PILA Seminar: The Duty of the State in Constitutional Cases– 7 July, Dublin

PILAFollowing their recent book, ‘Public interest litigation and social change in South Africa: Strategies, tactics and lessons’, Gilbert Marcus SC and Nick Ferreira are visiting Dublin to share learning in public interest litigation.

Date:                     7 July 2015

Time:                    5.30pm – 7pm

Venue:                 The Morrison Hotel, Lower Ormond Quay

Marcus and Ferreira will explore the duty of the State in constitutional cases, followed by a panel discussion with Michael Lynn SC and Noeline Blackwell of FLAC on the experience of public interest litigators in Ireland. The seminar will be chaired by former Attorney General, Paul Gallagher SC.

This event is a must for those interested in how to best use rights, law and litigation to advance social change. Continue reading

The Greek Financial Crisis and the Rhetoric of Emergency

Since 2008, a new economic crisis in Europe appears on the horizon every few months. The current negotiations surrounding Greece’s possible exit from the Eurozone seems different, however; it appears that the emergency as finally come to a head.

Over these past seven years or so, the rhetoric of emergency has been frequently used by various governments to describe the recession/depression, and subsequent government and international responses. Throughout the economic crisis, the various Irish Governments presented this economic crisis as such an existential emergency. Ireland was not unique in making use of this rhetoric, with UK Prime Minister David Cameron in 2012 describing the UK’s own financial crisis as tantamount to war.

With only Leaving Certificate economics under my belt, I am in no position to engage in economic analysis of what should be done to fix the Eurozone crisis. I will therefore remain agnostic about the merits of austerity but instead focus on the political and legal processes by which these austerity measures have been enacted and justified in various states throughout the Eurozone. These responses are, like the examples given above, often couched in the language of ‘emergency’. Such economic states of emergency face a number conceptual difficulties, however.

The Problem of Necessity

States of emergency connote sudden, unforeseen crises that require an exceptional response. This response is considered necessary to defeat the crisis at hand and restore the status quo that existed prior to the emergency coming into existence. Various different phenomena can trigger emergency responses by states: from war, to natural disasters, to economic recession. What characterises an emergency response is that it is one that is justified as being absolutely necessary to confront an existential threat to the state.

The emergency response deployed during crises that affect national security generally entails the restriction of human rights such as the right to liberty, due process rights, or privacy. In economic crises, the response can come in a variety of different manners: for example, state intervention in the private banking sector; changes to government income and expenditure rates; or both.

The rhetoric of crisis is a powerful one that can be used by governments to shape the contours of political debate. It silences opposition and creates a ‘rally around the flag’ effect, encouraging citizens to see sacrifices as necessary. The Government, or so the rhetoric goes, has no choice but to implement unpalatable decisions. If it does not, the alternative is presented as being the ruination of the state. Austerity in this context is presented as the lesser of two evils. This rhetoric of emergency therefore also instils a fear in people; a fear of the unknown.  Greece’s referendum on Sunday, if it goes ahead, is being presented in such stark terms.

Of course, there are always choices, even during a state of emergency. Necessity is not a wholly objective concept but rather is relevant to the objective that one seeks to achieve. Some emergencies and the requisite responses may, however, be more necessary than others. In contrast, economic emergencies lack even basic agreement as to what is necessary. People may agree that the deficit needs to be tackled but may disagree about how this should be done. Very often, these disagreements are wholly irreconcilable: for example, whether to take a Keynesian approach and increase government spending; or do the complete opposite and reduce government expenditure. The rhetoric of emergency thus cloaks political and ideological choices in a veil of objectivity. The current negotiations between Greece and its creditors is a concrete example of this ideological disagreement. Thus it is not that austerity measures in Greece are necessary; it is that the Eurozone appears to be ideologically wedded to austerity as a solution to its crisis.

Of course, disagreement occurs in all walks of life, not least in politics. Indeed, there are those who argue that disagreement is the very backbone of politics. Many states therefore seek to resolve disputes through parliaments, for example.  This is called democracy – something the Greeks are familiar with. Parliaments were designed precisely for this. Parliaments, so this theory goes, produce not necessarily the right answer or even the best answer but the answer with the most democratic legitimacy.

The Eurozone crisis, however, has illustrated the decline of parliaments across Europe. With ever more decisions taken at the international level and the increasingly technocratic nature of these decisions, parliamentary democratic input into economic issues has reduced. This decline of parliaments is not a Twenty First Century phenomenon but can be traced back decades. The current economic crisis has shown, however, how this process has accelerated in recent years.

The Greek proposal to put any negotiated deal to a referendum can be seen as a risky negotiation tactic. On the other hand, it can also be seen as an attempt to inject a degree of democratic legitimacy into macro-economic decisions that has been seriously lacking. It will therefore be up to the Greek people to decide whether or not to agree to the terms of a new deal. Of course, the referendum process is not infallible. Irish people know all too well that referendum campaigns are often not fought upon carefully reasoned arguments but on emotional rhetoric and, at times, misinformation and falsehoods. Moreover, with little time allowed between the announcement of the referendum and the actual polling date, the circumstances surrounding the Greek referendum are far from ideal. Nevertheless, this expression of democracy, if it goes ahead, would stand as a sharp relief to the technocracy that preceded it.

The Problem of Urgency

It is not just to ‘necessity’ that the rhetoric of emergency pleads to. Emergencies also connote images of urgency, immediacy, or inevitability. An existential threat to the state is seen as imminent and so the response must also be taken promptly. Ordinary procedures therefore are truncated in order to expedite a response. Time is a luxury that a decision-maker does not have in an emergency. Consequently, emergency decisions are normally taken by the executive, the branch of government most capable of acting quickly. The judiciary and parliament then defer to the executive’s decision of what ought to be done.

The problem of urgency presents a particular difficulty for courts, for example, which are notable for their slow adjudicatory processes and procedures. Parliaments, however, also suffer from this difficulty. Debate takes time. The legitimacy of a democratic decision therefore is dependent upon there being adequate time for debate. Otherwise, a parliamentary resolution becomes merely a rubber stamp for the will of the executive. This is something Ireland is no stranger to with over-use of the guillotine in parliamentary debates undermining the democratic legitimacy and the effectiveness of the Oireachtas. Again, we can see here how the claim to urgency results in the decline of parliaments.

Urgency also connotes the idea of an event outside the control of the various stakeholders. It is an event, the arrival of which cannot be avoided but at best can be mitigated or tackled by adequate emergency preparedness.  The various Eurozone crises and the moment in which they crystallised cannot be seen unforeseen or uncontrollable consequences, however. Instead, their fruition is often used as part of the bargaining process by one side. This can be seen from the Cyprus negotiations in March 2013, for example. Cyprus’ emergency did not crystallise until the ECB declared that it would no longer provide emergency liquidity to Cypriot banks, resulting in Cyprus having to introduce strict credit controls on banks and limiting withdrawals. The Cypriot economic emergency in 2013 thus was not an external phenomenon wholly outside the control of the respective parties. The crystallisation of the emergency in this instance becomes, in polite terms, a bargaining tool in the negotiations; in not so polite terms, it is a gun to the head. Similar tactics can be seen during the current negotiations with Greece.

The Problem of Temporariness

Emergency responses are unpalatable and should, ideally, be exceptional. In a national security emergency, human rights are derogated from under the assumption that this arrangement is merely temporary. Once the emergency is defeated, the exceptional measures are no longer required and so they disappear.

Of course, very often this ideal type emergency does not come to fruition and measures supposed to be temporary become perpetual. When it comes to economic states of emergency, however, restoration of the status quo is often not on the cards from the outset as very often, the conditions that existed prior to the crisis were part of the problem. An economic state of emergency therefore effects permanent change.

Moreover, the lightning fast speed at which economic transactions can reverberate around the world means that swift decision-making in the field of financial regulation is not exceptional, quarantined only to emergency situations. If claims for expedient decision-making in an economic crisis are not temporary, this has very real consequences for constitutional democracies, again potentially illustrating the decline of parliaments.

Conclusions: questioning the rhetoric of an economic state of emergency

The situation around Greece and the Eurozone is incredibly fluid; whether a referendum ultimately will go ahead remains to be seen. Nevertheless, the observations regarding economic states of emergency are the same regardless of the outcome. The rhetoric of emergency in an economic crisis is used as a negotiation tactic or as an attempt to present one solution to a financial crisis as the only solution, thus hiding the underlying ideology that motivated this decision. Furthermore, the proliferation of this rhetoric – not just in the area of financial regulation but also in national security and other fields too – has serious constitutional implications, resulting in the side-lining of constitutional actors such as courts and parliaments. These arrangements are not, however, as the rhetoric of emergency implies, temporary. The rhetoric of emergency therefore should always be questioned and interrogated and those that seek to invoke it should be called upon to justify their decisions.


This post explores some of the themes discussed in Alan Greene, ‘Questioning Executive Supremacy in an Economic State of Emergency’ http://onlinelibrary.wiley.com/doi/10.1111/lest.12082/abstract

Image credit: http://bit.ly/1RPrX5J

The Direct Provision Report: A Missed Opportunity

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

You can access the McMahon Report here.

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

Human Rights Obligations and Direct Provision Accommodation and Supports

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

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

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

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

The Direct Provision Report: Recommendations on Improving the Quality of Life for Protection Seekers

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

You can access the McMahon Report here.

The Working Group have made a number of recommendations as regards improving the quality of life of those in the protection process. These recommendations include, improved financial supports, education and training, health care, further assistance to vulnerable protection seekers and supports to enable person’s transition out of direct provision accommodation.[1]

  1. Unqualified recommendations

Increase rate of direct provision allowance: The working group has recommended an increase in direct provision allowance (DPA) for adults and children. It is recommended that the adult rate to increase to €38.74 and child rate to €29.80 (qualifying child allowance under Supplementary Welfare Allowance).[2] There is an additional recommendation for the Department of Social Protection to reinstate Community Welfare Service officials in direct provision centres[3] and strive for consistency in administration of Emergency Needs Payments.[4]


  1. Qualified Recommendations

The Right to Work: Once the single procedure is “operating efficiently”,[5] provision for access to the labour market for a protection applicant, if the first instance protection decision is not provided within 9 months, and the applicant has been cooperating with status determination bodies.[6] The right to work should continue until the end of the protection determination process.[7] Where an applicant does succeed in entering employment, she should make a contribution to her accommodation and food within direct provision, if the right to work is provided and exercised.[8]

Access to Education: For school-going children, access to a homework club (on school grounds or in the direct provision centre) is necessary.[9] There are 60 students aged 15-18 who are currently in direct provision and will sit their leaving cert in 3-4 years time.[10] 100 young people obtained their leaving certificate in the last 5 years and live in DP centres.[11] 21 students sat the Leaving Certificate in 2014. 22 students were scheduled to sit their leaving cert in 2015.[12] For adults (new arrivals, the McMahon Report recommends access to English language education within one month.[13] For those 6 months + in the direct provision system, information on other potential courses open to them should be made available.[14] Universities and colleges should consider applying EU/EEA rates to those in the protection process or leave to remain stage for five years or more.[15] In courses above NFQ Level 4, those in the system for two years or more should be eligible to apply but subject to same conditions as others (i.e. if there is a requirement to be unemployed, and on the “live register”, this would apply to protection seekers).[16] The McMahon Report recognised that this does not impact in any way on those currently in the system.[17] No rationale is provided for the reason as to why it will not apply to current applicants.


Healthcare supports: The McMahon Report welcomed the HSE initiative to waive prescription charges, and calls for it to be implemented as soon as possible.[18] A number of health promotion initiatives and information leaflets on health services should be made available to protection seekers.[19]


Support for Vulnerable Protection Seekers, including LGBT Protection Seekers: Organisations providing services to protection applicants “should consider training staff in LGBT issues”.[20] The McMahon Report also recommends that representatives of Department of Social Protection should exercise discretion in administering Emergency Needs Payments to “support LGBT people in the system to access appropriate supports and services”.[21] The McMahon Report also recommends that information leaflets to highlight LGBT issues “displayed prominently”, along with RIA Safety Statement highlighting LGBT issues. [22]


Supports for Separated Children: All separated children over 16 should have an aftercare plan.[23] Currently, the HSE provide aftercare support to 82 separated children who have reached 18 years.[24] “As far as practicable and subject to their wishes”, separated children moving into direct provision should be accommodated in a direct provision centre near to residential placement or previous foster carers.[25] Training and other supports should be provided to foster carers to assist a young person’s transition to direct provision.[26] The McMahon Report also recommends that the Department of Children and Youth Affairs “should convene” a “stakeholder group” to consider “optimum supports” for separated children, including integration into Irish society.[27]

Linkages with Local Communities: The Government to “give consideration” to including protection applicants in integration strategy and to make funding available for local integration strategies. Consideration to be given to set up “Friends of the Centre” groups[28] and building community linkages. This also includes a suggestion to open up direct provision centres for an “Open Day”.[29]

  Continue reading

The Direct Provision Report: Summary of Recommendations on Accommodation Standards

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

You can access the McMahon Report here.

The Working Group has made a number of unqualified recommendations, qualified recommendations and requests for further reviews of different aspects of direct provision accommodation.

  1. The Unqualified Recommendations

These recommendations relate to a number of core areas, including:

  1. Multi-Disciplinary Assessment:[1] Multi-disciplinary assessment of needs of protection applicants within 30 days, and for this to be taken into account in the protection determination process, with follow up on an “on-going and regular basis”. Communication between different statutory agencies and others (RIA, legal advisors, health care providers etc.). Steps should be taken to encourage protection applicants avail of this assessment.
  2. Accommodation Provision:[2] All single residents sharing rooms and all family units should be provided with an individual locker for storage of personal items. This should be acted on without delay. All requests for tenders should specify adequate indoor and outdoor recreational space for children and young people, and consultations with resident children and young people “should be built into the specifications.”[3] All requests for tenders for centres for single people should specify the requirement for communal kitchens.[4] There should be consultation with residents on 28-day menu cycles.[5]
  3. Standards and Oversight: Extending the remit of Ombudsman and OCO to cover complaints relating to services provided to persons in direct provision and transfer decisions. Residents can contact either (or both) offices after internal mechanisms are exhausted (including an independent appeal).[6] RIA must appoint an officer to ensure complaints are dealt with. Complaint mechanisms must be open to all residents, including children and young people.[7] RIA must build confidence and trust in these complaints systems and that residents will not be adversely affected by making a complaint and “ensure centre management buy into the importance of ensuring an open culture that is conducive to residents making complaints.”[8] Contracts with providers should ensure managers have experience of working with refugees and protection applicants.[9] Centre Managers should have knowledge of basic mental health issues and health services, social welfare system, medical issues, a compassionate and empathetic style.[10]
  4. Transfers:[11] RIA should continue to provide detailed reasons for involuntary transfer. Recording of statistics in relation to voluntary and involuntary transfers.
  5. Child Protection: Access to cultural diversity training for social workers, with the identification of a named social worker by the Child and Family Agency and the Health Service Executive to contact in each direct provision centre.[12] RIA is to continue to have consideration of child safety when assigning residents to direct provision centres.[13
  6. Community Outreach: By the end of 2015, all direct provision centres should enter into partnership agreements with local leisure and sports clubs.[14]


  1. The Qualified Recommendations

These recommendations all relate to accommodation provision. All recommendations as regards greater respect for private and family life are significantly qualified. RIA informed the Working Group that it was not clear that all centres would be “structurally in a position to effect the proposed changes…”[15] It could take “upwards of” two years, from issue of tender to get new accommodation on stream that would meet the recommendations of the McMahon Report.[16] In any event, given the “market for self-contained units”,[17] some of the recommendations below may not be possible to implement.

Two core phrases come up time and again in the McMahon Report’s recommendations on direct provision accommodation: “in so far as practicable” and “subject to any contractual obligations”. All direct provision accommodation facilities are to be in line with a proposed “Standard Setting Committee” that will “reflect government policy across all areas of service in Direct Provision”.[18] The highly qualified recommendations include: Continue reading

The Direct Provision Report: The "Five Year" Rule

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

You can access the McMahon Report here.

The focus on speedy determination of asylum claims is nothing new. In the 2002 Programme for Government, the Fianna Fail and Progressive Democrat coalition stated (optimistically):

“We will ensure that new asylum applications are dealt with within six months and that other applications, which are currently outstanding, can be dealt with quickly.”

Similar promises (without time commitments) were made in the Fianna Fail and Green Party Programme for Government 2007-2012, and the Fine Gael and Labour Programme for Government 2011-2016. The McMahon Report provides substantial recommendations as regards numbers of decision makers needed to ensure meeting a 12 month period for disposal of protection and leave to remain claims once the single procedure is operating “efficiently”. In order to ensure the efficient operation of the single procedure, the Working Group has proposed that all individuals in the protection, leave to remain or deportation processes, for 5 years or more, should, in general, be granted either protection status or leave to remain within 6 months of this reports publication. The McMahon Report “discounted the possibility of an amnesty”. Instead, the McMahon Report recommends:[1]

“All persons awaiting decisions at the protection process and leave to remain stages who have been in the system for five years or more from the date of initial application should be granted leave to remain or protection status as soon as possible and within a maximum of six months from the implementation start date subject to the three conditions set out below for persons awaiting a leave to remain decision. It is recommended that an implementation start and end date be set by the authorities as soon as possible.”

  Continue reading

The Direct Provision Report: The People Impacted

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

You can access the McMahon Report here.

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

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

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


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

The Direct Provision Report: An Overview and Introduction

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

You can access the McMahon Report here.

The Working Group Report on the Protection System and Direct Provision (McMahon Report) report was released on June 30 2015. The McMahon Report provides a significant number of recommendations on the protection process in Ireland and the system of direct provision.[1] That changes would be occurring to the protection process and the system of direct provision were hinted at in July 2014. The Statement of Government Priorities 2014-2016 outlined the need to

“address the current system of direct provision…to make it more respectful of the applicant and less costly to the tax-payer”.[2]

There was also a commitment to establish a single procedure for asylum applicants. The publication of the Heads of the International Protection Bill in March 2015 (before the Working Group reported) has indicated Government willingness to move the single procedure forward. However, the Working Group seems overly ambitious in estimating that the single procedure will be in place and operational by 01 January 2016.[3]

After consultation with Non Governmental Organisations (NGOs) in September 2014,[4] the terms of reference and membership of the Working Group was announced on 13 October 2014.[5] The terms of reference of the Working Group were:


“Having regard to the rights accorded to refugees under the 1951 Geneva Convention Relating to the Status of Refugees and bearing in mind the Government’s commitment to legislate to reduce the waiting period for protection applicants through the introduction of a single application procedure,

to recommend to the Government what improvements should be made to the State’s existing Direct Provision and protection process and to the various supports provided for protection applicants; and specifically to indicate what actions could be taken in the short and longer term which are directed towards:

(i) improving existing arrangements in the processing of protection applications;

(ii) showing greater respect for the dignity of persons in the system and improving their quality of life by enhancing the support and services currently available;

ensuring at the same time that, in light of recognised budgetary realities, the overall cost of the protection system to the taxpayer is reduced or remains within or close to current levels and that the existing border controls and immigration procedures are not compromised.”


The Working Group commenced work on its report on 10 November 2014.[6] The McMahon Report emerged over eight plenary meetings, with the sub-groups identified below meeting on 38 separate occasions.[7] The limitations on the terms of reference were accepted by NGO representatives at the first meeting. The McMahon Report notes that:

“organisations advocating an end to direct provision, and who may be disappointed in this limitation, had accepted their appointment on the basis of the terms of reference”.[8]

The core issue identified by the Working Group was “length of time” in the protection process and length of time protection applicants were subject to the system of direct provision.[9] An Agreed Work Programme was set out, with members decided which sub-group they would be part of (and could be part of all sub-groups if they so wished):[10]

  • Theme 1: Improvements within direct provision;
  • Theme 2: Improvements to ancillary supports for those in direct provision
  • Theme 3: Improvements in the determination process for protection applicants.

Overall, the Report contains a mix of significant recommendations on the protection process and processing of asylum claims.[11] However, I argue, there are significant concerns with the recommendations that have emerged as regards direct provision accommodation and supports for asylum applicants.[12]

Pic Credit: Merrion Street

[1] For a glossary of core terms that will be used as regards immigration status in this analysis, see Thornton, L. Glossary of Terms: Irish Asylum Law (UCD, 2013).

[2] Department of An Taoiseach, Statement of Government Priorities 2014-2016 (July 2014), p. 9.

[3] Working Group report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers (hereinafter the McMahon Report), paras 66, 6.17, 6.31, 6.39 and 6.46.

[4] 18 September 2014: Consultation with NGOs as regards terms of reference for the Working Group and other aspects of the protection process.

[5] Department of Justice and Equality, Terms of Reference and membership of the Working Group (October 2013).

[6] Working Group report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers (hereinafter the McMahon Report), para. 6.

[7] McMahon Report, para. 20.

[8] McMahon Report, para. 8.

[9] McMahon Report, para. 3 and Appendix 6.

[10] McMahon Report, para. 4 and Appendix 1.

[11] See generally, Chapter 3 of the McMahon Report.

[12] See generally, Chapter 4 and Chapter 5 of the McMahon Report.

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

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

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

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

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

In drafting, we were guided by four principles.

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

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

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

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

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

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

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

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

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

Mohammed Younis Succeeds in the Supreme Court

Younis PicIn August 2012, the Irish High Court ruled that as Mohammad Younis was in an irregular migration situation, he could not benefit from protections under employment law (see also Dr Darius Whelan‘s excellent analysis of the High Court decision here). Today (25 June 2015), the Supreme Court set aside the decision of the High Court. The decision was set aside, not on any explicit repudiation of the High Court’s analysis of employment law, employment contracts and irregular migrant workers, but on the basis of strict adherence to the role of a court in judicial review proceedings. Rather than focus on the human rights arguments pleaded before it, the Supreme Court simply considered the jurisdiction of the High Court to make its August 2012 decision. The Rights Commissioner made two monetary awards to to Mr. Younis in March 2011.

For breaches by Mr Hussein (Mr Younis’ employer) of the Organisation of Working Time Act 1997, the Rights Commissioner awarded the sum of €5,000 to Mr. Younis. For breaches of minimum wage legislation over a number of years, Mr. Younis was awarded €86,134.42. As Mr Hussein did not appeal this decision, but did not pay Mr. Younis compensation. the Labour Court issued two determinations that these sums be paid in September 2011.

In setting aside the decision of the High Court, Murray J. in the Supreme Court noted: Continue reading