Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

This post is authored by Dr Darren O’Donovan, Senior Lecturer in International Law, Administrative Law and Human Rights, in  LaTrobe Law School, Melbourne. 

A lot of Irish media discussion in the preclearance debate has begun to feature rhetoric such as Ireland can’t “let the United States operate preclearance given the new executive order”, or that “Ireland should make a statement and close preclearance”. Opponents (they would call themselves realists) would argue that as a small country with a small economy this is far too dramatic a foreign policy step. To debate the legality of preclearance fully however, we need to emphasise that United States obliged, under international law, to operate its preclearance in line with the bilateral agreement between Ireland and the United States signed in 2008.

In this post I want to therefore frame questions for the United States government, and for use by United State citizens. The big one is of course simply: Is the United States in breach of its international legal agreements with Ireland by applying the executive order in Irish airports? The key provision of the 2008 Agreement Article II (1) which states that:

“Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland and, where applicable, the United States.”

As we have discussed in an earlier blogpost there are a range of potential, to be explored, arguments as to why the application of the executive order within Ireland’s jurisdiction may be unlawful under Irish law. What is significant however, is that we in Ireland cannot simply say that US law is a matter for US authorities. US law in fact sets the scope of their international legal obligations towards us, and it may even require us to give redress to some individuals (see question 4 below). We need to fold the United States’ bilateral obligations into the debates about preclearance.

Questions for the US Embassy/State Department:

  • As under the Article II of the 2008 Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under Irish law, what steps have you taken to ensure that the application of the executive order does not exceed the terms of the 2008 Agreement?
  • As under Article II of the Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under United States law, can you confirms what steps you have taken to confirm that the provisions of the executive order are compliant with United States law?
  • In the event you determine the executive order is not compliant with Irish law, are you willing to commit to not applying the executive order in preclearance areas at Dublin and Shannon Airport?
  • Given the close and abiding bilateral ties between the United States and Ireland, is it appropriate for the executive order to be applied in Irish airports while it is currently before the United States courts? We refer you in particular to Article IV(2) which appears to require Ireland to provide a system of redress in event of the “unlawful exercise of powers associated with the administration of preclearance“. This Article is not limited in its express terms to the unlawful administration of Irish law . Can you provide your view of the extent to which the Government of Ireland may be liable to provide redress for the actions of US government officials under this Article?

Ireland: The Supporters of the Preclearance System

What this post attempts to show is that being a supporter of preclearance means actually enforcing the agreement we made in 2008, and exploring potential United States’ breaches of it. It is difficult to imagine Irish parliamentarians not supporting the principle that preclearance only extends to the scope of the 2008 Agreement. Any Irish legislation which implements this principle does not ground any United States entitlement to immediately modify or withdraw from the 2008 Agreement. It would enjoy only its usual right to withdraw after one year. It should, however, be noted that in the event the United States is in material breach of the treaty, Ireland enjoys the right to suspend or withdraw from the 2008 Agreement after a brief period of consultation (as per Article 60 of the Vienna Convention on the Law of Treaties).

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

Irish Human Rights Bodies: Permitting Pre-Clearance to Operate in Ireland May Violate Human Rights

HR Grps 21

 Joint Statement from Irish Human Rights Organisations

Monday, 30 January 2017

 

FOR IMMEDIATE RELEASE

President Trump’s Executive Order adopting a targeted ban on refugees and migrants from certain countries should be strongly and categorically condemned by the Irish government. This Executive Order is a barely concealed attempt to discriminate on nationality and religious grounds, itself a gross violation of freely accepted international human rights obligations. We stand in solidarity with US civil society organisations working to uphold the legal rights of all those affected by this Executive Order.

Closer to home, we express collective concern that the operation of US pre-clearance at Dublin and Shannon Airports may result in individual Gardaí and immigration officials providing assistance to US pre-clearance officials’ implementing the Executive Order.

We welcome the call by the Minister for Children and Youth Affairs, Katherine Zappone for an urgent review of the Irish pre-clearance agreement with the US.

We call on the Minister for Foreign Affairs and Trade and the the Minister for Justice and Equality to take steps to immediately:

  1. Conduct an urgent review of the pre-clearance system operating in Ireland and take appropriate action, up to and including suspension of pre-clearance agreement, where there might be a reasonable chance of a person’s rights under the constitution, EU or the European Convention on Human Rights may be under threat.
  1. Provide appropriate information on the applicable law and procedures to any person refused pre-clearance on the basis of the operation of the Executive Order. Irish immigration officials should also give any person refused pre-clearance the opportunity to seek legal advice. The organisations issuing this statement stand ready to give advice and/or make appropriate referrals, to any person refused pre-clearance in Ireland on the basis of the Executive Order.
  1. Clarify the role of Gardaí and immigration officials in the US pre-clearance process to ensure that in the exercise of their public functions, a person’s rights under the Irish Constitution, European Convention on Human Rights, EU law or international human rights law will not be violated.

 

Signed:

Brian Killoran, CEO of Immigrant Council of Ireland (ICI)

Colm O’Gorman, Executive Director of Amnesty International Ireland

Edel McGinley, Director of Migrant Rights Center of Ireland (MRCI)

Eilis Barry, CEO of Free Legal Advice Centres (FLAC)

Fiona Finn, CEO of Nasc, the Irish Immigrant Support Centre (Nasc)

Liam Herrick, Executive Director of Irish Council for Civil Liberties (ICCL)

Nick Henderson, CEO of Irish Refugee Council (IRC)

Signatories are available for interview, please contact:

Caroline Reid, IRC, caroline@irishrefugeecouncil.ie; Ph: 085 858 5510

Clare Herbert, Amnesty International Ireland, media@amnesty.ie ; Ph: 085 814 8986

Edel McGinley, MRCI, edel@mrci.ie;  Ph: 087 748 5695

Emily Glen, ICCL, emily.glen@iccl.ie; Ph: 087 998 1574.

Jennifer DeWan, NASC, jennifer@nascireland.org; Ph: 086 085 3923

Pippa Woolnough, ICI, pippa@immigrantcouncil.ie; Ph: 085 835 3757

Yvonne Woods, FLAC, yvonne.woods@flac.ie FLAC, Ph: 01 887 3600

 

Irish Human Rights Bodies: Permitting Pre-Clearance to Operate in Ireland May Violate Human Rights

Problems in US Preclearance in Ireland? Lawyers & Others who can help

Throughout the day I have been contacted by lawyers and others who are ready and able to help anyone caught up in the administration and application of the Executive Order in Irish airports. Here is the list. If you want to be added to it, please either let me know on twitter (@fdelond) or make it known in a comment to this post. We will keep updating this list.

NGOs
FLAC will try to arrange representation for anyone who needs it; contact them at www.flac.ie or directly on twitter @flacireland

The Immigrant Council of Ireland will also help anyone who needs it; contact at www.immigrantcouncil.ie or directly on twitter @immigrationIRL

Doras Luimní can offer support to anyone caught up in the application of the EO in Shannon Airport (Examiner report); contact them through their website

Solicitors

Gareth Noble @GarNob and all at KOD Lyons Solicitors www.kodlyons.ie

Albert Llussa, Daly Lynch Crowe and Morris Solicitors, The Corn Exchange, Burgh Quay, Dublin 2, T:+35316715618, +35314749134, E: albert@dlcm.ie, , W:

Rosemary Kingston O’Connell

Miriam WIlson-Hughes @Griff101

Matthew Kenny of O’Sullivan-Kenny Solicitors was in touch to offer help from the firm

John Anthony Devlin of Barron Morris Solicitors

Simon McGarr of McGarr Solicitors

Cahir O’Higgins Solicitors info@coh.ie Tel: 018744744

Stephen Collins, Irish Refugee Council (see comments)

Barristers
The Bar of Ireland runs a Voluntary Assistance Scheme for NGOs in need of assistance from barristers; we are sure they would help: @BarofIrelandVAS email: vas@lawlibrary.ie

Anne Fitzpatrick

Gavin Elliot @sgelliot

Emma Slattery @epslattery

Patricia Brazil 

Garrett O’Halloran

Colin Smith

Patricia Sheehy Skeffington

Rory Treanor

Aoife McMahon

David Lennon

Julie O’Leary

Ann K Stapleton

William McLoughlin

Roger Cross

Paralegals, Legal Research, General Legal Knowledge
Jo Willis @jobw

Maria Hennessy @MP_Hennessy

Joan O’Connell hello@joan.ink  @clicky_here

Catherine Thullier (see comments below)

Ciara Ní Ghabhann

Donna Lyons, researcher & attorney-at-law (New York) lyonsdm@tcd.ie

Patricia MacBridge @IRLpatricia

Academics 
Jennifer Schweppe (Limerick) @jschweppe 

Darius Whelan (UCC) @dariuswirl

Siobhan Mullally (UCC) @smullallylaw

Fiona de Londras (Birmingham) @fdelond

Media, logistics and PR
Louise Williams @loureports

Practical Knowledge of CBP & Immigration

Colm Falherty @CJayFla

Colin Lenihan @colinlenihan

Problems in US Preclearance in Ireland? Lawyers & Others who can help

Q & A: US Preclearance Procedures in Ireland and the US Presidential Executive Order

This post has had input, or has relied on some ideas, from Fiona de Londras, Mairead Enright, Colm O’Cinneide and Darren O’Donovan.

Q1: What is the effect of the Presidential Executive Order that bars refugees and citizens of certain countries from entering the United States?

A1: The Executive Order generally suspends issuing visas for 90 days for Iranian, Iraqi, Libyan, Somalian, Sudanese, Syrian and Yemeni citizens under the US visa-waiver programme. These are all pre-dominantly Muslim countries. This includes dual-nationals, as with some of these countries you cannot surrender your citizenship. Therefore, an Irish citizen, who was born in Iraq, whether she has Iraqi citizenship or not, will be impacted by the this ban. The Executive Order also suspends the US Refugee Admissions Programme, permanently excluding Syrian refugees, and limiting refugee in-take for 2017 to 50,000 (almost half of what it was supposed to be). As seen from the news over the last number of hours, many people are being caught up in transit from this ban. Dual citizens (who are not US citizens) but who may be lawfully living in the United States, but travelling for work, are caught up in this ban. The Executive Order is nothing more than discrimination based on religion.

Q2: Does the Executive Order apply in preclearance in Irish airports?

A2: Yes, as reported yesterday, the Executive Order applies in Irish airports. The preclearance officers will apply this Executive Order.   US preclearance screening operates in select locations globally (i.e. in Canada (specifically Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver, Victoria, Winnipeg), the Caribbean (specifically Freeport, Nassau, Bermuda, Aruba), Ireland (specifically Shannon and Dublin), and the United Arab Emirates (specifically Abu Dhabi International Airport)).The American Civil Liberties Union (ACLU) gained a stay on  deporting persons stopped from entering the United States due to the the executive order. This only impacts those on US territory.

Q3: Does Irish law apply in preclearance areas in Irish airports?

A3: Irish law governs the operation of preclearance areas in Irish airports by the Aviation (Preclearance) Act 2009 and 2011 Regulations. The 2009 Act gives effect to the Agreement between the Government of the United States of America and the Government of Ireland on Air Transport Preclearance (Preclearance Agreement 2008). It is important to note that the Agreement between the US and Ireland cannot be directly relied upon by individuals in Irish courts. While the full text of the agreement is set out in the 2009 Act, this is “for convenience of reference”. Irish courts have previously interpreted “convenience of reference phrases” to mean that the international agreement is NOT part of Irish law. Nevertheless, Article II(1) of the Preclearance  Agreement 2008, provides:

 “Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland”.

This phrasing is not utilized in the Aviation (Preclearance) Act 2009. However, we would submit that as with any legislation, it must be interpreted considering the State’s obligations to protection human rights, in particular under the Constitution and the ECHR Act 2003.

Q4: What powers do preclearance officers have in Dublin and Shannon Airports?

 A4: Preclearance officers have a significant number of powers set down in section 5 of the 2009 Act. These include search and detention (for a limited period of time) powers.  Preclearance officers can refuse entry onto an aircraft to a person who is “found to be ineligible for entry into the United States.” This includes operating the discriminatory Executive Order.

Q5: Are Irish officials involved in the operation of preclearance areas?

A5: Yes. As provided for under the 2009 Act, Gardaí and members of Customs and Excise may be involved in supporting the exercise of powers and duties of preclearance officers in the preclearance areas.

The Irish Foreign Minister, Charlie Flanaghan, has issued a statement expressing concerns about the changes in US immigration policy. The claim that this is solely an issue of US immigration and refugee policy is wholly incorrect given Ireland’s involvement in pre-clearance procedures in Dublin and Shannon Airports.

Q6: What rights do people have under Irish law if they are refused preclearance in Dublin and Shannon Airports?

A6: Where an individual is refused preclearance and not permitted to fly to the United States, then Irish immigration officials will accompany that person. The person refused is then at the “frontiers of the State”. Therefore, a person refused preclearance due to the US Executive Order then has rights to request entry to Ireland, including (of course depending on the situation) a potential right to claim international protection (refugee or subsidiary protection) in Ireland. Ireland also has an obligation not to return that person to a country (which may or may not be the country they boarded an initial flight to Ireland) where they face a serious chance of being persecuted or tortured. This is known as the duty of non-refoulement.

Q7: Might the application of the Executive Order at preclearance in Dublin and Shannon Airports be unlawful per se?

A7: It is arguable that this is the case.

First, Ireland continues to have international legal obligations in relation to preclearance areas as they are within the jurisdiction and territory of the state. These legal obligations CANNOT be set aside by its Preclearance Agreement with the United States. These obligations may mainly emerge from the equality guarantees in the Irish constitution and Ireland’s obligations under the European Convention on Human Rights.

Second, where the Executive Order impacts on EU citizens (including Irish citizens) with dual citizenship Article 18 TFEU may be engaged. This prohibits discrimination based on nationality for EU citizens, and likely prohibits the facilitation by state officials (including immigration officials) of discriminatory actions of US preclearance officers.

Third, it is arguable that s. 42 of the IHREC Act 2014 applies. This requires a public body “in the performance of its functions” to “have regard to the need to…eliminate discrimination…protect the human rights of its members, staff and the persons to whom it provides services”. The Act defines a public body as (inter alia) “a Department of State…for which a Minister of the Government is responsible” (excluding the Defence Forces). This, thus, includes the Gardaí and Customs and Excise, which as already noted assist in the administration of the preclearance areas and the application of their powers and duties by preclearance officers.

Please write to your local T.D and let the Irish Human Rights and Equality Commission know that you believe they should exercise their powers to investigate preclearance procedures in Dublin and Shannon Airports. 

Q & A: US Preclearance Procedures in Ireland and the US Presidential Executive Order

The ‘Muslim Ban’: Suggested text for letter to members of the APPG on Ireland and Irish in Britain

Irish citizens resident in the UK may be interested in hear that there is an All Party Parliamentary Group on Ireland and the Irish in Britain, the members of which are often receptive to correspondence from Irish citizens. Below is a text that might be useful for people who want to correspondent with them on the matter of the so-called ‘Muslim ban’ recently enacted in the United States of America.

Dear

Given your membership of the APPG on Ireland and the Irish in Britain, I am writing to you as an Irish person living in the UK to bring your attention to particular concerns relating to the so-called Muslim ban implemented by President Donald J. Trump.

As you may know, the Executive Order is to be applied in US preclearance areas, including in Dublin and Shannon Airports, as well as by air carriers worldwide. I am sure you will also be aware that an increasing number of UK residents travel to the US via Ireland, particularly to avail of the preclearance arrangements there.

I am writing to you to ask you to make enquiries of the Prime Minister and relevant other Ministers as to:

  1. Assurances that have been sought by the UK government from the Irish government that the rights of EU citizens, including UK citizens, while travelling through US preclearance in Irish airports are being fully protected.
  2. Details of representations from the UK government to the government of the United States of America to ensure its full compliance with international refugee law and international human rights law.

All over the United States this weekend lawyers and others have protested against this unlawful, cruel, Islamophobic and xenophobic attempt to undermine the rule of law. I ask you to ensure that the UK government stands with them.

Given the urgency of the situation, I would appreciate your swift response.

Yours sincerely,

The ‘Muslim Ban’: Suggested text for letter to members of the APPG on Ireland and Irish in Britain

US Preclearance and the ‘Muslim ban’: Write to the IHREC

Here is a suggested text to the Irish Human Rights Commission for those who would like them to take steps available to them to assess whether the public bodies’ human rights duty under s. 42, IHREC Act 2014 is being complied with. 

Emily Logan, Chief Commissioner

Irish Human Rights & Equality Commission

16-22 Green Street

Dublin 7

D07 CR20

publicinfo@ihrec.ie

Dear Ms. Logan and members of the Irish Human Rights and Equality Commission,

As you will be aware, the US Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” is applicable in US Preclearance areas in Dublin and Shannon Airports.

Both the Agreement between the Government of the United States of America and the Government of Ireland on Air Transport Preclearance (2008) and the Aviation (Preclearance) Act 2009 make clear that an Garda Síochána and Customs and Excise officials of the Revenue Commissioners are involved in the administration of the preclearance arrangements and area.

I am writing to ask you to take the appropriate steps to assess whether all Irish public bodies involved in the administration of the preclearance area and agreement are acting in compliance with their duties under s. 42 of the Irish Human Rights and Equality Commission Act 2014.

Yours sincerely,

US Preclearance and the ‘Muslim ban’: Write to the IHREC

US Preclearance and the ‘Muslim ban’: Write to your TD

We suggest below a draft letter that people concerned with the application of the Executive Order in US pre clearance in Irish airports might find useful should they wish to write to TDs in relation to it. Of course, people should adjust it to reflect their preferred language and approach to the issue, but we hope it might be useful.

Dear

I am writing to you [as a constituent [and] citizen] to express my deep concern about the continued operation of the Aviation (Preclearance) Act 2009 and associated agreements in Irish airports during the administration of President Donald J. Trump.

In the first week and a half of his presidency we have already seen Trump attempt to subvert the Immigration and Nationality Act 1965 in order to apply discrimination in immigration and undermine international refugee law through Executive Order. As a result of the preclearance agreement between Ireland and the USA, this Order is being applied on Irish soil and in Irish airports. As you will be aware, Article II(1) of that agreement makes it clear that Irish law continues to apply in those preclearance areas. The application of this Order may result in, for example, EU Citizens with dual citizenship with a listed country experiencing nationality based discrimination, facilitated by Irish law, in clear contravention of the TFEU. I remind you also that it is not  possible effectively to renounce citizenship in Iran, Syria, Libya and Yemen.

I remind you that under the 2009 Act, those turned away at preclearance are at the frontiers of the state and must be treated in accordance with Irish law. The Irish state also has obligations of non-refoulement which may arise. Furthermore, any Irish officials including Gardaí who may be involved in any way in policing the preclearance area are obliged as always to act in full compliance with the Constitution and with the ECHR.

Even if Congress supports President Trump’s policies through legislation, thus amending the 1965 Act inasmuch as that is constitutionally permissible, Ireland must ensure that rights under the Irish Constitution continue to be protected in these preclearance areas, and that violations of international law are not facilitated through the application of the agreement.

Bearing all of the above in mind, I would be grateful if you could please seek from the Taoiseach and appropriate minister, and provide me with, details of the following:

A. Measures that are being taken to ensure that unlawful discrimination is not being undertaken or facilitated at Irish airports through the application of Trump policy in preclearance areas.
B. Measures that the Irish government is taking to ensure that international refugee law is not subverted through the application of Trump policy in preclearance areas.
C. Mechanisms in place to ensure Ireland’s obligations under the TFEU, the ECHR and other applicable international law are fully complied with in preclearance areas.
D. Procedures for withdrawal from the preclearance agreement and bases upon which withdrawal would be contemplated by the Irish government

All over the United States this weekend lawyers and others have protested against this unlawful, cruel, Islamophobic and xenophobic attempt to undermine the rule of law. I ask the Oireachtas and the Irish government, in my name, to stand with them. I also ask you to ensure that Ireland provides protection to people seeking asylum from Syria, in particular, who President Trump seeks to preclude from receiving refugee status in the United States.

Given the evident urgency of the matter, I look forward to your swift response.

Yours sincerely,

US Preclearance and the ‘Muslim ban’: Write to your TD

The Right to Legal Advice in the Garda Station: DPP v Doyle

The Supreme Court yesterday ruled (6 agreeing, though for different reasons, and 1 dissenting) that the constitutional right to reasonable access to a lawyer does not extend to a right to have a solicitor present during Garda interviews. In May 2014 the DPP had instructed gardaí to permit solicitors to attend interviews where requested, stemming from the fact that Irish and European jurisprudence and regulation was moving in that direction. There had not, at that point, been a ruling that there was such a right under the Irish Constitution, and Ireland has not opted into the EU Directive on Right of Access to a Lawyer in Criminal Proceedings. However, it had been strongly indicated in obiter statements in the case of DPP v Gormley and White that this was possible. The decision in Doyle indicates that Irish constitutional law has not reached that point, not yet at least. Continue reading “The Right to Legal Advice in the Garda Station: DPP v Doyle”

The Right to Legal Advice in the Garda Station: DPP v Doyle

Guest Post: Extension of the 14 day rule: potential implications for Irish embryos

Human Rights in Ireland is delighted to welcome this guest post from Ciara Staunton. Ciara is a lecturer in Law at Middlesex University London with research interests in the governance of medical research, particularly new and emerging technologies. She received a BCL and a LLM (Public Law) from the National University of Ireland, Galway after which she worked as a legal researcher at the Law Reform Commission of Ireland. She returned to NUI Galway to complete her PhD for which she was awarded an Irish Research Council scholarship (2010-2013). During this time she was a visiting researcher at the Hastings Centre in New York. Prior to joining Middlesex, she completed her post-doctoral research at Stellenbosch University in South Africa where she also co-ordinated the Advancing Research Ethics in Southern Africa program.

In May of this year, scientists reported in Nature and Nature Cell Biology that it is now possible to grow an embryo in the lab up to 13 days post-fertilisation. It is expected that growing embryos up to and beyond this time will provide insight into human development, giving us a better understanding of the causes of infertility and miscarriage.

Although an exciting development, it raises a host of legal and ethical questions in the UK as 14 days is the current cut off point for research on human embryos. This rule, first proposed in the Warnock Report, is enshrined in the Human Fertilisation and Embryology Act 1990, and has been adopted by many jurisdictions across the globe. Day 14 was proposed as the cut-off point in Warnock as it is after this point that the primitive streak (which eventually gives risk to the central nervous system) begins to develop. This date was also deemed important in the Report as twinning will not occur after this point, thus the individuality of the embryo has been asserted. Although justified on these grounds, in reality it is an arbitrary date reflecting a compromise between the competing moral claims on the embryo and the advancements of science. The embryo does not have any special significance that cannot be attached at an earlier or later point in time: a cut-off point was simply needed and this is the point selected by the Warnock Committee and endorsed by parliament.

This rule has remained unchallenged for almost 30 years, largely due to the pace of innovation in reproductive science. Although the scientists behind the breakthrough are not advocating an extension of the rule for now, they are encouraging debate on the topic. Noting that although the 14 day rule does not necessarily need to remain set forever, Phillip Ball states that ‘changing it needs a social mandate and public confidence, and the scientific case for benefits has not yet been properly made’. Signifying the beginning of such a debate, the Nuffield Council on Bioethics has announced that it will consider the issue, and it was also the subject of the recent Progress Educational Trust (PET) annual conference.

The burgeoning debate in the UK makes one consider the status of our own embryos in Ireland. It has been over 20 years since the publication of the Report of the Commission on Assisted Human Reproduction (CAHR), and 18 years since the Irish Council for Bioethics Report on stem cell research. Both reports endorsed embryo research and recommended a regulatory authority to oversee the research, backed up by legislation, similar to the system in the UK. In 2011 the Supreme Court made in clear in Roche v Roche that the embryo is not protected under Article 40.3.3, but that it may be worthy of ‘respect’, a concept that they considered necessary for the Oireachtas to clarify. Yet since then the embryo has continued to languish in Ireland with no rights or protection.

As a result of our messy constitutional history and the lack of a regulatory framework, there is little or no funding of embryo research, a situation that suits opponents of the debate. Yet since 2002, Ireland has supported the European Commission’s decision to fund embryonic stem cell research under FP6, FP7 and Horizon 2020, both in its formal endorsement of the policy, and indirectly through the contribution of Irish taxes towards embryo research in Europe. Such contradictory practices can only be described as ‘an Irish solution to an Irish problem’. However, as the UK begins to consider a revision to its long-standing rule, it is now time for Ireland to consider our own embryos, and there are three features of the UK debate that are particularly relevant.

First, rather than attempt to answer questions on the moral status of the embryo and when life begins, the Warnock Report confined itself to a consideration of ‘how it is right to treat the human embryo’. The status of the embryo is a philosophical debate influenced by our individual moral, ethical, perhaps religious, but deeply personal beliefs that no government should have a role in dictating. Although it must acknowledge the moral debate on the status of the embryo and there must be room for this discussion, the Irish government must confine itself to a determination of the permissibility of embryo research and the parameters in which it must take place.

Second, a period of debate and discussion is not only advisable, but arguably necessary. Six years elapsed between the publication of the Warnock Report and the passage of the 1990 Act. At the PET Conference, Baroness Warnock noted that the 6 year delay was useful as it gave time for researchers to publicly explain the benefits of the research. However, the period of delay since the publication of the CAHR report is utterly inexcusable and has deprived assisted reproduction and embryo research of a clear and coherent regulatory structure. Considering the developments since the CAHR report, an updated report is likely necessary, and this must be followed by public debate and reflection, with a clear commitment to introduce legislation.

Third, respecting the embryo and embryo research are not mutually exclusive. In a recognition that the embryo is worthy of respect, embryo research is only permitted for increasing understanding of serious diseases and the development process of the embryo, and research cannot be done beyond day 14. Any research conducted outside the parameters of the law is deemed to be a criminal offence, with violators subject to fine, imprisonment and loss of licence. The process set down by the 1990 Act is a strict regime that has stood the test of time.

Although not necessarily advocating the introduction of identical regulations, we should not repeat the debacle of the abortion debate and wait for a scandal to force our hand. As the world considers a revision of the 14 day rule, it is time for Ireland to consider, and legislate for, our embryo research.

 

Guest Post: Extension of the 14 day rule: potential implications for Irish embryos

Notes on Judge Harding-Clark’s Report on the Symphysiotomy Payment Scheme.

Judge Maureen Harding-Clark’s report on the much-criticised Symphysiotomy Payment Scheme was published two days ago. It is 275 pages long – 133 of commentary from the judge, 142 of extracts from medical literature and hospital records. Judge Harding-Clark was in an important position. She assessed applications from almost 600 women who believed that they had been subject to symphysiotomy. She oversaw searches of hospital records, and medical tests designed to verify their claims, and she allocated redress payments accordingly; 50,000 euro to those who could show they had had a symphysiotomy, 100,000 euro to those who could link that symphysiotomy to ongoing health consequences, and so on. Her report does more than describe the functioning of that role. It situates the scheme she oversaw in the context of an extensive defence of the uniquely Irish practice of non-emergency symphysiotomy. It is not the independent report survivors of symphysiotomy are entitled to under human rights law. The media have read it as diminishing SOS’s claim that the non-emergency substitution of symphysiotomy for Caesarean section without consent, as practiced in Ireland, violated many women’s human rights. However, this coverage has been insufficiently critical of this report. Here are just some of the report’s problematic features:

Lifelong Injury: The judge repeatedly stresses that she did not find that symphysiotomy ‘as a matter of near certainty created lifelong suffering’. ‘Near certainty’, is not, of course, the ordinary civil standard applied to causation in personal injuries. The report does not show that symphysiotomy was a benign operation. Over 35% of successful applicants to the scheme were able to demonstrate that they suffered significant disability which, on the balance of probabilities were caused by a symphysiotomy, and which had lasted more than three years. The judge emphasises that these were not the kinds of injuries (difficulty walking, incontinence) which were typically associated with symphysiotomy in the media; nevertheless, the disabilities listed in her report are distressing and significant. While the judge stresses that she was ‘generous’ in helping women ‘over the line’, all of these women were able to prove their injury either with original medical records (by no means easy to get after decades), or by medical examination conducted under the direction of the scheme. The remaining 65% were able to satisfy the judge that they had undergone symphysiotomy, and all of them will have suffered significant pain, and perhaps disabilities which lasted less than three years.

In any event, the judge’s focus on lifelong disability diminishes the experience of the operation itself. Indeed, it is striking that the report only discusses the performance of a symphysiotomy in the clinical language of scalpels and sinews. Women’s first person testimony of the operation, by contrast, emphasises fear, pain far beyond the normal expectations of labour, distress and powerlessness. Although the majority of the 55 applicants who had symphysiotomies before labour began did not suffer significant disability, all of them laboured through a damaged pubic joint. Prevalence of life-long injury is not the only measure of the harm done by symphysiotomy.

‘Unfounded Claims’ and Difficult Activists. Much has been made of the judge’s finding that 185 applicants to the scheme could not make out their claims. The report devotes a chapter to these women. It also spends considerable time on applicants who, whether or not they succeeded in proving symphysiotomy, could not satisfy the scheme that they had suffered significant disability Of course, we don’t as yet know who these women were or how they would describe their experience of the scheme. We should not forget that 399 women received awards, and that many women died before the scheme came into operation. That a large number of claims failed should not deter us from examining whether successful applicants have been properly treated, by the scheme or by the state. However, there are also serious shortcomings in how the report presents the issue of unsuccessful claims.

First, in some cases, the judge’s perception that claims were inaccurate affected the scheme’s procedure. For example, the judge finds evidence of a lack of candour by women, or of inaccurate diagnoses by doctors, in the recent medical reports of radiographers and GPs furnished to the scheme – and explains that this problem was so significant that it justified her insistence on preferring contemporaneous records of symptoms to more recent ones. To the same effect, the judge suggests that solicitors or campaigners assisted women to prepare statements to the scheme according to templates which made repeated use of similar ‘lurid’ or ‘harrowing’ motifs and adjusted women’s symptoms to fit media reports. She contrasts these applications with those which women prepared ‘personally’. However, while the judge provides anecdotes, she does not number the problematic complaints, rank them in terms of seriousness, or give a sense of how widespread these issues were.

Second, the language the judge uses to describe unsuccessful applicants is entirely inappropriate in a report of this kind. At worst they are chastised for buying into ‘conspiracy theories’, for ‘unreasonable’ reactions, for their anger and disappointment. At best, they are patronised as ‘suggestive personalities’ ‘amenable to … emotional contagion’ and subject to ‘acquired group memory’ developed through involvement in campaigning organisations; or elderly women sent into ‘turmoil’, not by their experience of symphysiotomy or by the government’s attitude to it, but by irresponsible  ‘media reports’. The judge says:

it is very probable that the combination of a traumatic birth experience and exposure to other women’s stories has created a self convincing confabulation of personal history. Another inference is that the possibility of financial payment has  influenced suggestible women and their family members into self- serving adoption and embracing of the experiences described by others or in the media and created psychosomatic conditions.

The tone and length of this discussion sits uneasily with the judge’s insistence that a ‘compassionate and generous’ approach was taken to assessing claims which suffered from these perceived flaws. Most disturbingly, the report alleges, without explanation, that several prominent campaigners for justice for women subjected to symphysiotomy ‘who have been active in representing themselves as victims to the media’, as well as several of the 28 women still pursuing personal injuries litigation in respect of their symphysiotomies, were found not to have undergone the operation at all. The most well-known campaigning organisation; SOS, denies that any of its prominent members were unsuccessful applicants to the scheme. The judge gives an impression of suspicion of campaigning organisations and their lawyers. This attitude is underscored by this section on women’s correspondence with the judge: happy women concerned with family rather than campaigning, who are spending money on ‘spoiling themselves’, rather than on the amelioration of pain and disability.

I was ultimately glad that most exaggerated accounts were ignored and compassion was applied to these women who perhaps were influenced by others to make the statements. This led to some of the more pleasurable moments as judicial assessor when I read the warm letters and notes from the women who wrote to me after they received their awards to tell me that they were certainly intent on spoiling themselves a little. Several very happy applicants rang to tell me how they were going to spend their money. One lady was buying a special hat. One applicant lifted my heart when she told me that she had never had any money in her savings account. Now she looked at her bank account every morning, for the sheer pleasure of seeing the amount of money in the account in her own name. One delightful applicant invited me to tea at her house and one wrote a poem of appreciation. Most women who wrote, told me that it gave them huge pleasure to be able to help their children or their grandchildren with their awards

The report’s approach undermines human rights campaigners, group organising, and social justice lawyering in one fell swoop, perhaps forgetting that without the work of these organisations the redress scheme – however flawed – would not have been set up at all, and many women would not have been able to access it.

Reproduction, Birth and Women’s Bodies. The pro-natalist tone of the report is striking. For example, the judge repeatedly explains that even though many applicants to the scheme complained of difficulty and pain in sexual intercourse for a year after the operation, most women who received awards under the scheme went on to have multiple further pregnancies; the first within 12-18 months of the symphysiotomy. Thus a  young woman’s damaged sex life, leading to more babies, equates to  a ‘good recovery’. Of course, this is less evidence of the acceptability of symphysiotomy than of the general unavailability of contraception in Ireland until the 1970’s. This analysis suggests that the healthy female body is one that holds up to repeated childbirth, whether that childbirth was chosen or not. This impression is solidified by later references to ‘voluntary infertility’; a medical term which works to pathologise women who managed not to have more babies. Indeed, the report strives to normalise a model of reproductive life rooted in women’s suffering. For example, it notes the difficulties in distinguishing between injuries caused by symphysiotomy (which may deserve redress), and the presumptively acceptable injuries caused by having a dozen children, difficult forceps births, or one or more protracted, exhausting labours (which never can). Later, the report patronises women who applied to the scheme and were found not to have undergone symphysiotomy, attributing their memories to ‘confabulation’. The judge suggests they mistook other traumatic birth experiences for symphysiotomy. Here the wrongfulness of symphysiotomy is clearly being assessed against a backdrop of normalised suffering and obstetric violence. Arguably these ‘mistaken’ applications demonstrate a deeper problem in the history of childbirth in Ireland, which the exceptionalisation and defence of symphysiotomy only serve to mask. Finally, the report mentions that some women who underwent symphysiotomy were ‘extremely grateful to have a lovely healthy baby’. This is one of several examples of places in the report where the judge fudges the elementary difference between symphysiotomy as a last-resort, emergency, life-saving procedure, and symphysiotomy as an elective procedure, substituted for C-section. A C-section might also have given the same women the same healthy baby.

Testimony – Direct quotation from women’s testimony only appears in the context of discussing and contradicting unsuccessful applicants’ submissions; representing their statements as part of a clumsily orchestrated attempt to mislead the scheme. A long list of fragments, for example, appears at pages 100-101 of the report.  There is no  detailed discussion of successful applicants’ testimony. By contrast, the report contains over 100 pages of direct quotation, often lengthy, from documents and statements made by doctors who performed symphysiotomies.

Religion: Like the High Court and Court of Appeal  in Kearney and Farrell  the judge finds that there were medical as well as religious justifications for the Irish practice of symphysiotomy. In one breath the report says that there was no evidence of ‘a religious as opposed to an obstetric reason’ for performing symphysiotomy, and explains that its development in Ireland was connected to a unique need to avoid potentially dangerous repeat C-sections in circumstances where contraception was not available and sterilisation was not performed. There is a stubborn refusal here to recognise that religion is as much a matter of structural power as individual religious belief. Religion was present in the development of symphysiotomy even where its proponents did not use religious language This was because contraception was not available and sterilisation was not performed because medical practice and the law of the land reflected religious mores. The report suggests that contraception ‘was not countenanced’ by women in a country where the majority ‘happily embraced’ Catholicism,  so that symphysiotomy developed in response to women’s spiritual needs. This analysis, of course, forgets that women were not given the choice, as a matter of law, to control their fertility and that there is ample evidence that those women who could do so used contraception illegally, whether it sat easily with their consciences or not.  The expectation that women should have repeated pregnancies, and should be willing to suffer for them, at the hands of expert men, was a matter of vernacular religion which cannot be reduced to happy preference. The Irish practice of non-emergency symphysiotomy was, therefore, a response to a particular set of state and religious structures which facilitated harmful medical practice. There was not the same reliance on symphysiotomy in the same types of case in any other country, precisely because that set of state and religious structures did not exist. And precisely because it existed in Ireland, certain Catholic doctors had an outlet to develop and legitimate that practice. As the Court of Appeal recently confirmed, non-emergency symphysiotomy was championed by only one school of obstetric thought in Ireland, and acceptance of practice varied from doctor and doctor and from hospital to hospital: it is doubtful whether it would have achieved any purchase without the driving engine of institutional Catholicism.

Human Rights Violations: The judge finds that symphysiotomy as practiced in Ireland was not ‘a deliberate act of torture’. She makes this finding (sweeping across hundreds of cases) on the basis that symphysiotomy was used to improve maternal outcomes rather than with ‘any intention to inflict pain’. Doctors ‘did their best‘. Like the Walsh report and the Farrell and Kearney cases, this report finds that the development of symphysiotomy in Ireland was, at certain times, within the (generous) bounds of documented acceptable medical practice, albeit some doctors strayed beyond those bounds in practice. For the judge, that is enough to show that important legal claims can be laid to rest. Here she shows a stunning narrowness of legal imagination. Contemporary human rights scholarship recognises that obstetric violence is a real and complex human rights issue.  Even if a medical practice can be therapeutically justified in principle, we must consider how it is employed in the context of pregnancy and labour. In the case of symphysiotomy, consent is the crucial issue. It has not been possible to canvas consent in High Court cases, for procedural reasons relating to evidence and lapse of time. Neither does the redress scheme seek to address the issue of lack of consent.  The Walsh report, although flawed, accepted that medical culture in Ireland at the time was such that women’s informed consent to obstetric procedures was not always sought. Judge Harding-Clark’s report directly contradicts this finding – she simply states that she does not believe that women were not told that a symphysiotomy would be performed on them. From a human rights perspective, this observation is useless.

In the forced sterilisation case of VC v. Slovakia the European Court of Human Rights held that the Article 3 prohibition against inhuman and degrading treatment can be violated where an accepted therapeutic practice is paternalistically imposed on a patient without adequate consent. It was irrelevant that the medical staff in that case did not act  in bad faith, or with the intention of ill-treating the patient – it was enough that they disregarded her autonomy. And even had she not suffered physical pain, mental distress is sufficient to prove inhuman and degrading treatment. In view of the violation, the state was also obliged under Article 3, to carry out an effective investigation. The court further found a violation of the Article 8 right to private life, because of the impact of the surgery on the woman’s reproductive life. In the right case, where it is proven that doctors chose a particular medical practice for discriminatory reasons, they might also find a violation of the Article 14 right to freedom from discrimination. The standard of informed consent is higher than mere ‘knowledge’. Both VC and the CEDAW Committee in AS v. Hungary, stress, for example, that obtaining the patient’s signature is not enough. Consent must be voluntary and informed, and in non-emergency circumstances the patient must be given enough time to consider the treatment, weigh her options and refuse. Special care must be taken with patients who are vulnerable; such as women in labour. Protection of consent goes beyond simply being given the name of the procedure about to be performed on you, or having it explained after it has already been performed.

Conclusion. It is a mistake to think of the story of symphysiotomy as one about ‘bad doctors’. It is a story about bad systems of knowledge, and bad cultures, which corner women, induce compliance, deny their autonomy and thereby wound them. Those cases are extraordinarily difficult to litigate because the assumptions which drive the old system persist in judicial reasoning and are exacerbated by an adversarial framing. Outside the courtroom, we can find the same problems. What is striking about this report is that it uses constructs from those systems and cultures – valorising reproduction however painful, stoking a suspicion of women who claim their human rights, privileging medical literature over first person testimony – to silence protest. It deserves closer, and more critical reading and discussion.

Notes on Judge Harding-Clark’s Report on the Symphysiotomy Payment Scheme.