Ireland’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”
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
Katharina 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”
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. 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. 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. Continue reading “Obesity and Human Rights in Ireland”
Following 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, 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. 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. A key theme of welfare state theory is how democratic-welfare-capitalist societies are disciplinarian and controlling. 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. 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’ is evident. 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. 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.
The “bogus myth of welfare scrounging” 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.
 See generally, Garland, D. The Culture of Control: Crime and Social Order in Contemporary Society (Oxford; OUP, 2001).
 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).
 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.
 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.
 Bommes, M. & Geddis, A. Immigration & Welfare: Challenging the Borders of the Welfare State (London: Routledge, 2000), p. 1
 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.
 Foucault, M. Discipline and Punish: The Birth of the Prison (New York: Penguin, 1977).
 See above, pp. 1958-2001.
 See, Cole, D. “Their Liberties, Our Securities: Democracy and Double Standards” (2002) 54 Stanford Law Review 953 at p. 957.
 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.
Cross-posted from the Public Interest Law Alliance Bulletin
Ireland signed and ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1989 and is due to be examined by the UN Committee on Economic, Social and Cultural rights in 2015. In light of this examination, FLAC is coordinating a Shadow Report to update and inform the UN Committee on the Government’s progress on key issues such as education, health, housing, social security, workers’ rights, employment, protection of families and cultural life.
FLAC will prepare the Shadow Report over the coming months to help influence the list of issues for consideration by the UN committee and the questions to be raised with the Government in advance of its examination. To inform the Shadow Report and to get a good sense of the issues on the ground, in May FLAC will hold general public consultations in Dublin, Cork and Galway as well as two Dublin-based thematic consultations on cross-cutting issues: housing and social security. FLAC is also calling for written submissions to be sent to the research team by 30 May 2014 –please see our detailed questionnaire for guidance.
On February 28 2014, UCD Human Rights Network hosted a seminar, Direct Provision: A Challenge to Law, A Challenge to Rights. Senator Jillian van Turnhout discussed, amongst other things, political engagement with the direct provision system. Kirsty Linkin, Law Centre (NI) discussed the impact of the Northern Ireland case, ALJ v Secretary of State for the Home Department (summary of this case here). You can access Kirsty’s slides here: Law Centre (NI) Direct Provision & the ALJ Case in Northern Ireland . Sue Conlan, from the Irish Refugee Council, examined the system of direct provision, with specific reference to framing an alternative to direct provision.
I spoke on the use of law to challenge direct provision. My speaking notes for this are below. My slides can be accessed here: Using Law to Challenge Direct Provision.
Firstly, in addition to Prof Colin Scott’s and Senator Jillian van Turnhout’s welcome, can I welcome you to UCD School of Law. I am delighted to see so many of you at this UCD Human Rights Network seminar.
In the next 15 minutes, I will very briefly outline the system of direct provision and highlight the key problematic issues with direct provision, including legality, impact on individuals, children and families.
I will then turn to consider why I believe that law must be used to challenge direct provision, and offer some comments on how Irish, European and International law can assist in undermining the direct provision system.
I will then offer some concluding thoughts.
Direct provision will be 14 years of age on 01 April 2014. Direct Provision has survived a massive economic boom and an enormous economic bust. It has survived moments of significant and deep reflection by the Irish political establishment and Irish society as a whole on how, in decades passed, on the rights of children and societal treatment of women and men in industrial schools, Magdalenes laundries, mental hospitals, borstals and so on. Yet, direct provision remains in place. Society’s capacity to look the other way, to not question or to show scant disregard for the rights of others remains.
For those not familiar with the system, this is an outline of the key attributes of direct provision
Asylum seekers are dispersed to privately run accommodation centres, on a bed and board basis, operated by the Reception and Integration Agency. There is no entitlement to any other welfare payment, bar the direct provision allowance payment of €19.10 per week per adult or €9.60 per week per child.
There is no right to work, on pain of criminal conviction; although asylum seekers are provided with medical cards and education up to leaving certificate (for those below a certain age). Direct provision is not compulsory, and a large minority of asylum seekers do not utilise direct provision.
Lets take a look at some statistics now. By December 2000, some 8 months into operation, there were 3,077 asylum seekers in direct provision. This, as we can see from the next slide, was from a total number of asylum applicants reaching in or about 10,000. The numbers rose of just over 4,100 in 2001, before falling, and continuing to fall until from 2005-2009, the numbers in direct provision increased, while, at the same time, the numbers seeking asylum fell dramatically. In 2009, over 6000 people were resident in direct provision. At the end of December 2013, almost 4,500 people were in direct provision. Continue reading “Direct Provision: A Challenge to Law, A Challenge to Rights”
Yesterday, the Department of Health published its General Scheme for Advance Directives – a proposed addition to the Assisted Decision-Making (Capacity) Bill 2013, to be made at Committee stage. The publication of the scheme is certainly welcome, as is the opportunity for individuals to provide submissions to the Department on the Scheme, which will hopefully inform the final version introduced during Committee stage of the Bill.
There are a number of positive aspects to the proposal from a human rights perspective – most notably that the opportunity to make an advance directive will be open to individuals who wish to create these binding documents for both physical and mental healthcare decisions. Similarly, the scheme provides that it will be possible for an individual to refuse medical treatment, even if to do so might result in death. However, there are some important caveats on these positive provisions which merit further discussion. Continue reading “Advance Directives and Ireland's New Capacity Legislation”
There has been much focus on the role of the European Court of Human Rights over the last number of days (see, here and here). A less well known body, the European Committee on Social Rights, is responsible for assessing Ireland’s compliance with the European Social Charter (Revised). The European Social Charter protects a number of social and economic rights, such as employment rights, right to health care, social security, an adequate standard of living etc. Ireland has freely accepted to abide by a large number of obligations (but not all) under the European Social Charter. As my summary of the Committee’s conclusions below show, this report is somewhat of a mixed bag. It is important to note that the Committee on Social Rights examined Ireland’s compliance with the European Social Charter from 2008 to 2011, so a number of important issues that arose since 2011 are not considered, including the attacks on youth right to full rate unemployment benefit/assistance; maternity benefit cuts; the cumulative impact of successive regressive budgets on those who are already poor and marginalised. In addition, it was somewhat disappointing that the Committee did not mention or consider the social and economic rights of asylum seekers (as it has done in collective complaints).
The European Committee on Social Rights has released its Conclusions on Ireland for 2013 on a number of different rights protected by the European Social Charter, including:
- Article 3: Right to safe Continue reading “Ireland and the European Committee on Social Rights”
The Grand Chamber of the European Court of Human Rights has today handed down a decision in O’Keeffe v Ireland. The facts of the case are generally that Louise O’Keeffe was subject to horrific sexual abuse by a school principle in a national school in the 1970s. A core question (played out also in the national courts) was whether Ireland failed in its legal obligations towards Louise O’Keeffe. Conor O’Mahony of UCC Law Faculty discussed this issue in his 2009 article (available here) rightly pointing out how the European Court of Human Rights would ultimately decide the issue.
The European Court of Human Rights judgment is complex, however one of the key parts of the decision is a finding that Ireland violated Article 3 of the European Convention on Human Rights (press release here). Article 3 ECHR states:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Analysis of this decision will take some time, and this post is just to highlight to readers the significance of this case, where the judgment was released about 1 hour ago. Ireland has been found to have failed to have in place proper systems to prevent or punish sexual abuse in this particular case, where the sexual abuse took place in the early 1970s. This State has been judged by the European Court of Human Rights to have failed in its positive obligations towards Louise O’Keeffe to prevent and punish the torture, inhuman and degrading treatment that she suffered.
Ireland also violated Article 13 ECHR, which obliges the State to provide an effective remedy to complaints of rights violations.
On Tuesday, the Constitutional Convention announced that their final two meetings in February 2014 would focus on economic, social and cultural (ESC) rights and Dáil reform. This decision followed a regional tour and consideration of almost 1000 public submissions received as part of the Convention’s decision-making process.
For economic and social rights advocates this is simultaneously a triumph and a call to arms. When the Convention was being established in 2012, the Government rejected both opposition proposals to include ESR rights on the original agenda, as well as amendments proposed to add them to the agenda when the resolution was being passed through the Oireachtas. However, a sustained campaign led by civil society, particularly Amnesty Ireland, has resulted in a clear, consistent message being sent to the Convention about the need for economic, social and cultural rights to be addressed in its work.
This is a highly significant development given the limited protection accorded to ESC rights by the Constitution – and by the judicial interpretation and application thereof. Historically, despite the fact that the Constitution contains a number of ESC rights (both express and unenumerated), concerns about the implications of adjudication of socio-economic rights for a narrow conception of separation of powers and the involvement of the courts in what have been deemed issues of ‘distributive justice’ (see O’Reilly v Limerick Corporation (1989) discussed here) has resulted in a general judicial reluctance to recognise and give proper effect to such rights.(See especially, the Supreme Court decisions in TD v Minister for Education (2001) and Sinnott v Minister for Education (2001)).
In terms of other potential constitutional avenues for ensuring ESC rights protection, there are several civil and political rights-related provisions that could be used as a basis for indirect protection of ESC rights and that have played such a role in other jurisdictions. These include the rights to life and property. That has not been the case in Ireland, however. Furthermore, even though some legislative civil and political rights protections incorporated into domestic law by means of the European Convention on Human Rights Act 2003 have resulted in protection being afforded to elements of the right to adequate housing, for instance, they have had a limited overall impact on the Continue reading “Economic, Social & Cultural Rights & The Constitutional Convention”