with marriages. If this is correct, then it would simply be a category error to speak of same-sex marriage.

One interesting point about this argument, which has not to my knowledge been commented on, is that for someone who accepts it, the appropriate response to the referendum would not be to vote No, but to abstain on the grounds that the very idea of a popular decision on this issue makes no sense: it would be like deciding by vote whether or not 2 + 3 = 5. Leaving that aside, the orientation argument suffers from other problems. One is the danger of conflating the nature of the social or legal institution of marriage with the nature of particular marriages. It may be that the institution of marriage is oriented towards procreation (for instance, it may be because of the link between marriage and procreation that the State has a legitimate interest in supporting marriage). It does not follow from this that each individual marriage must itself be oriented towards procreation. The institution of the public library is oriented towards providing educational resources, or perhaps just entertainment, but people use public libraries for all manner of reasons, some of which have nothing to do with these noble goals.

Could it be argued that not only is the institution of marriage oriented towards procreation, but so too must any individual marriage? Maybe so, but again the trick is to spell this out in such a way that homosexual couples could not possibly be oriented towards procreation, but a heterosexual couple who are biologically incapable of procreation are. For example, Patrick Treacy & Rik van Nieuwenhove note that only heterosexual relationships “can bring forth new life”, and that “only this union is intrinsically fruitful in biological terms” (‘The Integrity of Marriage’). But not all heterosexual relationships can be fruitful in this way. From the fact that only (some) heterosexual couples are capable of unassisted reproduction, it does not follow that all heterosexual couples deserve different legal treatment to any homosexual couples.

If there is a relationship between marriage and procreation, it would appear to concern the institution of marriage, and it is most likely a link such as the following: procreation and childrearing are the reason (or one of the main reasons) why marriage was established as a social institution and continues to enjoy legal status and protection. But while this is a plausible account of the relation between marriage and procreation, it tells us little about who is (or is not) entitled to avail themselves of this institution. And that, in effect, is what the referendum concerns.

 

O'Conaill on the 'Logic' of 'No' #marref