The Labour Party #repealthe8th Proposals: An Analysis

By Professor Fiona de Londras, University of Birmingham | E: | 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

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. 


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

The Green Party’s Reproductive Rights Policy: An Appraisal

By Professor Fiona de Londras, University of Birmingham E: 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 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.

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.





Legal Gender Recognition in Ireland

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

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

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

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

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

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

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

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

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

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

Rape and the Criminal Justice System

criminal courtsIn the past few days two alarming stories have emerged pertaining to the response of the criminal justice system to rape allegations in Ireland. Both, if accurately reported, provide further evidence of the failure of the Irish system to respond appropriately, in a way which respects the rights of victims satisfactorily. Continue reading

The Direct Provision Report: A Missed Opportunity

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

You can access the McMahon Report here.

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

Human Rights Obligations and Direct Provision Accommodation and Supports

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

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

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

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

The Direct Provision Report: The People Impacted

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

You can access the McMahon Report here.

The McMahon Report is one of the first attempts by the State to systematically explore the total numbers of persons who are in the protection process and leave to remain process, including those who have unsuccessfully sought protection and leave to remain and who are now subject to a subsisting deportation order. Such figures had not been available as a matter of course, meant that there were significant unknowns as regards numbers within the protection process (and related migration areas such as leave to remain and those subject to deportation orders).

Some of the headline statistics emerging from the McMahon Report include:

  • As of February 2015, the McMahon Report identified 7,937 persons who are in the protection process (49%), the leave to remain process (42%) and persons whose claim for protection and leave to remain was not granted, and who are subject to a deportation order (9%).
  • There are 3,876 persons within the protection process. 1,189 persons have been in the protection determination system for 5 years or more.
  • There are 3,343 in the leave to remain process; 2,530 persons have been in the leave to remain process for 5 years or more.
  • There are 718 persons subject to a deportation order. 628 persons have an outstanding deportation order for 5 years or more.


Of this 7,937 persons in the system, 3,607 (46%) live in direct provision accommodation. 4, 330 (54%) of persons live outside direct provision. As the McMahon Report notes: Continue reading

An IHRL-compliant post-8th Amendment Abortion Law for Ireland. #repealthe8th

The open-access journal feminists@law has today published the general scheme of the ‘Access to Abortion Bill 2015; a piece of model legislation drafted by a group of feminist academic lawyers and intended to regulate abortion in Ireland after repeal of the 8th Amendment.

The authors are: Mairead Enright, Fiona de Londras, Vicky Conway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Sheelagh McGuinness, Claire Murray, Sinead Ring and Sorcha Ui Chonnachtaigh.

  • The model legislation is here.
  • A short paper placing it in its constitutional and statutory context is here. This blogpost draws on that paper.

The legislation was originally drafted for Labour Women, which established a Commission for Repeal of the 8th Amendment in late 2014. Part of the work of that Commission was to produce proposed legislation which could regulate  abortion in the event that the 8th Amendment was removed from the Constitution. The Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this paper are those legal experts. Although drafted as part of the Labour Women Commission, and with some (limited) input from the other Commission groups, the proposed draft is that of the authors of this paper (working within the confines of our remit as ‘legal experts’ to the Commission) and not of the Labour Party or of Labour Women. It has not been adopted by the Labour Party or by Labour Women.

In drafting, we were guided by four principles.

  • First, and perhaps most importantly, we were determined to design a law that would regulate abortion in Ireland by primary reference to the bodily integrity, welfare, agency, autonomy and self-determination of pregnant women while still recognising a public interest in preserving foetal life where possible, with the pregnant woman’s consent. By achieving this, we hoped to express a legislative commitment to no longer viewing a pregnant woman’s body as the mechanism by which the State fulfils its perceived responsibilities towards the foetus, but rather as the body of a woman who maintains her agency and her constitutional rights notwithstanding her pregnancy. In that sense, we proposed a piece of law, which would aim to be transformative, to a significant degree, of the prevailing discourse around Irish abortion law. The point is not that we think foetal life is unimportant. Rather, we wanted to show what woman-centred abortion legislation would look like in an Irish context.  To that end, we inserted key Guiding Principles in Head 3 that should be applied whenever the legislation is being interpreted or applied. These radically shift the approach to abortion from that the status quo. Head 3 provides:

(1) Access to abortion is guaranteed in accordance with the provisions of this Act.

(2) In making any decision under the Act, or in providing medical care and services under this Act, the Heads shall be interpreted in the manner most favourable to achieving positive health outcomes for the pregnant woman, and to the protection of her rights, including the rights to:

a. life;
b. freedom from torture, cruel, inhuman and degrading treatment;
c. bodily integrity and autonomy;
d. self-determination, including the right to informed decision-making in relation to medical treatment;
e. private and family life, including the right to privacy;
f. health, including the right of access to appropriate health-care in a safe, prompt and timely fashion, and the right of access to healthcare information.

(3) Access to abortion services will not be impeded because of race, sex, religion, national, ethnic or social origin, disability, HIV status, marital or family status, immigration status, sexual orientation, age, birth or other social status.

(4) Sustaining embryonic and foetal life in pregnancy is an important social role, which should be voluntary and consensual.

That said, this is not pro-choice legislation in the ‘free safe and legal’ mould, not because the authors are not pro-choice (we are), but because we were drafting for the Labour Party, which is not, as yet, committed to providing free, safe and legal abortion after repeal of the 8th Amendment. (The explanatory notes to the draft legislation highlight points at which we feel the legislation may be too conservative). Bearing in mind the restrictions entailed in drafting abortion legislation for a political party in Ireland at the time, we strayed beyond mainstream political consensus to the extent that we felt European and international human rights law clearly enabled us to do. As such, we suggest that our draft law may represent a useful yardstick against which to measure later legislative proposals by a future Irish government.

  • Second, the proposed law designates grounds for abortion which, to a significant degree, challenge the mainstream consensus on what a new Irish abortion law should contain. Politicians advocating for reform have tended to accept that a new law should permit abortion not only on grounds of risk to the life of the woman, but on the grounds that the pregnancy has come about through incest or rape, or that the foetus is incapable of surviving outside the womb. There is also some agreement that abortion should be available on a limited ‘health’ ground – certainly one which would reassure doctors that they could act to end the pregnancy of a seriously ill woman whose life is not at risk. Our proposed grounds go somewhat beyond such mainstream consensus. In particular :
    • we do not provide for a separate rape ground, in order to avoid any suggestion that a woman should be required to prove that she has been raped or to participate in any criminal process;
    • we provide for two health grounds: a simple one applicable in early pregnancy, and a requirement to prove severe or disabling damage to health in later pregnancy and
    • we do not confine the foetal anomaly ground to situations in which the foetus is certain to die within the womb if the pregnancy continues.
  • The proposed law aims to enshrine an approach to medical practice that replaces pro-natalist paternalism with a welfare orientation, seeing the pregnant woman as the patient and abortion as a medical procedure. This is intended not only to nudge a reorientation of Irish maternal medical practice, but also to empower medics to follow the course of medical treatment that they believe is best for their primary patient (i.e. the pregnant woman) as determined by doctor and patient together.
  • We were concerned that the legislation should ensure—to the extent possible—that abortion is actually available in practice, while also respecting the deeply held convictions of members of the medical profession and of the public in respect of the status of the ‘unborn’.This was of fundamental importance. It is quite clear that the legal availability of abortion can be frustrated by harassment, unregulated conscientious objection, and failure to provide services. In order to try to achieve this we focused on three areas: conscientious objection, provision of services and protection of locations in which services are provided, and review of negative decisions as to the availability of abortion in any particular case.

We have published our proposals on an open-access basis for discussion, debate and development by all interested parties.