Northern/Irish Feminist Judgments: First Workshop 'The Foreign Subject'

NIFJPWe are delighted to welcome back Ruth Houghton, a Graduate Teaching Assistant and Ph.D. candidate at Durham Law School who has previously written for us here and here. Ruth is also a commentator on the Northern/Irish Feminist Judgments Project. The post was published on Inherently Human.

The Project

As has been previously mentioned on this blog, the  Northern/Irish Feminist Judgments Project (@irishfjp) is led by Aoife O’Donoghue (Durham Law School), Julie McCandless (LSE Law) and Máiréad Enright (Kent Law School). A feminist judgments project writes the ‘missing feminist judgment’; it takes original decisions and rewrites them from a feminist perspective. Abiding to the strictures of precedent and custom that judges adhere to, the feminist judge shows how the law could have been interpreted or applied differently. This particular project builds on the work of the Canadian, Australian and English feminist judgments projects, and focuses specifically on the creation of identity in Ireland and Northern Ireland. The project will explore both jurisdictions, rewriting cases from both the Irish and Northern Irish courts. The Northern/Irish Feminist Judgments project explores the building of communities and the importance of diaspora for Irish identity as well as creating a space to explore the ways that Northern Irish and Irish identities have ‘affected, and defined themselves in relation to one another over time’.

First Drafting Workshop

On the 23rd October 2014, in Ulster University, five feminist judges presented their draft judgments to an interdisciplinary audience. The judges were free to choose the cases that they wanted to rewrite from a feminist perspective, which meant that there was a broad range of issues covered. From Irish constitutional law to vicarious liability for child sexual abuse, from employment law to public appointments and police powers and duties, these cases raised questions about community, identity, harm and the limitations of the legal systems.  The cases that were discussed at this workshop were; In re White (Judge: Catherine O’Rourke), McGimpsey v Ireland (Judge: Aoife O’Donoghue), In re E (Judge: Colin Murray), O’Keefe v Hickey (Judge: Maeve O’Rourke) and Flynn v Power (Judge: Eoin Daly).

Interspersed between the cases, were panels from scholars and activists from a variety of disciplines. The project aims to engage with the particular social, political and sectarian context and so issues of religion, sexuality and abortion were discussed during the two-day’ workshop. Photographer and filmmaker Emma Campbell (@frecklescorp) shared her video, When they put their hands out like scales, which includes the words from the Hansard debate on abortion in the Northern Ireland Assembly on 20th June 2000. Listening to words from the debate highlighted the prevalence of religion within the political debate on abortion. The images of walkways, paths and finally images of the docks were used to demonstrate the journeys women in Ireland have to take to seek an abortion and ultimately the denied statehood of these women. The extent to which abortion effects the construction or deconstruction of women’s identities was highlighted in the short-film as an actor read aloud Mrs Carson’s statement from the debate in the Assembly, ‘they should not be made to feel like criminals having to hide their identities. Nor should they be ostracised by society.’ Leanne McCormick demonstrated the role of female sexuality in the creation of women’s identities. She displayed images from ‘douching’ advertisements and told of how women were represented within trial reports from the early 20th century following accusations of abortions, attempted terminations and infanticide.

The construction of the foreign subject

The theme of the first drafting workshop was the ‘Foreign Subject’. Ex-President of the United States of American, Bill Clinton was noted to have said that ‘the most urgent issue facing the world [is] that of identity’ (quoted by Marianne Elliott). The creation of identities in Ireland and Northern Ireland was the focus of the panels at the first drafting workshop. Scholars from history, sociological, English literature and law came together to discuss the effects of the social, geographical, political and religious contexts on the construction of Irish identities. One element of this identity creation was migration and more broadly, travel and movement. Louise Ryan argued that identity is relational; it is located within particular places and created by the different relations between people. She discussed the effect of migration to England on Irish identity, showing how the perception of Irish people in England effects the way individuals present their Irish-ness.

In particular, the panels were interested in the way more marginalised groups build identities or have identities imposed upon them. Throughout the workshop the term foreign was constantly conceptualised and reconceptualised, stretched and expanded, to include those groups of people who are considered ‘foreign’ because they do not fit within societies expectations. ‘Foreign’ could include migrants, religious identities, LGBT persons, or women. Marianne Elliot noted how the word for foreign and protestant in Irish is the same and Anne Mulhall from University College Dublin spoke on the representation of migrant and LGBT persons in campaign literature.

One of the questions that the project seeks to explore is the role of the judiciary in the creation of identities. In judicial decisions, identities are created and the case law acts as a permeant record of this identity. The McGimpsey v Ireland case is an interesting example of the way litigants are constructed by the courts. The McGimpsey brothers lived in Northern Ireland and were well-known political actors amongst unionist supporters, their political belief was a rejection of Irish jurisdiction over Northern Ireland. They took a case to the courts in the Republic of Ireland challenging the Anglo-Irish Agreement of 1985. Even though the brothers rejected Ireland’s territorial claims and unionists in general would have been disliked in the Republic, when the case was in the High Court in the Republic of Ireland, Barrington J described the litigants as being ‘patently sincere and serious people’. Emphasising the brothers’ good standing within the community and their public and civic lives, the court fashioned an ideal litigant. This raises the question whether a housewife could have brought the same case and received the same favourable treatment; a question that Aoife O’Donoghue considered in her feminist rewrite of the Irish Supreme Court judgment.

The interrelationship between questions of community and identity in Northern Ireland and Ireland is strong. The community in Northern Ireland meant Protestant and Catholic or Unionist and Nationalist. Marianne Elliot highlighted how these different community groups had very different oral histories, which are used to crystallise identities. The pervasiveness of this divide is seen by the nature of party politics, which draws a distinction between “unionist”, “nationalist” and “other”. Yet, Myrtle Hill, a historian at Queen’s University Belfast and Monica McWilliams from the Transitional Justice Institute, talked about and shared experiences of the women’s movement in Northern Ireland in the 1970s. They noted how the movement distanced itself from the political-party lines that were drawn and engaged in cross-community activism. More recently, the Northern Ireland Women’s Coalition created in 1996, also refused to align with one ideology and were designated as “other” within the Irish National Assembly.

Still, a reoccurring trend in the Northern Irish and Irish judgments was the construction of identity along political and sectarian lines, dividing the community into Protestants and Catholics or unionists and nationalists. In re White concerned the appointment of representatives to the Northern Ireland Parades Commission (overseeing the parades or marches that take place in Northern Ireland). Despite the fact that women took part in the parades and were affected by the parades that took place on their streets, in the original decision it was held that ‘representative of the community’ did not include representing women. Similarly, in the case of McGimpsey v Ireland the original judgment talks of majority and minority community (invoking the Protestant majority and the Catholic minority). There is no thought to those people who fell outside of these divides, in particular those people who were excluded by the community: in response to the 1978 draft Homosexual Offences (Northern Ireland) Order, the Democratic Unionist Party started a petition to “Save Ulster from Sodomy”.

The feminist judgments in the Northern/Irish Feminist Judgments Project demonstrate how these decisions could have been decided or reasoned differently to improve the place of women and minorities within society. Each judge had a different feminism and so had different methods of creating a feminist judgment. By placing women within the text of the judgment, by focusing on the specific gendered nature of the harm suffered, by telling the stories of the women involved or in the cases of In re White and McGimpsey v Ireland by reconceptualising ‘community’, the Northern/Irish Feminist Judgments Project is able to critique the original decisions. The Irish feminist judges are now challenging judicial decisions that had a negative effect on women and minority groups.

The Northern/Irish Feminist Judgments Project has been assisted by research from Zoe Carter and Eleanne Hussey (LSE) and Ellen Jepson from Gender and Law at DurhamThank you to the University of Ulster, Transitional Justice Institute and Law School for hosting and supporting the first workshop.

Northern/Irish Feminist Judgments: First Workshop 'The Foreign Subject'

A new Constitutional Settlement for Northern Ireland: Queries from International Law

287px-Uk_map_home_nations (1)This post was jointly written by regular contributor Aoife O’Donoghue and Ben Warwick. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights. 

The starting gun has been fired on constitutional debate in the UK. The prospect of Scottish independence, potentially increased powers for devolved governments, a new English Assembly, a re-formed relationship with human rights and a reformulation of the relationship with the EU, are all being more or less vigorously discussed. Whilst there has been some public debate about the constitutional issues facing the UK, there remain a number of covert agendas. Each of these agendas represents both threats and opportunities for Northern Ireland. The tendency to define constitutional changes by reference to internal factors is a misguided one. Such an approach neglects the significant external implications of internal debates. Rather, changes to the UK’s constitutional settlement must be situated in the broader regional and international political and economic context. The realities of modern globalisation and commerce, mean that external bodies and countries are both influenced by, and influencers of, ‘internal’ debates and thus cannot be ignored.

For England, and the UK, the electoral fortunes of the Conservative party lurk beneath the surface. Under threat from UKIP, and in arguably long-term decline, the Tories have sought to both capitalise and stave off threats from the Right. The party have undoubtedly seen an opportunity to separate unpopularity in Scotland (the party has just one MP out of 59 potential seats and in contrast to Labour), from relative success in England. Significant devolution to an English Assembly would likely leave the Conservatives (or at least the right of British politics) with a majority. This opportunism can explain changes of heart on devolution.

In Scotland, the covert agendas belong(ed) to the markets. Dominant economic actors vocally campaign(ed) against independence on the basis that it would harm jobs and the prosperity of Scots. This was an important consideration for many, but for the Boards of Directors and CEOs making the threats it was not the primary motivation. Rather, the continued profitability and favourable tax regime for corporations were the unspoken motivation for such a fight against Scottish independence. Companies were concerned, not with the general welfare of the Scots, but with the potential disruption to their healthy profits.

As ever for Northern Ireland, much remains unsaid. There is fear of covert and/or incremental changes that erode cultural identities and (Unionist/Nationalist) identity politics remain an on-going and dominating factor in debates. Besides the internal ‘blockages’, there are also external implications including repercussions for Northern Ireland’s voice in debates on human rights, economic powers, and the division of power in the UK. This is crucial, as a strong voice within the UK affects the province’s capacity to deal with the issues of austerity, social security, rural and urban poverty, policing and employment.

At the Conservative Party Conference in October there was a clearly voiced intention to introduce changes to the UK Human Rights Act (HRA) and the relationship with the European Convention on Human Rights and the associated European Court of Human Rights. It was stated that if changes to that relationship could not be made, a Conservative Government would withdraw from the Convention. As has been noted elsewhere this is a particularly pertinent issue for Northern Ireland as the Good Friday Agreement places the introduction of the HRA as central to its settlement.  Under the settlement the UK agreed to:

complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention,  including power for the courts to overrule Assembly legislation on grounds of inconsistency.

The Irish Government, in return, agreed to incorporate the ECHR into its law and there is no suggestion of a change. The Good Friday Agreement is partially a bilateral agreement between the UK and Ireland, the Conservative proposals would, if enacted, violate international law. Besides legality, courtesy would require the UK to consult with Ireland about such changes, perhaps with a view to releasing Ireland from its obligations. Given that there was a vote in both the Republic and Northern Ireland on the Good Friday Agreement, it is perhaps democratically questionable to change its terms without consulting both constituencies again.

Bordering on the EU

Of further consideration is the potential of the UK leaving the EU and its impact. As the Republic is outside Schengen there is little problem with the open status of the Ireland-UK border. Without wishing to ape the rather ridiculous depictions of what a border with an independent Scotland would look like, should the UK leave the EU and Ireland enters Schengen, it would make the open border problematic. In particular with a dominant aim of UK political actors being to stop inward migration, the border could not be as porous.  Whilst the Irish are (legally) not to be treated as ‘foreigners’ under the Ireland Act 1949 other EU citizens entitled to continue to come to Ireland may pose practical and political difficulties. Further, the entitlement of those born in Northern Ireland to dual citizenship is problematic. If an individual chose to register for an Irish passport they would be able to maintain their EU citizenship even if the UK left. This would be in stark contrast to other UK passport holders in Scotland, England or Wales.

Leaving the EU would also impact upon the Transatlantic Trade and Investment Agreement currently being negotiated with the USA. While there is not space here to discuss the many problematic elements of this trade deal, a UK that sat outside of the EU would leave Northern Ireland without preferential access to the USA. Leaving the EU would also put the UK in an entirely different position within the World Trade Organisation. While currently the UK is an individual member, all of its negotiations are conducted as one EU block. Therefore while the UK would stay as a member of the WTO, it would negotiate as a standalone state rather than part of the world’s biggest market. Again, as the Republic would remain part of the EU’s block in the WTO, it would maintain the many and varied benefits that the EU maintains due to its global economic power.

Goodbye Good Friday

A further indication of the external nuances of the UK’s current constitutional soul-searching lies with border polls. Whilst there has been much talk of a border poll in Northern Ireland, this has largely neglected the voice of the Republic. The Good Friday Agreement mandated a right to self-determination for the people of the Republic in the following terms:

it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

It is by no means certain that a vote in the Republic on the matter of unification would bring about a majority of yes voters. No vote took place when East Germany rejoined West Germany, partly because the German Constitution never gave up its claim to all of its territory. The Irish situation differs as a result of the changes to Articles 2 & 3 of the Irish Constitution. Further, it was by no means certain that the West Germans would vote to integrate their East German neighbours. The requirement of self-determination for North and South would mean that even if Northern Ireland voted for a unification of Ireland, there would be no certainty of a united Ireland

There are undoubtedly significant international effects that flow from a renegotiation of the UK’s constitutional position(s). Yet the current internalised approach to considering the constitutional issues is masking the broader effects. From human rights, to the EU, to the TTIP and the Good Friday Agreement, there are significant ramifications that urgently need discussed. Having these debates by reference to the Conservative Party’s self-interest, economic hegemonies, or identity politics can only lead to a transient conclusion to the international issues.

A new Constitutional Settlement for Northern Ireland: Queries from International Law

Time for Our Referendum

The following is the text of a letter written by a number of regular HRinI contributors and signed by over 100 academics, which was published in the Irish Times today (full list of signators only available online). Here we have added a number of additional signatures received after the letter went to press. Others who wish to express their desire for a referendum to repeal the 8th Amendment to the Constitution should sign the petition organised by the Abortion Rights Campaign here

Dear Editor,

We are people in or from Ireland. We are under the age of 50. We could not vote in the 1983 abortion referendum which profoundly limited women’s autonomy. No subsequent referendum has provided an opportunity to undo that damage. Many of us have lived our whole lives under an abortion regime in which we have had no say. As a generation we have grown up knowing that the State would compel us to travel if we wished to exercise substantive control over our reproductive lives. Continue reading “Time for Our Referendum”

Time for Our Referendum

Taxes, juries and emergency powers: Murphy v Ireland

In a resolutely formalistic judgment, the Supreme Court yesterday rejected a constitutional challenge to the hearing of “ordinary” cases in the Special Criminal Court. Thomas Murphy had been charged with failing to make his tax returns — an indictable offence that is tried usually in the “ordinary courts” —  but the DPP certified that such courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy”.

Before trial, Murphy issued a plenary summons seeking declaratory relief, claiming, inter alia, that the DPP’s power of certification fails to guarantee his right to equality and his right to a fair trial in due course of law before a jury of his peers, and it does not permit the plaintiff argument to be heard before the issue of the certificate, or dispute it afterwards. Moreover, it was claimed that that the exercise of the DPP’s powers could be predicated on false or inaccurate reasons, but there is no means of ensuring disclosure of such reasons, and that review is possible only where mala fides is demonstrated.

The Supreme Court dismissed Murphy’s claims, allowing trial to proceed. Continue reading “Taxes, juries and emergency powers: Murphy v Ireland”

Taxes, juries and emergency powers: Murphy v Ireland

Cathleen Ní Houlihan and the protection of Ireland's femininity

cathleen ni houlihanIn the years preceding independence, the vision of Ireland as a women in need of protection became a standard of nationalism. Genderised Ireland has roots in Róisín Dubh and the Earl of Tyrone’s attempts to stay off the Tudor expansion in Ireland. Directly linking the Earl’s resistance to his daughter’s woes, standing in for a forsaken Ireland, the image of a women as Ireland needing male intervention to fully substantiate both her rights as a sovereign power but also to fully embrace her Irishness, as opposed to any foreign interpretations of femininity, became an entrenched trope of nationalism. This was replicated by Yeats and Gregory in the play Cathleen Ní Houlihan. In this play, Maud Gonne, as elderly mother Ireland, is only revived as young and, importantly, beautiful, upon the sacrifice of young men to regain her freedom to be distinctly Irish. Thus, Ireland becomes a women who while personifying the very character of Irishness also requires others, always men, to protect, vindicate and guard her from outside influences and interference. Cullingford has described the depiction of Ireland as a women as neither natural nor archetypal but so common as to be ‘rhetorically invisible.’ Further, she argues that Ireland as women has been so effective  that it is entrenched in the idea of women in stereotypical roles invariably linked to nature that is to be possessed and cultivated to its utmost by men, becoming a settled trope of Irish culture. This has created a state structure and culture in Ireland where men occupy the political role of fighting and vindicating rights on Ireland’s, and as such, women’s behalf.

Such characterisations of states possessing both sex and gender are not restricted to Ireland. A recent speech by Patriarch Kirill, the head of the Russian Orthodox Church, warned against the evils of feminism. Arguing that the ‘Motherland’ or Russia, as a state, would be threatened should women step outside their traditional role in the home and take the active political and social roles advocated by feminism. Motherland Russia requires women to be in the private sphere to survive.  Bharat Mata or Mother India was used as a symbol of both Indian and women’s emancipation during the struggle for Indian independence, though the latter was largely forgotten upon independence, other than among the elites. Male personifications are also common, from John Bull and Uncle Sam to Dangun in Korea. Yet, in the incidences of male personifications it is as an active player in the public sphere who commands and directs citizens, offering protection rather than requiring it.

Hanafin and Collins point to the 1937’s Constitution’s use of myths and maidens in their critique of the use of gender in the Constitution. Particularly, they discuss the role of women as mothers in the present constitution and link this to nationalist trends towards myth-making which preceded the Constitution and post-colonial structures. The role of mother as forging a basis for re-birth is particularly important in their analysis. Arguably, in the present debates on abortion legislation, see here, here, here and here,  it has become ever more prominent in the perceived vindication and protection of Irish women within Ireland’s constitutional structure. The personification of Ireland as a women in need of protection, where the Irish male vindicates their rights, certainly appears to be fully operational in the language used in the political debates. The language employed has been heavily patriarchal as women are invariably discussed in a manner that suggests they are not capable of making informed medical decisions or indeed have cognisance of their own mental welfare, particularly regarding  suicide. Rather, women are in need of the protection offered by the State, and as such, the Constitution as was originally intended in 1937. Their role as mothers, apparently an anathema to any decision to terminate a pregnancy, is inherent to our understandings of Ireland itself and Irishness.

Such rhetoric, though not quite as bare-faced as Patriarch Kirill, is not so far removed either. Irish women fulfil a role within the constitutional structure and, as such, the state, as is clearly evident in Article 42.2 and the support for women’s place in the home. While most agree this particular article is archaic there has been no rush to remove it either. Arguably, article 42.2  merely is an open portrayal of how the 1937 Constitution regards the state and the particular role of women in ensuring the maintenance of its unique Irishness, as envisaged by the male power holders of its time, particularly as this article’s interpretation has permeated the use of other constitutional articles and wider societal debates. While Cathleen Ní Houlihan may appear to be a long forgotten relic of nationalism in the pre-state era, her presence is more clearly felt than perhaps it should. Irish women do no need the male citizenship to vindicate their rights, their own citizenship should enable them to do so in the same public sphere. The emergence of a beautiful maiden ready to take the role of mother no longer is representative of Ireland or Irish women, the Constitution, and its implementation should reflect this.

Cathleen Ní Houlihan and the protection of Ireland's femininity

Judicial Pay Referendum – Much Ado about Nothing?

We are delighted to welcome this guest post from Laura Cahillane. Laura Cahillane is a Post Doctoral Fellow in the Law Department at University College Cork. Her research interests lie primarily in Constitutional Law, Legal History and Administrative Law. You can contact Laura at l.cahillane@ucc.ie

The debates on the judicial pay referendum seem to have taken a dramatic turn in recent days with fears that the amendment will give the Government too much power in relation to control of judicial salaries and that this, in turn, will lead to an erosion of the independence of the judiciary.

I feel it important to note, in the context of fears of an autocratic Government determined to undermine the independence of the judiciary, that the action of reducing judicial salaries in line with general public pay-cuts or subjecting the judiciary to the pension levy could very well have been accomplished without an amendment to the Constitution in the first place.

The reason it has not been done is because the Government has taken an unnecessarily cautious approach in their interpretation of the Constitution. It was decided to exempt the judiciary from the spate of public pay-cuts on the basis that the Constitution precludes a reduction in the salaries of judges. The relevant provision in the Constitution is Article 35.5 which states that: “The remuneration of a judge shall not be reduced during his continuance in office.” However, it appears that the purpose of this provision has been forgotten. Continue reading “Judicial Pay Referendum – Much Ado about Nothing?”

Judicial Pay Referendum – Much Ado about Nothing?