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Irish Left Review
Joined up thinking for the Irish Left

offsite link New Books Worth Reading Mon Sep 19, 2016 23:25 | Seán Sheehan

offsite link 13 Billion ? Lucky for some? Mon Sep 05, 2016 13:04 | Tony Phillips

offsite link Rebuilding Ireland: Long on Promise, Short on Detail Mon Aug 29, 2016 22:20 | Eoin O'Mahony

offsite link Brexit and Other Issues: Comments on the Current Situation Mon Aug 29, 2016 21:52 | Brendan Young

offsite link Bin Charges: From Private Circus to Public Service Tue Jun 21, 2016 12:38 | Michael Taft

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Spirit of Contradiction

offsite link Review: Do Religions Evolve? Mon Aug 14, 2017 19:54 | Dara McHugh

offsite link Fake News: The Epistemology of Media Wed Jun 07, 2017 11:52 | Gavin Mendel-Gleason

offsite link Officials and Provisionals Sat Apr 01, 2017 22:54 | James O'Brien

offsite link Interview with Cathal Goulding Mon Dec 26, 2016 17:11 | Cathal Goulding

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Public Inquiry
Interested in maladministration. Estd. 2005

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offsite link Will Pat Hickey turn up for his trial? Anthony

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The Saker
A bird's eye view of the vineyard

offsite link The Rhythm Of Time (poem by Bobby Sands) Tue Oct 17, 2017 03:17 | The Saker
(Sent to me tonight by my daughter.  The Saker) The Rhythm Of Time There?s an inner thing in every man, Do you know this thing my friend? It has withstood

offsite link The Iran Dilemma ? The Tyrant Has Spoken Tue Oct 17, 2017 01:26 | The Saker
by Peter Koenig The tyrant, of course, is Donald Trump. He launched tirade after tirade, and keeps launching them, insult after insult, lies after lies after miserable lies at the

offsite link President Putin meets with participants of 19th World Festival of Youth and Students Tue Oct 17, 2017 00:49 | Scott
Following the opening ceremony of the 19th World Festival of Youth and Students, Vladimir Putin met with festival participants ? students and young specialists from Russia, Malaysia, Indonesia, France, Jamaica, the United States, India and Zimbabwe. October 15, 2017

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https://southfront.org/iraqi-war-repo... If you?re able, and if you like our content and approach, please support the project. Our work wouldn?t be possible without your help: PayPal: southfront@list.ru or via: http://southfront.org/donate/ or via: https://www.patreon.com/southfront Late on October 15,

offsite link A Brief History of the ?Kremlin Trolls? Mon Oct 16, 2017 03:07 | Scott
by Scott Humor Saint Petersburg, Savushkina, 55 is the most famous office building in the world, thanks to the relentless promotion of the United States government, the CIA, FBI, and

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Fiona de Londras - Tue Oct 03, 2017 06:31
Fiona de Londras | @fdelond There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don?t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 ?should be replaced with a constitutional provision […]

Fiona de Londras | @fdelond

There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don?t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 ?should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman?. In doing this, it is very clear that the Assembly was concerned to ensure that the Oireachtas would have the power to introduce wide-ranging abortion law reform should it wish to do so; this is evident from the legislative recommendations it then went on to make. Whether the Assembly meant that the Oireachtas should be given an express power to legislate, or whether it meant that the Oireachtas should have the power to create law that would be immune from constitutional challenge is unclear: I discussed this here. What is clear, though, is that the Assembly wanted there to be no dispute about the power of the Parliament to make law for abortion. Why, then, did it recommend repeal rather than replace?

The concern about repeal

A simple ?repeal? would simply delete Article 40.3.3 from the Constitution, leaving constitutional silence about abortion. This is, actually, the most common scenario when we look at constitutions around the world. As Máiréad Enright noted here, it is quite rare explicitly to govern abortion through the constitutional text. Why, then, is there some doubt about whether or not to simply embrace constitutional silence in Ireland?

The main reason is that it is not entirely clear whether the foetus had constitutional rights before the 8th Amendment was inserted in 1983, if so how extensive those rights were, and whether they would still exist even if the text in Article 40.3.3 were removed. In other words, there is an arguable case that simple repeal would not make sufficiently clear that the Oireachtas can legislate for abortion, even to what many would consider a fairly extensive degree (as recommended by the Assembly), and that any law that might be passed would be struck down by the Courts for unconstitutionally interfering with foetal constitutional rights. It is very clear?and widely acknowledged?that this is an unlikely scenario, but it is a possible one. It is also possible, but unlikely, that a Court would say that removing Article 40.3.3 would create an unlimited right to access abortion so that no restrictions on abortion would be permitted (e.g. term limits, or grounds).

By far the most likely outcome is that abortion could simply be regulated in the same way as we regulate most things. That is: the Constitution would require that laws for abortion respect recognised constitutional rights, such as pregnant persons’ rights to privacy and bodily autonomy. However, in doing that the Oireachtas could interfere with these rights (or limit them, let?s say) provided (i) they did so in pursuit of a legitimate aim, and (ii) they did so in a manner that was proportionate.

In other words, the Oireachtas could limit abortion access in order to pursue the societal value of preserving foetal life, but would have to ensure that limitations did not disproportionately interfere with women?s constitutional rights. It would have to strike a balance, just as the Citizens Assembly recommendation suggests.

The options for replace

The argument for replace is, in broad terms, that a replacement provision might make it clearer to both the Courts and the Oireachtas how the balance is to be struck. There are a couple of ways this could be achieved:

  • By expressly striking the balance by specifying grounds in the Constitution
  • By clearly establishing that foetal constitutional rights do not exist or act such to prohibit the regulation of abortion
  • By providing for an express, positive right to reproductive autonomy or health, or to self-determination in medical decision-making

Let me address each of these separately.

Expressly striking the balance by specifying grounds in the Constitution

This approach would involve saying that abortion was only permitted in specified cases. We might reasonably expect these to be at least rape, incest, ?fatal foetal abnormality?, risk to life, and perhaps (serious) risk to health. The provision might say either that the Oireachtas may or that the Oireachtas must make abortion available in these cases; the latter of course would exclude any realistic possibility of foot-dragging.

However, specifying grounds has a number of significant disadvantages. First, it requires the terms themselves to be defined in a way that makes them usable. Given that we have not managed properly to define ?unborn? in 34 years of jurisprudence on the 8th Amendment one wonders whether this is possible. Second, it is not clear how one would access abortion under these grounds?would you have to report a rape, for example?and there would be a possibility that legislation providing access to abortion would be struck down for making it practically impossible to access abortion even in these cases (by, for example, placing undue obstacles in the path of trying to exercise these rights). Third, it would tie the hands of the Oireachtas, which would not be able to respond to political, scientific, medical or other developments in order to make abortion more (or less) widely available in the future; that would require a referendum. Fourthly, it would simply not meet the needs of thousands of pregnant persons in Ireland who cannot access legal abortion in this country now. In other words, it would not solve the problem. It also would not enable the kind of legislative change clearly envisaged by the Citizens Assembly.

Clearly establishing that foetal constitutional rights do not exist or act such to prohibit the regulation of abortion

There are a few ways that a new constitutional text might make clear that the Oireachtas can legislate for abortion without being curtailed by legally enforceable, constitutional rights. The simplest is probably to insert a phrase such as ?Nothing in this Constitution shall prohibit abortion as provided for by law?. Such a phrase makes it clear that the Oireachtas is permitted to legislate for abortion, although it does not compel it. It also clarifies the situation vis-à-vis foetal rights, so that when legislating for abortion the Oireachtas has to simply take into account whether any legislation it is proposing properly vindicates the rights of pregnant persons. As already mentioned, it could pursue a societal aim of preserving foetal life, but in doing so it could not interfere disproportionately with women?s rights. This provision very simply, in other words, places abortion into the realm of ordinary decision making for the legislature: it makes it clear that it can be approached as an object of law-making in the same way as any other issue, while clarifying that the Oireachtas is not constitutionally constrained from providing for abortion access.

What this proposed provision does not do is expressly to mention or address the broader implications of the 8th amendment. The 8th amendment is part of a socio-legal tapestry of norms, practices and behaviours in medical and legal practice that means that, when pregnant, women often experience a broad disregard for their consent, autonomy, and self-determination, including in labour. There is an understandable concern to try to ensure that addressing the 8th Amendment also addresses these broader implications. However, the negative wording I have suggested above would allow that to happen. First, removing the 8th Amendment would remove the constitutional ?nudge? towards an approach to maternal medical care that means that so many women experience disempowering and disempowered pregnancies. Second, removing the 8th Amendment would return pregnancy to the realm of ordinary constitutional rights protection, so that pregnant persons would reach for and seek to assert constitutional rights (such as privacy or bodily autonomy) in order to resist repressive approaches to medical and health care relating to a pregnancy. Whether this would be sufficient materially to change practice would depend on the broader approach to implementing constitutional change: it will require not only legislation on abortion, but possibly also legislation on autonomy and pregnancy rights, and certainly practicing protocols and guidance for the medical profession, as well as training and engagement in rights-based approaches to maternal medical care. However, that would likely be the case regardless of the choice of words inserted into the Constitution.

Providing for an express, positive right to reproductive autonomy or health, or to self-determination in medical decision-making

One possible approach that has received remarkably little attention is to insert a positive right to reproductive autonomy or reproductive health in the Constitution. This was never proposed to the Citizens Assembly, even though it exists in numerous constitutional orders around the world. Such a right would positively compel legislative change to ensure that autonomy was guaranteed during pregnancy (including labour) and, indeed, in relation to questions of becoming and staying pregnant. Such a right would ensure, thus, that the constitutional change ?reaches? the broader socio-legal implications of the 8th Amendment. It would also allow for the limitation of abortion access again provided that was done in pursuit of a legitimate aim (such as the preservation of foetal life) and in doing so only interfered proportionately with the right to reproductive autonomy/health as protected by the Constitution. In many ways, this option is both the least considered and the neatest approach to remedying the perceived difficulties with the 8th Amendment.

Repeal or replace?

Whether one favours repeal or replace very much depends (a) on how concerned one is about the uncertainty that might arise in the case of repeal, (b) what the wording of the proposed replacement is, and (c) how one interprets the political situation in which a referendum is likely to take place. If one is sufficiently concerned about the uncertainty that might arise, wants to propose something that they consider is likely to garner the support of much of the political class (which would then campaign for it, one assumes), would provide reasonably certain parameters for legislative action, and would enable the assertion of rights during pregnancy beyond abortion, then replacement with something like the ?Nothing in this Constitution?? provision would seem most likely to fit the bill. However, the gains are somewhat marginal when compared with a simple ?repeal? provision. The only question is whether the political establishment will (a) take a hyper-literal approach to the Assembly?s recommendation, and (b) be prepared to make the positive argument that express regulation of abortion law does not belong in the Constitution. As the Committee on the 8th Amendment prepares to finish its first module?on matters of constitutional design?tomorrow, the preliminary answers to these questions should begin to become clear.

Fiona de Londras - Thu Sep 28, 2017 20:14
Fiona de Londras @fdelond In yesterday?s hearing of the Committee on the 8th Amendment to the Constitution talk turned to the idea that a new constitutional provision might be crafted and introduced which would provide that any law on abortion would be immune from constitutional challenge. In his presentation to the Committee, David Kenny made it clear […]

Fiona de Londras @fdelond

In yesterday?s hearing of the Committee on the 8th Amendment to the Constitution talk turned to the idea that a new constitutional provision might be crafted and introduced which would provide that any law on abortion would be immune from constitutional challenge. In his presentation to the Committee, David Kenny made it clear that this was what he took the Citizens? Assembly to have meant by its recommendation. In my evidence I posited a different interpretation, namely ?as a proposal designed to make explicit the power to legislate for abortion to the extent recommended in the legislative proposals made by the Assembly?. On reflection, either understanding is probably sustainable. Reading the transcripts of the Assembly again, I still consider that the concern with ensuring the Oireachtas had ?exclusive? competence to make law for abortion was intended to ensure absolute clarity about the power to legislate for the issue, but it could also be interpreted as saying that in doing so the Oireachtas should be empowered to make a law that would be immune from constitutional review. If the latter interpretation were pursued, would this be desirable and what would be the implications?

What would it mean?

To immunise abortion law from constitutional review would mean, in practical terms, that the Oireachtas could make legislation through the ordinary political process and that this legislation could not be struck down by the Courts; they simply would not have the competence to consider questions of its constitutionality.

Were the Oireachtas so minded, it could change the legislation through the ordinary process in the future. In that way this is preferable to entrenching legislation in the Constitution (as was proposed in 2002) where even a technical change couldn?t be made without a referendum. However, it would mean that if a pregnant person considered that her constitutional rights to, for example, privacy or bodily integrity entitled her to access abortion in a situation not provided for in legislation she could not go to the courts to vindicate her rights. Similarly, someone who considered the legislation to violate foetal rights, or tried to establish foetal rights in respect of abortion, could not mount a constitutional challenge.

It would, in short, require us to put complete faith in the Oireachtas to legislate in a manner that balanced interests, vindicated women?s and pregnant persons? rights, and was rational and proportionate.

Why might this be considered a good idea?

The attractiveness of this approach is largely that it seems like a means of managing uncertainty.

Legal certainty has been a recurring theme in conversations on the 8th Amendment in recent weeks and months, and Máiréad Enright dissects the issue excellently here. The real issue is that nobody can say with absolute certainty whether foetal constitutional rights would survive a repeal of the 8th Amendment and, if so, what (if any) scope for legislating for abortion access the Oireachtas would have. In reality, even if constitutional foetal rights were recognised, there would still be scope for abortion legislation to be introduced. Even in Germany, where the Constitutional Court has recognised a prenatal right to life, abortion on request within the first trimester is constitutionally permissible, although pre-abortion counselling is mandatory. The Constitutional Court has found that the requirements imposed to access abortion, as well as the time limit, are sufficient to vindicate foetal constitutional rights. There is no reason why such an outcome might not also be possible in Ireland.

Similarly it might be considered that the foetus has no constitutional rights and the pregnant person has an unlimited right to access abortion so that no restrictions at all would be permissible. That is also unlikely, not least because the relevant rights (privacy, bodily integrity and so on) are not absolute; they can be limited in pursuit of a reasonable objective but the limitations cannot be irrational or disproportionate. This is more or less the approach taken in lots of states where the constitution is silent about abortion (e.g. the ?undue burden? approach in the USA) and even in some places where the Constitution acknowledges that prenatal life is worthy of protection (e.g. the Slovak Republic).

In spite of how unlikely these outcomes are, they are still a worry. The reason should be clear. Imagine a situation in which there is a referendum, the referendum is passed, the Oireachtas passes law (and there is little doubt that would be a very difficult and charged process), and then the Supreme Court strikes the law down. Where would that leave abortion availability in Ireland? Would the political process start again? Or would medics, public authorities, and pregnant persons in Ireland flounder in a sea of complete practical uncertainty? EDIT: Alternatively (and this is a point made to me in discussing this matter with Mairead Enright after my original posting) would medical regulators construct a system for the professional regulation of abortion care provision to fill the vacuum left by legislators, as happened in Canada?

The anxiety that these eventualities cause?particularly among politicians who experience intense pressure in respect of abortion?is understandable. While the possibility of undue uncertainty arising is fairly modest in real terms, this simply might not be a risk people (or politicians) are willing to take. The argument goes that immunising legislation from constitutional review would resolve that: the Courts would not have the competence to strike the law down no matter what it said, and so there would be certainty (or, maybe, stability is a better word) and politics alone would determine the content of abortion law.

Why might it be a poor idea?

David Kenny rightly noted that a small number of things are already immunised from constitutional review in Ireland so we know that such an approach is legally permissible. Bernard Durkan TD yesterday implied that it might not be politically possible, but that is a somewhat separate question. However, what is possible is not necessarily desirable. There are at least two reasons why this approach might be a poor idea.

First, as a matter of principle the ordinary or default position is that the legislature makes law, is required to make law that is constitutional, and is ?checked? in that by the judiciary. To depart from that general position must, it seems to me, have a compelling rationale. In the course in the evidence before the Committee yesterday Kenny noted that judicial intervention on abortion has caused great controversy elsewhere, and no doubt that is true. But judicial intervention in lots of areas causes controversy: consider findings that statutory rape was unconstitutionally defined, or that asylum seekers have a right to seek employment. These are hardly uncontroversial issues or interventions.

In some other areas we immunise for reasons of institutional self-organisation (e.g. some matters relating to process in parliament) or emergency management; here it is simply considered that there is a superior institutional capacity in the Oireachtas and/or the Executive because of either the nature of the issue or the context in which decisions are being taken. It is difficult to see why legislating for abortion should fall into this kind of category.

Of course, abortion is an emotive and difficult issue for many, and I have no doubt many law makers struggle to reconcile their personal views with their duty to represent their constituents, and to pursue the common good while fulfilling their constitutional duty to vindicate individual rights. ?Getting it wrong? on abortion also has serious potential consequences: either an abortion law regime that is much more extensive than was intended, or the enforcement of severe limitations on the autonomy on pregnant persons. However, every day legislators, ministers and regulators make decisions that have life and death implications, that increase or dramatically reduce people’s material well being: drug funding schemes for the HSE, housing budgets, child benefit, elder care, rules of asylum and so on. These are also serious and morally difficult questions: how do we balance out and prioritise multiple claims on limited means, all of which have to do with basic well being and may cause severe suffering if misjudged? To immunise abortion from constitutional review suggests that it is uniquely or particularly difficult so that the Oireachtas has a particular competence (institutional or topical), or that the context is such that judicial intervention ought not to be facilitated. In the very best of faith, I fail to see what that justification would be.

Second, it would cut out an important avenue for asserting legal rights. At the moment we accept that sometimes the Oireachtas might misjudge where the constitutional limits lie, although usually they don’t and we start from a presumption of constitutionality. However, if we think that the state is acting unconstitutionally we have a mechanism to assert that claim, get a definitive assessment, and then secure a remedy. That mechanism is constitutional review before the courts. Removing that mechanism means that there would be no way to assert a constitutional misjudgement at the national (i.e. ?domestic?) level except through politics. Rather than engage the courts, people would need to make their cases exclusively through lobbying, advocacy, voting, and the threat of removing politicians who we considered disregarded our rights and interests. This might succeed in bringing about legislative change, but it does nothing to recognise or remedy constitutional wrongs.

Should abortion legislation be immunised from judicial review following a referendum the Oireachtas could pass a law prohibiting abortion in all cases and it could not be challenged; nor could a law allowing abortion on request up to term. Neither of these is a realistic prospect, but they serve to illustrate the point I am making here: constitutional rights could be overridden, violated, and disproportionately limited and there would be nothing that a person could do about that.

Of course, it would mostly be women whose constitutional rights were placed in this kind of purdah. While they might be able to appeal to international human rights courts and institutions to assert their internationally protected rights, and to Irish courts under the ECHR Act 2003 to assert their Convention rights, their constitutional rights would be unenforceable. That is a rather extraordinary proposition.

Conclusion

In conclusion:

  • Immunisation from constitutional review is not the inevitable interpretation of the Citizens Assembly recommendation as to constitutional law reform
  • Immunisation from constitutional review would create absolute certainty as to the stability of legislation introduced following a referendum
  • Immunised legislation could be amended through the ordinary legislative process
  • There is nothing so particular about abortion from the perspective of institutional capacity that it should exclusively be the domain of the Oireachtas without the potential for constitutional review
  • There is nothing so substantively particular about abortion from the perspective of institutional capacity that it should exclusively be the domain of the Oireachtas without the potential for constitutional review
  • Immunisation from judicial review would remove the avenue to assert constitutional rights through legal processes
  • Immunisation from judicial review would eliminate the potential for breaches of constitutional rights to be remedied
  • This would have an almost exclusive impact on women?s capacity to assert their constitutional rights
Eoin Daly - Wed Sep 27, 2017 16:19
In the run-up to the Citizens? Assembly deliberations on abortion, there was a lot of discussion on the possibility of a ?compromise? or ?moderate? solution. Many envisaged (and feared) that instead of recommending outright repeal of the Eighth amendment, the assembly would instead recommend inserting a replacement clause that would permit slightly less restrictive abortion […]

In the run-up to the Citizens? Assembly deliberations on abortion, there was a lot of discussion on the possibility of a ?compromise? or ?moderate? solution. Many envisaged (and feared) that instead of recommending outright repeal of the Eighth amendment, the assembly would instead recommend inserting a replacement clause that would permit slightly less restrictive abortion laws, but still enshrine specific, limited grounds for abortion. Indeed, such a supposedly moderate position was probably contemplated by the government as something that a mythical ?middle Ireland? might accept. Along with many others, I was adamant that it was a terrible idea to enshrine abortion restrictions of any kind at the constitutional level. This would have the effect of copperfastening a potentially oppressive regime for another generation.

And so the early debate was dominated by the question of ?repeal versus replace?. Ultimately many of us were surprised that the Assembly deliberations unfolded along very different lines. In the first place, the Assembly clearly rejected the idea of inserting any revised abortion restrictions within the Constitution itself, partly because the majority rejected such restrictions, bar time limits, full stop. However, it also declined to recommend straightforward deletion of the Eighth amendment, which has essentially been the demand of the prochoice movement to date. Instead, it seems to have been influenced by the view that the revised text of the Constitution, minus the ?eighth?, could still be interpreted as including residual rights for the ?unborn?, and that this could be used to challenge liberalizing legislation of the kind it recommended. Therefore, it recommended inserting a new constitutional clause which, in the working of the Assembly report, would clarify that it is ?solely? within the power of the Oireachtas to legislate on ?any rights of the unborn? and ?any rights of the pregnant woman?.

It seems this was intended to remove any lingering uncertainty over the constitutionality of liberalizing legislation. It isn?t quite clear, however, whether or not it would categorically rule out any constitutional challenges against such legislation, or simply reaffirm (and possibly strengthen) a sphere of discretion that the Oireachtas already has. That will depend on the ultimate wording of the amendment as decided by the Oireachtas.

What I want to address here is whether or not the prochoice movement should support this step, as against straightforward repeal. There is a risk, at the outset, that the Assembly recommendation might be interpreted as a ?compromise? on the repeal demand, and that going along with this is some kind of capitulation to the narrative of ?moderation?, and so on. The risk of confusion is heightened because of the language of ?replace? ? we always thought ?replace? would be a disastrous attempt at triangulation and leave us with something only slightly less oppressive than the existing regime. But we should be clear that what is proposed is still effectively ?repeal?. It does not acknowledge or mandate any specific restrictions on abortion whatsoever.

Instead, it seems that the proposed new clause was intended as helping to secure or safeguard the substantial aims of the repeal movement ?that is, of ultimately ensuring that legislation respecting bodily autonomy is put in place and sustainably maintained. The question worth addressing here is whether such a move is a necessary and effective way of achieving this.

My HRinI colleague, Mairead Enright, recently expressed a sceptical view on this move. In particular, she argues the following (this is my summary of her article):

  • The risk of constitutional uncertainty after straightforward repeal is overstated.
  • The suggested clause might prevent ?prolife? constitutional challenges to liberalizing legislation, but equally it may prevent prochoice challenges against any oppressive legislation as well.
  • Therefore, exceptionalising abortion law in this way ? taking it out of the domain of constitutional law ? is unjustified in general and is motivated by a misguided concern for ?legal certainty? .

I agree with some of this, and disagree with other parts. I agree that the risk of residual uncertainty in the Constitution, minus the eighth, is probably overstated by contributions such as Brian Murray?s presentation to the Assembly (which appears to have been particularly influential). It?s hard to overstate the degree of deference the Courts have, in recent decades, shown to the Oireachtas when it comes to controversial or ?sensitive? social issues. Various senior judges have said that it is up to the Oireachtas in the first instance to decide how constitutional rights are protected and how they are balanced against each other, and that the courts? function is only to intervene where the balance is disproportionate ? not to impose its own view. Also, the post-repeal Constitution would more than likely be read in light of the assumed ?intention? of the voters (an approach taken in Roche v Roche), meaning that the Courts would accept the people had intended to constitutionally permit abortion. In other words, notwithstanding the identical nature of the (relevant) text, the post-2018 Constitution would differ in meaning form the pre-1983 version because of that changed historical-political context.

However, on the remaining points I disagree. The fact that Brian Murray might be wrong, or that he overstated the uncertainty involved, is besides the point. His paper is probably a close reflection of what most lawyers and judges might think and say on the topic, and that is ultimately what will determine the constitutional narrative post-repeal. The problem is this: we may still face a situation where continuing constitutional arguments are overhanging the legislative process post-repeal, and we need to anticipate the likely political effects of that. Various narratives about what the Constitution means or might mean will have the capacity to affect or influence the shape of any eventual legislation, whether immediately in the aftermath of repeal of further in the future. Constitutional argument may well have a ?chilling effect?, if you will excuse the terrible cliché. And crucially, the wording of any replacement text might control or limit the extent of that chilling effect. And it?s in those terms, I think, that we should be debating the merits of any possible wording.

When people consider the likely effects of constitutional principles, they tend to think in terms of what courts might do ? whether or not they are likely to actually strike down legislation based on particular readings of constitutional law. But that is a very limited way of understanding constitutional law. The danger isn?t necessarily that judges will curtail progressive abortion laws ? although it?s possible ? instead, it lies in the various ways in which constitutional arguments are weaponised completely outside of the judicial process.

The authoritiatve constitutional narrative ? that is, authoritative narratives about what the Constitution means and what it requires, are not only shaped by judges and lawyers arguing in courts. They are also made, sometimes to great effect, within the political and legislative process itself, and particularly by the office of the Attorney General. In essence, the Attorney General has the ability to influence the legislative process through readings and interpretations of constitutional law which although not theoretically binding, carry a certain authority in a real sense.

And this has a stultifying, conservative effect. We very often encounter situations in Irish politics where very contestable readings of constitutional law are invoked, usually by the Government, to resist modestly progressive legislative reforms. We see this effect in areas like equality law, which is constitutionally limited by religious freedom, in housing reform, which is constitutionally limited by property rights, and in school admissions law, which is limited by the constitutional rights of religious denominations ? and so on. Many people understand that constitutional case law can have both negative and positive effects, that is, it can overturn both good laws or bad laws. Constitutional-rights law is not intrinsically a good thing; it is only good insofar as it procures good outcomes, whatever that might mean. But the negative effects of constitutional law are not confined to bad judgments. Instead, we must account for the various ways in which constitutional law structures and disciplines political argument and determines the range of legitimate inputs ? and particularly how it empowers experts, disarms the ?lay? interlocutor, and leads to a kind of mystification by framing politically issues in esoteric legal terms. It generally entails a kind of expert mystification of political conflict. A vast plethora of social issues can be framed as something like a ?conflict of constitutional rights?, at which point the issue purports to pass from the political into the legal domain, and the social and political authority of lawyers is enhanced.

That style of legal argument is, in my view, intellectually bogus. There isn?t really any legally ?correct? answer as to what the Constitution means in many instances ? there are multiple possible interpretations that are potentially authoritative or persuasive depending on context and so on. There is no scientific truth in the matter, accessible to trained experts, which is how law is often depicted. But the fact that this is true is besides the point, because what matters is that this style of constitutional argumentation is weaponised very effectively in our politics. It carries a very definite institutional and social authority ? we should take this effect seriously

If we have the chance, then, should we not try to take such issues outside the mystifying, esoteric world of constitutional discourse – a strange world where experts conduct an intellectual pleasing, but politically sterile exercise in exchanging rival interpretations that are deeply political and ideological but are supposed to carry some kind of special authority? I think that is what the recommendation of the Assembly is getting at ? it?s an attempt to remove the issue of abortion rights out of the shadowy, obscure world of constitutional argumentation. My starting assumption is that that aim is a good one.

It might be objected that there is potentially a competing prochoice constitutional narrative, based on the privacy and autonomy rights of pregnant women, that could be invoked against restrictive or oppressive legislation, and that neutralizing the Constitution in the manner proposed squanders that opportunity. Why not accept the reality of constitutional ambiguity, but try to harness and instrumentalise it for prochoice ends? Unfortunately, I think, that kind of argument is attractive in the abstract but is unlikely to bear any fruit in the legal and political landscape that we actually inhabit. As much as liberal lawyers might relish the challenge, few people who are familiar with the workings and outlook of the Irish Supreme Court will realistically expect an Irish-style Roe v Wade any time soon. The legal and judicial world is a fairly conservative place. It is an unlikely source for radical social and political change, despite the limited phase of liberal activism that occurred in the 1960s and 1970s, and whose effects are romantically overstated. On the whole, judicial review tends to have a status quo bias and at best, only mitigates the worst elements of social justice while tending more fundamentally to shore up the legitimacy of the social order. Mairead Enright?s piece hints that there is something disturbing about excluding a particular category of legislation from constitutional challenge. I don’t agree with this, because I don?t believe that having access to a judge who can review the constitutionality of parliamentary legislation is an instrinsic hallmark of freedom or democracy or whatever. It can have good or bad effects depending on context – remember, the wealthy and powerful have constitutional rights too, and are good at enforcing them. Its overall net effects in any society are always a little unclear ? I believe that in this society the net effect is a conservative one, for reasons I explain here.

For these reasons, the question of whether we exclude abortion laws from constitutional challenge should be approached on a purely tactical basis, not based on its intrinsic rightness or wrongness. I could be wrong about where the balance of risk lies, tactically speaking, but we should dispense with myths about the intrinsic importance of judicial review as such.

Having said that, it is still unclear whether the assemble recommendation actually intends to exclude constitutional challenge post-repeal, or simply reaffirm and possibly strengthen the sphere of discretion the Oireachtas would ordinarily enjoy in any event. For what it?s worth, I would be wary of the political effects of fully excluding judicial review, simply because this might create an appearance of giving politicians carte blanche or leaving them unchecked. It creates a political risk that is better off avoided. On the other hand, the wording of the assembly report is unfortunate in referring (unnecessarily) to ?any rights of the unborn?, which (if used in the actual amendment), might have the (probably unintended) effect of indirectly re-enshrining foetal rights albeit in a lesser form. Instead, I think, we should aim at a wording that neither categorically excludes constitutional challenges to legislation, nor refers to foetal rights, but still stems any possible weaponsiation of constitutional doubts post-repeal. A wording along the following lines would probably achieve that effect: Nothing in this Constitution shall be interpreted as precluding termination of pregnancy as provided for by law.

Máiréad Enright - Thu Sep 21, 2017 10:57
Mairead Enright @maireadenright The Oireachtas Committee on Repeal of the 8th Amendment met publicly yesterday for the first time. Ms. Justice Laffoy presented the report of the Citizens’ Assembly, and took questions on its content. The media, in reporting on the Committee?s proceedings, have focused on Laffoy?s efforts to defend the legitimacy of the Assembly […]

Mairead Enright @maireadenright

The Oireachtas Committee on Repeal of the 8th Amendment met publicly yesterday for the first time. Ms. Justice Laffoy presented the report of the Citizens’ Assembly, and took questions on its content. The media, in reporting on the Committee?s proceedings, have focused on Laffoy?s efforts to defend the legitimacy of the Assembly process. In doing so, they have missed a crucial aspect of yesterday?s exchanges: the focus on ?legal certainty?. As is well known by now, the Assembly recommended replacement of the 8th Amendment, rather than simple repeal. They explicitly voted against replacing the 8th Amendment with another clause expressly dealing with abortion or with the balance to be struck between the rights of the pregnant person and the foetus they are carrying. They recommended a different kind of replacement. Yesterday was an opportunity to clarify why the Assembly had departed from the clear and readily-comprehensible legal and political demand articulated by the Repeal campaign, and to discuss the substance of what they had proposed instead.

The Report of the Citizens? Assembly is ambiguous on this point. It explains that the Citizens were concerned that Repeal simpliciter would generate an unacceptable measure of constitutional uncertainty, around the rights of ?the unborn? in particular. Brian Murray SC, in a perhaps uniquely influential presentation to the Assembly, had set out three possible consequences of Repeal. A future Supreme Court, dealing with a challenge to post-repeal abortion legislation could come to one of 3 broad positions:

  1. The Oireachtas would have total freedom to legislate on abortion as it chooses.
  2. The Oireachtas would be constrained in some way by the implied rights of the unborn, which pre-existed the passage of the 8th Amendment, and which would survive repeal.[1]
  3. The Oireachtas would be constrained in some way by the implied rights of the pregnant person (not only to life, but to bodily integrity, privacy, freedom of conscience and so on) which pre-existed the passage of the 8th Amendment, and which would survive repeal.[2]

In Questions and Answers later, Brian Murray confirmed that he thought that Option 1 was the most likely outcome of repeal. In view of the deference which the courts habitually show to the legislature, especially on ?contested moral issues?, this was sound advice. However, the Assembly process did not stop at ?most likely?. Yesterday, Laffoy J confirmed that, in voting for Replace, the Assembly effectively voted to copper-fasten Option 1 as the only possible outcome of removing the 8th Amendment. They were concerned that the consequences for future abortion legislation of Options 2 and 3 (which could be understood as reverting to the pre-1983 position) were too unpredictable. It was not possible to say with precision which constraints the implied rights of the woman and the unborn might place on legislation.

Neither Option 2 nor Option 3, in principle, precludes more liberal abortion legislation, because protection of foetal life, whatever form it takes in the constitution after repeal, will not be absolute. In addition, as is hinted at in Brian Murray?s paper, Options 2 and 3 are not really separate options. A Supreme Court would not have to choose between either the rights of the unborn or those of the mother. These rights should be read harmoniously, and ideally relationally, together. The Supreme Court (and indeed, every other body charged with interpreting the Constitution, including the Oireachtas itself) would have to decide on the appropriate balance to strike between them. Courts in Portugal, Germany, Colombia, Canada and the United States have all engaged in similar balancing acts. It is not possible, of course, to say with precision how the Irish Supreme Court would evaluate abortion legislation under Option 2, Option 3, or some combination of the two. We don?t yet know what post-repeal abortion legislation would say. We don?t yet know who, if anyone, would bring the case to challenge it, or whether it would be examined in an Article 26 reference. So we don?t know what fact pattern the Court would have before it. However, that level of uncertainty is quite ordinary in a constitutional context. The difficulty it creates has been over-stated. For the purposes of legislative reform, we can still make judgment calls about likely outcomes, based on prevailing jurisprudence, precedent and working knowledge of judicial reasoning and conventions. It would have been possible for the Assembly?s experts to give the members time to think about what possible ?balances of rights? look like, and to establish the sort of working tolerance of uncertainty that characterises the working lives of constitutional lawyers and the judiciary. However, at no stage was the Assembly given detailed information on how courts in other jurisdictions have engaged in such ?balancing acts?, or given the opportunity to apply the outlines of a post-repeal constitution to real-life problems or case studies. No such steps were taken to empower the Assembly by grounding abstract constitutional questions in concrete cases. All of these questions were black-boxed, and the black box labelled ?Legal Uncertainty?.

It is worth pointing out at this stage that Options 2 and 3 can be read as returns to the pre-1983 position (although we could expect, of course, that a Supreme Court deciding a case in 2018 would take account of the enormous social changes that have taken place in Ireland since 1983, and interpret and balance the competing constitutional rights accordingly.) Options 2 and 3, or some combination thereof, represent the post-McGee constitutional position which PLAC, William Binchy and other supporters of the 8th sought to de-commission when they agitated for constitutional reform in 1983. In 1983, some combination of Options 2 and 3 was the anti-amendment, pro-choice status quo. Of course, in seeking to close off Options 2 and 3, the Assembly was not aligning itself with those movements. Rather, as we can deduce from its later, liberal, legislative recommendations, the Assembly wanted to preserve space for pro-choice law-making in line with European norms. Replace is intended to defend that space in ways that, as the majority of Assembly members saw it, Repeal could not.

Yesterday Ms Justice Laffoy was asked five times, in various ways, to justify the recommendation to Replace rather than Repeal, and to explain what additional advantages Replace might confer on our constitutional structures. Was Replace simply, as Ailbhe Smyth has observed, ?the Irish for Repeal?: a replacement which removed the 8th Amendment and confirmed the Oireachtas? existing ordinary power to pass legislation which attracts a presumption of constitutionality? Or did Replace promise another level of security? The Assembly report, rather confusingly, suggested that replace would confer ?exclusive? authority on the Oireachtas to legislate for abortion, and to exert ?total control? over its regulation. Similar language was used during the Assembly proceedings to reassure members of the Assembly who were uncertain about what they had voted for. ?Exclusive? and ?total? might have suggested that Replace would somehow (in an unprecedented move) immunize any new abortion legislation from constitutional challenge in the courts (perhaps a fine outcome if you ignore the potential for unintended consequences and imagine that the Oireachtas will pass workable legislation?but a less enticing one if you imagine that it will produce something along the lines of the PLDPA 2013, replete with opportunities for exposing pregnant people to inhuman and degrading treatment).[3] Yesterday Ms Justice Laffoy confirmed that the Assembly in voting Replace was not suggesting that the constitution should be amended to exclude the courts from law-making around abortion. The rights of pregnant people seeking to terminate a pregnancy should not be cast out of the sphere of constitutional interpretation.

So what does Replace do to achieve additional certainty? Ms Justice Laffoy was asked five times. Besides saying that it was important that the Oireachtas do its utmost to create legislation which would pass constitutional muster and not be struck down within ?weeks?, she could not offer further clarity. She encouraged the Committee to get legal advice on the issue, and expressed her hope that their deliberations would confer ‘legal certainty’ on the abortion problem. I am not suggesting that the Assembly?s role was to draft a replacement for the 8th Amendment, but at the very least its Chair should have been able to explain what the constitutional amendment it proposed means in broad constitutional terms. At the end of yesterday?s questioning, it seemed clear that there was no material legal difference between Replace and Repeal, and no justification for adding new text to the constitution. It may be, certainly, that additional text in the constitution re-affirming the Oireachtas’ ordinary legislative power could help to block any judicial attempt to strike down new legislation, but it is hard to quantify the strategic value of that additional text over and above simple repeal. It is also telling that this form of Replace was offered to the Assembly – Brian Murray also suggested a possible substantive amendment removing the right to life of the unborn from the Constitution.Time could have been given to pro-choice substantive amendments, but instead, consistent with the Assembly’s official aspiration to neutrality, a technical substitute was chosen.

Now, we can read Replace differently, not as a message from the Assembly to the courts, but as a message from the Assembly to the Oireachtas. Arguably one of the chief chilling influences on abortion law reform in Ireland has been governments?, and successive AGs?, own interpretations of the constitution ? we have seen this most clearly in the Oireachtas? repeated refusal to legislate to open up access to abortion in cases of fatal foetal abnormality. The Assembly wanted to send a clear message to the Oireachtas that it should not seek to hide behind restrictive constitutional interpretation; using it as an excuse to reject passing legislation along the lines the Assembly had recommended. But there is no constitutional formula that can compel the Oireachtas to legislate in any particular way. Abortion law reform is now, as always, at the Oireachtas? door, and technocratic and alienating discussion of ?legal certainty? and silver bullet constitutional devices, however entertaining it is for constitutional scholars, only serves to distract from that political issue.

I think Replace – a white elephant with magical affective powers but no particular legal contribution to make – is a symptom of a broader deficiency in Irish legal discourse around abortion. ?Legal certainty? has become a motivating idea in Irish abortion law reform because it neatly combines a framing of women?s bodies as uniquely chaotic, with a promise that the right formula of words can bring that chaos under control. In this sense, it is no accident that a judge was considered the ?appropriate woman? to lead ?us? through the abortion law reform process. We have relied on her, and on other judges ? notably Yvonne Murphy and Maureen Harding-Clarke ? to bring ?closure? to other disputes around women?s bodies in historical cases of abuse and bodily harm. It may be, in the end, that the primary function of Replace was to provide symbolic closure, and in particular, to suggest a level of careful contemplation of constitutional technicalities which distinguishes the ‘reasoned’, balanced, ‘informed’ and ‘civil’ deliberations of the Assembly from stereotypes of the pro-choice movement.

For the Assembly members, ?legal certainty? is a pro-choice idea ? a brake on the Oireachtas? historical and embedded cowardice. However, their Replace proposal is too vulnerable to an impossible politics of legal certainty. It is at risk of co-option ? of becoming, as it did during the PLDPA debates, a proxy for more conservative desires. When a TD says ?legal certainty? he may be expressing solidarity with doctors who profess themselves to be afraid of criminalisation. He may be expressing a weary desire to ?future proof? the constitution so that he will never to have to talk about abortion again between now and retirement. He may be expressing a refusal to ?trust women?; a horror of ?abortion on demand?. If these inarticulate desires, gathered under the rubric of ?legal certainty? become the golden thread connecting the Committee?s constitutional and legislative discussions then the Oireachtas will struggle to produce decent, workable legislation. Instead, it must do as the Assembly?s hard-working and sincere members tried to do despite the shortcomings of its process; to come down out of the realm of constitutional abstraction and think about ?legal certainty? as concomitant with legislative freedom and responsibility. Unlike the Assembly, the Oireachtas Committee is willing to hear testimony from expert reproductive rights lawyers. There is finally space to think about ?legal certainty? as a feminist value; one affirming pregnant people?s rights to access abortion and other medical treatment in pregnancy in a transparent, secure manner, using processes supportive of their decisional autonomy. There is a chance to avoid subjecting pregnant people to the sort of opaque, incoherent and unsettling governing legislation we passed last time out. We can only hope the Oireachtas is ready to take it.

——

[1] No consideration was given to the locus standii of the unborn, which presents a real danger to liberal abortion legislation.

[2] This option could, of course, have leant persuasive, if not determinative weight, if the 8th were replaced with a positive right to self-determination in pregnancy. This possibility was not discussed with Assembly members. Instead discussion of bodily autonomy was relegated to the Assembly report?s ancillary recommendations.

[3] We could find an analogy for this sort of effort in the failed Twenty-Fifth Amendment to the Constitution in 2002, which would have enshrined abortion legislation in the Constitution and made it impossible to change without a new referendum ? indeed Ms. Justice Laffoy mentioned this briefly yesterday.

admin - Sat Jul 29, 2017 18:49
We are pleased to welcome this guest post from Aisling McMahon and Brid Ni Ghrainne. Abortion is only permitted in Ireland when the life of the mother is in danger, making the Irish abortion framework one of the most restrictive in the world. This week, the Committee Against Torture questioned Ireland about its lack of progress […]

We are pleased to welcome this guest post from Aisling McMahon and Brid Ni Ghrainne.

Abortion is only permitted in Ireland when the life of the mother is in danger, making the Irish abortion framework one of the most restrictive in the world. This week, the Committee Against Torture questioned Ireland about its lack of progress in reforming Irish abortion law[1] and stated that it must explain its human rights obligations to the Irish public before any referendum on abortion.[2] This comes as little surprise as the Irish framework has previously been criticised extensively by four other international human rights committees.[3] The Human Rights Committee has twice found ? in Mellet v Ireland[4] and Whelan v Ireland[5] ? that Ireland violated Art 7 (right against torture, inhumane or degrading treatment), Art 17 (right to privacy) and Art 26 (right to non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR) for not providing access to abortions to women whose pregnancies suffered fatal foetal abnormalities. The Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have also urged Ireland to change its restrictive abortion framework.

However, no changes have yet occurred. Instead, in response to the decision in Mellet v Ireland the then-Taoiseach Enda Kenny dismissed the Human Rights Committees? views as not being ?binding? and ?not like the European court?.[6] This exemplifies the confusion that exists regarding Ireland?s international law obligations relating to access to abortion. In response to these recent developments, this post considers: (1) why Ireland should adhere to the views of the respective Committees, and (2) how Ireland can bring its laws into conformity with international law.

Ireland should adhere to the views of the Committees.

The views of the Committees should not be ignored for a variety of reasons. First, although the respective Committees cannot issue binding judgments, they are made up of a group of experts in human rights law and are mandated to provide authoritative interpretations of the respective treaties. Under the international law rule of pacta sunt servanda,[7] Ireland must comply with treaties that it is a party to in good faith.

Second, Article 27 of the Vienna Convention on the Law of Treaties provides that: ?A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty?.[8] This position was reiterated by the Human Rights Committee in the decisions of Mellet and Whelan, and it promptly dismissed the constitutional protection of the life of the unborn as justifying Ireland?s treatment of the respective women.[9]

Third, a state?s international reputation is undermined by non-compliance with international treaties. For example, a State Party?s failure to implement the Human Rights Committee?s views: ?becomes a matter of public record through the publication of the Committee?s decisions inter alia in its annual reports to the General Assembly of the United Nations.?[10] Relatedly, ignoring the views of such Committees, could lead to subsequent complaints being brought and subsequent violations being found, which increases reputational damage to the State.

Ireland?s International Law Obligations

The various Committees have called on Ireland to ensure access to abortion in three specific circumstances: (i) in cases of fatal foetal abnormality,[11] (ii) where pregnancy is the result of rape or incest[12], and (iii) where the woman?s health or life is in danger.[13] In respect of the latter circumstance, Ireland?s present laws do not provide for a right to an abortion where the health as opposed to the life of the mother is at risk and this has been raised as a concern. It should be noted that in highlighting these categories, we are not arguing that these are the only circumstances where abortion should be provided, rather we are arguing that these are the minimum circumstances which have been specified by the relevant Committees where a right to an abortion arises under international law. States have discretion to provide abortion in broader circumstances, and many states already do.

Various committees have also recommended that abortion be decriminalised in all circumstances in Ireland.[14] Finally, the Committees have requested Ireland to clarify the information which can be provided in Ireland on abortion services abroad. Individuals seeking terminations abroad are often faced with a dearth of information on such services as health professionals cannot ?advocate or promote? terminations under the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995.

Until Ireland brings its laws in line with its international obligations it will continue to receive criticism from the international community. It is crucial that the Irish public are made aware of these international law obligations so that they can exercise their right to vote in an informed manner when a referendum on abortion finally occurs.

[1] See Irish Family Planning Association, ?United Nations Torture Committee poses tough questions on Ireland?s abortion laws? (Press Release, 27th July, 2017) https://www.ifpa.ie/UNCAT-2017-2?utm_source=rss&utm_medium=rss

[2] See, Ellen Coyne, ?UN challenges Ireland on human rights before abortion vote? (28th July, 2017) The Times (Irish Edition) p. 1.

[3] This includes, the Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC), and the Committee on Economic, Social and Cultural Rights (CESCR).

[4] ICCPR Human Rights Committee, Amanda Mellet v Ireland, 9 June 2016, UN Doc CCPR/C/116/D/2324/2013.

[5] ICCPR Human Rights Committee, Siobhán Whelan v Ireland, 12 June 2017, UN Doc CCPR/C/119/D/2425/2014.

[6] Pat Leahy, ?UN abortion ruling is ?not binding?, Enda Kenny says,? (15 June 2016) Irish Times available at http://www.irishtimes.com/news/politics/un-abortion-ruling-is-not-binding-end...

[7] Article 26, 1969 Vienna Convention on the Law of Treaties.

[8] See discussion in Síobhán Mullally, ?Mellet v Ireland: Legal Status of the UN Human Rights Committee?s ?Views? CCJHR Blog (16th June, 2016) available at http://blogs.ucc.ie/wordpress/ccjhr/2016/06/16/mellet-v-ireland-legal-status-...

[9] See General Comment No 33, The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights CCPR/C/GC/33.

[10] Para 17, General Comment 33.

[11] This includes: Human Rights Committee views in Mellet v Ireland, Whelan v Ireland. See also, Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43 which recommended that terminations be legalised in cases of severe as opposed to fatal impairment of the foetus;

[12] This includes, the Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9. See also, the Committee on the Elimination of Discrimination against Women, Concluding Observations on the 7th and 8th periodic reports of Peru CEDAW/C/PER/CO/7-8, 24 July 2014.

[13] This includes concerns raised by the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014); Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3.

[14] This includes: Committee on the Rights of the Child, Concluding observations on the combined third

and fourth periodic reports of Ireland CRC/C/IRL/CO/3-4; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. The Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3 and the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) which expressed concern over the criminalisation of abortion.

Fiona de Londras - Thu Jul 20, 2017 10:54
The Irish Yearbook of International Law is now accepting submissions for the next Volume (Volume XIII (2018)). Edited by Professor Siobhán Mullaly (incoming at NUI Galway) and Professor Fiona de Londras (University of Birmingham) and published by Hart Publishing, the Yearbook is internationally peer reviewed and publishes longer and shorter articles on all areas of international law. The Irish Yearbook […]

The Irish Yearbook of International Law is now accepting submissions for the next Volume (Volume XIII (2018)). Edited by Professor Siobhán Mullaly (incoming at NUI Galway) and Professor Fiona de Londras (University of Birmingham) and published by Hart Publishing, the Yearbook is internationally peer reviewed and publishes longer and shorter articles on all areas of international law. The Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer pieces will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.

Authors are asked to conform to the Hart Publishing house style. Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Siobhán Mullally (siobhan.mullally@nuigalway.ie) and Fiona de Londras(f.delondras@bham.ac.uk) by October 31 2017. Initial enquiries can be directed to either or both Editors.

People wishing to review a particular title in the Yearbook?s book review section are also invited to contact the book review editor Dr. Dug Cubie, d.cubie@ucc.ie (University College Cork.)

Liam Thornton - Mon Jul 17, 2017 11:31
From August 2017, asylum seekers in Ireland will receive increases to the direct provision allowance payments. For adults, this is the first increase to direct provision allowance in 17 years. For children, this is the second increase in direct provision allowance since 2000. Adult asylum seekers and child asylum seekers will now receive ?21.60 per […]

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

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

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

So why the very small monetary increases announced in June 2017?

On 24 May 2017, Tanya Ward, CEO of the Children’s Rights Alliance wrote to the Minister for Social Protection (now Taoiseach), Dr Leo Varadkar (see letter here [2]).

It may be the case (but we cannot say this in any way definitively), that discussions took place on increasing direct provision allowance among senior officials in the Department of Social Protection and Department of Justice between 08 June 2017 and 12 June 2017 (see schedule of records here [3]). While I know records exist where increases to direct provision allowance were discussed, these records have not been released as they relate to (a) meetings of government & (b) deliberations of public bodies.

The Memorandum for Government was prepared in draft on 09 June 2017 by the Department of Social Protection, with a number of  amendments possibly made by the Department of Justice (see schedule of records here [4]).

By 10 June 2017 (see here [5]) a draft press release was prepared by officials at the Department of Social Protection. The press release was discussed and edited, with the most ‘interesting’ edits to the press release coming on 13 June 2017. As initially drafted the press release (see here [6]) in its ‘Further Information on Direct Provision payments’ section stated (my emphasis):

A Working Group established by the Minister for Justice and Equality and whose report was published in 2015, identified children as a particularly vulnerable group within the Direct Provision System.

On the proposal of the Department of Justice, this was changed on 13 June 2017 (see here [7]) to read:

A Working Group established by the Minister for Justice and Equality and whose report was published in 2015, identified children as a group of particular focus within the Direct Provision System.

You can access the full schedule of FOI records released to me here.

Overall, these records provide a clear explanation as to why the children’s direct provision allowance was increased, and the reason for the very small ?6 increase, although still no explanation is forthcoming as to why the adult direct provision allowance payment was increased.

The claim that the Department of Social Protection administers the direct provision allowance on behalf of the Department of Justice has been a long running claim. For those of us who have explored and sought to challenge ‘legal’ aspects of the system of direct provision, these series of documents are important. It provides clear evidence of policy on increases for direct provision allowance not being led by the Department of Justice, but from the Department of Social Protection.  Given the administrative nature of the direct provision allowance payment (as found in the direct provision High Court decision), this doesn’t mean that this has always or will always be the case. The direct provision High Court decision has solidified the ad hoc administrative nature of the direct provision allowance payment. This long running issue surrounding which Department was actually responsible for direct provision allowance now appears to be settled- it is the Department of Social Protection. However, it would be remiss not to note the level of detailed discussion that also took place with the Department of Justice, however unfortunately, access to these discussions were refused. The reason for this refusal is that the increases in direct provision allowance are only “partially” implementing the McMahon Report recommendations, and the McMahon recommendations remain “open for consideration”.  Therefore, it remains to be seen whether further increases to direct provision allowance may be forthcoming.

 

 

admin - Tue Jun 13, 2017 17:08
Mairead Enright (@maireadenright) Yesterday, the Child Care Law Reporting Project published a summary of a District Court case from 2016. A  suicidal teenager’s GP referred her to a consultant psychiatrist. She was pregnant and did not want to be. Under s. 9 of the Protection of Life During Pregnancy Act (PLDPA) the entitlement to access […]

Mairead Enright (@maireadenright)

Yesterday, the Child Care Law Reporting Project published a summary of a District Court case from 2016. A  suicidal teenager’s GP referred her to a consultant psychiatrist. She was pregnant and did not want to be. Under s. 9 of the Protection of Life During Pregnancy Act (PLDPA) the entitlement to access a life-saving abortion must be certified by three doctors (two psychiatrists, at least one of whom has experience in treating pregnant women, and an obstetrician). Their job is to assess whether there is a real and substantial risk to the woman?s life from suicide, which risk can only be averted by terminating the pregnancy. This statutory test, restrictive as it is, mirrors the 8th Amendment as interpreted in the X case – the sources of constitutional law which provide that abortion is only available in Ireland where necessary to save the pregnant woman?s life.

This girl apparently saw only one psychiatrist, who decided that, although she was suicidal and at risk of self-harm, an abortion was not ?the solution for all of [her] problems at this stage?. On his evidence, involuntary admission proceedings were begun under s. 25 of the Mental Health Act 2001 (MHA). The Health Service Executive (HSE) applied to the District Court to have the girl detained on the grounds that she was suffering from a ?mental disorder? (which meant that she was at risk of causing ‘immediate and serious harm to herself or other persons?) and required treatment which she was unlikely to receive unless such an order was made.The order was granted on the consultant psychiatrist?s evidence, and the child was detained in a psychiatric facility. We do not know what treatment it was proposed to subject her to. It was not suggested that any question arose around her capacity to consent.

At the time of making the detention order, the District Court judge appointed a guardian ad litem to represent the best interests of the child. The guardian employed another consultant psychiatrist to assess the detained girl. This second psychiatrist found that the girl was not (or was no longer) suicidal. By this point, the treating psychiatrist in the institution where the girl was detained also agreed that the initial risk of self-harm had abated. The guardian ad litem therefore applied for discharge of the detention order on the grounds that the girl was no longer suffering from a ?mental disorder? within the meaning of the 2001 Act, and so there were no grounds for her detention.

It is not known what happened to this girl after her release; whether she was facilitated to travel to seek an abortion to preserve her mental health or whether she was compelled to continue the pregnancy in Ireland. Suppose for a moment that her pregnancy was advanced, and that she was subsequently unable to travel – that she was effectively denied an abortion.  Later in the month, the Minister for Health will report on the number of abortions carried out under the PLDPA, as required by s. 15 of the Act. Refusals will not be reported, which makes it difficult to spot oppressive patterns of obstruction. This case demonstrates that the PLDPA, as it is applied in practice, is incapable of vindicating vulnerable women?s rights. There are three key points:

(i) Was the PLDPA applied here? The prominence of one psychiatrist in the report does not tell us anything by itself. S.9 of the Act says that in order to access an abortion, a woman must have been examined by 2 psychiatrists and an obstetrician; it refers to ?joint certification?. However, the Department of Health Guidance on the operation of the Act places a lot of power in the hands of the first psychiatrist. S/he may assess the patient alone, without discussion with other doctors. If s/he decides that the statutory test is not fulfilled, the pregnant person may accept that clinical recommendation. Even so, the first psychiatrist must notify the woman of the refusal in writing, of her formal right to review under s.10 of the Act and of her right to a second opinion. It not known what was done to help this, apparently very confused, child avail of those statutory rights (to advocate for her, to fill out paperwork, to clarify her choices and their consequences) once she received a first refusal. It is also important to note that this staged chain of assessment is not set out on the face of the Act – it is the Department of Health?s interpretation. It is not obvious that it is the correct interpretation of the Act: for instance it is strange that a woman?s constitutional right to a life-saving abortion can effectively be overridden by one doctor, but the right to access an abortion cannot be confirmed without the intervention of three. 

(ii) How should the PLDPA interact with the MHA? During the PLDPA debates, the Minister for Health assured the Oireachtas that a woman who did not suffer from a mental disorder within the meaning of the MHA would not be detained merely for requesting an abortion. The Department of Health must guide against any such slippage. The Department of Health Guidance on the Act does not help here. For the avoidance of doubt the guidance should clarify that the PLDPA should be considered first where possible. Even where circumstances require a pregnant person?s temporary detention, the PLDPA process should be commenced as soon as practicable. To take any other position might allow the MHA to be used to bypass the PLDPA. The MHA should not be seen as an alternative to the PLDPA even where the assessing psychiatrist guesses that a patient would not pass the test under s.9. First, if it were, the temptation to allow the MHA to become a conscientious objector?s charter in suicide cases clearly arises. The HSE should ensure that conscientious objection is clearly exercised under s. 17 of the PLDPA, rather than concealed. Second, the Acts should not be treated as triggers for one another. The statutes have different purposes – the MHA test determines the legality of detention for the purpose of treatment, while the PLDPA determines the legality of the treatment itself; the approach to one should not pre-determine the approach to the other. Refusal under the PLDPA should not automatically lead to detention. If, however, the phrase ?immediate and serious harm…to other persons? in the MHA is being read – by psychiatrists or by the courts at the urging of foetus? own guardians ad litem – to include the unborn, the possibility of slippage between the Acts becomes starkly apparent. The government must address this interpretation.

I am not, for a moment, defending the PLDPA process. Under the PLDPA a suicidal woman may be assessed by 6 or more doctors before being granted an abortion. Even when applied properly the PLDPA assessment process may be gruelling. But it is equally indefensible to avoid the process altogether when a woman has requested it, and in so doing to strip her of all rights-protecting procedural safeguards.

(iii) Finally, we might ask when the Department of Health will provide full guidance on what doctors should do when a woman is refused access to an abortion. We know, for example, from the earlier case of Ms. Y, that such a woman may legally be subjected to treatment for the purposes of extending her pregnancy to viability, in order to facilitate later live delivery.  (Ms. Y was threatened with detention). Was it proposed to detain this child for that purpose? The law does not tell doctors how far they may go to preserve a pregnancy if it is determined that a pregnant person is not entitled to an abortion under the PLDPA. (Oddly, lack of ?legal certainty? in this respect has not become the same political football as has the same uncertainty around the right to access an abortion). The Department of Health Guidance reminds doctors that, under the Act, they must act ?as far as practicable? to preserve unborn life (including inducing labour or delivering early by C-section) without compromising the life (but not the other rights) of the pregnant woman.This girl was detained (apparently to her great shock) and in the process was prevented from travelling. Were appropriate safeguards in place?

This is a grey area, where doctors have been left largely free to exercise their own discretion, and where the state has failed to elaborate on any human-rights based limits. However, the limits are there. Today, for example, we got word of the UN Human Rights Committee?s decision in Whelan v Ireland. The principles are essentially those in Mellet v Ireland; that the Irish criminalisation of abortion, the attendant requirement to travel for non-life-saving abortions, and the associated restriction of abortion information, violate the human rights of women whose foetuses have been diagnosed with fatal foetal abnormality. Whelan is about a case outside the PLDPA regime, whereas this girl?s case was firmly within it. But Whelan, like Mellet, provides means to critique refusals under the PLDPA too. In particular, the defeated arguments advanced by the state in Whelan map how legal attitudes must be altered. First, in Whelan the state attempted to defend drastic and distressing infringements on women?s rights; prioritising unborn life over women?s autonomy. Whelan confirms that, under the ICCPR, the state does not have the power to arbitrarily restrict women?s rights in a broadly drawn attempt to protect unborn life.

Second, Whelan confirms the state does not fulfil its human rights obligations merely by clarifying the law of abortion on the face of statutes, without supporting women to navigate the structures governing that lawful abortion. ?Legal certainty?, for this government means words on the statute books, not the effective empowerment of women or the alleviation of their distress. This must change. It must change for abortions under the PLDPA as well as for abortions accessed in line with the right to travel.  

Third, women?s rights are violated through omission to adequately support them as much as by the culpable acts of individual state agents. At the same time, the state must restrict opportunities for individual obstructionist interpretations of the abortion laws, as discussed above. This must be done through the provision of proper guidance and training on the implementation of abortion legislation; whether the PLDPA or its inevitable successors.

Finally, it is no longer enough for the state to argue as it did in Whelan  (and A, B and C v. Ireland, D v. Ireland and Mellet)  that women can vindicate their rights (and extend the existing constitutional law) by bringing cases to the High Court. It is for the government to create genuinely workable law – this function cannot be delegated to women at the most vulnerable time of their lives.

 

admin - Thu Jun 01, 2017 16:59
The human rights movement has done a great deal of good in improving the lives of people around the globe, however, as evidenced by recent political upheavals, its embodiment as a contemporary ?ethics of progress? is increasingly being questioned. Events such as Brexit point to the role played by cultural and political factors in the […]

The human rights movement has done a great deal of good in improving the lives of people around the globe, however, as evidenced by recent political upheavals, its embodiment as a contemporary ?ethics of progress? is increasingly being questioned. Events such as Brexit point to the role played by cultural and political factors in the realisation of human rights and raise the issue of the role of the social sciences in helping to ensure human rights as a lived reality.

In light of this, the Social Sciences Committee of the Royal Irish Academy is organising a conference on ?Human Rights and the Social Sciences? which will take place in Academy House in Dublin on Thursday 22nd June 2017 (10am-4.15pm).

The idea of the conference is to build bridges between the knowledge domains of the social sciences and those of human rights. Specifically, the aim is to explore the potential of the social sciences to contribute to the critical study of power and inequality in societies where a gulf exists between human rights ideals and lived experiences. To this end, the colloquium will therefore address (i) the differences of approach between the fields of human rights and the social sciences (such as the social scientific emphasis on realism and power) and (ii) their mutually complementary roles (including the role of the social sciences as a ?critical friend?).

The keynote address will be delivered by Prof. Conor Gearty, LSE who will speak on the topic of ‘Is the era of human rights drawing to a close?’. Other speakers will address issues as diverse as human rights and security, the rights of refugees, and economic and social rights.

The event will attract 4 CPD points and certificates of attendance will be available. Full programme and registration are available here . (https://www.ria.ie/human-rights-culture-and-critique).?utm_source=rss&utm_me...

Liam Thornton - Tue May 30, 2017 15:06
By virtue of section 9(4) of the Refugee Act 1996, asylum seekers are absolutely prohibited from seeking or entering employment in Ireland. This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015.  This provides that an asylum seeker, shall??. (b) not seek, enter or be in employment or engage for […]

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

shall??.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. What Next?

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

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

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

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

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

Image credit: Michael Foley

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