Supplementary Welfare Allowance and Direct Provision

The Ombudsman has release her report, Appeal Overruled: A failure to provide basic income for a family seeking asylum.  This report related to the refusal of a Superintendent Community Welfare Officer to implement in full a decision of an Appeals Officer that an asylum seeker was entitled to the full rate of supplementary welfare allowance, a basic income paid to all whose means do not meet their needs. The complainant arrived in Ireland prior to 2009 so was not excluded, as such, from receiving supplementary welfare allowance, however was placed within the direct provision system (see here for extensive evaluations of the direct provision system). The complainant left for very serious personal and health reasons. Despite decisions of social welfare Appeals Officers being “final and conclusive“, the decision was not implemented for 13 months and the Superintendent CWO decided, without ever putting this issue to the complainant, that she was not habitually resident. The actions of the Superintendent CWO, seeking to undermine the decision of an Appeals Officer and making unwarranted assumptions about the ‘high quality’ of the direct provision accommodation that the complainant left (after a suicide attempt by her daughter) came in for particular criticism from the Ombudsman.  It also should be noted that the actions of other employees of the HSE, social workers and Child and Adolescent Mental Health Service, were praised for their actions. The decision of the Superintendent CWO to refuse to abide by the decision of the Appeals Officer was “incorrect and without justification”. The Ombudsman recommended that a consolatory (time and trouble) payment of €3,000 be made to the complainant due to the actions of the HSE and noted the severe impact that the non-payment of supplementary welfare allowance had had for this complainant and her family. In concluding her analysis, the Ombudsman noted:

….[I]n finalising this report, the Ombudsman has been aware of the significant and growing public unease regarding the arrangements for asylum seekers in this country. More and more questions are being raised now about the appropriateness of  the ‘Direct Provision’ arrangements particularly as they impact on family life, on mental health and on the welfare of children. However the Ombudsman, on the basis of one investigation cannot purport to make a finding on this general issue.

Towards Legality in Direct Provision

Asylum seekers have been excluded (since the Social Welfare and Pensions (No. 2) Act 2009) from receiving supplementary welfare allowance. When direct provision was introduced, it was purportedly done under the supplementary welfare allowance scheme (see the  Free Legal Advice Centre‘s extensive work on this issue here and my 2007 article on direct provision here ), with accommodation and food in kind, and a small allowance to make up the total maximum payment that can be made under the supplementary welfare allowance scheme. I would argue that since 2009, whereby asylum seekers are now absolutely prohibited from receiving supplementary welfare allowance, there is no legal basis for the Department of Social Protection to continue to make the small monetary payment of €19.10 per week per adult and €19.10 per week per child.   In recent weeks, Senator Jillian van Turnhout and Derek Nolan TD have raised the issue of direct provision in the Oireachtas. Senator van Turnhout asked the Minister for Justice what the legislative basis for the payment of €19.10 per week is, given that the 2009 Act excludes asylum seekers from receiving supplementary welfare allowance.  The Minister for Health (standing in for the Minister for Justice) stated that direct provision was merely an administrative scheme for which there was no need to have any legislative basis . The Minister for Health noted that:

…flexibility and adaptability of the direct provision system would not be assisted but, possibly, hindered by specific legislation underpinning it.

In response to Derek Nolan’s question, the Minister for Social Protection, Joan Burton TD stated:

Following the introduction of the statutory habitual residence condition in May 2004 and subsequent legislation, asylum seekers are not entitled to receive most social welfare payments. The payment of the weekly direct provision allowance is made on an administrative basis by this Department on behalf of the Department of Justice and Equality.

So the core argument emerging from government ministers, is that direct provision payment is a wholly administrative scheme  unrelated to legislative provision of supplementary welfare allowance.  Successive Ministers for Social Protection have stated that the €19.10 per week per adult/€9.60 per week per child, is a supplementary welfare allowance payment (see here and here).

In addition, Article 35 of the Social Welfare (Consolidated Supplementary Welfare Allowance)Regulations 2007 headed ‘Non-Cash Benefits’ states that where asylum seekers made an application for supplementary welfare allowance (prior to the 2009 Act) the following would be excluded:

 …the net cash value to the person of meals, accommodation and related services provided under a scheme administered by the Department of Justice, Equality and Law Reform and known as direct provision, where the costs are met in full by the State.

The approach of successive governments towards direct provision and their failure to grasp the issue by the neck, now means that at the very least, the Department of Social Protection are acting outside its powers and contrary to the Social Welfare and Pensions Act 2009 by providing the €19.10 per week to asylum seekers (regardless of whoever the Department of Social Protection believes it is acting for). The approach of the current government, in seeking not to provide a legislative basis for direct provision accommodation and direct provision payment, is part of an overarching strategy since the introduction of direct provision to ensure that asylum seekers in Ireland lack the most basic of rights. While government ministers correctly point out that we have international obligations to ensure that asylum seekers are not destitute while their protection claims are being assessed, this must be done so in a manner that complies with Irish social welfare law. There is an urgent need to ensure that if the government is to continue to utilise the system of direct provision to meet our international obligations, clear legislation is introduced that sets down the right of asylum seekers to access direct provision. It is hoped that it will not take a full investigation by the Ombudsman to highlight to government the totally unsatisfactory nature of the administrative-legal regime that governs direct provision.

Dear Editor,

We understand that the Minister for Health has been advised that it is not possible to include terminations for fatal foetal abnormality in the Protection of Life During Pregnancy Bill, 2013. With respect, our initial response is to disagree. It is possible to interpret Article 40 3 3 so that the ‘unborn’ that is protected therein does not include those foetuses with fatal abnormalities. The Irish courts have not considered this legal issue and there is no binding precedent excluding such an interpretation.

Moreover, the Legislature has the power, and the duty, to legislate under the Constitution. When Justice McCarthy criticised the Legislature for failing to regulate the terms of Article 40 3 3 in the X case in 1992, he was speaking of a duty that existed prior to that case. The interpretation and regulation of Article 40 3 3 is not limited to the circumstances which arose in X. That case showed how the general principle, of vindicating unborn life with due regard to the equal right to life of the mother, justified a termination in the particular circumstances of suicide risk. A different set of factual circumstances, such as those of fatal foetal abnormality, could also legally justify a termination of pregnancy given that these ‘unborns’ will not live once born. Therefore, it is within the Legislature’s power to act on this possibility and regulate for these circumstances.

The State used this legal argument to defend itself against the unsuccessful claim of Deirdre Conroy in the European Court of Human Rights, as she explained in The Irish Times on 31 May 2013. The High Court declined the opportunity to address this argument in D v HSE. The Court ruled instead that D, who was pregnant with an anencephalic foetus, could travel for a termination of pregnancy. The women of Termination for Medical Reasons, including Ruth Bowie and Arlette Lyons, have spoken publicly of being unable to access the healthcare they wanted in Ireland when their pregnancies were found to be unviable. In these circumstances, the Legislature has a moral as well as a legal duty to act now and include abortion for fatal foetal abnormalities within the Bill.
We urge the Minister to publish his legal advice on this issue so that it can be assessed and discussed. We ask the Minister to reconsider his position and to minimise the suffering of those women and couples who wish to end their unviable pregnancies at home.

Sincerely,

• Ruth Fletcher, DJur, Senior Lecturer in Law, Keele University
• Mary Donnelly, PhD, Senior Lecturer in Law, University College Cork
• Mairéad Enright, MA, BL, Lecturer in Law, University of Kent
• Eimear Spain, PhD, Lecturer in Law, University of Limerick
• Jennifer Schweppe, LLM, Lecturer in Law, University of Limerick
• Siobhán Mullally, PhD, Professor of Law, University College Cork
• Fiona de Londras, PhD, Professor of Law, University of Durham
• Fionnuala ni Aolain, PhD, Professor of Law, University of Ulster and Visiting Professor, Harvard Law School
• Marguerite Bolger, MLitt, Senior Counsel, Law Library, Dublin
• David Capper, PhD, Reader in Law, Queen’s University Belfast
• Vicky Conway, PhD, Lecturer in Law, University of Kent
• Louise Crowley, PhD, Lecturer in Law, University College Cork
• John Danaher, PhD, Lecturer in Law, Keele University
• Michael Doherty, PhD, Lecturer in Law, Dublin City University
• Catherine Forde, BCL, Barrister at Law, Law Library, Dublin
• Marie Fox, LLM, Professor of Socio-Legal Studies, University of Birmingham
• Patrick Hanafin, PhD, Professor of Law, Birkbeck College, University of London
• Maebh Harding, PhD, Senior Lecturer in Law, University of Portsmouth
• John Harrington, BCL, Professor of Law, Cardiff University and Visiting Fellow, African Population and Health Research Centre, Nairobi
• Barbara Hewson, MA, Barrister at Law, Lincoln’s Inn, London
• Sarah Houlihan, LLM, Barrister at Law, Women’s Link Worldwide
• Julie F Kay, Lead Counsel for A, B, and C in ABC v Ireland
• Susan Leahy, PhD, Lecturer in Law, University of Limerick
• Julie McCandless, PhD, Lecturer in Law, London School of Economics
• Natalie McDonnell, MPhil, Barrister at Law, Law Library, Dublin
• Sheelagh McGuinness, PhD, Research Fellow in Law, University of Birmingham
• Kathyrn McNeilly, LLM, PhD candidate in Law, Queen’s University Belfast
• Thérese Murphy, LLM, Professor of Law, University of Nottingham
• Claire Murray, PhD, Lecturer in Law, University College Cork
• Colin Murray, MJur, Senior Lecturer in Law, Newcastle University
• Aoife Nolan, PhD, Professor of International Human Rights Law, University of Nottingham
• Colm O’Cinnéide, PhD, Reader in Laws, University College London
• Catherine O’Rourke, PhD, Lecturer in Human Rights and International Law, University of Ulster
• Catherine O’Sullivan, DJur, Lecturer in Law, University College Cork
• Sara Ramshaw, PhD, Lecturer in Law, Queen’s University Belfast
• Sinéad Ring, PhD, Lecturer in Law, University of Kent
• Fergus Ryan, PhD, Lecturer in Law, Dublin Institute of Technology
• Yvonne Scannell, PhD, Professor of Law, Trinity College Dublin
• Olivia Smith, PhD, Lecturer in Law, Dublin City University
• Mark Tottenham, BA, Barrister at Law, Law Library, Dublin
• Sorcha Uí Chonnachtaigh, PhD, Lecturer in Ethics, Keele University
• Judy Walsh, LLM, BL, Lecturer in Social Justice, University College Dublin
• Darius Whelan, PhD, Lecturer in Law, University College Cork

We are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog.  The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

Ireland is one of many countries that is being put through the mill of so-called austerity measures. Cuts all across public services, including in health and education, as well increased unemployment and personal debt are having a severe impact on society. David Stuckler and Sanjay Basu have convincingly argued in their recent book that “austerity kills”. The devastating effects of austerity can actually be measured in lives, specifically the observable increase in suicide in countries such as Greece since the enforced cutbacks. According to Dan Neville, the President of the Irish Association of Suicidology:

The recession has had a huge impact on people’s wellbeing. Those who lose their jobs, experience a drastic reduction in their income or are in danger of losing their home experience a lot of anxiety, despair and depression. Relationship difficulties and marriage breakdown can follow on from that.

The drastic cuts in public spending have been mandated by the EU and IMF as part of the bailout deal for Ireland. The size of Irish sovereign debt is owed in large part to the previous Government’s decision to socialise the huge debts incurred by the banks when the property bubble burst. In the midst one of the worst economic recessions Ireland has ever known comes the revelation that multinational corporations based in Ireland have been avoiding tax on an enormous scale.

As widely reported, a United States Senate Report has shown that Apple struck a deal with the Irish Government in the 1980s that has meant the company has paid far less corporation tax on profits in Ireland than the standard rate. For some of its Irish-based subsidiaries it has paid no corporation tax whatsoever. From 2009-2011, the Senate Subcommittee was told, Apple Sales International “paid an Irish corporate income tax rate that was consistently below far below 1% and, in 2011, was as low as five-hundreds of one percent (0.05%)”. For the last four years, that subsidiary had income of around $74 billion but paid hardly any tax. Another subsidiary, Apple Operations International, made $30 billion and despite being based in Ireland, paid no tax here or indeed anywhere else.Boston Scientific paid only 4% corporation tax in Ireland on recent profits of $1.6 billion.

Ireland had been labelled a tax haven before all this emerged, and the label is bound to stick now that the US Senate has used it, despite the protestations of the Ambassador to the US andbusiness representatives. Oxfam Ireland have highlighted that the problem goes beyond corporate tax and considers that over €700 billion from overseas could also be hidden in Irish financial institutions. While huge sums of tax go unpaid in Ireland, ordinary citizens are forced to endure cuts to public services and increased taxes and charges for the foreseeable future.

The Government and the companies themselves will argue that they are acting within the law, that they have done nothing illegal. That may be so, but it is hardly satisfactory. One of the co-founders of Apple, Steve Wozniak, explained to an audience in Derry last month:

For a corporation there is no such thing as personal ethics, you will do anything, any scheme you can to maximise your profits, so they are just obeying the system … The system is that way because those with the power and the money, large corporations particularly, make sure that politicians can create the things that will enhance the corporations.

The Irish Government has gone to considerable lengths to ensure a low corporation tax rate in order to encourage foreign direct investment. Ciara Hackett has written that Ireland has developed such a dependency on foreign direct investment, that very little can now be done to impose any social responsibility on multinational corporations.

Seen through the lens of human rights law, Ireland is falling short of its international obligations. Ireland is obliged under the International Covenant on Economic, Social and Cultural Rights to take steps for the progressive realisation of those rights to “the maximum of its available resources”. The State will no doubt argue that the dire financial situation means less resources are available for public services. The Committee of Economic, Social and Cultural Rights has said that it will give “deliberately retrogressive measures … the most careful consideration“. In assessing a State’s performance, it will take into consideration the use of maximum available resources, the economic situation in the country, as well as “other serious claims on the State party’s limited resources”, such as conflict or a natural disaster.

The interpretation of “maximum available resources” should not be limited to public money, but must include all the wealth within a State when assessing compliance with the Convention. The connection between tax and human rights has been subject to considerable attention recently. According to the Tax Justice Network Germany:

One of the greatest obstacles to an exhaustive use of the maximum available resources is the current regime of taxing transnational corporations.

In particular, the use of transfer pricing and intra-group trading, so evident in Apple’s case, facilitates the avoidance of tax. A uniform corporate tax base would help to correct this, as would strengthening the human rights responsibilities of companies set out in the United Nations Framework and Guiding Principles on business and human rights.

This tax scandal shows that the social responsibility of business in Ireland is given the narrowest of meanings. Milton Friedman infamously said that the only social responsibility of a company is to increase its profit. Paying less taxes does just that, despite the impact on society.

We are delighted to welcome this guest post by Sheona York. Sheona is a Clinic Solicitor at the Kent Law Clinic  which is based at Kent Law School.

The recent and proposed cuts to legal aid in England and Wales represent a profound attack on the rule of law. The proposed cuts will significantly limit access to criminal legal aid, and virtually abolish legal aid for migrants and non-EU citizens seeking to redress alleged civil wrongs, including people suing the Government for alleged wrongful treatment at the hands of British state actors overseas. This blog outlines key problems with the proposed cuts from the perspective of migrants.

The cuts introduced on 1^st April, 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2102) and the proposed further cuts to civil legal aid  will make it hard for anyone without money to challenge poor United Kingdom Border Agency (UKBA) decision-making. More details can be found in my recent article in the Journal of Immigration Asylum and Nationality Law, “The End of Legal Aid in Immigration – A Barrier to Access to Justice for Migrants and a Decline in the Rule of Law” (citation: JIANL 2013 vol 27 no 2; available on Westlaw and other legal databases).

LASPO 2012 removes legal aid for immigration issues except:

• Asylum and humanitarian protection claims
• Claims by victims of trafficking who have been formally accepted as trafficking victims
• Claims by victims of domestic violence who can show specified evidence, such as a police report, a court injunction or medical evidence
• A claim against unlawful detention (but not for the immigration issues underlying the detention)

The MOJ consultation paper ‘Transforming Legal Aid’ aims to introduce competitive tendering into criminal legal aid. However, other changes would virtually remove access to justice both civil and criminal from all but a few migrants. Importantly, access to justice would be removed from those who formally should continue to qualify for help. The crucial proposals are 2:

1.    A residence test for all legal aid.

a. This aims to bar access to legal aid to ‘visitors’ and ‘those who have never set foot in the UK’, but, by proposing to require at least 1 year’s lawful residence in the UK, would in practice cut off access from many who would remain entitled. This is because the UKBA’s records are so inaccurate and their bureaucracy so inefficient that it cannot accurately confirm whether or not a person has the legal right to be in the UK[1], and, for many, it would require a good immigration lawyer to ascertain whether someone has the legal right to remain or not. People affected include (not an exhaustive list):

i.     Long-term resident Commonwealth citizens with the right of abode, and no documents

ii.     Children born in the UK of migrant parents, or who arrived in the UK as children, who are not in touch with their parents: who may have leave to remain – or British  citizenship – and not know this

iii.     EEA nationals and their family members, who are not required to make any application for permission to stay, or to hold any document showing their rights

iv.     Those granted refugee status or humanitarian protection who have not yet had that status for 1 year

v.     Child asylum-seekers refused asylum but granted discretionary leave to remain, who have not yet had that status for 1 year

vi.     People who have made in-time applications to the UKBA for further leave to remain, whose paperwork is stuck in a backlog, undecided and inaccessible

b. Even the exclusion of ‘visitors’ and ‘those who have never set foot in the UK’ represents an attack on access to justice and the rule of law.

1. i.     A visitor to the UK may well face being accused of a crime and require legal assistance with their defence, or suffer a civil wrong where legal action if carried out by a British citizen would be eligible for legal aid, such as domestic violence or wrongful eviction. These proposals are effectively saying that it is acceptable to wrongly accuse a foreign visitor of a crime, or inflict a civil wrong on them.

1. ii.     Far more important is the proposal to exclude ‘those who have never set foot in the UK’. This would exclude anyone subject to UK state action overseas, such as those detained and ill-treated by British forces in Iraq or Afghanistan, or those who suffered torture at the hands of UK colonial administrations such as the Mau Mau activists in Kenya, and is clearly aimed to exclude any further claims from such groups. The effect of this would be to leave those victims without a legal remedy – which, apart from leading to injustice for individuals, would inevitably contribute to festering resentment and even violent action against UK troops, bureaucrats and businesses in current and future war zones.

2. To put all legal work on judicial review claims at the financial risk of the legal aid provider, who would not be paid for any casework unless and until formal permission to proceed to a full hearing is granted by the High Court. This is a pernicious and direct attack on the rule of law and will particularly affect all individuals subject to State decisions and actions, especially immigration and asylum decisions, which amount to around 2/3 of all judicial review applications (around 8000 out of around 11,000 applications last year)[2]. The high proportion of legal challenges against the UK immigration and asylum system is not surprising: the Home Office has faced major criticisms for more than a decade[3]. In 2006  John Reid, Labour Home Secretary, discovered a backlog of 450,000 unresolved asylum claims, and over 100 ‘foreign national prisoners’ who had not been deported at the end of their sentence. He declared the Home Office ‘not fit for purpose’, and set up the UK Border Agency as an arms-length agency. As the recent report to the Home Affairs Committee[4] shows, very little has changed, and the current Home Secretary has decided to take immigration and asylum back into the Home Office[5], clearly with little confidence that the problems of delays, backlogs and poor decision-making will be solved, since this MOJ proposal will remove individuals’ ability to challenge its decisions. This is because the majority of immigration and asylum judicial review applications do not reach the permission stage. Precisely because of the endemic poor management and decision-making in the UKBA, a desperate migrant’s only legal recourse is to issue a judicial review claim, and the first time a case is properly looked at is when the UKBA’s lawyers[6] receive the claimant’s court application. Very often the illegality is clear, and a settlement is offered, agreeing to look at the claimant’s case properly and in a timely manner. Thus many immigration and asylum judicial reviews are compromised by the Secretary of State precisely because the decisions are clearly wrong. Other classes of claims, such as where many claimants’ applications are stayed behind a test case (such as whether removal of asylum-seekers to Greece was lawful), never reach the permission stage, but are settled when the main case is settled. For these reasons very few immigration and asylum judicial review claims carried out under legal aid would receive payment. This would render virtually all judicial review work uneconomic on legal aid and leaving migrants with no effective recourse to the court.

Conclusion

Over 5000 responses were made to the 2010 proposals which resulted in LASPO 2012: virtually none were in favour[7]. Around 13,000 responses have been made to ‘Transforming legal aid’, and those opposed include institutional defendants such as Treasury Counsel (government lawyers) and local authority housing and social services departments as well as migrant campaigning groups, advice agencies and lawyers. It appears that as well as not caring about the likely increased costs and inconvenience, the government does not understand, or does not care, about access to justice and the impact of the rule of law. But the effects on society, on our respect for the law and legal processes, will be severe.

As most are now aware, in an article published on June 6, the Guardian reported that the US National Security Agency is currently collecting the telephone records of millions of users of the telecommunications company Verizon. The following day the press revealed that the NSA had directly accessed information from the systems of technological giants such as Apple, Facebook,and Google. The “Prism” programme allows the NSA to collect material including search history, the content of emails, file transfers and live discussions. Almost simultaneously Google and Facebook denied the existence of the Prism programme, while President Barak Obama has confirmed that the programmes exists.

These disclosures have made headline news worldwide over the past week. An unexpected twist to this story arose this weekend when it was revealed that a 29 year old contractor for Booz Allen Hamilton, a large US based defence contractor and former CIA technical assistant named Edward Snowden was the source of this information and that he has currently based himself in Hong Kong.  By revealing his identity Mr Snowden has exposed himself to potential prosecution in the US. The chairman of the US House of Representatives homeland security subcommittee, Peter King, has already called for Mr Snowden’s extradition and a spokesman for the director of national intelligence has stated that

“Any person who has a security clearance knows that he or she has an obligation to protect classified information and abide by the law.”

Mr Snowden has stated that he came to Hong Kong because “they have a spirited commitment to free speech and the right of political dissent”. But what protections exist in Hong Kong for someone like Snowden? This case presents an opportunity to reflect on the Hong Kong’s current extradition and asylum regimes.

Protection in Hong Kong

As previously discussed, Hong Kong is a Special Administrative Region of China (HKSAR). China resumed sovereignty over Hong Kong in 1997 after almost 150 years of British colonial rule. Under the Hong Kong Basic Law, the HKSAR government has control over immigration matters and the right to develop its own laws and policies. While China has responsibility for foreign relations and defence, Hong Kong operates under different political and legal systems and maintains an independent judiciary and a common law framework.

Hong Kong concluded an extradition agreement with the US just before Hong Kong’s reversion to Chinese sovereignty in 1997. The treaty states that the executive authority of Hong Kong reserves the right to refuse surrender when the requested extradition relates to “the defense, foreign affairs or essential public interest or policy of the PRC”.  Article 3(5) provides that in cases in which extradition is refused on the grounds of its relation to defense, foreign affairs or essential public interest or policy, the requesting Party may ask that the case be submitted to the competent authorities of the requested Party who will consider whether to bring a prosecution. However both Countries have expressed their shared intention that this Article would rarely be invoked.

If the US were to invoke the extradition treaty against Mr Snowden he might rely on two separate, but parallel paths for protection from removal: these include a Refugee Status Determination (RSD) screening mechanism for refugee claimants conducted by UNHCR and a screening mechanism for torture claimants set up by The Hong Kong SAR government in 2004 in order to meet its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The authorities enhanced the CAT screening mechanism in 2009 and adopted legislation governing the scheme in 2012. Despite these developments, the effectiveness, transparency and fairness of the CAT mechanism have been called into question in large part due to its low rate of recognition, which at the last count was 5 recognitions out from approximately 12,000 applicants.

A high percentage of CAT claims in Hong Kong are initiated by a person writing to the Director of Immigration after arrest or when resisting deportation on the grounds that they are at risk of being tortured upon return to a particular country. Torture claims are processed by the Shatin Torture Claim Assessment Section (TCAS). As a matter of policy, the Director of Immigration will not entertain a person’s torture claim until a person has “overstayed” and is therefore unlawfully present in Hong Kong. If you still have a valid visa, your application will not be considered. This policy has been subject to criticism because an individual is effectively forced to commit an immigration offence, rendering them liable to prosecution and detention, before they can make a torture claim.

Although China has ratified the 1951 Refugee Convention and its 1967 Protocol, these instruments have not been extended to Hong Kong and there are no national or municipal laws that provide protection specifically for refugees. While the HKSAR does not to grant asylum in the sense of allowing local integration, refugee claimants are not simply expelled to their countries of origin. A Memorandum of Understanding between the authorities and the UNHCR has allowed the UNHCR to complete refugee status determination of asylum seekers in Hong Kong, independently of the Hong Kong government.

A previous post on the HKRAC blog explained that refugees often have to leave their countries in hurry, with limited means and little or no planning. “Push factors”, such as civil war, torture or repression, are the main driving force behind a refugee’s flight. Asylum seekers often come to Hong Kong as a point of transit, and do not intend to stay. For various reasons, however, they are often forced to remain rather longer than they had originally expected. Sometimes, in desperation, asylum seekers pay agents exorbitant fees without fully knowing where they will eventually end up. Many have not have ever heard about Hong Kong before arriving.

The United Nations High Commissioner for Refugees (UNHCR) Sub-Office in Hong Kong currently conducts RSD for persons claiming asylum. However, the UNHCR, which operates on a limited budget, assumes this role because the HKSAR has not accepted its own responsibilities. UNHCR’s RSD process is fraught with procedural problems. For example, it lacks an independent appeals mechanism and the HKSAR courts cannot judicially review UNHCR’s decisions.

The 1951 Convention relating to the Status of Refugees defines a refugee as:

Any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country

If Mr Snowden were to apply for asylum before the UNHCR in Hong Kong the Director of Immigration would likely follow established practice and afford him temporary refuge until the UNHCR has completed a determination of his claim. This is in keeping with the principle of non-refoulement as reflected in Article 33(1) of the Refugee Convention which prohibits the expulsion or return of ‘a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.

While the Convention has not been extended to Hong Kong and Article 33 had no direct application, the Hong Kong Court of Final Appeal has held – in a landmark judgment in C,KMF and BF v Director of Immigration and Secretary for Security (FACV Nos. 18/19/20 2011) handed down in March 2013 –that high standards of fairness are required in this context since the determination of the claim is one of momentous importance to the individual concerned and involves fundamental human rights. This decision could result in the foundation of a unified, government-led protection screening mechanism implemented in Hong Kong. In another judgment handed down in December 2012, the court confirmed that Hong Kong also has a duty to refrain from sending individuals to places where they might face cruel, inhuman, and degrading treatment or punishment – a concept that is much broader than “torture”. The Hong Kong authorities have not yet announced how they will respond to these decisions which require enhanced protection for refugees and others who fear serious harm if repatriated. The system is, as such, currently in a state of flux.

One of the key issues with the current dual system is the length of time it takes to process claims. For asylum seekers, many of whom have undergone terrible trauma before they arrived in Hong Kong, it means years of living in uncertainty. In a joint position paper produced in 2009 and recently repeated in February 2013,the Hong Kong Law Society and Bar Association have called on the Hong Kong SAR Administration to put in place a comprehensive legislative framework to ensure high standards of fairness when screening claimants under CAT and determining refugee status. HKRAC and other NGOs working on behalf of refugees in Hong Kong have long advocated for the creation of a single, government-led unified mechanism to process both refugee status determination and torture claims. It is unknown at present what role the UNHCR will play in any future system. Given that the judgment only deals with the issue of non-refoulement and not resettlement (and other, associated rights) the UNHCR will probably need to remain in some capacity.

Fleeing persecution is not a crime. The right of everyone to seek and to enjoy in other countries asylum from persecution is guaranteed in Article 14 of the 1948 Universal Declaration of Human Rights. Many people in Hong Kong have family members, friends and loved ones who indeed, at one point in their lives, were refugees, coming from mainland China in the 1950s. Hong Kong should have solidarity with refugees, but unfortunately, they are frequently met with fear, mistrust or outright rejection. Because myths propagate hostilities and discrimination, ending them is all the more crucial for achieving a more just and tolerant society. While we cannot know what step Edward Snowdon will take next, what his case does highlight is the fact that any person, from any part of the world, can find themselves seeking refuge from an oppressive government in the blink of an eye.

We are very pleased to welcome this guest post from Helen Fenwick who is Professor at Durham Law School. Helen is an expert in civil liberties, human rights and counter-terrorism law. She is also an expert advisor for Liberty and has been involved in policy development at national and international levels.  This post is also published at Inherently Human

This post concentrates on Article 8 ECHR to argue that it can be viewed as sympathetic to feminist goals since, due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life, it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg. in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women, and unlike Article 14 (the guarantee of freedom from discrimination), which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights, Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Other ECHR Articles are also relevant. Article 3 would also support recognition of positive obligations, (see McGlynn, Clare (2009) ‘Rape, torture and the European convention on human rights’ ICLQ 58 (3)) including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found, a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands).

Using Article 8 ECHR to advance women’s interests

Under one strand of feminist thinking, it might be argued that the ECHR in general has little to offer women (see, for discussion, Grabham and Hunter ‘Encountering Human Rights’). This is due to a judicial approach to it that values modes of thought that may marginalise women and which pays little attention to ideas about feminist legal method (see Samuels ‘Feminizing  human rights adjudication’), combined with the difficulty of using specific cases to address complex social problems. But, as a number of writers have pointed out, especially recently (see Bauer, ‘Documenting women’s rights violations by non-state actors’), human rights principles can be used as a campaign tool in influencing and mobilising public and community opinion. The use of campaigning methods by feminist advocacy groups, as instanced in the recent successful campaign to remove gender-based hate speech from Facebook, does not preclude mobilising legal channels as a complementary means of disrupting existing social norms adverse to women via deployment of such principles, allowing gender-specific variants of rights’ violations to be recognised. At the same time, the difficulties facing women who seek to use the ECHR should not be under-stated, and Article 8’s protection for family life is gender neutral at face value, meaning that it can also be invoked in ways that could put women and girls at risk by discouraging state actions interfering with family life that are designed to protect vulnerable women (for example, claims by family members convicted of offences relating to domestic violence, including ‘honour’ murder, that post-sentence they should not be deprived of access to surviving family members in furtherance of their family life, as occurred, albeit unsuccessfully, in Ahmad v Brent).

So, in what ways does and could Art 8 especially benefit women and girls?  This blog obviously cannot offer by any means an exhaustive list – each of these matters is complex and has already spawned quite an extensive literature in itself in relation to international human rights’ law – so they can only be touched on here.

Preventing deportation to face adverse treatment based on gender

EM (Lebanon) (FC) (Appellant) (FC) v SSHD concerned a woman who had suffered domestic violence from her husband; as Lord Bingham noted, he had ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children (para 22). Under Shari’a law as applied in Lebanon, during the first seven years of life, when a male child is cared for by the mother, the father retains legal custody and may decide where the child lives. The transfer to the father at age 7 is automatic: the court has no discretion in the matter and is unable to consider whether the transfer is in the best interests of the child. As a result, Lord Bingham pointed out, women are often constrained to remain in abusive marriages for fear of losing their children (para 24). The evidence was that no family life had been established in Lebanon between the child and his father or his father’s family; it was found that the father had shown no interest in him. The applicant had managed to leave Lebanon with her son and resisted deportation from the UK on the basis of her Article 8 right to respect for family life; as this was a ‘foreign’ case, she had to show that a flagrant violation of Article 8 would arise due to the impact on her family life if she was returned to Lebanon, taking into account that the only family life that had been established was between mother and son. The Lords agreed that on return to Lebanon both the appellant’s and her son’s right to respect for their family life would be flagrantly violated in the sense of being ‘completely denied and nullified’.

Expulsion to face the risk of extremely serious adverse treatment on grounds of gender – ‘honour’ murder (see A.A and others v Sweden) or FGM (Omeredo v Austria) – has been found to fall within Articles 2 or 3. But their status as unqualified or non-materially qualified rights inevitably carries with it the need to show a high threshold of harm, and so places women under serious evidential difficulties, meaning that bringing the claim also under Article 8 (alone and/or combined with Article 14) may be advantageous in such instances.

 Domestic violence – requirement of effective investigations and prevention

 Bevacqva and S v Bulgaria concerned a woman who had been attacked on a number of occasions by her husband and claimed that her requests for a criminal prosecution were rejected on the ground that it was a ‘private matter’. The Court found a violation of Article 8 due to the failure of the state to adopt the measures necessary to punish and control the violent behaviour of her husband. A somewhat similar situation arose in Hajduova v Slovakia; the applicant’s husband had been detained in hospital for psychiatric treatment after he attacked her in public and threatened to kill her. She moved to a refuge with her children. Her ex-husband was released, without having undergone the required treatment, and renewed his threats. Reiterating that Slovakia has a duty to protect the physical and psychological integrity of individuals, particularly vulnerable victims of domestic violence, the Court found a violation of Article 8 in that, although the applicant’s ex-husband had not assaulted her following his release from hospital, her fear that his threats might be carried out was well-founded and the authorities had failed in their duty to ensure his detention for psychiatric treatment. A similar outcome was reached in Kalucza v. Hungary, which concerned Hungary’s failure to protect Ms Kalucza from her violent former partner. The Court found a violation of Article 8 since the Hungarian authorities had not taken sufficient measures to provide her with effective protection against him, despite criminal complaints lodged against him for assault, repeated requests for a restraining order against him, and civil proceedings to order his eviction from their flat.

These cases succeeded under Article 8, although it is readily arguable that some cases of domestic violence should rather raise issues under Articles 2 and 3, as in Opuz v Turkey which concerned the ‘honour’ murder of the applicant’s mother, who had tried to support the applicant, and repeated ‘honour’ crimes in the form of serious assaults and death threats against the applicant. The Court noted that the national authorities were reluctant to interfere in what they perceived to be a “family matter”. Turkey was found to have violated Article 2 due to its lack of due diligence in taking preventive operational measures to protect the life of the mother and, therefore, in failing in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2. Turkey was also found to have violated Article 3 due to its failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.

A number of highly significant findings were made in this context in the very recent case of Eremia and Others v Moldova. The judgment found that, while the authorities took some steps to protect the first applicant from her violent husband, a police officer, over a period of time, the steps were not effective and there was reluctance to take the matter seriously enough. In other words, the failures in the case were redolent of the familiar failings in the previous domestic violence cases considered. But not only were breaches of Articles 8 and 3 (on the basis of the state’s positive obligation to protect persons from inhuman treatment) found, but the Equal Rights Trust, intervening, persuaded the Court to treat domestic violence as a form of gender-based discrimination under Article 14 read with Article 3.  The second and third applicants were the daughters of the first applicant; they complained successfully under Article 8 of the psychological effects of witnessing their mother being physically and verbally abused at their home, while being unable to help, and of verbal abuse on the part of A. The decision represents an important breakthrough in this jurisprudence since the gendered nature of domestic violence – its disproportionate and particular impact on women – was recognised under Article 14, as was the impact of such violence on children forced to witness it, under Article 8.

 Recently in the UK, the IPCC reported adversely on the police investigation into the murder of Maria Stubbings who was strangled in Chelmsford, Essex, in December 2008 by her former boyfriend, Marc Chivers. Essex police knew he had killed before, and that he had served time in prison for assaulting Stubbings, but the IPCC found that they had failed to recognise the seriousness of the danger to her. As a number of journalists have recently pointed out, the Macpherson inquiry found that the police had failed “to provide an appropriate and professional service” with “processes, attitudes and behaviour” harmful to the minority ethnic community when it reported on the murder of Stephen Lawrence. Maria Stubbings’ family have called for a similar inquiry into failings in police investigations into domestic violence. The threat and actuality of a possible action under Articles 8, 2, and 3 domestically or at Strasbourg, based on the jurisprudence cited, would be likely to aid campaigns focussing on this issue.

Upholding access to abortion

The recent jurisprudence on abortion at Strasbourg has had some moderate success in alleviating harm to women, by invoking Article 8 (and in some instances Article 3 in RR v Poland and P&S v Poland). The claims so far have been brought against Poland and Ireland (ABC, RR and P&S), but cases against other states are in the Strasbourg system (for example, Z v Moldova). This is not the place to discuss this developing jurisprudence in detail, except to make two points. Poland purports to allow abortion in certain narrow circumstances but, in practice, on religious grounds, places obstacles in the way of obtaining it (RR para 84-86), while Ireland has a virtual prohibition with a narrow exception where there is a serious risk to the life of mother. The suffering of the applicants, especially in the Polish cases so far, has tended to be of a very serious nature (see, eg. Tysiac v Poland, where a complication with pregnancy resulted in blindness). Although Ireland’s current virtual complete prohibition on domestic abortion is largely ineffective due to the availability of abortion in England (ABC), it has been linked to extreme suffering in exceptional circumstances, including the tragic death of Savita Halappanavar. This position underpins the paradox of the current jurisprudence which is that cases against Poland are more likely to succeed despite its more liberal regime, since the Court can avoid a full confrontation with Ireland’s Constitutional provision of equal protection for foetal and maternal life.

The recent case of P&S v Poland, the first Strasbourg case on rape-induced pregnancy, graphically illustrates what is wrong with Polish practice on abortion. The first applicant, P, was a 14 year old girl who became pregnant as a result of rape. She therefore had a legal right to an abortion under Polish law. However, when, supported by her mother, S, she sought to access an abortion in practice, she faced a range of obstructions. The hospital that P approached disclosed her personal and medical information to the media, and the public generally. As a result, she was harassed by anti-abortion activists and representatives of the Catholic Church. She went to three different hospitals but could not obtain genuine information about the requirements for obtaining an abortion. Doctors invoked conscientious objection against performing the abortion and failed to refer P to another hospital. The stance was taken by anti-abortion hospital staff and Church officials, falsely, that S was trying to pressure P into having an abortion against her will. As a result, when P and S sought police protection from anti-abortion activists, the police instead arrested P, removed her from S’s custody and placed her in detention (paras 17, 26, 28 and 29). After delays, P eventually received a legal abortion following an intervention from the Ministry of Health, but she received no post-abortion care (para 41). The Court relied on Tysiąc and RR to reaffirm under Article 8 that once a State has adopted statutory regulations that allow abortion in specified situations, it comes under a duty to make the access available in practice. The Court found a breach of Article 8 on the basis of ‘a striking discordance between the theoretical right to… an abortion…and the reality of its practical implementation’ (para 111).

The situation in Poland may appear to be far removed from that in the UK (apart from in Northern Ireland), but given current attempts to undermine the principle of safe legal abortion by making access to abortion more difficult – in particular by allowing pro-life groups to become involved in counselling abortion-seekers (proposed by Nadine Dorries) and greater protection for conscientious objection (confirmed in a recent case involving Catholic midwives).

Conclusions

This blog has suggested that the guarantee of respect for private and family life under Article 8, taking account of relevant Strasbourg jurisprudence, is leading to developments in human rights principles that reduce gender-based harm to women. A pervasive pessimism in some feminist thinking on the potential of the ECHR to address and reduce such harm may have obscured the potential of such developments, which are also very recent. This blog suggests that a pessimistic view of the ECHR’s potential (and Article 8’s in particular) to aid women who have been let down by courts and legislatures in their own states, should be revisited.

In recent times, a series of cases have highlighted problems with sentencing in sexual offence cases. The trials of Anthony Lyons and Patrick O’Brien have caused many to question whether our criminal justice system is capable of providing justice for victims of sexual violence. Certainly, the issue of sentencing in sexual offence cases is a controversial one and one which will no doubt continue to generate debate. However, another serious problem with the law on sexual offences which has received less attention of late is the legislative inertia in relation to the substantive and procedural rules which define the offences themselves, as well as providing for special rules of evidence for sexual offence trials. The last substantial review of the law in this area occurred with the passing of the Criminal Law (Rape) Act 1981  and the Criminal Law (Rape)(Amendment) Act 1990. Since then, although there have been some piecemeal developments such as the reform of the statutory rape laws in 2006, the law has remained largely stagnant. In this respect, Ireland has lagged considerably behind other common law jurisdictions such as England and Wales who substantially overhauled their sexual offences law ten years ago with the introduction of the Sexual Offences Act 2003. Minister Alan Shatter has recently announced that the Department of Justice has been engaging in a review of Irish sexual offences law and the Taoiseach has promised that a sexual offences Bill will be published this year. This post outlines some reforms which it is to be hoped will be included in any prospective legislative reform.

Consent

Perhaps the most important reform which is necessary is the introduction of a statutory definition of consent. Consent is the central issue in the majority of rape trials. Due to the availability of forensic evidence which can confirm that sexual activity occurred, as well as the identity of the defendant, the primary defence strategy which is available is to claim that the complainant consented or that the defendant honestly believed that she consented. However, despite the centrality of consent, the concept remains legislatively undefined in this jurisdiction. The only available legal guidance on the concept is the traditional common law rules which provide that consent is absent where it is obtained by force, fear or fraud. Any reform of sexual offences law should provide a clear statement of what constitutes a legally acceptable consent to sexual activity. This definition would need to be supported by a reconsideration of the honest belief defence which currently provides that a defendant cannot be convicted of rape if he honestly believed that the woman was consenting. This defence is currently defined subjectively which means that the defendant’s belief does not need to be based on reasonable grounds in order to exculpate him. Of course, a jury is not obliged to believe a claim of honest belief in consent which is not objectively reasonable and it is likely that irrational and unbelievable claims will be rejected. However, the subjective formulation of the defence has the potential to lead to unjust results and sends a negative message about appropriate socio-sexual behaviour. Given the violation caused by non-consensual sexual activity, if a belief in consent is to exculpate a defendant, it should at a minimum be objectively reasonable. It is proposed that a legislative definition of consent and the reformulated honest belief defence should apply to all non-consensual sexual offences against adults, that is, rape, rape under section 4, aggravated sexual assault  and sexual assault.

Evidentiary reforms

In addition to these substantive law reforms, there are a number of changes to the rules of evidence which are also necessary. Perhaps most notably, the regulation of the admissibility of sexual experience evidence needs to be reconsidered. Currently, if the defence wishes to introduce evidence of the complainant’s sexual experience it is necessary to make an application to the trial judge. This application will then be heard in the absence of the jury and the complainant is entitled to be legally represented at this hearing. The judgment in DPP v GK  has suggested that trial judges are exercising their discretion to introduce sexual experience evidence wisely and that such evidence is only admitted where it is genuinely relevant. In that case, the Court of Criminal Appeal held that, having regard to the severely restrictive terminology of the statutory provision, in a general a decision to refuse to allow cross-examination as to past sexual experience may be more readily justified than the converse. However, whilst the judiciary have accepted the importance of limiting the use of sexual experience evidence in principle, it is by no means clear that this result has been achieved in practice. A position paper published by the RCNI last year has indicated a number of problems with the current rules from the perspective of complainants.

First, empirical evidence has indicated that sexual experience evidence may be being admitted more readily than the judicial comment in GK would suggest. The RCNI position paper cites research by Bacik et al which reveals that between 2003 and 2009, 70% of applications to admit sexual experience evidence were granted. Second, there are concerns around the procedure by which the applicant applies to have sexual experience evidence introduced. At the moment, there are no special procedures regarding the application to introduce such evidence. For example, there is no requirement that this application be in writing or be made within a specific time period prior to the trial. In their position paper, the RCNI note that ‘one unpleasant aspect of this uncertainty is that the complainant may be surprised by a last minute section 3 application at the beginning, or even during, the trial’. Of course, as the RCNI note, such late applications are sometimes necessary. However, they should never be the norm. A third problem with the current regime is the lack of guidance for trial judges when deciding whether to admit sexual experience evidence. The legislation states that the trial judge must only grant leave where he is satisfied that it would be ‘unfair’ to the defendant to refuse to allow the evidence to be adduced or the question to be asked. Whether or not it would be unfair to the defendant to disallow the introduction of the evidence is to be determined with reference to whether the evidence would make a difference to the jury’s verdict, that is, if the evidence is adduced the effect is that it might lead the jury to acquit the defendant where they would otherwise have convicted him.  However, this assessment of fairness is entirely left to the trial judge who may make a determination according to his/her own subjective assessment of the case. Thus, there is no uniform approach to the admissibility of sexual experience evidence. Given the trauma which may be caused to a complainant when cross-examined about her sexual experience at trial and the potential for this evidence to prejudice her allegation in the eyes of the jury, it is vitally important that the rules in this area are strengthened in any revision of the law.

Other aspects of the law of evidence which require attention include the special rules on corroboration which apply in sexual offence trials and the lack of prohibition on a defendant representing himself in a sexual offence trial. Section 7 of the Criminal Law (Rape) (Amendment) Act 1990 permits a trial judge to warn the jury of the dangers of convicting a defendant where the complainant’s testimony is uncorroborated or where there is little corroboration. Despite the judgment in People (DPP) v JEM [2001] 4 IR 385 suggesting that such warnings should only be given where genuinely necessary and not as a matter of course, there is little guidance for trial judges as to when such warnings are necessary. Given the potential for these warnings to prejudice a complainant’s testimony, some reconsideration of the rules in this area is necessary. Abolition of the warning entirely may be a viable option. At the very least, the provision of legislative or bench book guidance on when the warning should be issued and the form which it should take needs to be considered. With regard to defendants representing themselves, the obvious concern here is that a defendant may in this context personally cross-examine the complainant. Clearly, this would be enormously traumatic for the complainant and would be wholly unacceptable. Thus, there should be a provision in Irish sexual offences law which prohibits a defendant from personally cross-examining the complainant when a legal representative is provided to him/her for this purpose. Such a measure has been called for by the RCNI.

From the foregoing, it is clear that the Irish sexual offences legislation is in need of significant reform. It is hoped that any future legislation will address the concerns which have been highlighted in this post, as well as other issues which are raised by interest groups such as the RCNI and academic commentators. It is also hoped that the government’s promises to publish a Bill in this area will hold true and that the proposed Bill will be published in a timely manner.

We are very pleased to welcome this guest post from Rumyana Grozdanova (left). Rumyana is a Deputy Co-Convener of the Human Rights Centre and a PhD student at Durham Law School who is currently researching the US program of Extraordinary Rendition and its effects on the international legal framework. You can contact her here or follow her on Twitter @rgrozdan

On Monday 13 May this year, Associated Press revealed that the US Department of Justice had secretly obtained two months of personal and office phone records of reporters and editors for Associated Press (AP). The records outlined the outgoing phone calls of individual reporters, the general AP office numbers in New York, Washington and Hartford, Conn., and the main phone number for AP in the House of Representatives press galleries; in total, the records for more than 20 separate phone lines were seized – the number of journalists who would have used those phone lines is not known. This highly controversial and worrying intrusion on journalistic freedom and civil liberties has been subsequently defended by US Attorney General Eric Holder with reference to the omnipresent counterterrorism narrative; according to him, a story run by AP had posed a major threat to the security of the American public. Jay Carney, the White House spokesman, in noting that President Barack Obama had not been privy to the actions of the Justice Department, added that a careful balance must be attained between the need for secret and classified information to remain secret in the interests of national security and press freedom and civil liberties.

While the seizure of these records may have come as a surprise to some, the fact is that the Obama administration has persistently engaged in a very controlled protection of national security with special emphasis on the doctrine of state secrets privilege. The importance of the concealed nature of this protection of US national security is most evident in the battle the Obama administration has waged against whistle blowers. Since the beginning of the Obama presidency, more national security whistle blowers have been persecuted under the Espionage Acts than by all previous administrations combined. Just a few days after the PRISM and NSA revelations, the White House has confirmed that the Department of Justice is at the early stages of investigating the ‘disturbing leaks of national security’ which may lead to whistle blowers being persecuted. After Edward Snowden’s very honest and courageous statement, it will be interesting to see the response of the US government. The cases of Julian Assange, Bradley Manning and John Kiriakou are simply the tip of the iceberg.

In this context, despite the shock and outrage in social and some traditional media, the Verizon and PRISM revelations and the expansive scope of surveillance measures by the US should not come as a surprise. The cases of Khaled El-Masri and Maher Arar, who were both extraordinarily rendered and tortured after routine stopovers at travel checkpoints, are quite enlightening as regards to the practice and potency of secret bilateral intelligence sharing and cooperation after 9/11. While the primary role of intelligence services is to assist in the protection and advancement of state national security interests, as the post 9/11 threats have become more transnational in nature so have the scope and span of intelligence measures. In addition, globalisation and regional travel agreements such as Schengen have created a relatively borderless world within which national, regional and international intelligence cooperation, intelligence gathering and surveillance have become vital tools in addressing contemporary transnational threats to national security. Thus, the cold hard reality is that counterterrorism and the preemptive narratives and associated intrusions of civil liberties have become so pervasive within the US and across the world that such revelations have actually been a long time coming.

The changed context and use of the phrase ‘national interest’ by Richard Nixon (1974) and Ben Rhodes (2013), is a revealing comparison, representative of the pervasiveness and perhaps silent acceptance of the necessity of intelligence- and surveillance-sharing measures. In his resignation as US President following the Watergate wiretapping scandal, Richard Nixon noted that he was leaving the office before his full term as the interests of America came first; in welcoming the broader debate on the balancing of privacy and security, Deputy national security adviser Ben Rhodes noted that the recent revelations on secret programs were not in the national security interest of the USA.

The argument that the transnational terrorist threat poses new and different challenges to national security, and that as a result preemptive measures targeting specific individuals transnationally through drone strikes and data mining are justified, ignores the consequences of these substantial advances in counterterrorism. The widespread use of intelligence cooperation and covert surveillance, combined with their inherent lack of transparency and consequent lack of accountability, has increasingly posed a challenge to the effective enforcement of civil liberties and undermined the effectiveness of human rights protection at both individual and general level. The vast increase in the scope and span of transnational security services cooperation, and the type and broadness of measures they utilise, have not been matched by a similar development of structures of transnational or domestic governance to improve accountability and transparency. As demonstrated by the cases of Maher Arar and Khaled El-Masri, the effects of incomplete or erroneous intelligence information — combined with dubious intelligence gathering techniques and inadequate accountability mechanisms — can have devastating effects for an individual not only in relation to individual liberty and physical integrity, but also on a socio-economical level. In these two cases the absoluteness the anti-torture norm, the principle of non-refoulement, the right to be free from arbitrary detention, the right to a counsel and the right to a fair trial were rendered ineffective and practically unenforceable. Apart from the severe challenge to the effectiveness of the rights to privacy and freedom of expression, the revelations surrounding the seizure of the AP records, Verizon and PRISM raise the question of whether privacy is a 20^th century concept inapplicable in the 21^st century.

In the context of the pervasiveness of claims that these measures are ‘necessary’, PRISM and other leaks will help us to gauge how severe an infringement of rights US citizens really believe collection of their personal correspondence and data through social media and the Internet is.

On June 4th a series of highly critical submissions to the MoJ consultation were released. This post highlights two submissions: that of the Bingham Centre for the Rule of Law and that of members of Kent Law School.

The Bingham Centre for the Rule of Law  has said the plans would result in the “absurd prospect” of repeat offenders being represented by different law firms, and reduce legal advice to “the status of a commodity”. The Centre’s submission is here. The submission is critical of the paucity of evidence underlying the proposals. Of particular interest is the Centre’s comparative analysis of judicial review applications that are legally aided and those that are not legally aided.  The Centre’s breakdown of the evidence suggests that legally aided judicial review applications are handled far more cautiously by lawyers than non-legally aided applications, with a much smaller proportion of applications seeking permission to go to a full hearing.  Moreover, where permission is sought, a legally aided application is five times more likely to receive permission to go to a hearing than an application which is not legally aided.

Concerns about the proposals have also compelled several members of Kent Law School to submit a detailed response to the Transforming Legal Aid consultation paper. The response takes the view that the government proposals would significantly undermine the right to representation for vast numbers of people facing the power of state led (and funded) prosecutions. It argues that the proposals appear to be based on either flawed or non-existent evidence, and that the damage which could result from the proposed reform could be extremely far reaching – threatening the credibility of the criminal justice system at best, and leading to its collapse at worst. The response also sets out concerns about the ability of vulnerable people to challenge the actions of state authorities and raise important legal arguments in numerous circumstances, and concerns about the draconian proposals in relation to criminal defence services, which, it is argued, have the capacity to undermine a defendant’s ability to play an effective role in the proceedings and reduce the quality of service provision.

We are delighted to welcome the following guest post from Marie O’Connor, Chairperson of  Survivors of Symphysiotomy (SoS) and author of

The Statute of Limitations (Amendment) Bill 2013 for survivors of symphysiotomy is now before the Select Committee on Justice of the Irish Parliament. Its passage at Second Stage reflects the fact that these were effectively clandestine – as well as abusive – operations, performed without consent, that breached human, constitutional and other legal rights. Laws protecting human subjects in clinical research were also flouted: hospital clinical reports and medical writings show that these procedures were often experimental. Moreover, carried out before, during and after labour, the surgery amounted to cruel and inhuman treatment.   

The specialty (of obstetrics and gynaecology) has staunchly defended these operations since Dr Jacqueline Morrissey first exposed them in The Irish Times in 1999: the State has followed suit. Since May 2001, the Institute of Obstetricians and Gynaecologists – some of whose members carried out these acts of surgery – has maintained that these procedures were appropriate, a theory backed by the Department of Health, if not by the Supreme Court. Last year, in a unanimous five-judge decision delivered by MacMenamin J in Kearney v McQuillan, the Court  found that symphysiotomy was not a ‘generally approved’ practice. International medical opinion bears this out: among those who signed a petition to lift the statute bar for survivors were 500 doctors, whose often coruscating comments on the practice of symphysiotomy stand in stark contrast to the official line.

Last year, a draft report commissioned by the Department echoed that official line. Under terms of reference agreed with the author, and drawn up by the Department – that bore a curious resemblance to those previously devised by the Institute, Dr Walsh was tasked with writing a history of symphysiotomy that out-ruled the testimony of women subjected to the surgery. The report defends this exclusion by saying it was ‘central to the production of an independent report, compiled without influence or input from vested interests’ (page 2).

Libraries were contacted in a number of countries, databases searched, and hospitals approached for statistics that did not exist (in a largely pre-computer era), on a defunct procedure – stillborn in the 1800s – that never succeeded in overcoming its dismal reputation among doctors for high fetal mortality and consequent maternal morbidity (or ill health).

Symphysiotomy is a procedure that, as this report underlines, should only be performed during labour, yet Walsh invites us to see all intrapartum symphysiotomies as emergencies: only those done during pregnancy, prior to labour, and those done postnatally, after delivery, are defined as ‘non-emergency’ (page 21). As well as occluding the need for patient consent, this definition gives rise to a considerable expansion of the ‘emergency’ category, and leads the author to conclude that, as symphysiotomy was employed ‘mostly in emergencies’, its use was therefore appropriate.  Such a finding, however, flies in the face of the evidence: survivor testimony, medical records, historical writings and published case histories (not analysed by the author) show that these surgeries were nearly always planned, and, in some cases, aimed selectively at young, vulnerable women and girls.

While Walsh denies that symphysiotomy was proposed as an alternative to Caesarean section, many of these procedures formed part of ‘the symphysiotomy experiment’, well documented by Dr Morrissey and ignored by Walsh, which was aimed at replacing Caesarean section with symphysiotomy in selected cases.

Hospital clinical reports also show the experimental nature of some of these operations. At the International Missionary Training Hospital in Drogheda, for example, in 1962-3, symphysiotomy appears to have been tested at both ends of the human gestation cycle: the Lourdes’ report notes that the surgery was carried out on two patients at 27 and 29 weeks of pregnancy, respectively, when the baby had less than a 50:50 chance of survival, and in two other cases at 43 and 44 weeks’ gestation, when fetal viability was also at risk.

This 20-year experiment raises significant human rights issues. These operations, insofar as they were experimental, did not meet the legal requirements for medical research, which were codified in 1947. The Nuremberg Code upheld the human rights of human subjects involved in medical experimentation and stressed the absolute need for voluntary and informed consent. Such consent was never sought by the practitioners of symphysiotomy, a fact excused in this report.

Its author found that ‘lack of regulation’, which she narrowly equates with the absence of protocols in obstetrics, led to the practice of this involuntary surgery; that patient consent was ‘not required’ in the 1940s and 50s; and that, consent ‘is still not a legal requirement, except in relation to mental health’ (Walsh:68). This is wrong, both internationally and nationally (in Ireland). The need for patient consent was documented in 1832 in Italy: doctors planning to perform the first ever pubiotomy* (severing the pubic bone) on a living woman in Naples were stymied by her initial refusal to consent to the surgery. The patients’ right to autonomy was enunciated in Schloendorff v Society of New York Hospital in 1914 by Judge Cardozo, who declared that ‘a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages’.  And in relation to Ireland,  Walsh ignores Article 40.3.2 of the Constitution, which was adopted in 1937, and further safeguards the legal requirement to obtain the patient’s informed consent to medical intervention.

Indeed, the discussion on consent raises the issue of how far Walsh has been trumped by the Supreme Court, and to what extent, if any, the Government should rely on the final Walsh report to inform policy decisions on ‘redress’ schemes devised as a (preferable) – from the government’s perspective – alternative to legal action. As MacMenamin J said in the Kearney case:

“one must consider the human situation of a young 18-year-old mother who entrusted her own care, and that of her child, to Dr. Connolly. The Constitution identifies rights which are to be protected and vindicated because they belong to each human person because of their very humanity. Among the values which have been recognised by the Courts are human dignity, bodily integrity, and autonomy, that is the capacity to make informed decisions affecting one’s own health. The duty to protect those rights is not confined to the Courts. Each health professional is, and was always [emphasis added], under a similar duty. Although the finding of the Court is founded in negligence, what happened here was a betrayal of trust; it was an invasion and violation of the rights just identified; it was the gravest kind of negligence.”

Setting aside its errors of fact and in law, not to mention its rose-tinted glasses which privilege the defence of doctors over the rights of patients, Walsh’s failure to consider the surgery from a human rights perspective – arguably one of its most striking defects – stems from an apparent inability to consider the surgery from the patient’s perspective. Yet the cruelty of these operations was striking.

Survivor interviews would have elicited accounts of how women in the delivery unit, often in the height of labour, were prepared for surgery, wordlessly, by midwives, before being physically restrained and operated upon – some, by their own testimony, screaming as doctors incised the symphysis or the bone under local anesthetic – then left to labour until full dilatation was reached, before being required to birth that baby through the agony of an unhinged pelvis in what was often described, in hospital records, as ‘a normal birth’.

That Walsh can glide over such treatment, which by any standards amounted to cruel and inhuman treatment, beggars belief, even in a report that strains the credibility of the reader to the limits.