Understanding the Increases in Direct Provision Allowance for Asylum Seekers

END DPFrom August 2017, asylum seekers in Ireland will receive increases to the direct provision allowance payments. For adults, this is the first increase to direct provision allowance in 17 years. For children, this is the second increase in direct provision allowance since 2000. Adult asylum seekers and child asylum seekers will now receive €21.60 per week, an increase of €2.50 for adults, and an increase of €6 for children.

In June 2017, I submitted a Freedom of Information (FOI) request to the Department of Social Protection seeking to understand what the rationale for these small increases were. The Department’s response to the FOI request, provides some further understanding as to why the the child direct provision allowances were equalised, however the documentation received fails to provide a clear rationale for the increases in adult direct provision allowances.

Before getting to the most relevant documents, it is important to note that the McMahon Report on direct provision made very few unqualified recommendations: but did in an unequivocal manner recommend that adult asylum seekers be provided with an allowance of €38.74 per week, and children with an allowance of €29.80 per week in June 2015. The increases in direct provision allowance fall far short of this recommendation. (I should acknowledge my significant concerns regarding the McMahon Report and its recommendations from a human rights perspective. See Subprime for excellent analysis on the McMahon Report and its impact. See also Doras Luimni’s analysis of improvements with the direct provision system). In July 2017, the Department of Justice has claimed in its final progress report on the McMahon Recommendations that 98% of all the recommendations from the McMahon report have been implemented, or are in the process of being implemented. Some questions have been raised by NASC in relation to the Department of Justice claims on their 2nd progress report (which stated 92% of all recommendations implemented). Focusing solely on direct provision payment, calculations by Department of Social Protection on 08 June 2017, noted that the cost of implementing the McMahon direct provision increases would be under €3.7 million per year [See document [1] here]. Continue reading “Understanding the Increases in Direct Provision Allowance for Asylum Seekers”

Understanding the Increases in Direct Provision Allowance for Asylum Seekers

Asylum Seekers and the Right to Work: The Supreme Court Decision

Supreme CourtBy virtue of section 9(4) of the Refugee Act 1996, asylum seekers are absolutely prohibited from seeking or entering employment in Ireland. This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015.  This provides that an asylum seeker,

shall—….

(b) not seek, enter or be in employment or engage for gain in any business, trade or profession…

Is this absolute prohibition on asylum seekers from entering, seeking or being in employment unconstitutional. The Irish High Court said no. The Irish Court of Appeal said no (see Maria Hennessy’s analysis of these decisions here).  The Irish Supreme Court has answered yes.

O’Donnell J (and the other six Supreme Court judges who agreed with this decision) have now decided to adjourn proceedings  for six months, after which an order will be made declaring the absolute prohibition of asylum seekers from exercising a right/freedom to work, unconstitutional. The Supreme Court agreed with the Court of Appeal ruling that no challenge existed to this prohibition under the ECHR Act 2003 (which I think is very problematic..) nor the European Union Charter of Fundamental Rights.

As O’Donnell J. noted, the core question that the Supreme Court had to decide could be broken into three core parts:

  1. Whether there is an right to work under the Irish Constitution?

O’Donnell J. decided that yes, there is a qualified right to work under Art. 40.3 of the Irish Constitution. The reason I am saying qualified, is because, in light of earlier jurisprudence, O’Donnell J. has categorised this as a freedom to work, subject of course to other considerations (i.e. qualifications, experience to enable a person conduct the work they want to). The freedom to work goes to the “essence of human personality” (para. 13), even if (para. 15)

Much work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself.

O’Donnell noted that the constitutional recognition of what might be called a right or freedom to work does not entail obligations for provision of work, or even require the Government to adopt economic policies to enable full employment (para. 12).

However, the freedom to work recognises the “essential equality of human persons mandated by Article 40.1” of the Irish Constitution (para. 13).  Interestingly, and the first time ever to my knowledge, an Irish Court (and the Supreme Court no less) has relied directly on a general comment from the UN Committee on Economic, Social and Cultural Rights (para. 16) on the right to work:

The right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity. Every individual has the right to be able to work, allowing him/her to live in dignity. The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/her development and recognition within the community.

The Supreme Court stated that this description is “broadly consistent with that which was the background to the constitution” (para. 16). By exercising a freedom to work, a person can then ensure the protection of his/her other rights, within the family sphere, within the social sphere and within the societal sphere (para. 15). The right to work or more precisely the freedom to work, has been recognised by the Supreme Court as a fundamental part of human personality.

2. Whether  an asylum seeker can rely on this constitutional freedom to work?

The Supreme Court did note that a non- (EU) citizen has no automatic right to work in Ireland, this is subject to permission being granted. However, asylum seekers who are lawfully in the State for the duration of their protection claim, cannot be compared to other migrants who might be seeking a permission to work in Ireland. The right to work which goes to the “essence of human personality”, cannot be absolutely excluded for those seeking asylum. Work is fundamentally connected to ‘dignity and freedom’ (para. 15) and cannot be withheld from non-citizens.  ‘Significant distinctions’ can exist in the field of entry to employment between citizens and non-citizens and the Supreme Court stated the Oireachtas and “(where appropriate) [the] executive” judgment on the precise contours of the right to work for asylum seekers will in the main be respected by the courts.  The Supreme Court noted that the “pull factor” argument is a legitimate argument the Oireachtas may make reference to (para. 18). The Oireachtas may determine that by granting the right to work, it may make it more difficult to remove an asylum applicant who is not entitled to protection. In addition, the Oireachtas may have a power to limit the freedom to work for asylum seekers “to defined areas of the economy perhaps where there is a demonstrated need.” (para 18)

Therefore, while an asylum seeker may have the freedom to work, the Supreme Court decision provides significant scope for the Oireachtas to place limitations on this, and limitations that could not be placed on citizens. Its hard to equate the Supreme Court’s views on what may be permissible limitations, with the Supreme Court noting in para. 20 of its judgment the “damage to the individual’s self-worth and sense of themselves”.

3. What Next?

The Supreme Court decided that “in principle” they were prepared to hold (at para. 21):

where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) ( and re-enacted in s.16(3)(b) of the 2015 Act ) is contrary to the constitutional right to seek employment. However, since this situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some one or other of them, and since that is first and foremost a matter for executive and legislative judgement, I would adjourn consideration of the order the Court should make for a period of six months and invite the parties to make submissions on the form of the order in the light of circumstances then obtaining.

The ball is now firmly in the court of the Oireachtas. However, the Oireachtas must be reminded (contact your TD here), that they are not starting from a blank slate.

First, the Irish High Court has already ruled that maladministration in rendering of a lawful decision on a protection claim may result in damages being awarded to an asylum seeker. Therefore, whatever course of action the Oireachtas takes, lets get this right. There has to be some focus on the ability of our quasi-judicial bodies who determine protection claims to do their work efficiently, but most importantly to be fair to asylum applicants.

Second, It would appear, that if Ireland became part of how European Union society deals with this question, then our Parliamentarians need to look no further than EU law for a solution to this constitutional protection of asylum seekers right to work. The Recast Reception Directive (which Ireland is not bound by), provides asylum seekers a right to work should generally be granted after 9 months where a first instance decision has not been rendered on a refugee/protection claim. The McMahon Working Group on the Protection Process and Directive Provision made a recommendation  (para 5.49) that once the International Protection Act 2015 was operating efficiently, that Ireland abide by this 9-month rule. Whatever the Oireachtas decide, this constitutional right of asylum seekers to have a freedom to enter employment must be effective, and not illusory (borrowing how the European Court of Human Rights insists on the realness of granted rights).

Image credit: Michael Foley

Asylum Seekers and the Right to Work: The Supreme Court Decision

Northern/Ireland After Brexit: Exploring the Human Rights Impact

#BrexitRightsOn Wednesday, May 3 2017 from 1.30pm UCD Centre for Human Rights is hosting a seminar in the Irish Human Rights and Equality Commission (map here) on Northern/Ireland After Brexit: Exploring the Human Rights Impact.
With five speakers engaging with intersections of constitutionalism, gender, human rights and borders,this seminar seeks to reflect on human rights implications of Brexit upon the constitutional settlement(s) on this island.
The full programme, speakers and paper abstracts can be accessed here.
Seminar delegates can register for the conference here (selecting the free of charge option unless CPD is required, for which there is a €60 charge)
Northern/Ireland After Brexit: Exploring the Human Rights Impact

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A7: It is arguable that this is the case.

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

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

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

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

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

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

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

#DirectProvision16

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

The Government say that there is no alternative.

They say that alternatives have never been put forward.

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

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

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

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

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

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

Overarching principles:

~ cap on length of time in initial reception

~ embodies the best interests of the child

~ allows for self-determination

~ is based on care, not profit

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

~ makes early legal advice available

~ includes independent complaints (to the national Ombudsmen)

~ includes inspection mechanisms

~ provides the right to work

~ fosters rather than deters social inclusion

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

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

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

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

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

Deportation, ISIS and the Irish Courts

Four_Courts,_Dublin,_IrelandHuman Rights in Ireland welcomes this guest post from Darragh Coffey. Darragh is a PhD Candidate in the Faculty of Law, Darwin College, University of Cambridge. 

 

The Court of Appeal is currently hearing arguments as to whether a man alleged to have links to the so-called Islamic State (IS) should be deported. While many of the facts of the current case, including the state to which the man is to be deported, remain subject to reporting restrictions, a number of issues are clear: The Government allege that the man in question poses a threat to national security and on that basis seek his deportation. For his part, the man claims that he has previously been tortured in the country to which he is to be sent and that if he is deported he will face a real risk of being ill-treated again due to the allegations of his links to IS, which he denies. Such challenges to deportation orders are not uncommon in European states; a notable example was the United Kingdom’s embattled attempt to deport Abu Qatada to Jordan which was finally successful in 2012.

Like the United Kingdom and all other EU member states, Ireland is a signatory of the European Convention on Human Rights (ECHR). The central legal issue in cases such as this stems from Article 3 of that Convention and the 1989 decision of the European Court of Human Rights in Soering v UK. Article 3 States that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The Soering case established that if an ECHR contracting state expels an individual to another state where substantial grounds exist for believing that he or she would face a real risk of suffering treatment proscribed by Article 3, then the ECHR contracting state would violate that provision by so doing.

The European Court of Human Rights has therefore read an implicit prohibition of return to a risk of torture or inhuman or degrading treatment or punishment into the text of Article 3. Furthermore in 1996 and again in 2008 the Strasbourg Court held that this implicit ban on sending individuals to states where they may be ill treated is absolute. In other words the behaviour of the individual or the threat that he or she poses to the host state, no matter how serious, cannot be taken into account to justify the deportation if there is a real risk that he or she will be ill treated. Article 3 therefore enshrines a very robust and not uncontroversial protection against return to ill treatment.

This means that if, in the case currently before the Court of Appeal, the applicant’s legal team can show substantial grounds for believing that he will be at real risk of torture or inhuman or degrading treatment following deportation, then according to long standing jurisprudence of the European Court of Human Rights –and contrary to the High Court’s finding on Monday– the threat that he poses to Irish national security cannot be taken into account when deciding whether or not he should be deported.  If the existence of such a real risk is established the Irish Government simply cannot deport him to the proposed receiving state without violating Ireland’s human rights obligations under the European Convention on Human Rights. On Wednesday, 30 December, the European Court of Human Rights indicated a rule 39 interim measure to the Irish Government, which means that even if the injunction is lifted by the Court of Appeal the Government cannot, without violating the European Convention, deport the man until his case has been fully heard.

This case provides an example of the friction that can often arise between national security and the protection of individual human rights. In many ECHR contracting states deportation is often the preferred option in national security cases. This is because information indicating that the person is a threat may be inadmissible as evidence in a criminal trial or because such a trial may require the disclosure of information that could jeopardise on-going security operations. Because of these sensitivities some governments feel it vital to maintain the ability to deport individuals identified as threats to national security. The restraint of deportations under the ECHR has therefore long caused consternation among some ECHR contracting states where deportation plays a significant role in counterterrorism policy. This has seen the advent of the negotiation of diplomatic agreements with potential receiving states and the use of special closed-evidence tribunals such as the Special Immigration Appeals Commission in the UK.  The outcome of the current case may raise important questions about how the Irish legal system is equipped to handle such challenges.

Deportation, ISIS and the Irish Courts

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.

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

Ireland’s Record on Social, Economic and Cultural Rights – Disability and Mental Health Perspectives

unpoNext week Ireland will be examined by the UN Committee on Economic, Social and Cultural Rights (CESCR) – and the impact of austerity measures on the Irish public over the last several years will be scrutinised. In this post, I highlight some key issues from a disability and mental health perspective which might be addressed by the Committee, based on the concerns outlined by various civil society groups. Continue reading “Ireland’s Record on Social, Economic and Cultural Rights – Disability and Mental Health Perspectives”

Ireland’s Record on Social, Economic and Cultural Rights – Disability and Mental Health Perspectives

Negligence, Symphysiotomy and Past Harm.

Women wrongfully subjected to symphysiotomy in Ireland have human rights to an acknowledgement and apology, to guarantees against repetition, to measures of restitution and rehabilitation and to monetary compensation. I have written about the symphysiotomy redress scheme on this blog and elsewhere on a number of occasions. It was recently reported that over 50 women who applied to the scheme have been denied redress because they were unable to provide the medical records which Judge Harding-Clarke demands. Al Jazeera recently reported women’s experience of the hostile administration of the scheme. A number of members of Survivors of Symphysiotomy decided not to participate in it, preferring instead to try their luck with civil litigation.  There have been three symphysiotomy negligence cases to date. The first, Kearney, initially heard in 2006, was a case of symphysiotomy after C-section, performed in Our Lady of Lourdes Hospital in Drogheda. Mrs. Kearney succeed in the High Court and Supreme Court. Her case is the origin of the test which enabled two further litigants to bring negligence cases to the High Court, against the Coombe hospital. Another plaintiff, Noreen Burns, died last summer before her case against Holles Street  could be heard. The first case to come to hearing, a Kearney-type symphysiotomy after C-section, settled. The second, a case of prophylactic symphysiotomy performed 12 days before the birth ended with a recent judgment by Cross J. As the term is used in this judgment, a prophylactic symphysiotomy refers to an elective, non-emergency symphysiotomy performed before labour begins, purportedly to slightly widen the pelvis and facilitate vaginal birth in the first instance and in future births.

Green shoots from the latest judgment.

What we have learned from these cases so far is that symphysiotomy litigation is not a hopeless strategy, as many TDs who support the redress scheme assert. In particular, we have learned that the Irish courts are likely to be open to hearing claims even where decades have passed since the symphysiotomy was performed.   In his recent judgment, Cross J. held that the relevant date of knowledge for the purposes of s. 2 of the Statute of Limitations was the date at which the plaintiff had sufficient knowledge to justify bringing a claim. This was not the date of the symphysiotomy itself, or the date on which she first began to suspect that a symphysiotomy had been wrongfully performed,  or the date on which she first made inquiries to the hospital. It was the date on which she received her medical records.  This point was not directly argued in Kearney and it is very helpful to have the clarification. Of course, two years remains a ridiculous limitation period for personal injuries of this kind, and many women will find their claims statute-barred despite this decision.

We have also learned that Irish courts are willing to accept that litigants’ injuries are attributable to symphysiotomy. In his recent judgment, Cross J. accepted, against the assertions of the defence, that the plaintiff had suffered life-long physical and psychological consequences as a result of the symphysiotomy.  Even though there were no records of the plaintiff raising her symphysiotomy with her doctor, Cross J. accepted evidence that she had discussed the resulting injuries with a friend long before the question of legal proceedings arose, and accepted the evidence of her medical experts which attributed her injuries to the symphysiotomy. In this respect, it is important to note that the High Court is less demanding than Judge Harding- Clarke’s redress scheme, which requires women to produce paper records going back to the time of the operation. Unfortunately, Cross J. repeatedly stresses that he makes no finding as to the general safety of prophylactic symphysiotomy. 

We have also learned that hospitals’ defence teams are willing to proceed very aggressively against elderly women. The government, of course, has not adopted ‘model litigant principles to moderate hospitals’ or the State Claims Agency’s dealings with victims of abuse. However, it is consoling to see that Cross J. dismisses some of the worst of the defence tactics deployed in this case; for instance, the implication that aspects of the plaintiff’s claim were concocted in collusion with Survivors of Symphysiotomy, and the argument that the existence of the redress scheme meant that he should be less willing to find in the plaintiff’s favour.

Difficulties in winning symphysiotomy cases under Kearney, and this latest judgment.

Inevitably, something is lost by framing a symphysiotomy case as a negligence case. The cost of litigation, and the emotional toll that it can take on litigants, and the campaigners who support them, are important considerations. We may be willing to accept that in exchange for some forms of success in litigation – a finding of liability and an award of meaningful compensation. But the latest symphysiotomy case suggests obstacles to recovery which are internal to Irish negligence doctrine.

There is no difficulty in establishing the duty of care in  a symphysiotomy case because it is clear that doctors owe duties of care to their patients. Other kinds of institutional abuse case are more likely to fail at the point of establishing duty of care, fiduciary duty, or vicarious liability (see e.g. O’Keeffe v. Hickey and a raft of cases in Canada and Australia). As already discussed, the most recent symphysiotomy case also suggests that causation requirements will be readily satisfied. Symphysiotomy litigants are more likely to struggle with establishing breach of the doctor’s duty of care. This is because, for women who gave birth in the 1960s at least, the court’s approach to the standard of care is deeply shaped by their desire to avoid prejudice to the defendants caused by the passage of time.  It is not only that the symphysiotomy is judged according to medical standards prevailing at the time that it was performed, but that the plaintiff’s case is dramatically circumscribed to the advantage of the defendant.

Excluding the consent question and misrecognising torture.

First, Cross J. accepted that the plaintiff was not told that a symphysiotomy would be performed on her. However, he could not hear further argument on this point. In Kearney, the High Court, and the  Supreme Court  held that the plaintiff could not base her claim in the failure to obtain her informed consent to the procedure because it could not be known what information had been given to her at the time the operation was carried out. Almost 40 years had passed since her symphysiotomy. All of those involved in her direct care were either dead, living elsewhere, or uncontactable and the records of the procedure were incomplete. It would be unjust to expect the hospital to defend itself against such a claim. There is therefore no argument in Kearney around assault, or around negligent failure to obtain informed consent along the lines of Walsh v. FPS. Last July, the United Nations Human Rights Committee emphasised failure to obtain women’s consent when it  categorised symphysiotomy in terms of terms of violation of Article 7 of the ICCPR: the prohibition against torture, cruel, inhuman and degrading treatment, including forced subjection to medical experimentation. The Committee advocates prosecution of surviving doctors who performed symphysiotomy. If older symphysiotomy cases are not consent cases, of course, then the  core of the injury done to many women is eliminated from  judgment. If we think of symphysiotomy  as the unlawful intentional infliction of pain and suffering on women for discriminatory reasons – as torture – then the  Kearney judgment is deeply flawed. The removal of the consent question allows the development of symphysiotomy to be presented as an essentially benign practice – part of the natural development of obstetric care in Ireland. In the process, it leaves many of the problematic narratives about the safety of symphysiotomy (embedded in the Walsh Report) untouched. One might almost say that in Cross J.’s judgment, the operating doctor is partially redeemed, without having to take any responsibility.  The judgment also, in Blackburn’s words, requires the divisibility of injuries that people experienced as indivisible. That much may undermine the value of litigation in the eyes of victims, who feel that they can only obtain an incomplete hearing; that their injury, to borrow from Nicky Priaulx, cannot be  ‘seen’ in full.

The ‘any justification’ approach

Second, Kearney prescribes a modified Dunne test, again intended to allow the plaintiff to bring a negligence claim without unduly prejudicing the defendant. The plaintiff’s argument must be that “there was no justification whatsoever in any circumstances for the performance of a symphysiotomy on her at the time that it was performed”. If the defendant can establish in credible evidence any realistic reason justifying the symphysiotomy she cannot succeed. As Hardiman J. confirmed in Kearney in the Supreme Court, hypothetical justification will suffice. Cross J. acknowledges that this is obviously a very high threshold for the plaintiff to meet. He finds that there were realistic reasons justifying the performance of the plaintiff’s symphysiotomy – examination of the plaintiff convinced the treating doctors that vaginal delivery would not be possible. Rejecting the plaintiff’s expert evidence, he holds that doctors were justified in their suspicion of multiple Caesarean sections (which were more difficult to avoid given that the same doctors would not provide sterilisation and the law restricted access to contraceptives), and that symphysiotomy was then considered an appropriate and safe  treatment in cases of the plaintiff’s kind by consultants at the Coombe and the National Maternity Hospital.  The plaintiff’s recorded diagnosis matched this prevailing rationale. We can contrast this with Kearney in which Ryan J. held that Mrs. Kearney’s pelvic measurements and presentation did not suggest, on the terms on which symphysiotomy was performed in 1969, that she was a proper candidate for symphysiotomy. Thus there had been no realistic reason for performing the symphysiotomy in her case.

It is important to clarify how Cross J. defines the procedure he is assessing. He works from the assumption that, in 1963, symphysiotomy could be preferred to Caesarean section in cases where the measurements of a woman’s pelvis relative to the size of the as yet undelivered baby’s skull suggested that vaginal birth would be too difficult.  First, he discounts the fact that the plaintiff’s symphysiotomy was performed 12 days before she gave birth. In Kearney, it was crucial to Ryan J.’s reasoning that the symphysiotomy was performed “on the way out” after the baby was already born – there could be no good reason, to his mind, for performing a symphysiotomy in these circumstances. We might have expected the 12 day delay to act as a similar indicator of irrationality in this case. However, the judge accepts that the defendants believed, at the time, that the plaintiff was overdue. So he characterises the symphysiotomy as a prophylactic symphysiotomy and treats it in the same way as any  prophylactic symphysiotomy performed shortly before labour began.  Second, finding justifying reasons does require the judge to select the community of knowledge which generates those reasons. Is it the British and Irish obstetric community of the time, or something narrower? Cross J. frames the justifying reasons very tightly in terms of time and place. He has some regard to the plaintiff’s expert evidence to the effect that a symphysiotomy should not be attempted before labour has been tried, since the most effective way to measure the pelvis is to attempt to put the baby through it. However, he characterises this type of prophylactic symphysiotomy, performed – perhaps erroneously – without trial of labour, as a stage in the evolution of symphysiotomy as a medical practice at the Coombe.  It was carried out during a period of trial-and-error expansion of the original terms on which symphysiotomy had been revived at the National Maternity Hospital, and as a practice was rapidly phased out when the Coombe introduced the (from a feminist perspective highly problematic) practice of active management of labour. Thus, it could be justified on its own terms in 1963 even though earlier and later Masters of the Coombe would never have done it. This indicates  that Kearney may require – in line with Cross J.’s refusal to draw any conclusion on the general consequences of symphysiotomy – that every symphysiotomy will be analysed very strictly on its own terms before any finding of liability will be considered. This is very problematic if we consider that the experimental nature of the practice of symphysiotomy – the tendency to play fast and loose with risk and necessity – is central to its character as a human rights abuse. If broad periods of experimentation are sliced down into ever finer periods of stabilisation and normalisation, that truth is lost.

The issue of ‘inherent defects’.

 Kearney affirms that there is another route open to the plaintiff, which also comes from the judgment in Dunne. She may argue that the type of symphysiotomy performed on her, as a procedure, albeit it was supported by a respected body of medical opinion, suffered from “inherent defects” that “ought to have been obvious to any person giving the matter due consideration” at the time. This element of the Dunne test ensures that the courts are empowered to declare even generally accepted medical practices as unsafe. Expert witness support for a minority practice is a very weighty matter to be taken into consideration, but it is not definitive. As  Sachs LJ held in Hucks v. Cole, ‘The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas”  In Donovan v. Cork Co. Co., Walsh J. held:

” If there is a common practice which has inherent defects, which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any the less negligent. Neglect of duty does not cease by repetition to be neglect of duty.”

McCarthy J. elaborated on that test in some depth in Roche v. Peilow. In that case, Finlay P. in the High Court had held that “the universality of a particular practice adopted by an entire profession must itself be evidence that it is not a practice which has inherent defects which ought to be obvious to any person giving the matter due consideration”. Finlay P. suggested that “inherent defects” connoted “an act of gross ignorance such as could not have been committed by any other ordinarily informed member of the profession.” McCarthy J. demurred, holding that this test would impose too high a burden of proof on the plaintiff.  Professionals, in effect, are required to notice “clear and present dangers”.

This line of authority is not discussed in Cross J.’s recent decision. However, it looks to me as though his judgment is rather too close to the Finlay approach rejected by McCarthy. He defers, not as Finlay did, to universal or generally accepted practice, but to a minority school of respected obstetricians, and finds that their support of the practice was incompatible with the presence of inherent defects. He finds that given the wide acceptance of prophylactic symphysiotomy among what he calls “the Dublin school” of obstetricians at the time, and the existence of debates around the practice in hospital records and the proceedings of professional societies in which the practice was stoutly defended, it cannot be said that the practice was inherently defective. In Kearney, Ryan J. accepted that there was ‘outright condemnation’ of symphsyiotomy after C-section, but in this case Cross J. finds that prophylactic symphysiotomy was controversial, but defensible and was not the subject of peer criticism. Central to this conclusion, of course, is his acceptance of the defendants’ claim that these doctors at the time generally did not know of, and could not have foreseen, the serious health complaints that immediately and subsequently afflicted women subjected to symphysiotomy.

Whether, if properly applied, the McCarthy approach in Roche could be of much assistance to plaintiffs is an open question. It is not clear what “inherent defect” means in Irish law. Does the test invite a judge to evaluate the medical practice from his own lay perspective – to engage in his own evaluation of the risks and benefits of the procedure as they appeared in the light of international medical knowledge at the time, and perhaps to consider them in the light of the human rights norms then prevailing in Irish law?  Or is he merely entitled  to consider, against the evidence of the defence’s experts, whether the doctor’s decision was incapable of standing up to rational analysis? (as in the English test in Bolitho) If the latter, is there any real difference between the Kearney “no justification” test and the “inherent defect” test? It may be, following McCarthy in Roche, that inquiry into the presence of an  “inherent defect” should go primarily to the dangerous outcome of the procedure chosen, irrespective of the reasons for performing it. This seems to be the approach taken by Ryan J. in the High Court in Kearney where he emphasised the maternal morbidity associated with symphysiotomy after Caesarean section. (Indeed, Ryan J. was more willing than Cross J. to make general findings, based on expert evidence, about the consequences associated with symphysiotomy). Then, questions arise as to whether the dangers of prophylactic symphysiotomy  should have been obvious to doctors in 1963.  In Roche, McCarthy J. acknowledged, following Kelly v. Crowley, the risks of judging professional conduct with the benefit of hindsight. Nevertheless, he said , “it cannot be a legal principle that a profession is, so to speak, entitled to ‘one free bite’ – to wait until damage is done before taking an obvious means of avoiding that damage.” Arguably, with symphysiotomy, “the Dublin school” had more than “one free bite”, but never sought to properly test their results. Cross J. notes, for instance, that Master Kevin Feeney was interested in pursuing follow-up studies of symphysiotomy patients. But in practice this was never done.

The upshot

The upshot of Kearney as applied here is that (i) we judge the hospitals where symphysiotomy was performed according to a particular construction of  the standards of their former employees’ time and place (the Coombe and the NMH, in Dublin in 1963); (ii) we make them answerable only to a narrow range of claims shaped by the limited archive their practice generated; few records (because they were not kept,or not made) and no records of follow-up with women subjected to symphysiotomy (because it was not done, and they were discouraged from seeking it) and (iii) we evaluate their practice according to particular accounts of the development of particular kinds of medical knowledge, leaving no room to introduce considerations from women’s lived experience or from then-prevailing constitutional and human rights standards

Medical knowledge, hindsight and power.

Cross J. frames himself as dealing with a medical negligence case. The UNHRC would say he was dealing with an instance of historical systemic, institutionalised gender-based violence. There is some recognition of this in Cross J.’s judgment when he acknowledges the importance of allowing the plaintiff to tell her story, and when he apologises because, from his perspective, it is impossible to find in her favour.  He emphasises her good character throughout the judgment to show that she is deserving of respect. He quotes from Chief Justice Crewe (as he did in an essay on judicial reasoning in the Dublin Review of Books last year) when he says that he would have “taken hold of a thread or twine-twig” to support her, but the precedent in Kearney binds him. The quote is an interesting choice. The 17th century judge is lamenting the fact that he cannot find in favour of an established noble family in the Oxford Peerage case, battered by recent war, though he is from an old established family himself: “I have laboured to make a covenant with myself that affection may not press upon judgment”. Arguably, the choice of quote evidences some affection for women of the plaintiff’s class, and some collective shame, to borrow Anne Genovese’s emphasis, and a desire to atone for wrong. But tellingly, it is not a desire rooted in a sense of legal responsibility. It is obvious, on this judge’s view that it would be impossible to find for this plaintiff and still exercise judgment in line with our unassailable common heritage.

Chris Cuneen, writing about Australian efforts to use civil litigation to obtain justice for Indigenous victims of historical institutional abuse argues that processes of common law judgment effectively create a ‘defence of history’ which closes out the ‘worldview’ which motivated systemic injury and  operates to ‘reconstruct and obscure’ litigants’ experience of abuse. It seems that Cross J. has fallen into this trap. The judgment very much depends on forgetting the systemic characteristics of the deliberate revival and development of symphysiotomy by Catholic doctors practising in the 1960s in a state where, as is especially clear from the link between contraception and symphysiotomy acknowledged in this judgment, government was inseperable from projects designed to control women’s reproductive agency. First, the judgment gives great weight to medical records and  debates – he engages in much closer reading of these texts than either court in Kearney, with clearly significant consequences. He is impressed by the fact that the practice of symphysiotomy was “carefully recorded and subject to transparent review”, tending to suggest that they merited great weight. However, as Kune writes in the Australian context, official records are not always as regular as we might expect. They do not always disclose the true reasons for particular decisions. They are prepared for particular institutions’ purposes and legitimate particular institutional narratives. Until these narratives are put in a broader social context, the records are liable to be misread. Cross J.’s approach to that context is remarkable. Cross J. presents the development of medical knowledge in heavily masculinist terms. British and Irish doctors lay down intellectual challenges to one another in a series of robust exchanges, and over time both groups alter their views, to the betterment of medical science. What about the moments in this exchange which appear not to fit that pattern? He describes a recorded 1951 instance of outright British criticism of the Irish approach to symphysiotomy:

the truth of the conflict between the British and Irish experts, though couched in Biblical and religious terms, [was] more of a question of a clash between native obstetricians defending Irish practices, and visitors from the old colonial power.

Thus, symphysiotomy becomes part of an emergent national medical heritage, understandably defended against the English. But there is little examination of the historical reasons why the Irish medical profession defined itself against Britain in this way, or chose to make those distinctions visible on the bodies of women. In another exculpatory passage, he dismisses the claim that Catholic doctors performed symphysiotomies rather than C-sections as a way of avoiding the questions of contraception and sterilisation, by noting that the Rotunda hospital, which was not under the direct control of the Archbishop of Dublin, also performed symphysiotomies, but only after Caesarean section. He does not mention that the Supreme Court, and indeed the government, accept that this procedure generally could not be justified even at the time. Second, Cross J. gives the defendants the benefit of the doubt when he says that doctors performing prophylactic symphysiotomies believed that the operations had no serious consequences for women, even though in coming to that belief they had to ignore or discount women’s immediate responses to the surgery and afterwards  – their pain, difficulty in walking, difficulty in caring for their newborns, confusion, disbelief and shame. They had to ignore the reactions of these women’s mothers, sisters, friends and husbands. They had to neglect to conduct proper follow-up checks. They benefited from a medical and social system which, as Cross J. acknowledges, required women to accept their lot, and which sometimes accused women of imagining or falsifying their symptoms. They were, the judgment notes, “content with the good results and lack of complaints”. They had to engage in the sort of overt dismissal of women’s embodied experience that is only possible in a violently patriarchal society, such as the Ireland of the 1960s. “Time” as Chief Justice Crewe said “hath his revolutions” and so Cross J. accepts that a prophylactic symphysiotomy would not be done today, but he can nevertheless square it with the benificent practice of the ’eminent’ doctors of another time. We could argue that Cross J. finds it possible to treat this body of knowledge otherwise than as defective because he is a product of another iteration of same patriarchal society – a society in which it is at last possible to accept that these women’s suffering was genuine, but not to hold accountable the doctors who caused it.This would be a better judgment if it accepted that medical knowledge is genuinely contestable, and did not supplement the advantage already conferred on the defendants by the Kearney test with unnecessary deference to the official historical record. Borrowing from Nietzsche, Cross J. suggests that doctors were experimenting with symphysiotomy, and gradually coming to better knowledge of it: “philosophising with a hammer  and testing concepts and conclusions by striking them to see if they were hollow”. “Philosophising with a hammer” refers to Nietzsche’s efforts to irreverently dismantle old values; a process of self-overcoming which he acknowledges is necessarily destructive. Cross J. does not pick up any hammer of his own.

Policy arguments for a modified approach.

Kearney tends to de-contextualise women’s injuries in order to avoid prejudice to the defendant at the stage of gathering and presenting evidence. But it comes at too high a cost. In this case, a woman who arguably has a good case under Articles 3 and 8 ECHR , and plausibly under the equivalent provisions of the Constitution, was left without an appropriate remedy. A woman entitled, perhaps, to aggravated damages to take account of the experimental and non-consensual nature of the practice, was left without a remedy. Now, these are ultimately not run-of-the-mill tort cases. They involve intensely traumatic experiences. They are characterised by an imbalance of power between plaintiff and defendant at a perhaps uniquely vulnerable moment in the plaintiff’s life. The nature of childbirth is such that this imbalance necessarily persists into obstetric care in the present day. These cases have their origins, as the UNHRC recognised last July, in deeply gendered and abusive institutional processes.  They engage significant human rights violations perpetrated by men working under the supervision of the state; they are arguably O’Keeffe-type cases – or, in American terms, analogous to medical experiment cases in which the state was implicated, such as the  Cincinnati radiation case  or Heinrich v. Sweet. Precisely because they are so distinguishable from ordinary medical negligence cases, there should be no significant objection from public policy in adjusting the Kearney approach. Because prophylactic symphysiotomy is unlikely to be revived and has no significant comparators today, there should be no chilling effect on contemporary medical practice. (Cross J. accepts the evidence of Dr. Peter Boylan, for the defence,  that some experimentation is necessary for medical science to advance but as a matter of public policy, doctors must be subject to reasonable constraint.) There is no major cost either to insurers or to the state in permitting the small number of potentially successful cases a fairer hearing.  In other jurisdictions – particularly in Canada – courts have been willing to modify negligence doctrine where public policy compels it, in order to do justice in cases of historical institutional abuse. I would think that the “inherent defect” test provides some scope for this modification. If this cannot be done, then the case for a new public inquiry and a modified redress scheme is stronger than ever.

Negligence, Symphysiotomy and Past Harm.

Direct Provision in the Irish High Court: The Decision

Four CourtsThis post summarises some of the main grounds of challenge to the direct provision system in the case and the findings of Mr Justice Colm Mac Eochaidh only. I hope to be able to do an analysis of this decision in the coming weeks. This is a longer post than usual, and for ease of reading, a PDF of this post can be accessed here.

Mr Justice Colm Mac Eochaidh delivered his decision in the case of C.A. and T.A v The Minister for Justice and others on Friday, 14 November 2014. This (rather long) post, sets out the facts of this judicial review and the decision of Mac Eochaidh J. on the argued grounds. This summary is based on Mr Justice Mac Eochaidh’s unapproved decision, and the approved judgment will be available from the Courts Service soon.

Facts

C.A. is a national of Uganda and a young mother. C.A. claimed refugee status in Ireland in April 2010. C.A. made an application for refugee status but this was initially rejected by the Office of the Refugee Applications Commissioner. The Refugee Appeals Tribunal also found that C.A. did not meet the definition of refugee for the purposes of the Refugee Act 1996 (as amended) in October 2011.  These decisions were not judicially reviewed by C.A. In December 2011, C.A. made a claim for subsidiary protection. This claim has yet to be determined. [The reason for the delay relates to a separate legal challenge by another subsidiary protection applicant, that successfully led to significant changes in the determination of subsidiary protection claims]. C.A. has resided in direct provision accommodation centre in Galway since June 2010. C.A.’s son, T.A., was born in January 2011 and has resided in direct provision accommodation and was also challenging the system of direct provision on a number of grounds.

 

The Decision of Mac Eochaidh J.

 The Successful Grounds of Challenge

 

The High Court was invited to consider whether the Reception and Integration Agency’s House Rules in Direct Provision violate Article 8 ECHR (the right to private, family life and the protection of the home). While accepting that the Article 8 ECHR is not absolute, MacEochaidh J. held that the elements of the House Rules outlined below were unlawful.

  • Unannounced room inspections: While RIA are entitled to inspect rooms, the overarching manner and unannounced nature of the inspections was not proportionate.
  • Monitoring of presence & Requirement to Notify intended Absences: The objective of having daily sign in so as to ensure capacity management at direct provision centres is lawful. However, this objective could “easily be achieved” (para. 8.10) in a less restrictive manner. Requiring somebody to sign-in to their home on a daily basis is disproportionate. This analysis also meant that the notification of intended absence from one’s home, was also disproportionate.
  • Rules against having guests in bedrooms: The outright ban (emphasis added) on person’s having guests in their home was a disproportionate interference with constitutional rights and rights under the ECHR.

The High Court determined that the bedroom of the applicants was their home, and protected by Article 40.5 of the Constitution and Article 8 ECHR.

  • Complaints Handling Process

The applicant’s are entitled to have an independent complaints handling procedure. Regardless of whether the applicant has had cause to use this (which to date C.A had not). RIA is the author of the House Rules and is in a commercial relationship with the accommodation provider. Mac Eochaidh J. stated that it was not acceptable that RIA would be the final arbitrator in a dispute between the residents in their homes, and the commercial accommodation provider.  This breaches the legal principle that nobody should be a judge in something that they have an interest in.

The Unsuccessful Grounds of Challenge

  • Direct Provision and Breach of Human Rights

Mac Eochaidh J. noted that the lack of oral evidence, and the fact that the evidence of C.A and T.A was disputed, meant that he could not rule as to whether in this particular case the applicants’ constitutional and ECHR rights had been violated due to the conditions and duration of their stay in direct provision (see para. 3.1 and paras. 6.1 to 12.6). Judge Mac Eochaidh held that the European Union Charter of Fundamental Rights did not apply to this case (see paras. 11.1 to 11.10 of the decision). As regards the State’s argument that the courts should not decide on socio-economic rights claims, Mac Eochaidh stated that where (at para. 12.6):

…State action results in a breach of human rights and where the only remedy is the expenditure of additional money, the Court, in my opinion, must be entitled to make an appropriate order, even if the consequence is that the State must spend money to meet the terms of that order.

While ultimately rejecting the applicants’ claims in this case, at para. 12.6 of his decision, Judge Mac Eochaidh did state:

…[W]here an applicant claims that ‘direct provision’ is having such adverse affects on her life as to cause serious harm and where such circumstances are backed up by appropriate medical and other independent evidence, a Court would be entitled to grant appropriate relief, even if the only remedy for the wrong involved the expenditure of additional resources by the State.

Continue reading “Direct Provision in the Irish High Court: The Decision”

Direct Provision in the Irish High Court: The Decision