The rights of the unborn: a troubling decision from the High Court?

Mairead Enright (@maireadenright)

Does the unborn have rights other than the right to life enshrined in the 8th Amendment?

It is clear that, under Irish law, foetuses cannot have any greater rights than children already born.[1] However, recent cases have raised the prospect that they have some of the same rights and interests as born children. In PP v. HSE,[2] for instance, the High Court referred to the ‘best interests’ of the foetus who has no prospect of survival outside the womb, analogising its position to that of a child on life support. It is not clear that the ‘unborn’ (the entity recognised or created by the 8th Amendment) is, for constitutional purposes, a child like any other. Recently, the courts have been asked to consider whether foetuses carried by Irish citizens have particular rights other than the right to life, which the state should take into account in assessing whether to deport their non-citizen fathers. Another, broader, way of putting this question is to ask whether the unborn’s rights derive exclusively from the 8th Amendment, or whether it may also enjoy rights grounded in other parts of the Constitution.

The position: foetuses may be treated as having constitutional rights other than the right to life.

In E[3] (the case of Kunle Eluhanla) Irvine J. applied an old common law maxim that the unborn should be treated as born in law where its interests require it. This meant that the Minister for Justice, in deciding whether to deport E’s father should have treated the then unborn  E as if he was born. In practice this meant that Michael McDowell as Minister for Justice should have taken into account E’s rights to the society and support of his parents, amongst many others. In taking this step Irvine J. paid particular attention to the fact that the Minister had been notified of E’s impending birth at the time he made his decision, but ultimately decided to make his order just 9 days before E was born. Irvine J. was struck by the injustice of allowing the Minister to take capricious advantage of the circumstances of pregnancy and childbirth, noting that if E had been born prematurely, the Minister would have had to take his existence and needs into account in making the decision.

She held that the unborn,in cases of this kind, can be treated as having all of the personal rights of the citizen under Article 40.3 of the Constitution.These rights were enumerated in G v. An Bord Uchtala[4] (a case about ‘illegitimate children’) and include the ‘right to bodily integrity, the right to be reared with due regard to religious, moral, intellectual, physical and social welfare, to be fed, to be educated, to work and to enjoy personal dignity… ’. As Irvine J. noted, these are the “natural and imprescriptible rights of all children”, now recognised in Article 42A of the Constitution.

The Ugbelese position: the rights of the foetus are confined to those conferred by the 8th Amendment.

In the later case of Ugbelese,[5] by contrast, Cooke J. took the position that the unborn does not have any rights other than the right to life.[6] Cooke J. argued that Irvine J. over-extended the common law maxim mentioned above, which he argued had previously only been used in a backward-looking way, to allow financial recovery for injuries suffered in the womb, and not to allow assertion of future rights before birth.

In any event, he argued that her decision was inconsistent with the Constitution. For Cooke J. the purpose and effect of the 8th Amendment is to definitively set out all of the rights of the unborn .Indeed, whereas Irvine J. derives the unborn’s rights to family life from Article 40.3, Cooke J. notes that the 8th Amendment is a specific amendment to that Article, indicating that the unborn is not intended to enjoy those personal rights as born citizens do. Before 1983, he argued, there had been some limited judicial discussion of the rights of the unborn (McGeeFinn v. AG and G v. An Bord Uchtala), but these were not definitive: the Amendment was intended to clear up this uncertainty. The Amendment does not give any rights to the unborn other the right to life (which for Cooke J. also  implies the right to bodily integrity; the right to protection from any wilful interference with the natural course of gestation.)   Any additional rights of the child are prospective and inchoate until birth, when they can be exercised in society and community as an independent person.

So, after Ugbelese, the High Court had taken two distinct stances on this question. Recently, Humphreys J. decided between them.

Humphreys J. chooses the position: the IRM case.

In IRM v. MJELR,[7] Humphreys J. was asked to determine whether the State in deciding whether to deport the father of unborn child of an Irish citizen is obliged to consider the unborn’s future rights to family life as well as its the right to life enjoyed under the 8th Amendment.

Humphreys J prefers the reasoning of Irvine J. in E, and holds that in deportation cases, the state must consider the family rights that the unborn will enjoy in the future. He rejects the Cooke argument in Ugbelese (above) that the 8th Amendment was intended to completely embody all of the unborn’s rights. His judgment criticises Cooke J. at length for his excessively ‘literal’ reading of the 8th Amendment,[8] which Humphreys J. contends is incompatible with the principle that the constitution is to be read as a whole.[9] In addition, whereas Cooke J. presents the 8th Amendment as resolving a problem of uncertainty about the status of the unborn in Irish law pre-1983, Humphreys J. argues that the obiter statements about foetal life in McGeeFinn v. AG and G v. An Bord Uchtala clearly indicate that the rights of the unborn pre-dated the Amendment, and were simply confirmed or supplemented by the Amendment.

Humphreys J. goes on to specify the following rights of the unborn:

  • Humphreys J. agrees with Irvine J. that the unborn may be treated as having a right to family life. Irvine J. derived this from the personal rights provisions of the Constitution in Article 40.3. Since her judgment was delivered, the people have added a new provision to the Constitution and Humphreys J. relies on it here. He holds that Article 42A (the Children’s Rights Amendment) by its specific reference to “all children” is intended to protect unborn as well as born children. To bolster this interpretation, he cites several examples of laws which use the phrase ‘unborn child’, and emphasises that ‘expectant parents’ recognise the unborn as a child.[11] He criticises the state’s arguments to the contrary for excessive literalism.[12] Humphreys J. recognises that the unborn will not enjoy all of the rights contemplated under Article 42A, insofar as it cannot effectively exercise them. But this in itself does not unseat the argument that the unborn is a child for constitutional purposes. In this respect, he analogises the unborn to the profoundly disabled born child.[13]  
  • He also argues (probably obiter) that the unborn has the right to health, and not merely the right to bodily integrity as a corollary of the right to life.[10] The difference between Cooke J. above and Humphreys J. here is a matter of degree, but Humphreys J. argues that the foetus has a right to be protected from injury to health as well as from the health/bodily integrity consequences of exposure to a risk to life. This principle, if extended to an appropriate case, could have an impact on women’s decision-making in pregnancy outside of the abortion context. See further here.
  • In support of his extension of the rights of the unborn beyond the right to life, he notes that the unborn is already recognised as having a number of statutory and common law rights additional to the right to life, including:
    • The right to litigate.
    • The right to succeed to property.
    • The right to sue in tort, once born, for injuries sustained in the womb.
    • The right to health and welfare, which implicitly grounds the Child and Family Agency’s practice in child protection cases where there are concerns around a pregnant woman’s capacity to care for her child once born.
    • The right of a stillborn child to recognition of his/her identity.
    • At an international level, Humphreys J. cites paragraph 9 of the UNCRC as establishing the unborn’s right to special protection and care before birth. Notably, he does not discuss the European Convention on Human Rights, which does not recognise rights of the unborn.

Humphreys J’s judgment reflects an obvious frustration with a state which wishes, in his view to have its cake and eat it – holding the unborn as sacrosanct but not affording it any rights which would inconvenience the state. However, in respect of family life, this is not a judgment about the constitutional rights which the foetus automatically enjoys in the womb. Humphreys J. did not have to resort to the legal fiction used in E because IRM was framed as a test case on the very question of the extent of the rights of the unborn in deportation cases. However, his judgment, like Irvine’s judgment in E is designed to compel the state to have regard to ‘the prospective situation which is likely to unfold, and particularly such rights arising from a child’s status as a citizen as are likely to exist, rather than the state of affairs as it exists as a snapshot on the date which the Minister’s decision is made in isolation from matters which are imminently prospective as a matter of likelihood’.[14] He argues that under the old decision in East Donegal Co-Operative v. AG the state is required to guard against prospective threats to constitutional rights.

What does this mean for campaigns for liberalisation of Irish abortion law?

Some of the language employed in Humphreys J’s judgment is worryingly reminiscent of pro-life literature. At various points he refers to the state as ‘sneering’ at the rights of the unborn; notes that all adults were ‘unborn’ once, and argues that the unborn must be a child in principle because happy expectant parents think of their pregnancies in this way.The troubling analogy drawn between foetuses and profoundly disabled born children noted above also calls to mind anti-abortion campaigners’ appropriation of disabled people’s experience. Ultimately, his failure to consider, even in passing, the wider repercussions for women of his approach to the unborn is cause for concern. However, even if his judgment is good law (and a Supreme Court which takes a more restrained approach to constitutional interpretation is unlikely to think so), it is of limited relevance to the campaign for repeal of the 8th Amendment.

  1. These cases are not decisions about foetuses. They are decisions about Irish citizen children who were already born when the judges heard their cases. The judgments consider deportation decisions made in respect of their fathers before their births.
  2. These cases are not about the rights which foetuses have before they are born. As discussed above, they are clearly cases about the state’s duty to consider their future post-birth rights when considering deportation of their fathers.
  3. These decisions are products of a laudable judicial effort to preserve limited space for parent-child relationships within an unjust immigration system which has for a long time demonised migrant family-making. They cannot sensibly be extended beyond that context.
  4. The constitutional problem at stake here is very different from that which arises when a woman needs an abortion. Humphreys J. and Irvine J. have attempted to acknowledge rights of the unborn which are, in the immigration context, entirely congruent with the rights of the prospective parents. (Similarly, the examples of additional common law or statutory rights of the unborn listed by Humphreys J. directly advance the interests of born persons connected to the unborn, and either do not conflict with the rights of the pregnant woman, or are carefully balanced against those rights.) In addition, the right recognised in these cases need only be ‘considered by the state’. The rights of the unborn cannot absolutely restrict the state’s entitlement to deport its parent: the burden on the state here is very light. By contrast, in constitutional terms, abortion involves a direct and serious conflict between the rights of the unborn and the rights of the pregnant woman. These cases do not tell us anything in principle about how such conflicts should be resolved.
  5. It is especially difficult to imagine how Article 42A might be applied to abortion after repeal of the 8th. Courts are generally careful to confine the application of constitutional provisions to the areas of social life which they were intended to regulate, particularly where morally controversial activities are concerned.[15] The campaign to add Article 42A to the Constitution focused on establishing children as rights-holders independent of their parents. It did not centre on abortion and so it is reasonably clear that the people in voting on Article 42A did not intend it to apply to this context.
  6. If the unborn enjoys additional personal rights, they are not absolute rights. Outside of the direct abortion context, the courts have repeatedly stated that in interpreting the unborn child’s rights (including in deciding how and when the unborn child’s right to life applies) the courts must bear the countervailing rights of the mother – particularly her rights to bodily integrity and privacy – in mind.[16]
  7. There is an argument that, even if the 8th Amendment were repealed, these additional rights of the unborn and the right to life of the unborn could nevertheless survive within the Constitution. For example, post-repeal, we might see the Supreme Court affirm the existence of those rights in an Article 26 reference or in a constitutional challenge to future abortion legislation. A similar argument has already been made in respect of judgments like McGeeFinn v. AG, Norris and G v. An Bord Uchtala (see the disagreement between Cooke J and Humphreys J. above). Even if this argument holds some weight (and the weight it holds would depend on the preferences and makeup of the Supreme Court at the time) it is unlikely that it would cause  future post-8th abortion legislation to be struck down as unconstitutional. The Constitution is a living document which is to be interpreted in light of prevailing ideas and concepts (McGee v. AG). Successful repeal of the 8th Amendment, particularly in the context of a campaign which has and will emphasise the rights and experience of women, would send a strong signal to the Supreme Court that the Constitution was longer to be interpreted as it is under the X case. A future Supreme Court, considering post-repeal abortion legislation, is likely to be concerned with a balancing of the rights of foetus and pregnant woman, rather than with the application of a near-absolute foetal right to life. Amendment or replacement of the 8th, to provide an explicit constitutional right to abortion could, of course, help to restrain the judiciary in this area.
  8. Any argument that these judgments are an uncomplicated victory for human rights depends on ignoring serious questions of race and gender inequality. For instance, it appears that the rights recognised in E and IRM only apply to the unborn children of Irish citizens – this is the legacy of the citizenship referendum. The Supreme Court had already established that the right to life of the unborn child of non-citizens cannot pose an obstacle to its mother’s deportation.[17] In addition IRM recognises the rights of the unborn while dismissing the argument advanced on behalf of the pregnant woman that her mental health might require her partner’s deportation to be stalled so that he could be present to support her at the birth of her child.[18] A woman will also need to prove something approaching risk to life, or inhuman and degrading treatment related to the deportation before her pregnancy can operate to stall her own deportation.[20]  

Footnotes:

[1] Baby O [2002] 2 IR 169

[2] [2014] IEHC 622. See further http://humanrights.ie/gender-sexuality-and-the-law/pp-v-hse-futility-dignity-and-the-best-interests-of-the-unborn-child/

[3] [2008] IEHC 68

[4] [1980] IR 32, 69

[5] Ugbelese [2009] IEHC 598. was preferred by Hogan J. in A v MJELR [2001] IEHC 397. E was cited approvingly by MacEochaidh J in FO v. Minister for Justice [2013] IEHC 236 and again in Dos Santos v. Minister for Justice [2013] IEHC 237, appearing to equate the rights of the unborn child in the context of deportation with the rights of children generally.

[6] Cooke J. also argues that he is not bound by the judgment in E because Irvine J. did not intend her judgment to be determinative of the constitutional issue of the rights of the unborn.

[7] 29 July 2016

[8] p.31

[9] p. 21

[10] p. 22

[11] p.29

[12] p.30

[13] p.30

[14] p.33

[15] See e.g. Baby O [2002] 2 IR 169 and Roche v. Roche [2009] IESC 82

[16] Baby O [2002] 2 IR 169 (right to bodily integrity); Ugbelese [2009] IEHC 598 (right to travel and privacy); PP v HSE [2014] IEHC 622 (right to dignity in death)

[17] Baby O [2002] 2 IR 169. See further Ruth Fletcher here.

[18] p. 19.

[19] p. 38

[20] Aslam v. MJELR [2011] IEHC 12

The rights of the unborn: a troubling decision from the High Court?

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?

The Role of Sport in the Recognition of Transgender and Intersex Rights

We are pleased to welcome this guest post by Conor Talbot, PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin (contact ctalbot@tcd.ie).

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated. The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women. Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

Continue reading “The Role of Sport in the Recognition of Transgender and Intersex Rights”

The Role of Sport in the Recognition of Transgender and Intersex Rights

Out on the Inside

We are delighted to welcome this guest post from Deirdre Malone, Director of the Irish Penal Reform Trust. The Trust recently launched a report on the experiences of LGBT people in prison in Ireland. 

IPRT

On 22 May 2015 I stood in the yard of Dublin Castle with my own brand new husband and watched the whooping victory of equality over discrimination. As happy newlyweds ourselves, we felt the profound importance of the occasion deeply. We saw Ireland shedding her old identity, becoming something new and brave and proud. On that day, victory felt swift and definitive. In reality it was the culmination of a decade of tenacious work and thousands of brave conversations. It was a challenge to a social system that once felt monolithic, intractable and inevitable. It represented a final blow of years of steady chipping at the hard crust of institutionalized inequality. But I wondered, were LGBT people in prison celebrating too on that day? Would they feel safe to do so?

While for those who work in the NGO sector, 22nd May 2015 was a jolting, joyful reminder that monumental change is indeed possible, the 33rd Amendment did not mark the end of homophobia, harassment or discrimination of LGBT people. That is doubly true for lesbian, gay, bisexual and transgender people who are in prison. LGBT prisoners form a “twice marginalized” population, falling outside of the ‘mainstream’ of LGBT community organizing and support services but also hidden and largely overlooked in terms of current prison policy.

International research reveals that homophobia is often amplified in male prisons as a result of a culture of “hyper-masculinity” and the traditional hierarchical structure which prevails. Transgender prisoners, particularly women, face disproportionately high instances and severity of violence and discrimination, both in and out of prison. They are not easily accommodated within the strict male/female structure of most prisons and may also experience violence and voyeurism in the context of prison showers or toilets – a particular concern in Ireland where 45% of prisoners are still required to use the toilet in the presence of another.

LGBT prisoners are also particularly at risk of experiences of discrimination, violence, sexual coercion and verbal harassment. Putting up a front, threatening or even engaging in violence in order to avoid being a victim of abuse is seen as something necessary within the prison environment

Of course, issues of homophobia, transphobia and the wider culture of heteronormativity also affect LGBT prison staff who also have experiences of homophobia, including being the targets of abuse by prisoners. The Irish Prison Service currently participates in the GLEN Diversity Champions programme through the ‘Inside Out’ network for LGBT prison staff but to date there has been no research or policy response addressing the specific needs and experiences of LGBT prisoners.

General good practice measures for safer prisons such as single cell accommodation as standard would help. It is common in many jurisdictions for “at risk prisoners” and LGBT prisoners especially, to be placed in protective custody to safeguard them from victimisation. However in practice conditions in protective segregation are often identical to conditions for prisoners placed in segregation for disciplinary reasons thus breaching fundamental rights principles. This can lead to longer term issues including mental health difficulties caused by the effects of isolation and more limited access to services. It is vital therefore that violent cultures and opportunities for abuse are targeted through the education of prison populations, training of staff, and effective independent complaints procedures. Further research is also needed in the areas of sexual health and behaviours in prison, the experiences of young LGBT people in prison and on the issue of sexual violence and coercion and their prevalence within the prison context.

For many years now, the Irish Penal Reform Trust have been examining and listening to the experiences of diverse vulnerable groups in prison, including Travellers, women, children and young people, and immigration detainees. The recent passage of the Irish Human Rights and Equality Commission Act 2014 sets out the positive duties of public bodies to eliminate discrimination, promote equality and protect human rights, and should act as a catalyst to address this area which has been neglected to date. We also hope that the result of the recent same-sex marriage referendum and the passage of the Gender Recognition Act 2015 will provide further impetus for reform to ensure that no LGBT person, wherever they might be, is left behind.

All of this must be understood in the wider context of overuse of imprisonment generally, and the ineffectiveness of the idea of retribution in challenging the conditions which are at the root of most punished crime – poverty, unemployment, homelessness, mental illness, addiction, desperation. The reality is that prison warehouses human misery, and by doing so, compounds it. It takes courage to challenge the status quo, but in every generation it is those that do who will also see the rewards of that courage. A challenge to the overuse of prison would lead to a more progressive, more effective, more humane, evidence-led criminal justice system – something which ultimately benefits us all.

Deirdre Malone is Executive Director of the Irish Penal Reform Trust www.iprt.ie

The IPRT report “Out on the Inside” was launched on 2 February 2016 at Wood Quay Venue, Dublin on 2 February 2016. It is available to download here

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Out on the Inside

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

The Importance of the Women-y Fringe-y Excesses of Irish Pro-choice Activism.

Mairead Enright.

In the past year or so, Irish pro-choice protesting has taken on a new vitality. Some pro-choice actors have adopted the language of satire, humour, scandal and disobedience to show up the limits of the abortion regime. I have written before about the abortion pill train (which recently morphed into the abortion pill bus) and Speaking of I.M.E.L.D.A., whose “Delivering the Word” (above) is a must-watch. Most recently, the comedian Grainne Maguire has been encouraging Irish women to “tweet their periods” to the Taoiseach, in an effort to “reclaim the humanity” of the abortion debate and to demonstrate that women are not ashamed to challenge a government which refuses to give up its control over women’s reproductive functions. For their pains, activists who choose these routes to political action are told that their methods are misguided, counter-productive, annoying, and an improper departure from those past feminist tactics which can now be celebrated and valued. The attempted suppression of disruptive political activism around abortion has its mirror in some official retellings of the marriage equality referendum, which close out both the history of Irish queer protest and the central role of working class campaigners and voters, in favour of a soft lens tale of constitutionalism and carefully choreographed deliberative democracy (on which see Anne Mulhall here). Closer to the root of the abortion issue, we find resonances with this government’s official discourse of abortion law reform. Fine Gael, which will not even commit to reforming the law on abortion information, much less to repealing the 8th Amendment,  thrives on its occupation of the “proper” position from which to instigate legal change. When challenged on his reluctance to examine the 8th, the Taoiseach presents himself as unflinchingly guarding ‘the People’s book’ (the constitutional text which perfectly reflects the democratic will of the ‘people’) from the undemocratic hordes and calmly refusing to be “rushed” (after over 30 years) into ill-thought-out law reform. (This paternalistic identification of his government with the measured and careful exercise of proper legal agency is, of course, also reflected its limited abortion legislation, which operates on the presumption that the law must be protected from the dangerous and disobedient agency of hysterical women).

This sort of denigration of those whose demands for legal change do not fit ‘legitimate’ patterns is grounded in a fundamental misunderstanding of the meaning and purpose of political action. I want to draw on Jacques Rancière’s distinction between ‘the political’ and ‘the police’. ‘Police’ here refers not to the police force but to the systems which establish a ‘distribution of the sensible’, dividing us into groups according to our attributed status and functions. These divisions are between the community of the “we” and those who belong outside it; between those who are included and excluded, accepted and unacceptable, and accordingly between the visible and the invisible, the sayable and the unsayable. What we think of as politics – limited deliberation in designated institutional spaces – usually consists in argumentation and negotiation around these divisions, undergirded by some “common sense” or consensus. True politics, by contrast, is about upsetting the dominant distribution of the sensible. Politics takes place when in moments of dissent “the part of no part” – those who normally should not be seen or heard – intervene in the established system of meanings, questioning it, and by that questioning insisting on their equality with others as political subjects and members of a broader “we”. For example, at this year’s March for Choice, the comedian Tara Flynn spoke movingly about Ireland’s abortion regime. In a lighter moment, she noted that reproductive rights campaigns were often construed in the public sphere as a ‘women-y fringe-y thing”. But, she said, of the assembled pro-choice marchers, “we are not some women-y fringe-y part of society, we are society”. That sort of statement gestures in its own way to the intervention of the “part of no part” in the distribution of the sensible – it signifies how those silenced by the dominant public settlement around the abortion issue have insisted on being heard and included in spite of systems of mockery, shaming and discursive degradation which diminish and devalue them. From this perspective, the very point of politics is to disrupt decided orders of power and civility. There can be no ‘proper’ set of political actors who are more entitled or more qualified than others to engage in acts of political subjectivization; to demand a new political place. And equality, similarly, is not a determinate goal which can be finally achieved in any sense,  but something with limitless potential which is presupposed and constantly expressed or verified in our political actions. In intervening in the distribution of the sensible, the ‘part of no part’ refigures political space, making sayable and thinkable that which previously could not be said or thought.

The basic “moderate” claim which circulates within mainstream discourses of abortion law reform in Ireland is that women are not allowed to be ‘angry’ about the 8th Amendment. We are read as angry when we make urgent demands for law reform, or compose or share satirical barbs, or draw attention to the bodily injuries, the despair and pain inflicted by the law. And that attributed anger is dismissed as worthless, even when it may be visionary. As Sara Ahmed says, the refusal of oppressed groups’ attributed anger and the insistence that they ‘go along’ with dominant political modes of work – the insistence on gentler, even happier forms of political action – is a classic tactic of political exclusion. When we are angry, we are accused, not only of the irrationality which should disqualify us from political participation in the first place, but of threatening the smooth communication which supports the political bond. (In this respect, the dismissal of more militant strands of the movement for abortion rights betrays a certain sense of the liberal mainstream’s vulnerability – its fear of fragmentation). But, on Rancière’s account of the political, we create political community through conflict. The apparent incivility of the oppressed is not something to be tamed and disciplined: it is the point of politics. That being so, it is never clear that there is a “right” or “wrong” mode of entry into the political. Contests about the ways in which we can speak properly about issues of central importance to the community matter. And it may be that the more unsettled and scandalised those with the most power to regulate the agreed boundaries of the “we” become, the closer things are to the heart of the political. Moreover, if equality can never be finally achieved, then it is never clear that a political struggle is over. The demands of equality always exceed what has already been achieved. (This is the point of Marlon James’ recent interrogation of the Liberal Limit.)

Those who insist that abortion rights campaigners conduct themselves in ways which do not “annoy” or “upset”, or talk too much about bodies, or otherwise tend to excess, may claim – in the grand tradition of liberalism – to be defending politics’ essential virtue and decorum, and to be guarding the proper way of doing things from untamed or naive outsiders. But in so doing, they are merely attempting to reinforce their own powerful position within the police order; insisting on a politics which can only be conducted on their terms; turning politics into an insurance policy for their own privilege.

The Importance of the Women-y Fringe-y Excesses of Irish Pro-choice Activism.

Gay Marriage in Northern Ireland

 

Northern Ireland Assembly Votes to Legalise Same Sex Marriage” proclaimed the headline in The Guardian. Few headlines have promised so much more than the subsequent story delivers. For in spite of the one-vote majority in favour of a change in the law in Northern Ireland in the Assembly on Monday, the DUP’s invocation of a “petition of concern” (POC) on the issue meant that it was able to veto the introduction of same-sex marriage in Northern Ireland. As Gerry Lynch put it, ‘it still felt like a punch in the plexus to finally secure a democratic majority through years of hard work only for it to be vetoed undemocratically’. With rich irony the Northern Ireland Act provisions designed to protect minority groups against predatory applications of majority power have been turned into a means of stymieing reform aimed at delivering marriage equality.

It wasn’t supposed to be like this. With the spectre of the Northern Ireland Parliament’s permanent Unionist majority dominating the drafting of the arrangements for the Northern Ireland Assembly at the time of the Good Friday Agreement, POCs were intended to maintain consociationalism within Stormont by requiring a super-majority and cross-community support where Northern Ireland’s Unionist or Nationalist parties considered that a measure threatened the interests of their community. The ability of POCs to block any legislative change has instead seen them increasingly applied as a strong-arm tactic to prevent changes to the law with the aim of preserving the status quo or extracting concessions in return for a POC being lifted. DUP measures, indeed, appear to be block signed by party MLAs with the issue to which they are to be applied being added to the form at a later stage. Public confidence in the Stormont Assembly’s ability to address the needs of society in Northern Ireland has plummeted.

Whilst the DUP’s stance on gay marriage might be out of step with opinion polling across Northern Ireland, it remains popular with its own core supporters and so the political incentive to wield a POC (ahead of next year’s Assembly elections) remains strong. But if the democratic institutions in Northern Ireland remain so dysfunctional, will the courts intervene to permit gay marriage? Legal challenges to the limitations are already underway in the Northern Ireland High Court. The UUP leader Mike Nesbitt, whilst describing opposition to gay marriage as being on the “wrong side of history” (whilst maintaining his own vote against change), has told his party conference that he expects the new law to be forced upon law makers through the courts.

Forcing law reform through judicial decision could unblock this particular impasse. The need to react to an adverse court decision might help the Unionist parties to soothe the evangelical elements amongst their support base, being “saleable” as a long-resisted reform that was forced upon the parties. All the better if the judgment is not issued until after the Assembly elections. And for people who want to get married, a win is a win, and they are not likely to sniff at the courts forcing the pace of change.

So should the courts intervene? Under section 6 of the Northern Ireland Act the legislation of the Northern Ireland Assembly is not valid law if it is outside the legislative competence of the Assembly (a concept which includes making a law which breaches ECHR rights). But as the Northern Ireland Assembly has not made a law banning Gay Marriage, just failed to enact one allowing it, the general provisions of the Human Rights Act (and its incorporation of the ECHR into UK Law) will apply.

Whilst the ECHR includes a right to marry (Article 12) the Strasbourg Court has to date refused to rule that it is discriminatory for states not to apply this right to homosexual couples. In July, in its latest judgment on the issue, Oliari v Italy, the Court maintained that as only 11 of the 47 states signatory to the Convention had to date accepted same-sex marriage, there was no European consensus in favour of reading such a right into the terms of the ECHR. Many Unionist politicians picked up on this point in Monday’s debate:

The European Court of Human Rights has ruled that same-sex marriage is not a human right, so this is not a rights issue. (Gordon Lyons, DUP)

There is no human right recognised by the European Convention on Human Rights or the European Court of Human Rights to same-sex marriage. It therefore cannot be and is not a rights issue, nor is it an issue of equality. Rather, there is a worked-up, phoney demand for rights where none does or should exist. There is no equality issue here. (Jim Allister, TUV)

These same politicians will eagerly and angrily decry any effort by the Northern Ireland courts to change the law on human rights grounds. But Article 12 is not the only applicable ECHR right. The Court has established that the relationship of a cohabitating same-sex couple living in a stable partnership falls within Article 8 ECHR’s protection of “family life” (Schalk and Kopf v Austria), this might provide a basis for arguing that, as same-sex marriages concluded in other parts of the UK are treated as Civil Partnerships within the Northern Ireland jurisdiction, the awkward legal transformation of a marriage into a civil partnership as soon as someone steps off a ferry or plane amounts to discrimination.

Moreover, the definition of marriage in Northern Ireland law – “the voluntary union for life of one man and one woman to the exclusion of all others” – rests on a nineteenth century judicial decision, Hyde v Hyde (backed up by secondary legislation – the Matrimonial Causes NI Order 1978). By altering this definition the courts cannot be accused of tossing aside legislation enacted by elected lawmakers, a fact which might embolden any judge concerned about the political backlash resultant from such a decision. They also have a much freer hand in terms of their powers under the Human Rights Act than they would have had if the definition of marriage was contained in primary legislation, if they can be persuaded to move ahead of Strasbourg on the issue of Article 12.

This room for manoeuvre makes the gay marriage cases crucial tests for the role of the courts in Northern Ireland’s system of government. On a range of issues from gay marriage, to the ban on gay blood donations to the strict limitations on abortion, judges in Northern Ireland are increasingly being confronted with cases which highlight the blockages in the Assembly’s law-making process. Some might decide that the time has come to chivvy the Assembly along.

 

 

 

 

Gay Marriage in Northern Ireland