In the spring of 2014 efforts to enact same-sex marriage legislation in the Northern Ireland Assembly suffered another setback. Undeterred, QueerSpace, a support group for the LGBT community in Northern Ireland, celebrated its 16th anniversary with an event pushing for reform of the law. Gareth Lee, a volunteer at QueerSpace, ordered a cake for the party bearing the slogan “Support Gay Marriage” from Ashers Bakery. When his order was subsequently rejected and his money returned on the basis that the message offended against the religious beliefs of the bakery owners, the McArthur family, these seemingly innocuous facts exploded into the “Gay Cake” case which has gripped public debate in Northern Ireland for the last year. Continue reading “Ashers Bakery Loses "Gay Cake" Discrimination Case”
We are delighted to welcome back Ruth Houghton, a Graduate Teaching Assistant and Ph.D. candidate at Durham Law School who has previously written for us here and here. Ruth is also a commentator on the Northern/Irish Feminist Judgments Project. The post was published on Inherently Human.
As has been previously mentioned on this blog, the Northern/Irish Feminist Judgments Project (@irishfjp) is led by Aoife O’Donoghue (Durham Law School), Julie McCandless (LSE Law) and Máiréad Enright (Kent Law School). A feminist judgments project writes the ‘missing feminist judgment’; it takes original decisions and rewrites them from a feminist perspective. Abiding to the strictures of precedent and custom that judges adhere to, the feminist judge shows how the law could have been interpreted or applied differently. This particular project builds on the work of the Canadian, Australian and English feminist judgments projects, and focuses specifically on the creation of identity in Ireland and Northern Ireland. The project will explore both jurisdictions, rewriting cases from both the Irish and Northern Irish courts. The Northern/Irish Feminist Judgments project explores the building of communities and the importance of diaspora for Irish identity as well as creating a space to explore the ways that Northern Irish and Irish identities have ‘affected, and defined themselves in relation to one another over time’.
First Drafting Workshop
On the 23rd October 2014, in Ulster University, five feminist judges presented their draft judgments to an interdisciplinary audience. The judges were free to choose the cases that they wanted to rewrite from a feminist perspective, which meant that there was a broad range of issues covered. From Irish constitutional law to vicarious liability for child sexual abuse, from employment law to public appointments and police powers and duties, these cases raised questions about community, identity, harm and the limitations of the legal systems. The cases that were discussed at this workshop were; In re White (Judge: Catherine O’Rourke), McGimpsey v Ireland (Judge: Aoife O’Donoghue), In re E (Judge: Colin Murray), O’Keefe v Hickey (Judge: Maeve O’Rourke) and Flynn v Power (Judge: Eoin Daly).
Interspersed between the cases, were panels from scholars and activists from a variety of disciplines. The project aims to engage with the particular social, political and sectarian context and so issues of religion, sexuality and abortion were discussed during the two-day’ workshop. Photographer and filmmaker Emma Campbell (@frecklescorp) shared her video, When they put their hands out like scales, which includes the words from the Hansard debate on abortion in the Northern Ireland Assembly on 20th June 2000. Listening to words from the debate highlighted the prevalence of religion within the political debate on abortion. The images of walkways, paths and finally images of the docks were used to demonstrate the journeys women in Ireland have to take to seek an abortion and ultimately the denied statehood of these women. The extent to which abortion effects the construction or deconstruction of women’s identities was highlighted in the short-film as an actor read aloud Mrs Carson’s statement from the debate in the Assembly, ‘they should not be made to feel like criminals having to hide their identities. Nor should they be ostracised by society.’ Leanne McCormick demonstrated the role of female sexuality in the creation of women’s identities. She displayed images from ‘douching’ advertisements and told of how women were represented within trial reports from the early 20th century following accusations of abortions, attempted terminations and infanticide.
The construction of the foreign subject
The theme of the first drafting workshop was the ‘Foreign Subject’. Ex-President of the United States of American, Bill Clinton was noted to have said that ‘the most urgent issue facing the world [is] that of identity’ (quoted by Marianne Elliott). The creation of identities in Ireland and Northern Ireland was the focus of the panels at the first drafting workshop. Scholars from history, sociological, English literature and law came together to discuss the effects of the social, geographical, political and religious contexts on the construction of Irish identities. One element of this identity creation was migration and more broadly, travel and movement. Louise Ryan argued that identity is relational; it is located within particular places and created by the different relations between people. She discussed the effect of migration to England on Irish identity, showing how the perception of Irish people in England effects the way individuals present their Irish-ness.
In particular, the panels were interested in the way more marginalised groups build identities or have identities imposed upon them. Throughout the workshop the term foreign was constantly conceptualised and reconceptualised, stretched and expanded, to include those groups of people who are considered ‘foreign’ because they do not fit within societies expectations. ‘Foreign’ could include migrants, religious identities, LGBT persons, or women. Marianne Elliot noted how the word for foreign and protestant in Irish is the same and Anne Mulhall from University College Dublin spoke on the representation of migrant and LGBT persons in campaign literature.
One of the questions that the project seeks to explore is the role of the judiciary in the creation of identities. In judicial decisions, identities are created and the case law acts as a permeant record of this identity. The McGimpsey v Ireland case is an interesting example of the way litigants are constructed by the courts. The McGimpsey brothers lived in Northern Ireland and were well-known political actors amongst unionist supporters, their political belief was a rejection of Irish jurisdiction over Northern Ireland. They took a case to the courts in the Republic of Ireland challenging the Anglo-Irish Agreement of 1985. Even though the brothers rejected Ireland’s territorial claims and unionists in general would have been disliked in the Republic, when the case was in the High Court in the Republic of Ireland, Barrington J described the litigants as being ‘patently sincere and serious people’. Emphasising the brothers’ good standing within the community and their public and civic lives, the court fashioned an ideal litigant. This raises the question whether a housewife could have brought the same case and received the same favourable treatment; a question that Aoife O’Donoghue considered in her feminist rewrite of the Irish Supreme Court judgment.
The interrelationship between questions of community and identity in Northern Ireland and Ireland is strong. The community in Northern Ireland meant Protestant and Catholic or Unionist and Nationalist. Marianne Elliot highlighted how these different community groups had very different oral histories, which are used to crystallise identities. The pervasiveness of this divide is seen by the nature of party politics, which draws a distinction between “unionist”, “nationalist” and “other”. Yet, Myrtle Hill, a historian at Queen’s University Belfast and Monica McWilliams from the Transitional Justice Institute, talked about and shared experiences of the women’s movement in Northern Ireland in the 1970s. They noted how the movement distanced itself from the political-party lines that were drawn and engaged in cross-community activism. More recently, the Northern Ireland Women’s Coalition created in 1996, also refused to align with one ideology and were designated as “other” within the Irish National Assembly.
Still, a reoccurring trend in the Northern Irish and Irish judgments was the construction of identity along political and sectarian lines, dividing the community into Protestants and Catholics or unionists and nationalists. In re White concerned the appointment of representatives to the Northern Ireland Parades Commission (overseeing the parades or marches that take place in Northern Ireland). Despite the fact that women took part in the parades and were affected by the parades that took place on their streets, in the original decision it was held that ‘representative of the community’ did not include representing women. Similarly, in the case of McGimpsey v Ireland the original judgment talks of majority and minority community (invoking the Protestant majority and the Catholic minority). There is no thought to those people who fell outside of these divides, in particular those people who were excluded by the community: in response to the 1978 draft Homosexual Offences (Northern Ireland) Order, the Democratic Unionist Party started a petition to “Save Ulster from Sodomy”.
The feminist judgments in the Northern/Irish Feminist Judgments Project demonstrate how these decisions could have been decided or reasoned differently to improve the place of women and minorities within society. Each judge had a different feminism and so had different methods of creating a feminist judgment. By placing women within the text of the judgment, by focusing on the specific gendered nature of the harm suffered, by telling the stories of the women involved or in the cases of In re White and McGimpsey v Ireland by reconceptualising ‘community’, the Northern/Irish Feminist Judgments Project is able to critique the original decisions. The Irish feminist judges are now challenging judicial decisions that had a negative effect on women and minority groups.
The Northern/Irish Feminist Judgments Project has been assisted by research from Zoe Carter and Eleanne Hussey (LSE) and Ellen Jepson from Gender and Law at Durham. Thank you to the University of Ulster, Transitional Justice Institute and Law School for hosting and supporting the first workshop.
This post was jointly written by regular contributor Aoife O’Donoghue and Ben Warwick. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights.
The starting gun has been fired on constitutional debate in the UK. The prospect of Scottish independence, potentially increased powers for devolved governments, a new English Assembly, a re-formed relationship with human rights and a reformulation of the relationship with the EU, are all being more or less vigorously discussed. Whilst there has been some public debate about the constitutional issues facing the UK, there remain a number of covert agendas. Each of these agendas represents both threats and opportunities for Northern Ireland. The tendency to define constitutional changes by reference to internal factors is a misguided one. Such an approach neglects the significant external implications of internal debates. Rather, changes to the UK’s constitutional settlement must be situated in the broader regional and international political and economic context. The realities of modern globalisation and commerce, mean that external bodies and countries are both influenced by, and influencers of, ‘internal’ debates and thus cannot be ignored.
For England, and the UK, the electoral fortunes of the Conservative party lurk beneath the surface. Under threat from UKIP, and in arguably long-term decline, the Tories have sought to both capitalise and stave off threats from the Right. The party have undoubtedly seen an opportunity to separate unpopularity in Scotland (the party has just one MP out of 59 potential seats and in contrast to Labour), from relative success in England. Significant devolution to an English Assembly would likely leave the Conservatives (or at least the right of British politics) with a majority. This opportunism can explain changes of heart on devolution.
In Scotland, the covert agendas belong(ed) to the markets. Dominant economic actors vocally campaign(ed) against independence on the basis that it would harm jobs and the prosperity of Scots. This was an important consideration for many, but for the Boards of Directors and CEOs making the threats it was not the primary motivation. Rather, the continued profitability and favourable tax regime for corporations were the unspoken motivation for such a fight against Scottish independence. Companies were concerned, not with the general welfare of the Scots, but with the potential disruption to their healthy profits.
As ever for Northern Ireland, much remains unsaid. There is fear of covert and/or incremental changes that erode cultural identities and (Unionist/Nationalist) identity politics remain an on-going and dominating factor in debates. Besides the internal ‘blockages’, there are also external implications including repercussions for Northern Ireland’s voice in debates on human rights, economic powers, and the division of power in the UK. This is crucial, as a strong voice within the UK affects the province’s capacity to deal with the issues of austerity, social security, rural and urban poverty, policing and employment.
At the Conservative Party Conference in October there was a clearly voiced intention to introduce changes to the UK Human Rights Act (HRA) and the relationship with the European Convention on Human Rights and the associated European Court of Human Rights. It was stated that if changes to that relationship could not be made, a Conservative Government would withdraw from the Convention. As has been noted elsewhere this is a particularly pertinent issue for Northern Ireland as the Good Friday Agreement places the introduction of the HRA as central to its settlement. Under the settlement the UK agreed to:
complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.
The Irish Government, in return, agreed to incorporate the ECHR into its law and there is no suggestion of a change. The Good Friday Agreement is partially a bilateral agreement between the UK and Ireland, the Conservative proposals would, if enacted, violate international law. Besides legality, courtesy would require the UK to consult with Ireland about such changes, perhaps with a view to releasing Ireland from its obligations. Given that there was a vote in both the Republic and Northern Ireland on the Good Friday Agreement, it is perhaps democratically questionable to change its terms without consulting both constituencies again.
Bordering on the EU
Of further consideration is the potential of the UK leaving the EU and its impact. As the Republic is outside Schengen there is little problem with the open status of the Ireland-UK border. Without wishing to ape the rather ridiculous depictions of what a border with an independent Scotland would look like, should the UK leave the EU and Ireland enters Schengen, it would make the open border problematic. In particular with a dominant aim of UK political actors being to stop inward migration, the border could not be as porous. Whilst the Irish are (legally) not to be treated as ‘foreigners’ under the Ireland Act 1949 other EU citizens entitled to continue to come to Ireland may pose practical and political difficulties. Further, the entitlement of those born in Northern Ireland to dual citizenship is problematic. If an individual chose to register for an Irish passport they would be able to maintain their EU citizenship even if the UK left. This would be in stark contrast to other UK passport holders in Scotland, England or Wales.
Leaving the EU would also impact upon the Transatlantic Trade and Investment Agreement currently being negotiated with the USA. While there is not space here to discuss the many problematic elements of this trade deal, a UK that sat outside of the EU would leave Northern Ireland without preferential access to the USA. Leaving the EU would also put the UK in an entirely different position within the World Trade Organisation. While currently the UK is an individual member, all of its negotiations are conducted as one EU block. Therefore while the UK would stay as a member of the WTO, it would negotiate as a standalone state rather than part of the world’s biggest market. Again, as the Republic would remain part of the EU’s block in the WTO, it would maintain the many and varied benefits that the EU maintains due to its global economic power.
Goodbye Good Friday
A further indication of the external nuances of the UK’s current constitutional soul-searching lies with border polls. Whilst there has been much talk of a border poll in Northern Ireland, this has largely neglected the voice of the Republic. The Good Friday Agreement mandated a right to self-determination for the people of the Republic in the following terms:
it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.
It is by no means certain that a vote in the Republic on the matter of unification would bring about a majority of yes voters. No vote took place when East Germany rejoined West Germany, partly because the German Constitution never gave up its claim to all of its territory. The Irish situation differs as a result of the changes to Articles 2 & 3 of the Irish Constitution. Further, it was by no means certain that the West Germans would vote to integrate their East German neighbours. The requirement of self-determination for North and South would mean that even if Northern Ireland voted for a unification of Ireland, there would be no certainty of a united Ireland
There are undoubtedly significant international effects that flow from a renegotiation of the UK’s constitutional position(s). Yet the current internalised approach to considering the constitutional issues is masking the broader effects. From human rights, to the EU, to the TTIP and the Good Friday Agreement, there are significant ramifications that urgently need discussed. Having these debates by reference to the Conservative Party’s self-interest, economic hegemonies, or identity politics can only lead to a transient conclusion to the international issues.
Nasc, the Irish Immigrant Support Centre and UCD’s Sutherland School of Law invite you to a one day conference to mark World Refugee Day on the 20th June 2014 in UCD’s William Fry Theatre from 10 am – 3pm. The conference, titled Beyond the Single Procedure: Reforming Ireland’s Protection System.
This conference is an opportunity to bring together politicians and policymakers, practitioners, advocates and other interested parties to discuss and critically assess the protection system in Ireland, the pending introduction of the Single Procedure, how it will impact the protection system in Ireland and what legacy issues will remain.
Some of the issues to be addressed include: international best practice, leave to land, early legal intervention, the legacy of direct provision, subsidiary protection, unaccompanied minors, family reunification of refugees, and the Judicial Review process. The conference is very timely as the discussions generated could potentially inform thinking on the upcoming Immigration, Residency and Protection Bill.
Confirmed list of speakers:
Sophie Magennis, UNHCR – morning keynote: overview of protection, role of UNHCR
Liam Thornton, UCD – direct provision
Olaniyi Kolawole, UCC – human cost of protection system
Patricia Brazil, BL & Trinity College Dublin– history of protection system, JRs, legacy issues
Colm O’Dwyer, BL – separated children
Jacqueline Kelly, Irish Refugee Council – early legal intervention
Claire Cumiskey, Nasc – family reunification
Barry Magee, Refugee Appeals Tribunal – on role of RAT
Karen Berkeley, Brophy Solicitors – on statelessness
Steven McQuitty, BL (NI) – afternoon keynote, on JLM case and NI/UK perspective
To attend this conference, please email Bethany Wynee-Morgan on email@example.com. Please note that there is no charge for this event. CPD points are available from UCD Sutherland School of Law.
We welcome the following guest post from Sylvia de Mars. Sylvia is a Lecturer in Law at Newcastle University whose primary research interest is the interaction of EU free movement law with the organisation of public services in the Member States. She holds a PhD from the University of Nottingham.
Given that my research considers the access rights of EU nationals to the English NHS, last week’s England and Wales High Court decision in R (on the application of A & Anor) v Secretary of State for Health didn’t come as much of a surprise, but remains regrettable. There are two dimensions to this case, which dealt with the question of whether or not Northern Ireland residents can obtain abortions with the English NHS free of charge. The first dimension is a public law one, looking primarily at the organisation and funding of the healthcare services in the United Kingdom, and the second is a human rights one. Continue reading “Rights versus Remuneration: The English NHS and Abortion Services for Women from Northern Ireland”
“In Northern Ireland”, Peter Hain opined in his autobiography Outside In (pictured left), there is “always a crisis around the corner” (p.323). There is more of a feel of truth than truism to the statement, especially as the on-the-runs scandal dominated recent headlines (before being eclipsed by developments in the Crimea). I’d be surprised if a good few Irish viewers watching the BBC 2 drama miniseries 37 Days, on the slide towards the First World War, haven’t felt there is something queasily apposite in the scenes where the UK Cabinet’s attention is wrenched away from the “muddy by-ways of Fermanagh and Tyrone” and towards a developing European Crisis. Continue reading “What the Dogs in the Street Know: On the Runs and Hanging Peter Hain Out to Dry”
We are delighted to welcome this guest post by Verona Ní Dhrisceoil. Verona is a Fulbright Scholar and a Lecturer in Law at the University of Sussex.
If language was merely a communicative tool it would pack a much lighter emotional punch (J Edwards, 2003)
On the 17th January the Committee of Experts (COMEX) published the Fourth Report on the application of the European Charter for Regional or Minority Languages (ECRML) by the United Kingdom. In it, the COMEX chastised the UK Government and the Northern Ireland Assembly (NIA) for the lack of progress made in relation to the protection and promotion of the Irish language in Northern Ireland since the previous monitoring round and also for the complete failure to comply with the reporting requirements under Art.15 of the Charter. On the basis of the findings of the Fourth Report, the Committee of Ministers (CoM) have now recommended (CM/RecChL(2014)3) that the authorities of the United Kingdom “as a matter of priority”:
“adopt and implement a comprehensive Irish language policy, preferably through the adoption of legislation providing statutory rights for Irish speakers.” Continue reading “The law, language and identity debate in Northern Ireland: some thoughts on the on-going struggle to find consensus”
“Political Prisoner” is a term to conjure with, a term that demands headlines. But woe to the campaign which tries to exploit this term’s unique resonance where the media finds the cause in question unfashionable. Martin Corey (pictured, left) was this week released after nearly four years in which he was detained in Maghaberry prison without trial, a detention affirmed by a tribunal hearing closed evidence against him with his interests controversially protected by a Special Advocate. His challenge to this detention reached the UK Supreme Court (and may yet be heard before the European Court of Human Rights). And yet, outside Northern Ireland his case is almost unknown. In a particular indignity, the Irish Times reported his latest Court defeat in December, but has yet to report his release. Stories about dissident republicans mustn’t sell enough papers. Continue reading “Martin Corey's Release: The Sound of Silence?”
The Troubles just won’t slip conveniently into history. In recent weeks anyone confident that Northern Ireland has “moved on” will have received multiple jolts to such complacency. A car bomb (and last night a fire bomb, pictured left) and Loyalist protests have disrupted shopping in Belfast’s city centre in the run up to Christmas. And as for the Troubles themselves, they have been a prominent part of the news headlines. Revelations UK army units operating beyond the standard rules of engagement in the 1970s. Outcry over the fate of the “disappeared” and over the strenuous denials by Gerry Adams over his own involvement. Shock over the detail of collusion between members of the Garda and the Provisional IRA in the findings of the Smithwick Tribunal. The risk of more bloodshed today running hand-in-hand with blood continuing to seep under the door marked “the Troubles” with every new revelation. Continue reading “Lost in Time? Controversy over Police Powers in Northern Ireland”
Today, the High Court of Northern Ireland in Belfast issued a decision that could have a knock on impact on the Republic of Ireland’s asylum system. The judgement, In the Matter of an Application for Judicial Review by ALJ and A, B and C  NIQB 88 (14 August 2013), is substantial. The core focus in this post are comments made by the judge in the case, Mr Justice Stephens, on the Irish asylum and direct provision systems. The full facts of the case can be found from paragraphs  to  of the judgment. Throughout the judgement, Mr Justice Stephens outlines in detail his significant discomfort with the asylum status determination system and the system of direct provision in the Republic of Ireland.
The applicants had made a claim for refugee status in the Republic of Ireland in 2010 on the basis that the applicants would face persecution as non-Sudanese Darfuris. This application was rejected by ROI in 2011. The applicants subsequently made an application for subsidiary protection in April 2011. However, in July 2011, the applicants entered Northern Ireland and applied for asylum. Under EU Law, the Dublin II Regulation, the UK authorities sought to return the applicants to the Republic of Ireland. The applicants challenged the decision of the UK Border Agency to return them to Ireland and argued that discretion should be exercised not to return them to the Republic of Ireland, under Article 3(2) of the Dublin II Regulation. The applicants contended that return to the Republic of Ireland’s refugee and protection status determination system, with its minuscule recognition rates and the system of direct provision, would violate their rights under Article 4 & Article 7 of the European Charter of Fundamental Rights (EUCFR). Article 4 EUCFR protects against torture, inhuman and degrading treatment. Article 7 EUCFR protects the right to private and family life.
Refugee & Protection status determination process
Although not “systematically deficient”, Stephens J. stated Continue reading “Ireland's Asylum & Direct Provision System under the Spotlight in Northern Ireland High Court”