Carroll on Marrying youth and politics: more than a click away

Aengus Carroll (LL.M) is co-author of State Sponsored Homophobia 2015, a global survey of law for the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). He is ILGA’s member on an Expert Steering Group to the United Nations Development Program (UNDP) and the Office of the High Commissioner for Human Rights (OHCHR) on a Global LGBTI Inclusion Index to run in line with the new Sustainable Development Goals (2015-2030).

Although Irish people of all ages voted yes in the marriage equality referendum on 22 May this year, the numbers demonstrate it was the youth vote that assured its success. Such youth turn-out was unprecedented in Irish political life, and flies in the face of conventional political wisdom that young people are apathetic.

Now that the largely untapped youth voice has clearly resounded across this country and with a general election on the horizon, a variety of campaigners and political parties are looking at how to quickly harness that voice again. Youth mobilisation has become a new holy grail in Irish politics. But what campaigners and politicians fail to see is that the youth mobilisation around the marriage equality referendum was the result of over a decade of youth empowerment and infrastructure building in towns and villages across the country by BeLonG To – Ireland’s LGBT youth organisation. Continue reading “Carroll on Marrying youth and politics: more than a click away”

Carroll on Marrying youth and politics: more than a click away

The Importance of the Women-y Fringe-y Excesses of Irish Pro-choice Activism.

Mairead Enright.

In the past year or so, Irish pro-choice protesting has taken on a new vitality. Some pro-choice actors have adopted the language of satire, humour, scandal and disobedience to show up the limits of the abortion regime. I have written before about the abortion pill train (which recently morphed into the abortion pill bus) and Speaking of I.M.E.L.D.A., whose “Delivering the Word” (above) is a must-watch. Most recently, the comedian Grainne Maguire has been encouraging Irish women to “tweet their periods” to the Taoiseach, in an effort to “reclaim the humanity” of the abortion debate and to demonstrate that women are not ashamed to challenge a government which refuses to give up its control over women’s reproductive functions. For their pains, activists who choose these routes to political action are told that their methods are misguided, counter-productive, annoying, and an improper departure from those past feminist tactics which can now be celebrated and valued. The attempted suppression of disruptive political activism around abortion has its mirror in some official retellings of the marriage equality referendum, which close out both the history of Irish queer protest and the central role of working class campaigners and voters, in favour of a soft lens tale of constitutionalism and carefully choreographed deliberative democracy (on which see Anne Mulhall here). Closer to the root of the abortion issue, we find resonances with this government’s official discourse of abortion law reform. Fine Gael, which will not even commit to reforming the law on abortion information, much less to repealing the 8th Amendment,  thrives on its occupation of the “proper” position from which to instigate legal change. When challenged on his reluctance to examine the 8th, the Taoiseach presents himself as unflinchingly guarding ‘the People’s book’ (the constitutional text which perfectly reflects the democratic will of the ‘people’) from the undemocratic hordes and calmly refusing to be “rushed” (after over 30 years) into ill-thought-out law reform. (This paternalistic identification of his government with the measured and careful exercise of proper legal agency is, of course, also reflected its limited abortion legislation, which operates on the presumption that the law must be protected from the dangerous and disobedient agency of hysterical women).

This sort of denigration of those whose demands for legal change do not fit ‘legitimate’ patterns is grounded in a fundamental misunderstanding of the meaning and purpose of political action. I want to draw on Jacques Rancière’s distinction between ‘the political’ and ‘the police’. ‘Police’ here refers not to the police force but to the systems which establish a ‘distribution of the sensible’, dividing us into groups according to our attributed status and functions. These divisions are between the community of the “we” and those who belong outside it; between those who are included and excluded, accepted and unacceptable, and accordingly between the visible and the invisible, the sayable and the unsayable. What we think of as politics – limited deliberation in designated institutional spaces – usually consists in argumentation and negotiation around these divisions, undergirded by some “common sense” or consensus. True politics, by contrast, is about upsetting the dominant distribution of the sensible. Politics takes place when in moments of dissent “the part of no part” – those who normally should not be seen or heard – intervene in the established system of meanings, questioning it, and by that questioning insisting on their equality with others as political subjects and members of a broader “we”. For example, at this year’s March for Choice, the comedian Tara Flynn spoke movingly about Ireland’s abortion regime. In a lighter moment, she noted that reproductive rights campaigns were often construed in the public sphere as a ‘women-y fringe-y thing”. But, she said, of the assembled pro-choice marchers, “we are not some women-y fringe-y part of society, we are society”. That sort of statement gestures in its own way to the intervention of the “part of no part” in the distribution of the sensible – it signifies how those silenced by the dominant public settlement around the abortion issue have insisted on being heard and included in spite of systems of mockery, shaming and discursive degradation which diminish and devalue them. From this perspective, the very point of politics is to disrupt decided orders of power and civility. There can be no ‘proper’ set of political actors who are more entitled or more qualified than others to engage in acts of political subjectivization; to demand a new political place. And equality, similarly, is not a determinate goal which can be finally achieved in any sense,  but something with limitless potential which is presupposed and constantly expressed or verified in our political actions. In intervening in the distribution of the sensible, the ‘part of no part’ refigures political space, making sayable and thinkable that which previously could not be said or thought.

The basic “moderate” claim which circulates within mainstream discourses of abortion law reform in Ireland is that women are not allowed to be ‘angry’ about the 8th Amendment. We are read as angry when we make urgent demands for law reform, or compose or share satirical barbs, or draw attention to the bodily injuries, the despair and pain inflicted by the law. And that attributed anger is dismissed as worthless, even when it may be visionary. As Sara Ahmed says, the refusal of oppressed groups’ attributed anger and the insistence that they ‘go along’ with dominant political modes of work – the insistence on gentler, even happier forms of political action – is a classic tactic of political exclusion. When we are angry, we are accused, not only of the irrationality which should disqualify us from political participation in the first place, but of threatening the smooth communication which supports the political bond. (In this respect, the dismissal of more militant strands of the movement for abortion rights betrays a certain sense of the liberal mainstream’s vulnerability – its fear of fragmentation). But, on Rancière’s account of the political, we create political community through conflict. The apparent incivility of the oppressed is not something to be tamed and disciplined: it is the point of politics. That being so, it is never clear that there is a “right” or “wrong” mode of entry into the political. Contests about the ways in which we can speak properly about issues of central importance to the community matter. And it may be that the more unsettled and scandalised those with the most power to regulate the agreed boundaries of the “we” become, the closer things are to the heart of the political. Moreover, if equality can never be finally achieved, then it is never clear that a political struggle is over. The demands of equality always exceed what has already been achieved. (This is the point of Marlon James’ recent interrogation of the Liberal Limit.)

Those who insist that abortion rights campaigners conduct themselves in ways which do not “annoy” or “upset”, or talk too much about bodies, or otherwise tend to excess, may claim – in the grand tradition of liberalism – to be defending politics’ essential virtue and decorum, and to be guarding the proper way of doing things from untamed or naive outsiders. But in so doing, they are merely attempting to reinforce their own powerful position within the police order; insisting on a politics which can only be conducted on their terms; turning politics into an insurance policy for their own privilege.

The Importance of the Women-y Fringe-y Excesses of Irish Pro-choice Activism.

Hungary’s Border Control Actions: Past the Borderline of International Law

 

Bríd Ní Ghráinne is a lecturer in International and Refugee Law at the University of Sheffield. She holds a DPhil from the University of Oxford and an LLM for Universiteit Leiden. She can be contacted at b.a.nighrainne@sheffield.ac.uk. A shorter version of this article is available at the Oxford Human Rights Hub blog.

 As the European refugee ‘crisis’ worsens, the Hungarian government is resorting to more extreme border control measures that test the parameters of international law. The Guardian reported on 17 September that Hungary had fired gas canisters and sprayed water at crowds of frustrated refugees who had briefly broken through the fence that separates Hungary and Serbia. It was also reported that asylum-seekers’ claims were being assessed and rejected ‘within minutes’. These reports have ‘shocked’ the international community, and the purpose of this brief piece is to give an overview of the legal issues engaged.

There are three separate legal regimes that bind Hungary in respect of these events. International law, and in this case, the 1951 Refugee Convention, takes primacy for reasons that will not be discussed in detail here. European Union Law as well as the 1950 European Convention of Human Rights are also relevant as Hungary is party to the EU and the Convention.

Regretfully, history has shown us that rejection at the frontier is not an uncommon response in cases of mass influx of refugees, such as in April 1999, when Macedonia closed its border to Kosovar refugees at the Blace border crossing. Article 33(1) of the 1951 Refugee Convention, to which Hungary became a party in 1989, provides that no-one shall be expelled ‘in any manner whatsoever’ to the frontiers of territories where their lives or freedoms may be in danger. This provision applies to recognised refugees as well as asylum-seekers, and there is strong academic consensus that this provision applies to those presenting themselves at the border, as is the case in Hungary. However, whether the lives of the refugees who have been pushed away from the border with Serbia are now in danger is difficult to tell and therefore it is unclear if Article 33(1) has been engaged on this occasion. If they eventually have to return to Syria (if that is where they came from), then there has certainly been a breach.

A stronger argument can be made that Hungary’s ‘pushback’ actions are in breach of EU and European Human Rights Law. The Dublin III Regulation, which provides that the first EU country in which an asylum seeker arrives has responsibility for determining that asylum seeker’s status, does not render Hungary’s actions legal. Thus if another EU country has been entered prior to arriving at the Hungarian border, Hungary does not necessarily have the right to refuse asylum. Under international law (as opposed to EU law), there is no obligation incumbent upon a refugee to make an asylum claim in the first country of arrival. Further, many of the asylum-seekers trying to cross the Hungarian border would have first arrived in Greece, which does not have a functioning asylum processing regime. Thus Hungary would be responsible for deciding the claim, as set out in the Dublin III regulation. Moreover, the European Court of Human Rights found in the case of MSS v Belgium and Greece [2011] that sending an asylum seeker from Belgium to Greece (in the application of the Dublin Regulation) was in breach of the European Convention on Human Rights. This was because the conditions in Greece violated Article 3 of the Convention, which prohibits torture and inhuman or degrading treatment or punishment

Hungary’s argument that Serbia is a ‘safe third country’ also fails upon scrutiny. The safe third country concept provides that asylum need not be granted in the state in which the application was made, provided an alternative state is willing to accept the refugee. Whether sending refugees to a third country is a breach of international law depends on whether effective protection is available in that country. A report by Amnesty International from July 2015 indicates that this is not the case in Serbia, where amongst other factors, refugee recognition rates are extremely low.

The reports of asylum claims being dealt with within ‘minutes’ as reported by the Guardian are also worrying, particularly because there seems to be no effective appeals system and refugees are given information only in the Hungarian language. These actions are arguably a breach of both the 1951 Refugee Convention and the EU Asylum Procedures Directive (Council Directive 2005/85/EC). Although the 1951 Refugee Convention does not formally set out the procedures involved in the determination of refugee status, Goodwin Gill and McAdam in their text The Refugee in International Law (OUP, 2011) argue that the Refugee Convention’s object and purpose of protection and assurance of human rights strongly support an obligation to adopt of effective internal measures. This was the position of the Executive Committee (ExCom) of the United Nations Refugee Agency (UNHCR), which in its Executive Conclusion No. 8 (XXVIII) (1977) set out a range of procedural guarantees to be followed in the determination of asylum proceedings; including that (i) Applicants should receive the necessary guidance as to the procedure to be followed; (ii) Applicants should be given the necessary facilities, including interpreters and contact with the UNHCR, to submit their case; (iii) failed asylum-seekers should be given a reasonable time to appeal and they should be allowed to remain in the country while appeal is pending.

Similarly, the Asylum Procedures Directive guarantees access to a fair and efficient asylum decision and it explicitly applies to applications made at the border. It mirrors the standards set out by the ExCom above, and goes into significant detail regarding the content of the rights granted, such as the conditions under which an interview must take place and the scope of legal assistance and protection. If the allegations of asylum applications being rejected ‘within minutes’ are true, it is highly likely that Hungarian authorities have not complied with these EU and international legal standards.

Finally, it is necessary to examine the legality of the use of tear gas as reported by the Guardian to force migrants back from Hungary’s border. According to the European Court of Human Rights case of Abdullah Yaşa and Others v. Turkey [2013], the use of tear gas in itself is not necessarily a violation of the Convention where a gathering is not peaceful. In the Yaşa case, the gathering was deemed to be ‘not peaceful’ as the demonstrators were throwing stones, as was reportedly the case with the migrants at the Hungarian border. However, the European Court of Human Rights also found that the use of tear gas can be a violation of Article 3 of the Convention where excessive force is used, for example, where tear-gas grenades are launched (Yaşa), or where tear gas is used on someone deprived of their liberty (Güneş v. Turkey [2012]). As the exact circumstances surrounding the use of the tear gas at the Hungarian border is not clear, it seems difficult to come to a conclusion whether the Hungarian authorities’ actions in this respect were unlawful.

In sum, the actions of the Hungarian authorities in allegedly dismissing asylum applications ‘within minutes’ and in rejecting refugees at the frontier are appropriately condemned as a violation of International, EU, and European Rights Law.

 

 

 

Hungary’s Border Control Actions: Past the Borderline of International Law

Gay Marriage in Northern Ireland

 

Northern Ireland Assembly Votes to Legalise Same Sex Marriage” proclaimed the headline in The Guardian. Few headlines have promised so much more than the subsequent story delivers. For in spite of the one-vote majority in favour of a change in the law in Northern Ireland in the Assembly on Monday, the DUP’s invocation of a “petition of concern” (POC) on the issue meant that it was able to veto the introduction of same-sex marriage in Northern Ireland. As Gerry Lynch put it, ‘it still felt like a punch in the plexus to finally secure a democratic majority through years of hard work only for it to be vetoed undemocratically’. With rich irony the Northern Ireland Act provisions designed to protect minority groups against predatory applications of majority power have been turned into a means of stymieing reform aimed at delivering marriage equality.

It wasn’t supposed to be like this. With the spectre of the Northern Ireland Parliament’s permanent Unionist majority dominating the drafting of the arrangements for the Northern Ireland Assembly at the time of the Good Friday Agreement, POCs were intended to maintain consociationalism within Stormont by requiring a super-majority and cross-community support where Northern Ireland’s Unionist or Nationalist parties considered that a measure threatened the interests of their community. The ability of POCs to block any legislative change has instead seen them increasingly applied as a strong-arm tactic to prevent changes to the law with the aim of preserving the status quo or extracting concessions in return for a POC being lifted. DUP measures, indeed, appear to be block signed by party MLAs with the issue to which they are to be applied being added to the form at a later stage. Public confidence in the Stormont Assembly’s ability to address the needs of society in Northern Ireland has plummeted.

Whilst the DUP’s stance on gay marriage might be out of step with opinion polling across Northern Ireland, it remains popular with its own core supporters and so the political incentive to wield a POC (ahead of next year’s Assembly elections) remains strong. But if the democratic institutions in Northern Ireland remain so dysfunctional, will the courts intervene to permit gay marriage? Legal challenges to the limitations are already underway in the Northern Ireland High Court. The UUP leader Mike Nesbitt, whilst describing opposition to gay marriage as being on the “wrong side of history” (whilst maintaining his own vote against change), has told his party conference that he expects the new law to be forced upon law makers through the courts.

Forcing law reform through judicial decision could unblock this particular impasse. The need to react to an adverse court decision might help the Unionist parties to soothe the evangelical elements amongst their support base, being “saleable” as a long-resisted reform that was forced upon the parties. All the better if the judgment is not issued until after the Assembly elections. And for people who want to get married, a win is a win, and they are not likely to sniff at the courts forcing the pace of change.

So should the courts intervene? Under section 6 of the Northern Ireland Act the legislation of the Northern Ireland Assembly is not valid law if it is outside the legislative competence of the Assembly (a concept which includes making a law which breaches ECHR rights). But as the Northern Ireland Assembly has not made a law banning Gay Marriage, just failed to enact one allowing it, the general provisions of the Human Rights Act (and its incorporation of the ECHR into UK Law) will apply.

Whilst the ECHR includes a right to marry (Article 12) the Strasbourg Court has to date refused to rule that it is discriminatory for states not to apply this right to homosexual couples. In July, in its latest judgment on the issue, Oliari v Italy, the Court maintained that as only 11 of the 47 states signatory to the Convention had to date accepted same-sex marriage, there was no European consensus in favour of reading such a right into the terms of the ECHR. Many Unionist politicians picked up on this point in Monday’s debate:

The European Court of Human Rights has ruled that same-sex marriage is not a human right, so this is not a rights issue. (Gordon Lyons, DUP)

There is no human right recognised by the European Convention on Human Rights or the European Court of Human Rights to same-sex marriage. It therefore cannot be and is not a rights issue, nor is it an issue of equality. Rather, there is a worked-up, phoney demand for rights where none does or should exist. There is no equality issue here. (Jim Allister, TUV)

These same politicians will eagerly and angrily decry any effort by the Northern Ireland courts to change the law on human rights grounds. But Article 12 is not the only applicable ECHR right. The Court has established that the relationship of a cohabitating same-sex couple living in a stable partnership falls within Article 8 ECHR’s protection of “family life” (Schalk and Kopf v Austria), this might provide a basis for arguing that, as same-sex marriages concluded in other parts of the UK are treated as Civil Partnerships within the Northern Ireland jurisdiction, the awkward legal transformation of a marriage into a civil partnership as soon as someone steps off a ferry or plane amounts to discrimination.

Moreover, the definition of marriage in Northern Ireland law – “the voluntary union for life of one man and one woman to the exclusion of all others” – rests on a nineteenth century judicial decision, Hyde v Hyde (backed up by secondary legislation – the Matrimonial Causes NI Order 1978). By altering this definition the courts cannot be accused of tossing aside legislation enacted by elected lawmakers, a fact which might embolden any judge concerned about the political backlash resultant from such a decision. They also have a much freer hand in terms of their powers under the Human Rights Act than they would have had if the definition of marriage was contained in primary legislation, if they can be persuaded to move ahead of Strasbourg on the issue of Article 12.

This room for manoeuvre makes the gay marriage cases crucial tests for the role of the courts in Northern Ireland’s system of government. On a range of issues from gay marriage, to the ban on gay blood donations to the strict limitations on abortion, judges in Northern Ireland are increasingly being confronted with cases which highlight the blockages in the Assembly’s law-making process. Some might decide that the time has come to chivvy the Assembly along.

 

 

 

 

Gay Marriage in Northern Ireland

Hearing with the Delegation for Women’s Rights of the French Senate and National Assembly on Ireland’s Abortion Legislation

We are pleased to welcome this guest post from Claire Nevin.

On the 17th January, 1975, France decriminalised abortion with the passing of the Loi Simone Veil. Forty years later, and in stark contrast to a much more liberal European consensus on abortion and international human rights norms, Ireland remains one of a small minority of countries, including Malta and Poland, which stubbornly cling to oppressive abortion legislation. In the case of Ireland, a woman is liable for a fourteen year prison sentence if she aborts in Ireland.

On the 7th September 2015, the Senator for French Expatriates, Olivier Cadic, was in Dublin on a constituency visit. As Senator for French Expatriates, his mandate requires him to visit specifically allocated countries in order to keep up-to-date with matters relating to the French community abroad. The recent forty year anniversary of the passing of the Loi Simone Veil caused him to take an active interest in the continuing criminalisation of abortion in Ireland and he requested to meet with someone who could inform him about the consequences of Irish abortion legislation during his visit to Dublin. 

Having recently graduated with a master’s degree in human rights and democratisation from the European Inter-University Centre for Human Rights and Democratisation, where I wrote my master’s thesis on Irish abortion discourse, and having previously met the Senator in 2012 while I was a history student in a Parisian university, he was pointed in my direction. During our meeting, he was shocked to discover the oppressive nature of Ireland’s abortion legislation. He was particularly horrified to hear of tragic cases such as Savita, Ms. Y and PP v. HSE, stating that he was not aware of the full extent of the harm inflicted on women’s lives and wellbeing by the 8th amendment.

Senator Cadic expressed the belief that increased pressure from fellow EU member states could play a positive role in pushing for a change in Ireland’s abortion legislation, as so far, EU member states and the European Court of Human Rights have taken a conservative approach to this issue, based on the argument that Ireland’s exceptionalism regarding abortion falls within its ‘margin of appreciation.’ Senator Cadic wants to play a role in attempting to reverse this trend and promote greater consciousness-raising amongst EU member states that Ireland’s abortion legislation and its resulting consequences constitute an urgent human rights issue that deserves due attention at European level.

Senator Cadic and I decided that appealing to EU member states’ vested interest in protecting the rights of their expatriates was an angle that could convince fellow member states that the continuing criminalisation of abortion in Ireland also affects them and their citizens. In order to achieve this and promote greater awareness of and concern for this issue at European level, we decided to stress that freedom of movement within the European Union and the popularity of university exchanges such as the Erasmus programme, result in women who choose to come to Ireland having less rights than in their home countries.

Following on from our meeting in Dublin, Senator Cadic invited me and elected representative for French Expatriates in Ireland, Laurence Helaili, to Paris to speak at the French Senate in front of Senators and the French Delegation of Women’s Rights about Ireland’s abortion legislation. The aim of the visit would be to establish the role that France could play in promoting greater dialogue between Ireland and fellow EU member states on aligning Ireland’s abortion legislation with European consensus and international reproductive rights norms. The 28th October was chosen for the hearing at the Senate; the 28th October 2015 being the third anniversary of the death of Savita Halappanavar, who died as a result of the ‘chilling effect’ of the 8th amendment on Savita’s doctors ability to intervene and provide her with a medically necessary and potentially life-saving abortion.

The meeting with the Delegation for Women’s Rights, presided over by former Minister for the Environment, Senator Chantal Jouanno, was an extremely productive one. Having listened to my presentation on Ireland’s abortion legislation and specific examples from recent years which demonstrate it to be an inherently flawed and harmful piece of legislation, Senator Jouanno did not hesitate to tell me that she feels ‘very afraid for French women living in Ireland.’ By the end of the day, I was starting to get used to being met with disbelief and indignation as I described and answered questions about Ireland’s approach to abortion. This initially surprised me as I had taken for granted that members of another EU member state’s Delegation for Women’s Rights would have been aware of such a glaring example of exceptionalism on a human rights issue within the European Union.

The Delegation for Women’s Rights were of the opinion that more information and greater consciousness-raising within the European Union would be necessary in order to establish dialogue between Ireland and other member states on the need to repeal the 8th amendment and replace it with medically sound and accessible abortion legislation that coheres with human rights standards in the area of sexual and reproductive health. To that end, the Delegation decided to inform French citizens intending to move to Ireland of the rights that they would no longer have regarding their lives, health and choices, upon arrival in Ireland. This will be done by including a section detailing Ireland’s abortion legislation on the information page for expatriates of the French Ministry for Foreign Affair’s website. Senator Jouanno will also write to the French Ambassador to Ireland so that women already in Ireland can be informed and know that their embassy will support them if they need any information.

The day after my visit to the French Senate, I was invited to visit Amnesty International France’s headquarters to discuss the events in the Senate, along with Amnesty’s ongoing My Body My Rights Campaign. Yves Prigent, who is responsible for Amnesty France’s involvement in this campaign, stated that the approach undertaken at the Senate in order to lobby for greater awareness of and pressure to change Ireland’s abortion legislation at European level by appealing to member states’ mutual interest in protecting the lives and health of their expatriates in Ireland, was an ‘ingenious approach.’

Based on such positive feedback and on the receptiveness of the French Senators and Women’s Rights Delegation, I decided that this work should be expanded and built upon by liaising with the embassies of other EU member states in Ireland, with the aim of establishing cooperation along the lines of that which resulted from my meeting at the French Senate. To that end, I am currently in talks with Irish pro-choice organisations about co-signing a letter with that will be send to embassies in Ireland, encouraging other EU member states to take similar interest in the lives and health of their female expatriates. In the letter, I will request to meet with ambassadors and encourage them to take similar steps to France in ensuring that their expatriates are informed of the risks they run in Ireland as a result of the 8th amendment.

Finally, a more political approach would also be advantageous to ensure that the visit to the Senate will resonate with Irish political parties in the run up to the General Election. The letter to the ambassadors will therefore be followed by another letter, also co-signed by pro-choice organisations, which will be sent to all of the Irish political parties to inform them of the steps taken at the French Senate and of the follow on work being done to encourage other member states to take a similar approach. We will highlight the potentially harmful repercussions of such negative perceptions of Ireland abroad, particularly in light of Senator Jouanno’s comment about being ‘afraid’ for French women in Ireland. We will seek responses that clearly outline how parties plan to approach the abortion issue and what steps they will take to align Ireland’s abortion legislation with international human rights standards.

 

Hearing with the Delegation for Women’s Rights of the French Senate and National Assembly on Ireland’s Abortion Legislation

Responding to the Refugee Crisis: Examining the Broader Systemic Context in Ireland

Ireland’s role in responding to the refugee crisis has been the subject of a lot of media attention in recent weeks and months. In particular, the provision of search and rescue assistance by the Irish Navy, and the agreement to receive up to 4,000 asylum seekers as part of the EU resettlement and relocation programme are to be broadly welcomed. In addition, the allocation of funds in Budget 2016 to support relocated asylum seekers has been cautiously welcomed  by the Irish Refugee Council. Leaving aside the sufficiency of the Irish and EU response overall (for example, see commentary on the EU relocation programme by Steve Peers here), important questions remain as to how relocated asylum seekers will be treated on arrival in Ireland.

How will the State avoid repeating the mistakes of direct provision (on which, you can access posts by Liam Thornton and others here)? Moreover, how is it proposed to deal with asylum seekers already in the system, or those who arrive in Ireland spontaneously? Will the recommendations of the Working Group on Improvements to the Protection Process (critiqued by Liam here) in relation to reception of asylum seekers be fully implemented for new arrivals as well as those already seeking asylum in the State? What will happen to relocated asylum seekers who are refused refugee status?

All of these questions form part of the bigger picture of the State’s approach to asylum and immigration matters. In this context, a number of cases which seem to highlight a lack of compassion and humanity in the administration of immigration and naturalisation law come to mind.

Appeals to Minister for Justice’s humanity in PO

In PO v Minister for Justice and Equality [2015] IESC 64, the Supreme Court refused to restrain the deportation to Nigeria of a woman and her nine-year old son, who was born, raised and educated in the State (although was not an Irish citizen). In the context of a prolonged period of unlawful residence in the State (the applicants had had no right to be in the State since 2010), the Supreme Court found that they had no entitlement to remain in Ireland on the basis of Article 8 of European Convention on Human Rights, which protects private and family life.  Given its decision that “no legal rights” were involved, the Supreme Court could not disturb the Minister for Justice’s decision to deport the applicants.

However, a notable feature of the case was the Supreme Court’s appeal to the Minister to exercise her discretion in a humane way, given that “real issues of ministerial discretion may arise in this case, which involve an 8 year old child, and his mother, both of whom have now resided in this State for well nigh on 9 years.”  Laffoy J agreed with these observations of MacMenamin J.  Charleton J also commented: “As a matter of humanity, but not as a matter of law, it is for the respondent Minister to ask herself how she feels it appropriate to consider this matter in the exercise of her discretion.” These comments effectively raise questions as to the ethics of the State’s approach to deportation proceedings.

Impatience in the Supreme Court in Sulaimon

The Supreme Court’s impatience with administrative procedures and decision-making had been clearly expressed in Sulaimon v Minister for Justice, Equality and Law Reform  [2012] IESC 63, in which the Court severely criticised the “contrived” nature of ministerial and departmental attempts to deny a young boy birthright citizenship, on the basis of their calculation of the residence of his father.

Here, a father sought to claim birthright citizenship for his son on the basis that he (the father) had satisfied the three year lawful residence period in the State at the date of the son’s birth. His application was refused on the basis that he was three days short of the required time period. The case turned on a technical point of immigration law concerning the date on which the father’s legal permission to remain had been granted, with the Supreme Court finding in favour of the child that a letter received by the father constituted the permission to remain, rather than the date on which the relevant stamp was placed in the father’s passport.

The severity of the criticism which was levelled at the Department and the Minister by the Court in Sulaimon, in terms of both the handling of the application and the subsequent litigation, was striking. Hardiman J was particularly vocal, stating (at para. 24):

I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship in the country where he has been permitted to reside all his life, a citizenship enjoyed by his father and his sister. If there is a point to the pain and anxiety caused to the child’s family, the expense to which they have been put and the taxpayers’ money which has been spent, it entirely eludes me.

The correspondence received by the father was described by O’Donnell J as “confused and confusing”, and the conduct of the litigation, during which “highly contrived and artificial arguments” were advanced on behalf of the Minister, was seen as unacceptable.

Formalism, legalism and rigidity: the basis for a generous response to refugees?

PO and Sulaimon seem to highlight a legalism, formalism and rigidity in the administrative approach to leave to remain and naturalisation processes. These features are also in evidence in the “discretionary” areas of the more tightly-regulated field of asylum, as shown in a series of judicial reviews in which ministerial decisions on family reunification for refugees have been overturned. Among these was AMS v Minister for Justice and Equality [2014] IESC 65, in which the Supreme Court found that the approach taken by the Minister in refusing family reunification to the mother and minor sister of the applicant (on the basis of the potential financial burden which they would be on the State) was disproportionate. This was the second time that a decision of the Minister in respect of the same case was found to be disproportionate by the courts, the High Court having quashed the first refusal.

It is difficult to see how those due to arrive in Ireland (let alone individuals currently seeking protection or leave to remain, or those who arrive spontaneously at our borders) can be dealt with in a caring, rights-centred manner in the context of a system which demonstrates these features. However, perhaps the outpouring of public sympathy for the plight of those fleeing violence and persecution will provide the impetus for a shift in culture in this regard. Fundamental reform (preferably abolition) of the direct provision system (the weekly allowance of 19.10 per adult and 9.60 per child remains untouched after Budget 2016); the publication of the International Protection Bill (which would start a process of debate and critique of the Bill); and clarification on the procedures which are to be applied to relocated asylum seekers would seem to be a good start.

Responding to the Refugee Crisis: Examining the Broader Systemic Context in Ireland

Why Thinking about ‘Effectiveness’ Matters for Rights in Counter-Terrorism

It is striking that counter-terrorism tends to be treated as an informal exception to the ‘normal’ expectations of public policy and administration: measures are rarely subjected to full ex post facto review with appropriate access to information, evidence-based law- and policy-making is more or less absent, and the classic ‘learning loop’ ‘good old fashioned public administration’ seems rarely to be completed. This has clear implications for rights: the debates about necessity, impact and effects often remain at the level of rhetoric and key claims are unsubstantiated, while counter-terrorist measures frequently violate individual rights and act as the platform for systemic ‘downgrading’ of the content of core rights such as fair trial and privacy. Addressing these patterns requires systemic, heuristic and operational reform, but one starting place is the concept of ‘effectiveness’ and the role it plays in counter-terrorism discourses.  Continue reading “Why Thinking about ‘Effectiveness’ Matters for Rights in Counter-Terrorism”

Why Thinking about ‘Effectiveness’ Matters for Rights in Counter-Terrorism

Call for Submissions-Lacuna Magazine

Lacuna is an online Magazine published by the Centre for Human Rights in Practice which challenges indifference to suffering and promotes human rights. Its aim is to fill the gap between the short-term immediacy of daily journalism and long-term academic analysis.
 
Lacuna is now revisiting the theme of protest and will be publishing a Special Issue on this theme in February 2016. We are now seeking submissions, with a closing date of December 31st 2015.
 
All forms of writing and visual art will be considered: fiction, non-fiction, poetry, film, animation and photography. You may wish to investigate a particular instance of protest, to provide commentary, reportage or expert analysis of a protest-related theme. Or you may wish to review a book, a film, a piece of music, art or theatre connected to protest.
 
We are interested in exploring the diverse spectrum of forms of protest: boycotts; marches; strikes;  sit ins; direct actions; online petitions; songs; stories and many more. What makes protests in all of these forms enticing, legitimate, rewarding, fruitful…? What are the wrongs that provoke our anger and how do we take action in response? We are particularly interested in work that seeks to uncover peoples’ motivations for protesting, what they seek to achieve by protesting, and/or the outcomes of their actions.
 
 
Call for Submissions-Lacuna Magazine

What Women Don't Need

This is an edited version of a 10 minute informal talk I gave at the recent Coalition to Repeal the 8th conference, ‘What Women Need’.

The theme of this conference is ‘What Women Need’. My aim today is to tell you something about the sort of abortion legislation women do not need, but may well get, once the 8th Amendment is repealed. I do think that it would be possible to draft transformative post-8th legislation to regulate abortion in Ireland; legislation which might help to bed in women’s access to  care as part of a long-term process of movement to lightly regulated free, safe and legal abortion (see a recent talk here). But my topic today is something else.

I want to talk instead about the initial suggestions we have seen from members of Fine Gael and Labour about the sort of abortion legislation they would support if they were in office in a future government. These suggestions might be called ‘moderate’ or ‘middle ground’. They are made by TDs who tend to preface their statements with phrases like ‘I’m pro-life but…’ or ‘I am not in favour of abortion on demand but…’. My aim today is to provide an analysis of the legal imaginary underpinning that purported ‘middle ground’ – a ‘spotter’s guide’ to its key features.

I need hardly remind you, of course, that any proposal which does not comply fully with international human rights norms, cannot properly be described as ‘moderate’, except perhaps from the perspective of the established exceptionalist Irish approach to abortion law, which assumes that only a brutally conservative form of regulation can give effect to the Irish people’s supposed deep moral investment  in how pregnant persons conduct their lives.  Any legislation which does not provide for a period of access to abortion at the woman’s request in early pregnancy is far from the European middle ground. If you want to know what minimalist, middle ground legislation, which takes account of the complexity of the abortion issue and the full panoply of the state’s obligations under various bodies of human rights law,  might look like, I suggest the ‘General Scheme of the Abortion Access Bill 2015‘,  which a group of us drafted for Labour Women (but which they decided they could not adopt).

It is very interesting to watch the advance process of legitimating the supposed ‘middle ground’ unfold. Yesterday, the Taoiseach announced, invoking the usual abhorrence of ‘abortion on demand’, that he would not commit to a referendum on the 8th in the lifetime of the next government without giving consideration to what would replace it.  This sort of talk is something of a trend for this government. It repeatedlyexceptionalises abortion as a uniquely divisive and profound moral issue. In parliamentary debate the government presents pro-choice proposals for speedy reform as ill thought out, irrational,  and undemocratic. The government says it will not be ‘rushed’ when pro-choice TDs ask it to respond to devastating cases.  Often, the government – somewhat paradoxically – invokes the ‘bitter experience’ of thereferendum that lead to the Eighth Amendment to argue against its speedy replacement.

Note that the Taoiseach didn’t invoke conservative Catholic ideology yesterday (though his reference to ‘abortion on demand’ as the thing to be avoided implies a profound distrust of women’s decision-making). Instead he takes a supposedly ‘neutral’ approach relying on the assumption that repeal of the 8th generates a void or gap which must be filled, and that the filling of that gap will be a uniquely complex task. In his reliance on this discourse of uncertainty, the Taoiseach is able to present himself as steady and responsible. At the same time, he has not made any firm commitment to a process of research, consultation and law reform towards appropriate legislation.  He won’t commit to a referendum, in other words, for fear of an imagined looming void which he refuses to address. (Of course, there is no void per se. The PLDPA and associated medical law would remain in force until challenged or repealed, and the government could in any case prepare legislation for implementation to be brought into force immediate aftermath of the removal of the Amendment from the Constitution. If there is dangerous uncertainty in the law, it is the actually-existing dangerous uncertainty of the 8th Amendment-X case- PLDPA regime.)

Moreover, the Taoiseach’s focus on uncertainty works to close off discussion of the positive dimensions of the post-8th legal landscape. He offers no positive assessment of the shape of the constitution in women’s rights terms once the 8th Amendment is repealed. He does not point out how difficult it would be to justify criminalisation of abortion, for example, if the 8th Amendment could no longer be invoked to provide supposed constitutional impetus. He offers no sense of the tremendous potential – referenced by Anne Furdei of BPAS at this conference – for Ireland to use repeal to propose a new kind of abortion law, which demonstrates attention to and learning from the creative legal strategies which have been developed in other jurisdictions in the decades since the Amendment passed.

Having erected the spectre of overwhelming uncertainty, the ‘moderates’ will propose legislation which they claim is designed to provide clarity and reassurance to an unsettled public. You should look out for three key features in the drafting of any such legislation.

1) A retreat to the familiar and 8th Amendment lite or PLDPA plus. The discourse of uncertainty discourages creative research-based engagement with new legal approaches to the regulation of abortion, and encourages reliance on established, if dangerous, legal resources. The point of repealing the 8th Amendment is to rid our law of the unworkable, foetocentric rules it has been allowed to generate, and replace them with a regime which gives effect to women’s constitutional and other human rights. If language and concepts inspired by existing law are allowed to survive, zombie-like, the campaign for repeal then we must wonder whether repeal can be of more than symbolic importance. The Labour party’s recent proposals for a post 8th Amendment abortion law contain a disturbing example of retention of X case principles. These proposals suggest that a woman would be entitled to an abortion in early pregnancy if she could demonstrate a ‘real and substantial risk’ to her health. The phrase ‘real and substantial risk’ is a direct borrowing from the X case. We know that this phrase has proved very difficult to interpret in cases in which women’s lives are at risk and there is no reason to believe it will fare any better outside of the life-saving context. The borrowing of this language indicates the extent of the 8th’s impact even on supposedly liberalising legal thinking – it demonstrates a mindset in which the unborn remains a substantive legal subject, and women must be held accountable for any decision with serious implications for the survival of the pregnancy. Where we might expect to see substantive exploration of how general commitment to the protection of foetal life should be balanced against women’s many constitutional rights (or indeed reference to the concrete medical conditions which impact women’s pregnancies and which require a response from the law) we find instead an uninterrogated presumption that women come second, even the the absence of the 8th.

2) Restrictive language masquerading as providing certainty. If uncertainty is presented as the problem which abortion legislation must resolve, then politicians may be tempted to assume that precision in language is the solution. The search for black and white language is seductive but often misguided – particularly if new legislation continues to follow a medical indications model (under which a woman can access an abortion only because she or her foetus can be diagnosed with a particular type of medical condition rather than because she wants one). This was the difficulty whichbedevilled Clare Daly’s fatal foetal abnormality Bill  with TDs who opposed the Bill insisting that abortion could only be constitutional if a doctor could say with certainty that the foetus would not survive birth – an impossible standard.

3) Legal formalism. You should expect to see that excessive focus on the form and language of new legislation comes at the expense of attention to how the law will work in practice. We already know that the PLDPA and the X case judgment have failed at the level of interpretation – the law has been read down in ways which actively harm women. This has happened for two reasons. First, Irish medical culture – as evidenced by the cases  of Savita Halappanavar, Ms Y and PP v HSE, and as highlighted by the resistant activism of Doctors for Choice – emphasises obedience to the most conservative possible interpretation of the law, even when that interpretation is unreasonable from an ethical perspective because it does harm to the patient. Second, Irish legal culture, particularly within government and the civil service, is technocratic, conservative, litigation focused, and marked by excessive deference to the Attorney General as the most important interpreter of the Constitution. During the PLDPA debates, the government sought to connect to questions of the eventual implementation of the Act by inviting short testimony from elite medical and legal experts. Despite this, there is an obvious lack of government-led research or investigation into how abortion legislation would intersect with the lived reality of dominant Irish maternity care practices. In the General Scheme of the Abortion Access Bill 2015 we identify several crucial such gaps in public knowledge. If they are not filled, we will effectively be legislating into a black hole. (The government cannot even tell us, for example, how many terminations carried out under the PLDPA were abortions, and how many were so-called early deliveries.)

What Women Don't Need

Legal Gender Recognition in Ireland

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

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

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

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

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

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

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

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

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

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

Legal Gender Recognition in Ireland