Amanda Jane Mellet v. Ireland – The Key Points

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

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

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

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

Amanda Jane Mellet v. Ireland – The Key Points

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.

The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:

The State party asserts that article 40.3.3 of the Constitution represents the profound moral choices of the Irish people. Yet, at the same time, the Irish people have acknowledged the entitlement of citizens to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy. The legislative framework guarantees the citizens’ entitlement to information in relation to abortion services provided abroad. Thus, the constitutional and legislative framework reflects the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the foetus should be protected and balanced against the rights of the woman.

Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here—and the Committee made this quite clear—is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.

Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.

This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.

In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.

Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.

It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this—the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.

But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.

This post is by Professor Fiona de Londras, University of Birmingham School of Law. She can be contacted by email at f.delondras[at]bham.ac.uk 

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

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

Dail eireann

Dr Alan Greene

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

 

Constitutional Debate and the Oireachtas

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

 

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

 

Constitutional Dialogue

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

 

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

 

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

 

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

 

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

 

Judicial Supremacy or Executive Supremacy?

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

 

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

 

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

 

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

 

Minority Government and Constitutional Dialogue

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

 

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

 

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

 

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

 

Conclusions

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

 

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

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

 

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

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

[3] Prohibition on torture or inhuman and degrading treatment

[4] Right to respect for privacy and family life

[5] Freedom of expression

[6] Prohibition on discrimination

[7] D v Ireland, para 69.

Status

Intensifying the glare of the United Nations’ spotlight

We are pleased to publish this guest post from Ciarán Finlay, Legal & Policy Officer with the Free Legal Advice Centres (FLAC).

The value of shining an international spotlight on domestic human rights issues has long been recognised by civil society organisations working in Ireland. Prior experience has shown that international scrutiny by United Nations (UN) bodies and experts can yield tangible results in the form of positive state action.

However, while domestic actors place much emphasis on periodic reporting to UN Human Rights Treaty Bodies and the Universal Periodic Review mechanism, considerably less focus is placed on engagement with UN Special Procedures mandate holders and taking individual complaints to UN Treaty Bodies. Continue reading “Intensifying the glare of the United Nations’ spotlight”

Intensifying the glare of the United Nations’ spotlight

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

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

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

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

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

Call for Papers: ‘International and Comparative Law in the 21st Century: Lessons learned?’

The deadline for submission of abstracts to the PGR and early career conference to be held in Griffith College Dublin on 10 June 2016, and entitled ‘International and Comparative Law in the 21st Century: Lessons learned?’, is Friday 8th April 2016 at 5pm

 

The keynote speaker will be full time Commissioner of the Law Reform Commission, Finola Flanagan.  She was previously Director General of the Office of the Attorney General and, more recently, she was co-ordinator of EU and ECHR law in Ireland. She is a member of the Venice Commission, the Council of Europe’s advisory body on constitutional matters and has acted as rapporteur on a number of its Opinions.

 

Applicants are requested to submit a 300 word abstract of the paper which they intend to present to lawconference@griffith.ie which will be peer-reviewed by the selection Committee.

There will be an Award for the candidate who presents the best paper. In order to be considered for the ‘Best Paper’ Award, candidates must submit a full length paper of no more than 2,000 words in addition to the 300 word abstract. If you wish to be considered for the ‘Best Paper’ award, please indicate so clearly in your submission email.

Deadline: The final date for abstract submissions is Friday 8th April at 5pm.

Timeline: The Conference Committee will send acceptance notifications and paper feedback in April 2016.

Contact details: Please e-mail lawconference@griffith.ie should you have any queries in this regard.

Fee: €30 per delegate. This will include refreshments and a light lunch.

Call for Papers: ‘International and Comparative Law in the 21st Century: Lessons learned?’

Call for Contributions & Engagement #directprovision16: Direct Provision 16 years on, and on, and on…

DirectProvision16Post by, Caroline Reid, Communications Officer with the Irish Refugee Council

#DirectProvision16

On April 10th 2016 the system of Direct Provision will be 16 years in existence. For the last few years this date has been marked by many people contributing to an open call for submissions (see www.humanrightsireland.ie or #DirectProvision15). These submissions have been varied and came from many different people, sectors and angles. They all served to highlight and explore the failings of Direct Provision and the detrimental impact it is having, and has had, on the men, women and children forced to live within it. The date has been marked retrospectively up until now. This year we want to look forward and concentrate on what could be.

The Government say that there is no alternative.

They say that alternatives have never been put forward.

They say if they end Direct Provision it will mean over 4,000 people will become homeless, as if that is what those who campaign for an end to this inhumane system are advocating for.

Alternatives are possible, they are achievable, but unfortunately there has been no political will from our successive governments to address Ireland’s current and ongoing form of institutionalised living.

Last year saw thousands of people across Ireland offer rooms, houses and other practical solutions for the initial reception of refugees.

The principles of initial short term reception for people in need of asylum have been talked about for quite some time. Based on these, and perhaps more focused areas or groups that may be of interest to you, we are this year not focusing on the legacy of Direct Provision. Instead we are looking forward and we are making a public call for submissions on what alternative models could look like.

Your idea may be for a general initial reception system, a community cooperative scheme, housing collectives or for schemes that enable people to live with people in the community. Perhaps you have something in mind for a particular group of people? We are seeing different models being tried out in other European countries, e.g. for the LGBTIQ asylum seeking community; Female only housing; Specialised accommodation for people who have particular vulnerabilities; Family only accommodation; Perhaps you think there should be special provisions for young people who turn 18 and are removed from their foster carers as they are now considered “aged out minors”? The only thing restricting your submissions is your own creativity in developing a humane and open reception system for people.

Submissions can be written, visual, a blueprint, design based, or simply links to other initiatives happening across the world that you believe we can replicate here. The online campaign will hopefully culminate in plenty of food for thought for our soon to be Government. Let’s make #DirectProvison16 something that we can build on and move forward with. Let’s create political will by offering practical solutions that counter the current government line.

Overarching principles:

~ cap on length of time in initial reception

~ embodies the best interests of the child

~ allows for self-determination

~ is based on care, not profit

~ identifies & supports individuals with special needs & vulnerabilities early on

~ makes early legal advice available

~ includes independent complaints (to the national Ombudsmen)

~ includes inspection mechanisms

~ provides the right to work

~ fosters rather than deters social inclusion

  1. If you are interested in contributing you should email your submissions to enddirectprovision@gmail.com
  2. Materials should be forwarded by Wednesday 6th April at 6pm (late arrivals can’t be guaranteed to go live but we will try our best!).  The material must relate to alternatives to the direct provision system, it may simply be your thoughts or reflections.
  3. A number of organisations and individuals have already been invited to contribute; with growing support for an end to Direct Provision this is an excellent opportunity for you to demonstrate your support for this call and to show that you stand in solidarity with the people failed by this inhumane system.

For those not wishing to submit a blog post, but wishing to other wise engage, please let others who may be interested know about this blogathon:

  1. Call your local TD (or their office) and let them know about direct provision; ask your TD what they are doing on your behalf to highlight the failure of the direct provision system. You can find contact details here.
  2. Write or email your local TD on 10th April 2015 asking them to explore and support alternatives to Direct Provision (email addresses available here).
  3. On Twitter, use the hashtag #directprovision16 , please share posts, engage in debate and discussion, raise awareness with friends, family and colleagues.
  4. All of the submissions will be available on www.humanrights.ie or on a Tumblr page set up to mark 16 years of direct provision and what the future could look like if there was political will to change what has become a profiteering system of reception.

Please share this information on your own Facebook/Twitter/Tumblr page and aim for a Twitter storm for the hashtag #directprovision16

Call for Contributions & Engagement #directprovision16: Direct Provision 16 years on, and on, and on…

GSOC, the legislative process, and the privacy rights of citizens: what is the law?  

 We are pleased to welcome this Guest Post from Eimear Spain and Shane Kilcommins.

The Garda Siochana Ombudsman Commission is an independent agency established under the 2005 Garda Siochana Act to deal with matters involving possible misconduct by members of the Garda Síochána. Last month it was revealed that it scrutinised the phone records of two journalists. The Minister for Justice and Equality, Frances Fitzgerald, has appointed Mr Justice John Murray to carry out a review of the legislative framework in respect of access to communications data of journalists. In defending the use of such powers, the current GSOC Commissioners pointed out that it was the legislative body of the State which made Garda leaks a serious offence, and it was also the same body which granted powers to access phone records and internet data to GSOC. As the Commissioners noted: “Gsoc must use any lawful means provided by the legislature ‘to ensure that its functions are performed in an efficient and effective manner…’”.

Surveillance Powers

Surveillance powers are provided for under three main pieces of legislation in Ireland: the use of surveillance and tracking devices under the Criminal justice (Surveillance) Act 2009; the interception of postal packets and telephone conversations (phone tapping) under the Postal Packets and Telecommunications Messages (Regulations) Act 1993; and the use of information that has been generated by various service providers arising from the use of mobile phones and landlines under the Communications (Retention of Data) Act 2011. Under the 2011 Act, a request for disclosure of data may be made if a member of An Garda Siochana is satisfied that the data is required for the prevention, detection, investigation or prosecution of a serious offence. It is clear that the legislature made leaking of data by a member of An Garda Siochana is a serious criminal offence under section 62 of the Garda Siochana Act 2005, thus giving power to request data in any such investigation. 

What are GSOC’s surveillance powers?

Upon establishment in 2005, designated officers within GSOC were conferred with all the powers, immunities and privileges conferred on any member of the Garda Síochána under any enactment or common law in existence at that time or enacted subsequently including powers of entry, arrest, charge, summons, search, detention, questioning, and the taking of bodily samples. The only exclusions were contained in section 98(5) of the Garda Siochana Act, 2005 and related to powers under the Offences Against the State Acts and in relation to phone tapping. GSOC were specifically excluded from having powers under the 1993 Act, with members of the legislature submitting that giving GSOC powers to tap telephones would permit them to act ‘as a separate police force’. Michael McDowell, the then Minister for Justice, was even more explicit: “I would not be comfortable giving the Ombudsman Commission the right to tap the telephones of politicians or journalists in pursuit of its criminal investigations’. GSOC were also subsequently specifically excluded from the 2009 Surveillance Act, section 17 of which expressly provides that the powers under the Act, including surveillance and tracking powers, did not apply to them. This provoked considerable debate in the Dail but a proposed amendment to provide them with surveillance powers was not carried (69 against the proposed amendment as opposed to 63 for it).   

However, GSOC were given powers upon establishment in 2005 under the Postal and Telecommunications Act 1983 (as amended) to request information on the use made of telecommunications services. They were also conferred with powers under the Criminal Justice (Terrorist Offences) Act 2005 which compelled a service provider to comply with a request for disclosure of traffic or location data retained for the purposes of the prevention, detection, investigation or prosecution of crime (including but not limited to terrorist offences). This Act was replaced by the Communications (Retention of Data) Act 2011, which was introduced in the dying days of the 30th Dail. Most recently, section 5 of the Garda Síochána (Amendment) Act 2015, permits GSOC to use surveillance and tracking devices, and to intercept postal packets and telephone conversations, powers which were previously unavailable to them.

What are the potential issues with GSOC’s accessing of phone records under the 2011 Act?

The Communications (Retention of Data) Act 2011 provides under section 6 that a member of An Garda Siochana not below the rank of Chief Superintendent, an officer of the Permanent Defence Forces below the rank of Colonel, or an officer not below the rank of principal officer in the Revenue Commissioners could request data from the service providers under the Act. While GSOC was not mentioned in the section 6 access provision, as the Act conferred powers on members of An Garda Síochána, it is reasonable to argue that GSOC had an implied power under the 2011 Act. Nevertheless such an interpretation raises a number of concerns.

When the legislature confers powers on any agency to suspend or qualify the individual rights of citizens it should, where possible, not do so by implication. In order to maintain the integrity of the right in issue, the legislature should expressly provide the agency with the power, and be in a position, particularly at debate stage, to justify that power in the light of the right at issue. This ensures that limitations on the right have been reflected upon and considered, better ensuring that any limitations are proportionate, the least restrictive in the circumstances, and apply only so far as is strictly necessary. Catch-all provisions, such as that provided for under section 98 of the Garda Síochána Act 2005, do not facilitate or promote reflection about the rights of citizens in the Dáil.

The second concern relates to clarity around the existence of GSOC’s powers to access data under the 2011 Act. Given the value placed by society on the autonomy of the individual, it follows that our laws should be predictable and certain so as to ensure that each citizen has fair opportunity to know the rules and how they will be applied. While it may be implied that the powers conferred upon An Garda Síochána by section 6 were also conferred upon GSOC, it is significant in this regard that section 12 of the Act, which provides for judicial oversight of compliance by the various agencies with powers under the Act, makes no reference to GSOC as one of the bodies subject to review. The Garda Siochana, the Defence Forces, the Revenue Commissioners and, since 2014, the Competition and Consumer Protection Commission are specifically mentioned. If the legislature intended to confer the relevant powers on GSOC, why did it not specifically reference it in the review provision under section 12 given that it did so with the other agencies? Furthermore, legal commentaries on the 2011 Act in the Annotated Statutes and Bar Review did not refer to GSOC in their interpretations of the agencies conferred with powers under section 6 of the 2011 Act. Such gaps do little to enhance comprehension or conceptual consistency; if lawyers are unsure, how does this sit with the ‘fundamental value’ that citizens “should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful”? 

Given such ambiguity, one wonders whether GSOC sought clarification on its interpretation of s.6 of the 2011 Act, particularly in the light of the rights at stake and its absence from the provision for review under section 12. This requirement of certainty takes on an added resonance when the rules in question provide powers to lawfully curtail the individual rights of citizens. Power conferring laws that suspend or qualify rights should – in order to maintain the integrity of the right in issue – be expressly provided for and justified in each instance, rather than included by in a catch-all provision under the 2005 Act which offers a rather imperfect mandate. The European Court of Human Rights has, for example, noted as far back as 1984 that because the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, ‘the  substantive  law  itself…must indicate the scope and manner of exercise of any such discretion with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference’. More recently in Shimovolos v Russia (2011), the European Court of Human Rights held that

‘because of the lack of public scrutiny and the risk of abuse intrinsic to any system of secret surveillance, the following minimum safeguards should be set out in statute law to avoid abuses: the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law’.

In addition to promoting clarity, this demand for positive express legislative authorisation, review and justification can serve the important didactic purpose of reminding the power bearer of how seriously the State takes the rights of its citizens.

The third issue relates to legality, and in particular whether the designated judge has jurisdiction to review the exercise of powers by GSOC under the 2011 Act. It is important to note here that the 2005 Act confers the powers, immunities and privileges of membersof An Garda Siochana on designated officers of GSOC. While the 2005 Act specifically equates personnel within the two organisations, at no point in the 2005 Act is GSOC equated with An Garda Síochána. Section 12 can therefore not be read as providing for a review of compliance by GSOC with the terms of the Act by the designated High Court judge. This is significant, and raises issues about the actual existence of an express legal framework for reviewing GSOC’s practices, together with the lawful authority of an overseer to do so.

Aside from the difficulties relating to the protection of rights, clarity and legality, there are also questions to be addressed in relation to the oversight process between 2011 and 2014. It is not clear what oversight existed in relation to the 2011 Act until 2014. The designated judge under section 12 of the 2011Act makes no reference to GSOC in his 2011, 2012 or 2013 reports. It is only in the 2014 report that the designated judge mentions for the first time that he ‘attended the Office of An Garda Síochána Ombudsman Commission’. The report of 2015 also mentions that GSOC was visited. The legitimate question this begs is whether GSOC was using its perceived powers under the 2011 Act prior to 2014, and, if so, what independent oversight was in place in that period. If it was using its powers under the Act between 2011 and 2014, but was not subject to oversight, does this have consequences for information gathered by GSOC during that period?

If, as seems to be the case, powers to access data records were also exercised by GSOC between 2005-2011, the question of whether there was any oversight of the exercise of those powers also looms large. Again there is no reference to oversight of compliance by GSOC in any publically available reports by the designated judge under the 1993 and 2005 Acts in the relevant period. Such practices would also have to be measured against ECHR jurisprudence, which demands at a minimum that oversight mechanisms in respect of surveillance ‘must be vested with sufficient powers and competence to exercise an effective and continuous control over the surveillance’.  In Klass v Germany the ECtHR noted that “[t]he Court must be satisfied that, whatever system is adopted, there exist adequate and effective guarantees against abuse.”

Conclusion

The right to privacy is viewed as a fundamental right that promotes autonomy and human dignity whilst also ensuring democratic freedom of association and expression. If the essence of such a right is to be protected and valued in a society, it requires that any limitations on its exercise should be justified, laid down in clear laws, apply only so far as is strictly necessary, and have robust, continuous, and effective statutory oversight mechanisms. Even from a simple analysis of the legislative process through which powers of surveillance have been conferred on GSOC, it is not clear that the legislature is taking such rights very seriously in Ireland.

Professor Shane Kilcommins and Dr Eimear Spain lecture at the School of Law at the University of Limerick.

GSOC, the legislative process, and the privacy rights of citizens: what is the law?  

Remembering the Magdalene Women on International Womens’ Day

We are pleased to welcome this post from Claire McGettrick of Justice for Magdalenes. This post is an updated version of a statement given to Oireachtas Retort for an article commemorating Election Day 2016.

Last Sunday, hundreds of people around Ireland honoured the women who lived and died behind Magdalene Laundry walls as part of the fifth annual Flowers for Magdalene commemorations held at various cemetaries around Ireland.  Every year, I walk around the Magdalene graves at Glasnevin prior to the ceremony to ascertain if there have been any changes. It has been six years since the Sisters of Our Lady of Charity claimed they were at ‘an advanced stage in making arrangements for the full and accurate details relating to these women…to be recorded in Glasnevin Cemetery’. In that time, just 10 new names have been added to the High Park gravestones, with no changes in the past 12 months. None of these changes rectify the discrepancies identified by Justice for Magdalenes Research (JFMR) over a year ago.

The very idea of celebrating International Women’s Day under such circumstances seems futile, even disrespectful. Regardless of how you mark International Women’s Day, please take a moment to read the following and consider how it is possible in 2016 for some of our most vulnerable citizens to be treated with such contempt.

On 19th February, we marked the third anniversary of Enda Kenny’s emotional apology to Magdalene survivors. When footage from that day is shown it usually focuses on the moment when the Taoiseach was reduced to tears in the Dáil chamber. Two weeks previously, when the McAleese Report was published on 5th February 2013, there were no such tears. Refusing to apologise, the Taoiseach alleged that because of the McAleese Report, ‘the truth and reality‘ had been ‘uncovered and laid out for everyone to read and to understand‘. Two weeks later, however, the historic apology finally came and thereafter, there was little interest – from media or otherwise (Conall O’Fátharta is a notable exception) – in anything other than the former government’s ‘good news story’, which began and ended with the apology.

Was the Taoiseach’s tearful apology the result of a ‘road to Damascus’ moment that occurred at some point between 5th and 19th February? Or, was it a political decision designed to make the Magdalene problem go away? The experiences of survivors in contact with our organisation would suggest that, unfortunately, it was the latter.

During that two-week period, the Taoiseach came under immense public criticism for his performance on the day the McAleese Report was released. Mr Kenny also faced pressure at cabinet level from his coalition partners, while junior Labour TDs and senators also threatened a walk out from a parliamentary party meeting.

The Taoiseach also had a busy diary between 5th and 19th February. Just days prior to the release of the Report, Senator McAleese resigned on 1st February. On 11th February the Taoiseach met with Nuala Ní Mhuircheartaigh, Senator Martin McAleese’s legal advisor and co-author of the McAleese Report. Also on 11th February, Enda Kenny met a group of Magdalene survivors. On 14th February, the Taoiseach had a meeting at Beechlawn Nursing Home, also the location of the generalate of the Sisters of Our Lady of Charity, who ran the High Park and Gloucester Street laundries in Dublin. The facts surrounding the purpose of this meeting and who was in attendance remain unknown. Two days later on 16th February Enda Kenny travelled to London to meet Magdalene survivors, many of whom left or escaped from the laundries to leave Ireland behind by emigrating to the UK.

On 8th February, JFM was also approached informally by a civil servant in the Department of Foreign Affairs about organising a meeting between the Taoiseach and survivors in contact with our organisation. In accordance with our survivor-centred ethos, we wished to ensure that survivors could make a decision regarding their attendance at such a meeting in an informed capacity. Thus, we responded to the civil servant the same day, requesting a letter from the Taoiseach’s office setting out the purpose of the meeting; the format of the meeting; the agenda for the meeting; who would be present and whether it would be open to all survivors who wished to attend. We also asked what guarantees could be given that survivors would be protected from the media. No response was forthcoming from the Taoiseach’s office and therefore, survivors in contact with JFM did not meet with Enda Kenny during this time.

On the night of the apology, Enda Kenny announced that he had asked Mr Justice John Quirke to make recommendations to government on a scheme for Magdalene Laundry survivors. In June 2013, Mr Justice Quirke published The Magdalen Commission Report and while the financial element of the ex gratia scheme fell far short of what survivors deserve, JFMR nonetheless welcomed it, in recognition of the other recommended benefits and services, particularly the establishment of a Dedicated Unit and the provision of an enhanced medical card which would provide access to ‘the full range of services currently enjoyed’ by HAA Card holders.  We were pleased when the government announced that it would accept all of Judge Quirke’s recommendations.

A month previous to the publication of the Quirke Report, on 22nd May 2013, Felice Gaer, Rapporteur for Follow-up on Concluding Observations at the United Nations Committee Against Torture (UNCAT) wrote to the Irish State as part of the follow-up process on UNCAT’s recommendations in 2011. In this letter, the Rapporteur noted that the McAleese inquiry ‘lacked many elements of a prompt, independent and thorough investigation, as recommended by the Committee [Against Torture] in its Concluding Observations’.  The letter went on to ask the Irish State whether it ‘intends to set up an inquiry body that is independent, with definite terms of reference, and statutory powers to compel evidence, and retain evidence obtained from relevant religious bodies’.

On 8th August 2013, just six months after the apology, the Irish State responded to UNCAT, asserting that ‘[n]o factual evidence to support allegations of systematic torture or ill treatment of a criminal nature in these institutions was found’ by the McAleese Committee and ‘in light of facts uncovered by the McAleese Committee and in the absence of any credible evidence of systematic torture or criminal abuse being committed in the Magdalene Laundries, the Irish Government does not propose to set up a specific Magdalen inquiry body’.

Three years later the government has seriously undermined Magdalene survivor’s trust, as it has cut corner after corner on the implementation of the ex gratia scheme. Survivors are still awaiting the establishment of a Dedicated Unit, a measure that should have been put in place immediately and not after the women, in many cases, have had to navigate the Ex Gratia Scheme alone. Some survivors have difficulty in proving duration of stay because of the religious orders’ poor record keeping, yet incredibly, the government affords greater weight to the religious orders’ contentions than survivor testimony.

The healthcare provisions as outlined in the RWRCI Guide do not provide Magdalene survivors with the same range of drugs and services made available to HAA cardholders. The women who have signed up to the Magdalene scheme thus far were required first to waive their rights to take additional legal action against the State, In return, they were led to expect that they would receive the full range of benefits and services recommended by Mr Justice Quirke.

In July 2015, six months after JFMR called on the HSE to provide survivors with a comprehensive guide to their entitlements under the scheme, the HSE sent survivors a five-page document. The Guide to Health Services under the Redress for Women Resident in Certain Institutions Act 2015, is an insult when compared to the comprehensive 48-page guide provided to HAA cardholders.

The government has failed Magdalene survivors living overseas. In this regard the government has repeatedly said it is ‘examining the practical arrangements’ for the provision of health services to women living abroad, however no timeframe has been given as to when this ‘administrative process’ will be in place. The needs of elderly survivors who are part of our Diaspora appear to have dropped off the State’s agenda.  This is particularly the case for survivors based outside of Ireland and the UK.

And, if survivors who are still alive have dropped off the agenda, unsurprisingly, the deceased do not feature at all.

To-date, JFMR has recorded the details of 1,663 women who died in Ireland’s Magdalene Laundries, almost twice the figure cited in the McAleese Report. The Report does not count the deaths of women who died in the laundries before 1922. Neither does the report count women who lived and died in institutionalized settings, still in the charge of the religious orders, after the laundries closed down. The McAleese Report maintains that the ‘vast majority’ of women who entered the Magdalene Laundries prior to 1922 were no longer in the institutions after the foundation of the State and consequently these so-called ‘legacy cases’ were ‘excluded from the statistical analysis’

Alice K, Agnes D and Maggie M are three of the women who were compartmentalised into the category of ‘legacy cases’ and who were thus omitted from the McAleese Report.

Alice K was twenty-nine years old when she was recorded in the 1911 Census for the Peacock Lane laundry in Cork.  On 26th November, 1961 an Alice O’K died and was interred in the Peacock Lane grave site at St Finbarr’s Cemetery in Cork.  If this is one and the same woman, Alice spent a minimum of 50 years at Peacock Lane.

At the age of twenty-eight, Agnes D appears in the 1901 Census record for High Park Laundry. The 1911 Census was recorded differently at High Park, with only initials used for each woman.  An ‘A. D.’ is recorded as aged thirty-four and from Dublin City. An Agnes D is interred at the High Park burial site at Glasnevin Cemetery in Dublin. She died on 4th August, 1967.  Agnes’s name does not appear on the exhumation licence for High Park and it is unclear whether or not she was one of those exhumed there in 1993.  Again, if this is the same woman, Agnes spent at least 66 years at High Park.

Maggie M is recorded in the 1911 Census for the Good Shepherd Laundry in Limerick at just eighteen years of age.  On 2nd December 1985, Margaret M died and was interred at the Good Shepherd Laundry grave at Mount St Oliver Cemetery in Limerick.  If this is the same woman, Maggie was confined for her entire adult life, a minimum of 74 years in the Good Shepherd Laundry in Limerick. Maggie is doubly excluded from the McAleese Report as she entered before 1922 and died after the laundry closed.

As part of our various submissions to the McAleese Committee, JFMR (then JFM) provided/shared all of its research materials and databases of names on Magdalene graves. Despite having this information, as well as enjoying access to the records of the religious orders, the IDC nonetheless managed to omit certain deaths from the Report and did not identify the discrepancies as outlined by JFMR here. These discrepancies include the fact that 51 women from Gloucester Street Magdalene Laundry whose names are inscribed on three headstones at a particular location in Glasnevin are not buried at that location, but are interred elsewhere.

For JFMR, and our sister organisation Adoption Rights Alliance (ARA), thoughts of celebration are far from our minds. Our work continues in reporting to the United Nations (for example, our submissions to the UN Committee on the Elimination of Discrimination Against Women here and here). We are also assisting with the provision of information to the Commission of Investigation into Mother and Baby Homes and Certain Related Matters and in the coming months we will be making a joint announcement in this regard.

During the week of the general election a vulnerable Magdalene survivor – we’ll call her Bridget – phoned to say she had spent 17 hours on a drip, sitting in a chair in a crowded A&E.  Bridget shed tears of happiness in the Dáil on the night of the apology. She phoned me the next day, concerned about the Taoiseach – ‘the poor man was very upset’ she said. Three years later however, she feels completely hoodwinked. Her lump sum payment is gone – she had debts to clear and had family to look after. Bridget has serious health issues and for her the enhanced medical card is of the utmost importance. She read Appendix G of Judge Quirke’s report and signed away her right to sue the State based on the legitimate expectation that she would receive a comprehensive healthcare suite of services. She certainly expected better than waiting 17 hours in A&E. Bridget has lived a hard life which has been a constant struggle, but she is a fighter – again and again she picks herself up and keeps going. She’s tired however, and keeps asking me when it will be over. The State apology represented hope and she thought the fight was finished on 19th February 2013 – I haven’t the heart to tell her that it’s nowhere near finished, and that the State itself will likely resist her every step of the way.

On this International Women’s Day, take a moment to think of Bridget, Alice, Agnes, Maggie and the other women who were incarcerated in Ireland’s Magdalene Laundries. Indeed, think of all the women who have had to shoulder the burden of progress – Louise O’Keeffe, Joanne Hayes, Eileen Flynn, Ann Lovett, the women infected with Hepatitis C, symphysiotomy survivors, Ms X, Ms Y, Savita Halappanavar, Philomena Lee and the thousands of women whose children were forcibly adopted – to name but a few.

Think of them, remember them and honour them however you see fit.

Remembering the Magdalene Women on International Womens’ Day