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.

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

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.

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.


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

Ireland before the UNHRC.

I am in Geneva as part of the Irish NGO delegation to Ireland’s 4th Periodic Review under the ICCPR.* Readers will be aware that the UN Human Rights Committee heard testimony early yesterday from some 12 Irish NGOs and civil society organisations, and from the Irish Human Rights and Equality Commission. It might be interesting to give a sense of how the day falls into place. The Committee meets in the Palais Wilson, which is down by the shore of Lake Geneva. People congregate in the cafeteria where the idea is that, as Tobias Kelly writes in This Side of Silence, it can be possible to buttonhole Committee members (if they appear, and if they are willing). There is a great collaborative buzz  in the room, as people mill around, revising their submissions, anxious in anticipation of the next event. The age profile is relatively young and there are a lot of women in the room.  There are very different levels of experience – from first time small campaigns to organisations like the IFPA which have been around for generations. By and large, the groups have a common agenda: the notable exception arrives in the form of two young men from Family & Life and the Pro-Choice Alliance, whose position on abortion is, of course, in conflict with that of the Irish Human Rights and Equality Commission, the other assembled interested NGOs, and on my reading, the Committee itself.  The Irish delegation also features several activists whose lives are directly affected by issues under consideration by the committee – particularly from TFMR Ireland, Survivors of Symphysiotomy and the Irish Traveller Movement. They do some of the most effective advocacy work of the day.

At midday, each of the NGOs has a two minute slot in which to make a briefing statement. The Committee has received written submissions from the NGOS in advance (see here under Ireland), but this oral statement is a chance to define your group’s priorities for the Committee. I learn a lot about what is possible in two minutes. The room in the Palais Wilson is a study in poor design. It is long, narrow, level and warm, with the Committee sitting in a rectangle at the top of the room, and the delegates – and press, if there are any, and perhaps observing students – arrayed in rows behind them. The State’s delegation, when they arrive later in the day, sit on a raised dais at the top of the room. The effect of the layout is that, from the back of the room, you can’t see any member of the Committee, even though they’re not that far away, and you would struggle to tell which of the suited gents from the Departments is speaking at any given time. I sat at the very back, with some of the group from Survivors of Symphysiotomy. The acoustics are poor. Without the translators’ headphones in, you often can’t hear a thing, except the steady typing of delegates taking notes, for themselves or for twitter.

Break for lunch, and then a short and informal briefing meeting,  in a smaller room at which members of the Committee can ask questions of the assembled NGO delegates, and of the members of the  Irish Human Rights and Equality Commission. As people find a space in the small room, an odd tableau assembles by the back wall – the young men from the pro-life NGOs leaning up against a marble mantelpiece, ready to interject, with the women and men of various pro-choice movements arranged in front of and around them.  At this meeting, you can get a strong sense of what is going to happen when the State presents for questioning. Several groups – particularly Doctors for Choice, the Irish Traveller Movement, and the Commission – were able to make very effective responses to the Committee’s queries.

Immediately afterwards, the Minister for Justice arrives, together with the Irish ambassador and a phalanx of civil servants from the Departments of Justice and Equality, Health, Foreign Affairs and the Office of the Attorney General. The Minister outlines Ireland’s efforts, such as they are, to comply with the International Convention on Civil and Political Rights and details some recent developments in Irish human rights law and practice. There is some surprise that she never mentions the issue of Traveller ethnic minority status as an achievement. After the Minister’s opening statement  the Committee asks a focused and demanding series of questions, based on the list of issues here. They are particularly strong, as I had hoped they would be, on the issues of historical reparations, and abortion rights. It is clear both that the NGOs and the Commission have done a hugely effective job, and that the members of the Committee are highly engaged and very well briefed. The State delegation has a 15 minute break in which to consider the questions, before presenting replies.

The mood is good. The quality of the questioning strikes home with everyone. How much of the domestic law-making process is based on rigorous, informed questioning of this kind?  How hard do NGOs like the IFPA or Survivors of Symphysiotomy have to work to get questions like the ones below on the domestic agenda?  It’s a pity, on reflection that Irish media outlets haven’t sent more journalists to these hearings, simply because the discourse on many issues is so different in this context. Too much media reporting of human rights issues begins and ends with the ‘human tragedy’ angle. There is much less interest in/engagement with/informed critique of the sorts of structures which might be proposed to address and prevent such violence.

Of the state replies, when they come, the less said, perhaps, the better.  The mood in our camp deflates a little. People are tired. I am told that in the ICCL Green Room back in Dublin there were audible sighs at some of the Government responses.  One of the Committee members has brought some of his Masters students to observe. Among them is a former student of mine. Later, after the State submissions, he expresses amusement at how little the government’s representatives are willing to give away. It is hard to tell how much of what is said is immovable government policy, and how much is stalling.

I will be paying special attention to three issues in the follow up questions tomorrow:

  • Professor Yuval Shany, having noted Ireland’s ‘disappointing’ refusal to bring our abortion law into compliance with the ICCPR, reminded the Minister that her predecessor had described the operation of the law in cases of fatal foetal abnormality as ‘unacceptable cruelty’.  He then asked a series of very detailed questions about the operation of the Protection of Life in Pregnancy Act 2013. These, by and large, mirror the joint submission of the Abortion Rights Campaign, the IFPA, Doctors for Choice, Lawyers for Choice and Termination for Medical Reasons, Ireland. The Government’s response ignored all of these questions. It simply asserted the legitimacy of the constitutional position as striking a ‘balance’ between the right to life of the mother and that of the unborn. The assertion is that Irish abortion law is the product of some sort of delicate evolutionary process which cannot be rushed. It is, to paraphrase the Minister, a nuanced and proportionate response to a profound moral question. Mary Jackson, the Principal of the Department of Health asserted that Irish abortion law is compatible with the ICCPR (even though it does not permit abortion in the cases of rape, incest or fatal foetal abnormality) because the convention must be read as a whole, and Ireland is complying with Article 25 ICCPR  (the right to vote and participate in elections….) by giving effect to the ‘will of the people’. Make of that what you will.
  • Christine Chanet raised the issue of the investigation of the Magdalene Laundries. She notes the narrow remit of the McAleese report and questions the degree to which it was independent of the State. The twist in the question is very telling: “Why is the state so reluctant to find out what happened in the laundries?” The Minister almost omitted to answer this question, but insisted again that the Magdalenes  report and scheme were on solid ground. UNCAT have already pressed this issue with the last government, and it isn’t going to go away.
  • Professor Shany also raised the issue of the symphysiotomy redress scheme. This was an especially useful question because he did not simply ask an open ended question about what the State proposed to do for survivors. He acknowledged the redress scheme, and asked what the State now proposed to do, given that the majority of survivors had refused to co-operate with it and had criticised its failure to produce accountability.  The tenor of Professor Shany’s question is important because it may suggest that survivors should be allowed to participate properly in designating the remedies they receive for human rights abuses. This is a refreshing perspective, because it directly contrasts with the government’s paternalism in respect of members of S.O.S. The government offered no response yesterday, but has promised to address ‘additional issues’ at tomorrow’s session. If we read this question together with Madame Chanet’s question on the Magdalenes, and Prof. Shany’s later question on proposals to investigate the Mother and Baby homes, it may be that the Committee is about to take a firm  stance on the state’s obligations to repair historical injuries, and on the right to an effective remedy.

*I am tagging along with Survivors of Symphysiotomy, and I am a member of the newly-formed Lawyers for Choice (@lawyers4choice). The delegation is led by the ICCL. The University of Kent have funded my trip. However, this is a personal reflection, and all errors, opinions and omissions are my own.

You can watch  tomorrow’s session live at from 9am. A number of people are live-tweeting from Geneva and elsewhere using the hashtag #ICCPR. Look out in particular for @Doctors4Choice, @SoS_Ireland, @ICCLtweet and @smullallylaw ( Prof. Siobhan Mullally of UCC Law and the IHRC). I’ll be tweeting at @maireadenright.

Civil and political rights in mental health – Ireland's dialogue with the Human Rights Committee

Screen-Shot-2014-04-02-at-6.12.42-PM-475x280Ireland’s progress in implementing the International Covenant on Civil and Political Rights (ICCPR) is due to be examined by the Human Rights Committee next Monday. Many civil society organizations have provided information to the Human Rights Committee on the reality of civil and political rights protections in Ireland – including Amnesty, ICCL, IPRT, Survivors of Symphysiotomy, LGBT Noise, and others. However, relatively few of the submissions made focus on the violations of civil and political rights which affect people with disabilities and those with experience of the mental health system. One submission which does address these issues is that made by the Recovery Experts by Experience (REE) – a group of ‘experienced users/survivors of Mental Health Services, formerly known as the Expert by Experience Advisory Group (EEAG) to Amnesty International Ireland’s Mental Health Campaign.’ You can read the full text of the submission here. Continue reading Civil and political rights in mental health – Ireland's dialogue with the Human Rights Committee

Re(al)-Productive Health: Our Campaign.

We are pleased to welcome this guest post from  the wonderful people at Re(al)-Productive Health.

Re(al)-Productive Health is a working group, launched in October 2013, which actively campaigns on issues concerning reproductive care in Ireland. Our initial campaign has focused on the availability of and access to over the counter emergency hormonal contraception.

In April 2011, Levonorgestrel (available in Ireland as HRA Pharma’s ‘NorLevo’) became available over the counter in Irish pharmacies. Our work intends to promote accessibility of the drug whilst mapping the implications for individuals seeking emergency contraception in Ireland in terms of this over the counter availability, and aiming to tangibly improve accessibility.

We believe that the full availability and access to the morning after pill for those living in Ireland is hugely significant for securing those real reproductive rights which have often been overlooked.

Our website features details of our campaign to facilitate access to emergency hormonal contraception in pharmacies in terms of factors such as availability, cost and social stigma.

For example, many people are unaware that a pharmacist may legally object to dispensing emergency hormonal contraception, if it happens to lies in contradiction with his/her ‘personal moral standards’ (PSI, 2013). Such pharmacists may defer to the Pharmaceutical Society of Ireland (PSI) Code of Conduct on the dispensing of medication in general in order to conscientiously object to a woman’s request. Though pharmacists are required to refer individuals to another pharmacy this is often physically and financially impossible, not to mention quite possibly very shaming.

Furthermore, despite being, according to swathes of research, ‘safer than aspirin’ (Grimes, 2002: 1536), the consultation process that is presently mandatory to access over the counter medication is often a site of unnecessary, disrespectful and morally loaded questions. In addition, the cost of the drug is unregulated, ranging from prices such as €10 to €45.

The site features a platform from which individuals can upload their morning after pill experiences, in terms of location, availability and cost, onto a map of Ireland, helping others seeking the drug and building a better picture of collective experiences. Also featured are individual accounts of attempting to access the morning after pill, helpful tips on how to practically access the drug and what to expect. The social stigma which often surrounds issues of reproductive and sexual health is sought to be highlighted here, and as such, alongside other measures, reduced.

The research we have compiled on the issue represents input from those who have sought emergency contraception in Ireland, medical and academic literature concerning the subject, consultation with groups and organisations working within the realm of reproductive rights in Ireland and comparative analysis of regulations governing emergency contraception in an international context. This research has informed our policy document ‘Emergency; Contraception in Ireland’ , outlining proposals regarding current Pharmaceutical Society of Ireland guidelines as well as HSE and Department of Health policies, which affect access to NorLevo. The document reflects issues of inaccessibility to emergency contraception experienced in Ireland and the methods by which this inaccessibility may be addressed in order to provide for an equitable provision of this vital aspect of care within the Irish state – or in other words, to shift our priorities.

But why are our priorities so skewed? In the 1880s, Elizabeth Cady Stanton of the US Women’s Rights Movement proclaimed, ‘The first great work to be accomplished for woman is to revolutionise the dogma that sex is a crime’ (Schneir in Shulman, 1980: 591).

Over 130 years later, it is evident that this, in Ireland, has yet to be accomplished. The obvious questions are thus; why do we need to promote the accessibility of a drug that’s ‘safer than Aspirin’, that does not lead to infertility subsequent to the third occasion of use, that is not the ‘irresponsible’ choice?

The history of female sexuality in Ireland is one littered with examples of oppression and punishment, of shame and stigma. From the eighteenth to the late twentieth century we excluded ‘penitents’ and unmarried mothers from society. The very founding document of the Irish state presents women as one-dimensional and valuable only in terms of her adherence to strictly defined ideals.

However, still today there exists the deviant woman, her supposed failings casting a shadow upon the moral vitality of the nation. We have the ‘slut‘ – shamed for having sex, and especially sex that lies within the murky surroundings of what is considered normal. We have the women who ‘take the boat’, forced, due to legislative cowardice and apathy, to travel overseas in order to avail of a reproductive right. It is clear that there exists within Irish society a continued exertion of punishment of women – women seeking to separate pleasure from procreation, sexuality from reproduction. Contraception represents the ultimate symbol of such decoupling of these concepts.

It wasn’t until 1979 that we saw the legalisation of contraception. It wasn’t until 1993 that condoms were available in vending machines. And it wasn’t until 2001 that emergency contraception became available in Ireland. It’s taken us a long time to garner these achievements – but the graft is certainly far from over. With prices of emergency contraception ranging from €10 to €45, it is clear that contraception falls neatly within the remit of the free market. Our pharmacies are private. Free sexual and reproductive health clinics are few and far in between. Over the counter emergency contraception is not covered under the medical card. And good luck finding a pharmacy on a Sunday in rural Ireland!

 We need to start asking more, expecting more. We should refuse to accept our healthcare as a product, as a pawn in a game of chess which society as a whole can inherently never win. We can never claim to have achieved reproductive justice if reproductive justice is only for some. Ultimately – we need to refuse to accept our reproductive healthcare as an apolitical concept.

Thus, we demand that emergency contraception be something;

  • For which the price is limited – that it is fully covered under the medical card.
  • That we should be allowed to simply take off a pharmacy shelf and pay for it – no questions asked.
  • For which pharmacists are properly trained to deal with.
  • That is not subject to the private moral beliefs of individuals, of pharmacists.
  • That any of us, in any town, village or city in Ireland should be able to reasonably access emergency contraception.
  • That we should be able to keep a supply of emergency contraception in our medical cabinets like Paracetamol – just in case.
  • That all of us, of all genders, sexes, sexual orientations and ages should have access to.As we launch into the latest struggle to repeal the Eighth Amendment in Ireland, this a time for solidarity, a celebration of how far we’ve come and taking collective stock of how far we have to go. We need to listen to real experiences, everyday manifestations of healthcare policy, and seek to improve all aspects of reproductive and sexual health. AReferences
  • Above all, we need to remember this – that no matter how minimal our resources, no matter how powerless we may feel, we can actually make a difference, and we should try.



Grimes, D. (2002) ‘Emergency contraception and fire extinguishers: a prevention paradox’. American Journal of Obstetrics and Gynecology 187(6):1536-8

Pharmaceutical Society of Ireland (PSI) (2013) Supply by pharmacists of non-prescription medicinal product containing levonorgestrel (’NorLevo’ 1.5mg tablets) as emergency hormonal contraception

Shulman, A. (1980) ‘Sex and Power: Sexual Bases of Radical Feminism’ Signs, 5 (4): 590-604 The University of Chicago Press

Obesity and Human Rights in Ireland

CopenhagenKatharina Ó Cathaoir is a graduate of UCC (BCL Law and Irish, 2011) and TCD (LLM International and Comparative Law, 2012). Katharina is currently undertaking a PhD on childhood obesity from a human rights perspective at the University of Copenhagen.

“There is no nice, non-stigmatising way to wish that fat people did not eat [n]or exist”[1]

Obesity is a compelling wake up call for Ireland to act on its obligations to children in respect of their rights to health, food and protection from exploitation. At the same time, any State action must be informed by the principles of non-discrimination and equality, thereby avoiding stigmatisation.

It is estimated that over 20% of children in Ireland are overweight or have obesity, marking at least a doubling in the last 20 years.[2] The effects of childhood obesity are well documented and may include type 2 diabetes, hypertension and cardiovascular disease. Equally, children with obesity report higher instances of depression and social isolation.[3] Thus, the growing concern with regard to childhood obesity at State, European and international levels should come as no surprise.

Under the International Covenant on Economic, Social and Cultural Rights, Ireland has undertaken legal obligations in regard to the right to health (Article 12) and the right to food (Article 11). The former has been interpreted as including not just access to health care but also the right to the underlying determinants of health, one of which being food. The latter is regarded as access to nutritious and adequate food. Although for the present economic, social and cultural rights are not justiciable in Ireland, the State remains under a duty to ensure the “progressive realisation” of these rights through policies and laws (Article 2). These obligations are also expressed under the Convention on the Rights of the Child (Articles 24 & 27), as well as the duty to protect children from exploitation (Article 36). The Committee on the Rights of the Child has already called on States Parties to take action with regard to obesity including exposure to fast food and marketing.[4] Continue reading Obesity and Human Rights in Ireland

New Publication: #DirectProvision14 No Place to Call Home

Direct ProvisionFollowing on from Human Rights in Ireland’s marking of 14 Years of Direct Provision in Ireland (see all posts here), along with Caroline Reid from the Irish Refugee Council, a publication marking this event has now been produced. Once again, my thanks to all those who contributed blog posts, in particular asylum seekers who spoke of the inhuman and degrading nature of  the direct provision system. The publication includes a foreword and a timeline of 14 years of direct provision in Ireland.

You can download this publication here: C. Reid & L. Thornton eds. 2014 Direct Provision at 14 No Place to Call Home (or access an online copy here).

Foreword #DirectProvision14: No Place to Call Home

There has been a lack of considered reflection on the rationale for the introduction of separate and isolated welfare reception regimes for asylum seekers within Ireland. The welfare/justice state has become an institution of control, punishment, deprivation and humiliation for those seeking protection within Ireland. Social policies directed towards asylum and protection seekers are marked by tendencies towards social control, debasement and enforced poverty. These policies trump key international and national human rights protections within the socio-economic rights arena. The “reception conditions” in place in Ireland for asylum seekers, are used as a means of deterring protection applications, while also having a punitive effect on those who have claimed refugee or subsidiary protection, as they are prevented from working, while forced to endure a lower standard of living than those entitled to the lowest welfare benefit. While the culture of control has enveloped political and public reactions to crime and welfare in late modernity,[1] a culture of immigration control has permitted the creation of new state asylum-welfarist institutions solely targeted at asylum and protection seekers.

The Irish welfare state is a multifaceted institution, dedicated to minimum and basic provision of resources and to providing a modicum of support for those in need.[2] Welfare rights were (and to a great extent, still are) viewed as being interlinked with an individual’s status as a citizen or preferred resident within Ireland and the UK.[3] A key theme of welfare state theory is how democratic-welfare-capitalist societies are disciplinarian and controlling.[4] Those arriving to seek refugee or subsidiary protection can be viewed as a threat to the functioning of the welfare state as they are neither citizens nor preferred residents.[5] The creation of direct provision is simply yet another reactionary attack on the very existence of the Irish welfare state. Surveillance as a mode of ‘governmentality’[6] is evident.[7] Direct provision and the Reception and Integration Agency have developed hierarchical and permanent surveillance methodologies to discipline and contain those deemed problematic in Irish society-asylum seekers.[8] The linkage between welfare and citizenship or belonging to a nation, mark out those seeking asylum or protection, as prime targets for more limited social service and care provision.[9]

The “bogus myth of welfare scrounging”[10] has polluted contemporary immigration and asylum debates. A number of indices of control have emerged including: re-configuring asylum law and policy; the assertion of state power and control over aspects of the asylum seeker life within Ireland; refusal of the right to work and enforced state provision for basic needs; unique and distinct management within a separated welfare system known as ‘direct provision’; welfare provision below that provided to citizens or preferred residents within Ireland and rejection of rights claims for equal provision of welfare on the basis of differentiation of entitlement; the use  ministerial circulars in Ireland to deny the socio-economic rights of asylum seekers, ably assisted by a weak Parliament and minimal protection from courts.

The blog posts below are a testament to the continuing concerns with the system of direct provision in Ireland. Asylum seekers, artists, public representatives, policy makers and academics have for some time highlighted the punitive and impoverishing nature of the system of direct provision. For over 14 years, concerns have been raised on the impact of institutionalised living on asylum seekers in direct provision. To date, these concerns have been dismissed or simply unheard. The timeline after these blog posts, will give readers a flavour of how the system of direct provision came about, and the constant concerns expressed about such a punitive system.

Liam Thornton

May 2014

[1] See generally, Garland, D. The Culture of Control: Crime and Social Order in Contemporary Society (Oxford; OUP, 2001).

[2] For a general overview of Irish social security and social assistance law, see Cousins, M. Explaining the Irish Welfare state: A Historical, Comparative and Political Analysis (Dublin: Edwin Mellen Press, 2005); McCashin, A. Social Security in Ireland (Dublin: Gill & Macmillan, 2004); Cousins, M. Social Welfare Law (Dublin: Thomson Roundhall, 2002). For a general overview of UK law and social welfare policy, see Jones, K. The Making of Social Policy in Britain: From the Poor Law to New Labour (London: Athlone Press, 2000), Dean, H. Welfare Rights and Social Policy (London: Pearson, 2002) and Harris, N. (ed.) Social Security Law in Context (London: OUP, 2000).

[3] Marshall T.H. & Bottomore, T. Citizenship and Social Class (London: Pluto Press, 1992), p. 28. For Ireland, see also, Department of Social, Community and Family Affairs, Building an Inclusive Society (Dublin: Department of Social, Community and Family Affairs, 2002), p. 20.

[4] Dean, H. Welfare Rights and Social Policy (London, Pearson, 2002) at p. 66. See also, Larkin, P.M. “The ‘Criminalization’ of Social Security Law: Towards a Punitive Welfare State?” (2007) 34(3) Journal of Law and Society 295 and McKeever, G. “Social Security as a Criminal Sanction” (2004) 26(1) Journal of Social Welfare and Family Law 1.

[5] Bommes, M. & Geddis, A. Immigration & Welfare: Challenging the Borders of the Welfare State (London: Routledge, 2000), p. 1

[6] Foucault, M. “Governmentality” in Burchell, G. Gordan, P. and Miller P. (eds) The Foucault Effect: Studies in Governmentality (Hemel Hempstead: Harvester, 1991), pp. 85-104.

[7] Foucault, M. Discipline and Punish: The Birth of the Prison (New York: Penguin, 1977).

[8] See above,  pp. 1958-2001.

[9] See, Cole, D. “Their Liberties, Our Securities: Democracy and Double Standards” (2002) 54 Stanford Law Review 953 at p. 957.

[10] Geddes, A. “Denying Access and Welfare Benefits in the UK” in Bommes, M. & Geddis, A. Immigration & Welfare: Challenging the Borders of the Welfare State (London: Routledge, 2000), p. 139.