Amnesty International's Annual Report for Northern Ireland and Ireland

amnestyintl.logo_.2Amnesty International’s Annual Report on Northern Ireland and Ireland was published last week  as part of its annual series of country reports. Globally, the report considered the world to be a more dangerous place for refugees and migrants and stated that countries were increasingly using the cover of ‘internal affairs’ to block full consideration of their human rights standards. These reports are part of a broader reporting process by governmental and non-governmental together with  global and regional bodies including state-led reports on individual countries’ commitments and abuses of human rights standards. Indeed, previously we have highlighted the US State Department’s Human Rights Reports, the Universal Periodic Review by the UN Human Rights Council and the UK’s FCO Human Rights’ Report, amongst others. Often, these reports are conscious political campaigns, such as the Regan administration’s initiation of State Department country reports during the Cold War or the Universal Periodic Review as a method of moving beyond past failures in the UN’s human rights’ accountability mechanisms.  Amnesty International, as a NGO, perhaps brings a more ‘independent’ overview of state activity, but even here, a country’s co-operation, or otherwise, may be critical in gaining access in order to compile the report. The priorities of a particular NGO may also alter the focus of such reports. Further, the ultimate utility of these kinds of general reports without any form of enforcement mechanism should be questioned, particularly when considerable resources are sunk into their compilation. At the very least, these reports offer an opportunity for countries to assess their human rights standards and in the case of critical reports, attempt, if possible, to save face or explain their poor standards of observation. Amnesty International historical record of accurate and influential reports makes their contribution particularly important.

The Report on Ireland focuses on prison conditions, the right to health, violence against women and girls, police and security forces, and constitutional and legal changes. In particular, the report criticised conditions in young offender institutions, though it did welcome the Government’s plan to end placement in St. Patrick’s for 16 year olds, the fact that 17 year olds would still be held there coupled with inadequate health and education facilities for young offenders, remained extremely problematic. The Report also stated that while the instigation of a process of investigation of serious complaints by prisoners was a step forward, this remained well short of what is required under the UN Torture Convention and mandated by the Torture Committee’s Report on Ireland in 2011. The 2011 Report had also highlighted the need for full investigations into the Magdalene Laundries and Amnesty also questions whether the Government has fully complied with its requirements on this matter. The Report mentions the Right to Health and particularly the death of Savita Halappanavar focusing on the lack of clarity in law on access to abortion, a point that the Oireachtas Committee would be well cautioned to consider. Amnesty also mentioned the Smithwick Tribunal on collusion with the IRA. The Report welcomed Ireland’s signing of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Constitutional Convention and the passage of the Constitutional amendment on Children’s Rights.

The Report on Northern Ireland forms part of the broader report on the UK. Here, Amnesty focused on the continuing activity of paramilitary forces, in particular the shooting dead of prison officer David Black and the intimidation of elected officials and journalists by these groups. The Report also looked at the Inspectorate of Constabulary’s review of the Historical Enquiries Team which re-examines all deaths related to the conflict in Northern Ireland and examines whether those cases involving the army are human rights compliant. The Report also highlighted the ongoing investigations into the death of Pat Finucane and Blood Sunday. In similar terrain to previous reports on Ireland, the Report also looked at the instigation of the inquiry into institutional child abuse in Northern Ireland from 1922-1995. More generally, Amnesty highlighted questions relating to torture and ill-treatment by UK forces with regard to terror suspects, the impact of counter-terrorism measures, gender based violence and the UK’s lead of a new initiative regarding violence against women and girls in conflict and post-conflict scenarios as well as the UK’s treatment of refugees and asylum seekers.

The issues raised are familiar to anyone interested in human rights standards across Ireland and the UK. Yet, importantly, the report highlights the on-going issues, which have also been the focus of many previous Amnesty Reports and questions the good faith of both the Dublin and London Government as well as the devolved Government in Stormont to actually deal with rights questions, such as those relating to youth offending or women’s rights, that are often sidelined in favour of more publically acceptable human rights issues that are less electorally difficult. Repeated highlighting of these more difficult issues is perhaps the most important contribution that these forms of Reports can make, even if broader questions regarding their multitude and impact can be raised.

Amnesty International's Annual Report for Northern Ireland and Ireland

GuestPost: Ruth Fletcher's submission to the Oireachtas Abortion Hearings.

We are pleased to post Dr. Ruth Fletcher’s submission to the Health Committee on the General Scheme of the Protection of Life during Pregnancy Bill, 2013. Ruth is Senior Lecturer in Law and Director of Centre for Law, Ethics and Society at Keele University. She spoke at the final day of the Committee’s hearings on the government’s proposed abortion legislation yesterday.

 Introduction

The proposed legislation is welcome for its recognition of a public obligation to implement an existing constitutional right to life-saving abortion.  The state is under a duty to enforce existing constitutional rights, and failure to act is a clear breach of that duty.  The movement away from absolutist protection of foetal life is welcome in a context which requires the balancing of public interests in protecting foetal life and in protecting women’s lives.  But the proposed legislation does not do enough to address certain material considerations for this legal balancing act.  I will focus this submission on 4 key points in relation to the definition of the unborn, the significance of risks justifying a termination of pregnancy, the limits on the right to conscientious objection, and the inappropriateness of criminalization.

Unborn – Head 1

Head 1 suggests that the unborn shall be defined to mean “following implantation until such time as it has completely proceeded in a living state from the body of the woman”.  The reference to implantation as the beginning point for defining unborn life is justified by reference to the Supreme Court decision in Roche v Roche, which addressed whether stored embryos were unborns for the purposes of Article 40 3 3.  With respect, the legal and ethical arguments for choosing the point of implantation as the significant moment for legal protection have not been adequately addressed.  Given past failures to interrogate the assumed wrongness of abortion and given the particular factual context of Roche v Roche, it is open to the Legislature to consider more fully the criteria by which the ‘unborn’ should be defined in this legislation.

There are strong ethical arguments for choosing sentience as an alternative rationale for the protection of unborn life (Steinbock, 2011).  Sentience is the capacity to feel pain or pleasure and is regarded by many moral theorists as the characteristic of living things which imposes obligations on others.  Trees may be living things which are biologically valuable, but they do not have the capacity to be harmed in the same way that sentient beings do and so are not owed harm-reducing duties.  A recent review of the evidence on foetal awareness by the Royal College of Obstetricians and Gynaecologists (2010) came to the view that 24 weeks gestation was the earliest moment at which sentience was possible, and that the foetus may not be sentient or aware at all during pregnancy given the effect of the uterine environment.  If protection of the unborn is about the protection of human life then sentience is arguably the best candidate for the key feature of human life that make it intrinsically worthy of legal protection.

Obviously there are candidates for justifying the protection of unborn life before sentience, the main contenders being the biological or human species argument, and future/potential personhood argument.   But these are not strong enough to justify the kind of full legal recognition which the legislation assumes.  One version of the human species argument would protect unborn human life from conception, because it is precious as God-given life.  While individual people should be free to let this view inform their moral decisions, it cannot be a view which informs the law in a pluralist society of many faiths and none.  Another version of the human species argument is the biological individuation view, that there is something precious about the embryo as an individual member of the human species.  The problem with this position is that it does not tell us what it is about the human species that makes harm to a human wrong.  If another species has capacities to think, to feel, to act, or to live, is it unworthy of protection because it is not human?

Probably the best argument for legal recognition of the ‘unborn’ from its earliest stages is that it will, subject to assistance from the pregnant woman, become a person in the future.  If this is accepted as the justification for the reference to implantation, it should be noted that this does not apply to fetuses with lethal genetic abnormalities.  They do not have a future as persons, and so should be excluded from the legal definition of ‘unborn’ in the legislation.     A second important aspect of this argument is that it rests on the potential to become a person, not on actual personhood.  Potential personhood is arguably best regarded as giving the unborn some moral value because of what it will become in the future.  This potentiality may be ethically significant, but it is not the same as the moral status that comes from the actual ability to feel pain or pleasure.  Nor is it the same as the higher moral status which comes with personhood and the capacities for rationality and communication.   As Thomson (1971) has argued the person’s interest in bodily and moral integrity may justify limitations on our duties to sentient beings.  This is because part of what makes life valuable is the person’s ability to reflect on her life over time and make her own moral choices.

Conclusion: The following categories provide a better ethical rationale for the protection of unborn human life than the assumed significance of implantation.

  • Pre-sentient foetal life has moral value rather than moral status.  It should be taken into account in moral decision-making, but it does not impose harm-reducing duties on others.
  • Sentient foetal life has moral status and may impose a duty not to be harmed on others.
  • Self-aware personhood is a higher moral status than sentient life and may limit the duties owed to sentient life in important ways.

Recommendation 1:

The unborn should be defined to mean “the foetus following the earliest moment at which sentience is possible”

Recommendation 2:

The unborn should be defined not to mean those foetuses which have lethal abnormalities and will not have a future independent life.

Risk of loss of life justifying a termination of pregnancy – Heads 2-4

Heads 2-4 provide for the kinds of risk to a woman’s life which will legally justify a termination of pregnancy. Here I would like to focus on the narrowness of the risk to life ground for abortion.  This ground has been drawn very narrowly in part because it has been assumed that Article 40 3 3 requires the life of the pregnant woman to be treated the same as the life of the embryo or foetus

As Irish equality scholars, Baker, Lynch, Cantillon and Walsh have argued, equality does not mean sameness. Rather treating entities equally requires the accommodation of their material and vital differences.   Even if one accepts the contested view that the foetus ought to be legally protected as if it was a person with rights and responsibilities, that in itself does not determine how a conflict between the life of the foetus and life of the pregnant woman should be resolved.  Vindicating the life of the unborn with due regard to the equal right to life of the mother should entail a full evaluation of scope of the unborn’s interests vis a vis those of the pregnant woman.  To state the issue concisely, women are conscious, sentient beings with moral views and responsibilities to others, when foetues are not.  Foetuses have value as bearers of biological life and as future persons, but this is not the same kind of value as that of a breathing, feeling, thinking woman.   The current legal test treats women and fetuses as if they are the same, and in doing so, it devalues the significance of each form of life.

Recommendation 3:

The legal test should be:“It is not an offence to carry out a medical procedure when there there is a real and substantial threat to the life of the woman, including to her life interests in mental and bodily integrity.”

If the Oireachtas is not willing to adopt this recommendation, the minimum alternative is to remove the discriminatory distinction between the evidence requirements for a risk to life from a threat of self-destruction and a risk to life from a threat of physical illness.  This distinction is based on a particularly problematic view of women as morally untrustworthy, and does not address adequately the duty not to harm women’s lives.

Conscientious objection – Head 12

In principle the inclusion of a conscientious objection clause is defensible, subject to 2 conditions.  It must be applied to individuals rather than organisations and only in circumstances where alternative provision is readily available.  If respecting human life includes respecting the personal choices which give life meaning (Dworkin, 1992), then healthcare practitioners may avoid performing healthcare which infringes their moral values.  This is an interest which inheres in the individual as the moral agent of her own life, not in an institution such as a hospital which has a corporate personality.  As the Explanatory Notes acknowledge, conscientious objection is not an absolute interest, and is limited by the need to prevent harm to others, pregnant women in this instance.  Moreover, healthcare practitioners have a duty of care to pregnant women, which includes promotion of their health and well-being.  Conscientious objection to the provision of healthcare is only defensible therefore in circumstances where it would not entail damage to women’s interests in health and well-being.  Delays in accessing healthcare could damage women’s health and well-being because a woman is left living with the physical and mental stresses of unwanted pregnancy for longer, and because later terminations are riskier than earlier ones.  In circumstances where a healthcare practitioner cannot arrange alternative provision without undue delay, their right to conscientious objection may be limited by the duty to prevent harm and promote health and well-being.  In practice therefore, the wording of Head 12 does not give enough weight to the harm-reducing limits on the right to conscientious objection.

Secondly, the phrase “as per current medical ethics” should be removed.  Medical ethics usually refers to philosophical inquiry into the ethically right courses of action in medicine.  There is usually a range of ethically defensible courses of action in a given area of medicine and so a reference to ‘medical ethics’ in this sense raises more questions than it solves.  If  “current medical ethics” is meant to refer to the current ethical guidelines adopted by the Medical Council, then this should not be included in a statutory provision.  It is unnecessary, and may cause confusion about the relevant legal standard should the Council Guidelines change.

Further, I would ask the Committee to note that this recognition of healthcare practitioners’ consciences is inconsistent with the lack of legal recognition to date of pregnant women’s consciences.  If conscientious objection to the provision of abortion is legally acceptable then so is a ‘conscientious objection’ to the sustenance of an embryo/foetus within one’s body.  If a woman’s conscience tells her that terminating a pregnancy is the best moral resolution of the various issues which may arise in a given pregnancy, then that conscience also deserves respect and legal accommodation.

Offence – Head 19

The criminalisation of women’s decisions to end their pregnancies is a disproportionate and unfair response to the constitutional direction to vindicate the life of the unborn as far as practicable.  Criminalisation does not achieve the objective of protecting foetal life and it makes the mental and physical experience of unwanted pregnancy worse. The Legislature has other options under Article 40 3 3 and it does not, as the Explanatory Notes suggest, have to criminalise those abortions which fall outside the tests in Heads 2-4.  The Legislature could regulate the terms under which women access abortion in the Irish health service without punishing those women who fall outside those terms.  It could vindicate unborn life by investing in pregnancy-related care and research into miscarriage.  In choosing to punish women rather than to adopt more neutral or positive measures for the support of foetal life in pregnancy, the Legislature would be acting unfairly.  Head 19 is unfair because it asks women, rather than the state, to bear the weight of the public duty to vindicate foetal life.

Recommendation 4(a):

Repeal sections 58 and 59 of the Offences Against the Person Act 1861, without providing for a new offence.

Recommendation 4(b) (as an alternative to 4(a)):

If the Legislature is not willing to take the route of decriminalisation, it should at minimum define the offence so that it excludes attempts to end a pregnancy.  The phrase “[A]ny act with the intent to destroy unborn human life” is too broad and may include those acts which are ultimately unsuccessful in destroying unborn human life.  Secondly, the maximum penalty for the offence should be reduced significantly from 14 years.  This penalty is disproportionate in punishing a decision which implements the defensible moral choices of women and their healthcare providers.

_____________________________________

Today, 11 organisations criticised the hearings as inadequate. The full written submissions made to the Hearing do not appear to have been published online. We are happy to post copies of submissions here. (Email to s.ring[at]kent.ac.uk). A number of organisations and individuals have placed their written submissions to the Committee in the public domain. They include:

GuestPost: Ruth Fletcher's submission to the Oireachtas Abortion Hearings.

"An Escape Route from the Absolute": Summary of Today's Joint Committee on Health and Children Hearings on Abortion.

The Joint Committee on Health and Children has been holding public hearings on “the Implementation of the Government Decision following the publication of the Expert Group Report into matters relating to A, B, C, vs Ireland”. You can find the Expert Group Report, published in November, here. The transcripts of the public hearings are available here and you can view recorded proceedings on the Oireachtas Youtube channel.

The Committee heard evidence from medical experts yesterday, and heard evidence from legal experts,  including HRinI’s Jennifer Schweppe, today. Representatives of the churches and advocacy groups will be heard tomorrow.  A number of important legal arguments have been raised before the Committee, including some which would not only clarify the scope of the X ruling, but legislate on the basis of a relatively liberal interpretation of X and its progeny. HRinI will host a blog carnival on abortion and Irish law in the coming weeks. For now, you can find a range of materials connected to the hearings after the break.

Continue reading “"An Escape Route from the Absolute": Summary of Today's Joint Committee on Health and Children Hearings on Abortion.”

"An Escape Route from the Absolute": Summary of Today's Joint Committee on Health and Children Hearings on Abortion.

Ryan on Gender Recognition and Marriage

Dr Fergus Ryan is a lecturer in law at the Dublin Institute of Technology.

When I first encountered Family Law as a discipline, the burning issue of the day was divorce.  Prior to 1995, divorce was constitutionally prohibited.  A prominent theme in the family law classes of the time was whether estranged married couples should be allowed to divorce and remarry.  It never crossed my mind that married couples might at some future point be required to divorce, against their collective wish to remain married.

When divorce was finally introduced it was nonetheless firmly considered a last resort, to be employed only when all else failed.  This is evidenced by the lengthy living apart requirement – four out of the previous five years – and the stipulation that a divorce will only be granted if there is no reasonable prospect of reconciliation. Divorce legislation requires, moreover, that, prior to commencing litigation, parties be advised of alternatives to divorce.

The Gender Recognition Advisory Group (GRAG), in its report to the Minister for Social Protection on gender recognition legislation, recommended that transgender applicants who meet certain conditions should be allowed to access a gender recognition certificate. This would allow the recipient to change their legally assigned gender for all legal purposes.

The Group, however, recommended that applicants should not, at the time of the application for a gender recognition certificate, be married or in a civil partnership. The Group’s stated concern was that a gender recognition certificate would convert an existing opposite-sex marriage into a same-sex marriage and a same-sex civil partnership into an opposite-sex one, neither of which is legally permitted.  As the law currently stands, marriage is confined to opposite-sex couples, and civil partnership to same-sex couples.

The implication is that trans people who are currently married or in a civil partnership will need to obtain a divorce, civil partnership dissolution or annulment as a precondition to legal gender recognition.  Admittedly, many marriages do not survive a gender transition, but some do.  This places such intact couples Continue reading “Ryan on Gender Recognition and Marriage”

Ryan on Gender Recognition and Marriage

Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond

The Department of An Taoiseach has published the overly ambitious legislative agenda for the current Dáil and Seanad session. The Immigration, Residence and Protection Bill 2010 will (hopefully!) be heading to Committee Stage this term. The 2010 Immigration Bill has been around in essence since 2006, and will unlikely be coming into force for some time to come yet, despite severe need for fundamental reform of Ireland’s immigration and asylum laws.  Previous blog posts have discussed concerns with the 2010 Bill and its provisions, as well as noting the severe delays in debating this bill [see, here, here and here].  In the immediate future, a number of significant bills are expected be published that will engage Ireland’s human rights obligations under domestic, European and international human rights law. Of particular note in this regard will be establishing the DNA database (see Vicky’s Blog Carnival posts on DNA databases) and reforming the law on mental capacity (see Law Reform Commission’s report here and Human Rights in Ireland contributions to the wider capacity debate here).

A large number of other  Schemes/Heads of Bills are currently being drafted up as bills, in particular as regards criminal justice issues, corruption Continue reading “Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond”

Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond

Damache and Constitutional Retrospectivity

In February of this year a most significant decision was handed down by the Supreme Court in the area of criminal procedure. This decision, Damache v DPP [2012] IESC 11 (discussed here), found that s.29(1) of the Offences Against the State Act 1939, which had been in operation for the past 36 years having been inserted by s.5 of the Criminal Law Act 1976, was contrary to the Constitution. The provision allowed for a member of the Garda Síochana not below the rank of superintendent, to issue a search warrant in certain specified circumstances. It did not, however, specify that such warrants should only be issued by members of appropriate rank who were independent of the relevant investigation. It was with this omission that the Supreme Court found fault. Indeed, this omission, and the Garda practice of having superintendents who were directly involved in an investigation issue warrants under s.29(1) had previously been criticised by Justice Morris in the “Burnfoot Module” of the Morris Tribunal Report (2008). In para 6.22 of that Module the learned Chairperson of the Tribunal observed that

The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a section 29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself.

The Supreme Court in Damache held that the issuing of search warrants is an administrative act but it must be exercised judicially. Accordingly, independence is necessary in the exercise of the act. This, along with the importance of the constitutional protection of the inviolability of the dwelling, under Art 40.5, led the Court to find that s.29(1) was repugnant to the Constitution given that it did not insist on independence in the garda issuing of the relevant search warrants.

An obvious question which arose in the aftermath of the Damache decision is what impact this finding would have on other previously-decided cases. Is a finding of unconstitutionality retrospective or not? Continue reading “Damache and Constitutional Retrospectivity”

Damache and Constitutional Retrospectivity

Reversing Abbeylara: a Commentary on the Thirtieth Amendment of the Constitution Bill

The Minister for Public Expenditure and Reform, Brendan Howlin published today the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011. This proposed amendment of the Constitution seeks to broaden the inquiry powers of the Oireachtas. Indeed, it is being reported in the media already as the “constitutional amendment to help investigate banks”. The perceived need for this amendment arose following the decision of the Supreme Court in Maguire v Ardagh [2002] 1 IR 385, colloquially known as the Abbeylara decision. Essentially, the Court held that while the Oireachtas could hold inquiries, it could not hold any inquiries which would have the effect of investigating the conduct, and therefore jeopardising the reputation of, individual citizens.

I am in favour of giving the Houses of the Oireachtas a full inquiry jurisdiction as I believe it may go some way towards revitalising the role of our legislature as one aspect of political reform. However, in this post, I want to highlight what I believe is a potential deficiency in the wording of the amendment, which potentially represents a serious alteration to the constitutional balance of authority as between the courts and the national parliament in respect of the rights of citizens whose reputations are negatively affected by Oireachtas inquiries. Indeed, I believe that despite the tenor in which the amendment has been promoted, its effect may go beyond simply reversing the unpopular Abbeylara judgment.

Continue reading “Reversing Abbeylara: a Commentary on the Thirtieth Amendment of the Constitution Bill”

Reversing Abbeylara: a Commentary on the Thirtieth Amendment of the Constitution Bill

Moving Towards Modern Legislation on Legal Capacity in Ireland

The Centre for Disability Law and Policy recently prepared a submission to the Oireachtas Justice Committee on the Scheme of proposed legislation that will radically overhaul Irish law on legal capacity.  The full submission is available here.

The core message of the submission was that the fields of mental health law, non-discrimination, and legal capacity can no longer be considered separately.  In this regard the Convention on the Rights of Persons with Disabilities “recognises that considering these issues in separate silos was wrong and that the artificial lines drawn between these separate fields are increasingly blurred” and it is important to consider the impact the proposed legal capacity legislation on general non-discrimination provisions and mental health law in particular.  The submission highlighted that Article 12 of the CRPD on legal capacity is at the core of the Convention and that equal recognition as a person before the law is key to the enjoyment of all other rights.  The submission also flagged that the assumption of legal capacity, and the obligation on states to provide supports to people with disabilities in order to enable them to exercise their legal capacity flows from this recognition, and these are the key attributes, which need to be embedded in Irish law, in order to ensure compliance Continue reading “Moving Towards Modern Legislation on Legal Capacity in Ireland”

Moving Towards Modern Legislation on Legal Capacity in Ireland

Conference on Executive Accountability and Parliamentary Democracy

The School of Law at NUI Galway in association with the Mason Hayes + Curran are to hold a conference on executive accountability and parliamentary democracy in Aras Moyola at NUI Galway on 26 March 2011.  See here for online registration.  This half-day conference marks the 5th Anniversary of the commencement of the LL.M in Public Law offered by the School of Law at NUI Galway.  See here for information on the LL.M in Public Law.  Catherine McGuinness Adjunct Professor of Law at the School of Law, NUI Galway will chair the event.  Emily O’Reilly the Ombudsman and Information Commissioner will deliver a keynote address and Donncha O’Connell from the School of Law at NUIG will present a paper on Accountability and the Constitution.  Catherine Allen a Partner with Mason, Hayes & Curran will present a paper on Accountability and the Environment.  Political analyst and lecturer at TCD Elaine Byrne will speak on accountability and perception.



Conference on Executive Accountability and Parliamentary Democracy