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Dublin Opinion
Life should be full of strangeness, like a rich painting

offsite link THE DEEPER GAME BEHIND #IRISHWATER 10:26 Fri Dec 05, 2014

offsite link Bonds, Balance Sheets and Irish Water - Limerick, Dublin and Galway, Dec 2014 10:08 Tue Dec 02, 2014

offsite link Global Finance, Money and Power - Lecture 11: Alternatives 08:55 Thu Nov 27, 2014

offsite link THE WORLD COULD SORT OUT EBOLA FOR THE PRICE OF ONE BONO 23:07 Tue Nov 18, 2014

offsite link WELL THAT?S IRISH WATER FINALLY SORTED OUT 23:04 Tue Nov 18, 2014

Dublin Opinion >>

Irish Left Review
Joined up thinking for the Irish Left

offsite link Right2Water and Podemos Thu Dec 18, 2014 20:47 | Richard

offsite link The Disillusioned Citizen Wed Dec 17, 2014 14:15 | Kathy

offsite link The Power of Paint Tue Dec 16, 2014 10:33 | Seán Sheehan

offsite link If this is a recovery why are people getting poorer? Mon Dec 15, 2014 17:36 | Michael Burke

offsite link Working Hard to Maintain the Status Quo Mon Dec 15, 2014 15:51 | Andy Storey

Irish Left Review >>

NAMA Wine Lake

offsite link Farewell from NWL Sun May 19, 2013 14:00 | namawinelake

offsite link Happy 70th Birthday, Michael Sun May 19, 2013 14:00 | namawinelake

offsite link Of the Week? Sat May 18, 2013 00:02 | namawinelake

offsite link Noonan denies IBRC legal fees loan approval to Paddy McKillen was in breach of E... Fri May 17, 2013 14:23 | namawinelake

offsite link Gayle Killilea Dunne asks to be added as notice party in Sean Dunne?s bankruptcy Fri May 17, 2013 12:30 | namawinelake

NAMA Wine Lake >>

Anna Marie Brennan - Thu Dec 18, 2014 15:19
A call for papers has been issued for the International Criminal Justice Stream at the Socio-Legal Studies Association Annual Conference which takes place at the University of Warwick from 31 March- 2 April 2015. Submissions are invited on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would also(...)

A call for papers has been issued for the International Criminal Justice Stream at the Socio-Legal Studies Association Annual Conference which takes place at the University of Warwick from 31 March- 2 April 2015. Submissions are invited on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would also be welcomed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Abstracts may only be submitted via the Easy Chair system, must be no longer than 300 words, include your title, name and institutional affiliation and your email address for correspondence. Successful papers will be published in a symposium; details of which will be available shortly. For an informal discussion please email the convenor, Anna Marie Brennan at Anna.Marie.Brennan@liverpool.ac.uk. The deadline for the submissions is Monday 19 January 2015.

 

GuestPost - Thu Dec 18, 2014 06:00
On the occasion of International Migrants Day, and the 24th anniversary of the adoption of the UN Migrant Workers Convention, we are delighted to welcome this guest post by Áine Travers and Emer Groarke, members of Migrants Matter, an international advocacy campaign that is calling on EU Member States to ratify the UN Migrant Workers(...)

migrants matterOn the occasion of International Migrants Day, and the 24th anniversary of the adoption of the UN Migrant Workers Convention, we are delighted to welcome this guest post by Áine Travers and Emer Groarke, members of Migrants Matter, an international advocacy campaign that is calling on EU Member States to ratify the UN Migrant Workers Convention.

 

A little over a year ago, 366 lives were lost off the coast of the Italian island of Lampedusa. Adjectives such as ?tragic? and ?devastating? ring hollow as the body count continues to rise, and the EU fails to act. But inaction is not the only problem. Many EU Member States, like the UK, are moving in the opposite direction: tightening their borders, turning their backs. In Ireland, our Government continues to allow private enterprises to profit from the marshalling of people into a system of reception centres that our Minister for Equality has said would be unbearable to spend even one night in.

The European Union is founded on the principle of free movement. It views itself as a world leader on human rights and the rule of law. Yet the Union we live in today has been allowed to be turned into a fortress; it is built on human rights, but only the rights of those who happen to be born inside its borders.

Migrants Matter is a network of activists across EU Member States that has spent its first year advocating at EU level to put the UN Migrant Workers? Convention (ICMW) on the European political agenda. Migrants Matter set out to push back against prevailing national sentiments that the EU can?t and won?t act, that Member States have no obligation. The campaign has set out to expose the contradictory reality facing migrants in the EU: needed but not wanted, propping up economies but invisible, forced to work in exploitative conditions or prohibited from working at all.

Migrants are part of the fabric and foundations of the EU. Without them, the European labour force and community would face crisis. Migrants Matter believes that EU Member States? ratification of the ICMW is a starting point for meaningful action to respect the rights of migrant workers. The Convention provides an international framework and explicit codification of their existing human rights. Although the Convention has been in force since 2003, it has been ratified by only 47 States to date, and not one of these is an EU country. The general trend is non-ratification amongst migrant receiving countries including EU Member States, the United States and Australia.

Migrants Matter works to expose discrepancies like these and to challenge political cowardice surrounding the issue. We believe in alternatives, in respecting the value of migrant workers economically, and recognising the integral worth and dignity of all people, documented or not. To do this, we have coordinated a colourful mixture of events and advocacy over the past 12 months targeting actors at varying strata of EU policy making.

At the high-profile European Development Days Conference that took place in Brussels in November 2013, Migrants Matter performed a flash-mob demonstration calling on EU Member States to ratify the Convention. On International Migrants? Day last year, an event was organised on the streets of Venice, where masked activists walked silently through the Venetian streets before lining up along the landmark Accademia Bridge with signs spelling out another call to ratify. In May 2014, activists gathered in Brussels to run through the ?European Capital? in a half-marathon to raise awareness of the issues and the campaign. Our social media drive ?100 Pictures? called on followers who have experienced migration to photograph themselves in their host countries. These were compiled in a video collage of faces and locations, Europeans and non-Europeans, to underline migration as a universal experience of universal importance. This year, we are asking people with experiences of migration to share their stories with us with a series of Convention-themed questions circulated via social media.

Migrants Matter has engaged in political lobbying of EU policymakers, developing alliances with MEPs and, in April 2014, posing a Parliamentary Question to the European Commission. Led by the lobbying team, this PQ was presented through Iñaki Irazabalbeitia Fernandez, Spanish MEP from the Greens/European Free Alliance. The question highlighted that the Convention is the only one of the UN’s ten core human rights instruments that has yet to be ratified by the EU Member States. It emphasised that ratification could ensure that fundamental human rights, already recognised by the EU countries, are officially extended to migrants.

The question received a written answer from Ms. Cecilia Malmström, European Commissioner for Home Affairs, who stated that ?[…] the ratification of the UN Convention by EU Member States would require prior authorisation by the EU for those elements that affect EU competences.? The Commissioner continued that a 2010 Commission analysis found that the protection already offered to migrant workers across Member States was sufficient, in many cases even exceeding that offered by the Convention.

Migrants Matter rejects this as an explanation, and asks for further clarification concerning the EU competences that would be affected by ratification, while continuing to question why EU authorisation is not forthcoming. If indeed the required protections are already in place, then ratification would impose no undue burden on governments, but would act as a powerful expression of the EU?s commitment to the protection of migrants? rights.

All of Migrants Matters? activities thus far have been carried out without any funding, sustained only by a little creativity and a lot of conviction. Entering 2015, Migrants Matter is re-structured, has an expanded team of new volunteer activists, and is more determined than ever to fight for better treatment of migrant workers and their families.

For more information see the Migrants Matter blog, contribute to the Migrants Matter Facebook page and follow the Campaign on Twitter. To contact, email migrantsmatter@gmail.com.

 

 

 

GuestPost - Wed Dec 17, 2014 11:24
Caroline Sweeney is a PhD Candidate and Doctoral Fellow at the Irish Centre for Human Rights The Irish Centre for Human Rights at the National University of Ireland Galway is pleased to announce that the annual International Criminal Court Summer School will take place from 15-19 June 2015. The annual International Criminal Court Summer School at(...)

0614_irish_centre_for_human_rights-1

Caroline Sweeney is a PhD Candidate and Doctoral Fellow at the Irish Centre for Human Rights

The Irish Centre for Human Rights at the National University of Ireland Galway is pleased to announce that the annual International Criminal Court Summer School will take place from 15-19 June 2015.

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premiere summer school specializing on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject and by legal professionals working at the International Criminal Court. The summer school is attended by legal professionals, academics, postgraduate students and NGOs. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Participants are also given the opportunity to network with the speakers throughout the week. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, universal jurisdiction, immunities, and the role of victims.

The list of speakers at the 2015 ICC Summer School has yet to be confirmed. The list of speakers at the 2014 ICC Summer School included:

Professor William Schabas – Irish Centre for Human Rights, School of Law, NUI Galway and School of Law, Middlesex University
Mr. Fabricio Guariglia – Appeals Division of the Office of the Prosecutor at the International Criminal Court
Dr. Mohamed M. El Zeidy – Pre-Trial Chamber II at the International Criminal Court
Dr. Rod Rastan – Office of the Prosecutor at the International Criminal Court
Professor Ray Murphy – Irish Centre for Human Rights, School of Law, NUI Galway
Dr. Noelle Higgins – Irish Centre for Human Rights, School of Law, NUI Galway
Dr. Shane Darcy – Irish Centre for Human Rights, NUI Galway
Dr. Nadia Bernaz – School of Law, Middlesex University
Mr. John McManus – Crimes Against Humanity and War Crimes Section, Canadian Department of Justice
Professor Megan A. Fairlie – Florida International University
Dr. Mohamed Badar – Northumbria University, United Kingdom
Professor Donald M. Ferencz – Middlesex University School of Law, London
Dr. Kwadwo Appiagyei Atua – University of Ghana and University of Lincoln

An early bird registration fee of ?400 is available for delegates who register before 31 March 2015, with the fee for registrations after that date being ?450. The registration fee includes all course materials, all lunches and refreshments, a social activity and a closing dinner. A limited number of scholarships are available. Please see the General Information section of our website for further information.

To register and for more information regarding the 2015 ICC Summer School, please visit our website at: http://www.conference.ie/Conferences/index.asp?Conference=405.

Should you have any queries, please email: iccsummerschool@gmail.com.

Máiréad Enright - Tue Dec 16, 2014 09:00
#AbortionPillTrain Film from Whackala on Vimeo. Tomorrow, Clare Daly’s Bill to Repeal the Eighth Amendment will be debated in the Dail. A rally to support the Bill will begin outside the Dail at 7pm. Daly’s Bill is interesting because it proposes replacing the 8th Amendment with a new provision which would provide explicit protection for(...)

#AbortionPillTrain Film from Whackala on Vimeo.

Tomorrow, Clare Daly’s Bill to Repeal the Eighth Amendment will be debated in the Dail. A rally to support the Bill will begin outside the Dail at 7pm. Daly’s Bill is interesting because it proposes replacing the 8th Amendment with a new provision which would provide explicit protection for the constitutional right of bodily integrity. Bodily integrity is, of course, a limited negative right. It is a right of non-interference. Arguably, the constitution would also benefit from the inclusion of a positive right to self-determination, particularly in matters of medical treatment. We could think much harder about how we have failed to vindicate that right in the years since it was enumerated in Ryan v. Attorney General. But, as it stands, the Bill still makes an impressive rhetorical move in a context in which abortion is inevitably ‘constitutionalised’ to some degree. It takes a provision which was has repeatedly been interpreted – by courts, Attorneys General, doctors and public servants – to mean that women’s constitutional rights must be subordinated to the right of the foetus to be born, and replaces it with an explicit commitment to the bodily integrity of born persons.

Clare Daly’s Bill is politically useful because it gestures towards a new approach to the rights of pregnant persons in Ireland. With the 8th gone – whether that is in 2 years or 10 – the entire legal landscape changes. It is not only that it becomes possible to regulate abortion and maternity care differently, but that the primary legal justification for draconian abortion legislation – in particular for criminal legislation – falls away. This distinction – between what is possible and what is required – is very important. It means that the state will now be required – as a matter of constitutional, European and international law – to justify the architecture of interference, coercion and containment which has built up around the abortion issue for decades. The government would need to show that every legal interference with women’s rights to life, health, bodily integrity, conscience and freedom from inhuman and degrading treatment (i) fulfilled some legitimate public aim and (ii) was proportionate to the achievement of that aim. Proportionality is the new watchword here. Unflinching uncaring absolutism is no longer permissible. The burden of proof shifts from women to the state and it shifts hard. If the state wants to recreate some form of protection for ‘unborn life’ it has no constitutional excuse for doing so.

What should new abortion legislation look like after the 8th? Note that I say ‘should’, not ‘could’. If it were up to me, Ireland would adopt legislation something like that of Victoria.  In Victoria, the abortion legislation simply provides that ‘a doctor may perform an abortion on a woman who is not more than 24 weeks pregnant’. After 24 weeks, ‘a doctor may perform an abortion on a woman who is more than 24 weeks pregnant if he or she reasonably believes that the abortion is appropriate in all the circumstances.’ ‘Circumstances’ there includes ‘all relevant medical circumstances, and … the woman?s current and future physical, psychological and social circumstances.’ If I had my way, Irish women could continue to use ‘the abortion pill’ as they do already, but they could get the pills easily, on prescription from their pharmacist, at an accessible price, with access to compassionate medical advice if they needed it and with no taint of legally-grounded stigma. We would not only remove the unworkable criminal prohibition on self-induced abortions – a prohibition which the DPP will not enforce – but we would allow women to deal with their own medical needs safely in their own homes.

I think a law like that is possible in Ireland after the 8th Amendment, and I would devote a great deal of time and energy to arguing for it if I thought it had any hope of attracting political support. But I know it doesn’t, at least in the current party political system. I accept that political distrust of women’s decision-making runs deep. I accept that, in Ireland as in so many other countries, we assume that it is for women to bear the burdens of pregnancy even when these become dark and terrible, and that we think that a woman should only be relieved of those burdens if she really truly deserves it. I know that the Irish approach to abortion law will be a law of prohibition with some exceptions, until we find new kinds of people to make the laws.

In this context, we fall back on legal duty – on the established watchword ‘proportionality’. Proportionality is guaranteed a starring role in post-8th litigation – whether in a post-referendum challenge to the PLDPA2013, in an Article 26 reference of new abortion legislation to the Supreme Court, or in some other forum.  In Attorney General v. X Walsh J. used the word ‘mercy’. ‘Proportionality’ provides women with a little more breathing space than that. It says to the state: ‘watch where you’re standing, not too hard, don’t destroy her’. Proportionality tells the state that in selecting  its exceptions it cannot ride roughshod over women’s rights. And it tells the state that once it has selected its exceptions and it implements its policy of ensuring that only the deserving can access an abortion, those women able to meet the test must be supported in accessing the healthcare they need. That access cannot be neglected or indirectly undermined or outright thwarted, whether in the direct context of accessing abortion,  in the workings of appeals panels, in the provision of public health services or in any of the other myriad sets of norms, practices and regulations into which the 8th has sunk its teeth. If you have a legal right to access an abortion, you must be enabled to access it.

On this reading, we need to ask new questions of Irish abortion law. In the wake of the Ms. Y case, there seemed to be some emerging public agreement that Ireland should pass abortion law to meet the minimum standards required by international human rights law i.e. the law should make some provision for abortion in cases of rape, incest, fatal foetal abnormality and risk to the life or serious risk to the health of the pregnant person. (The Labour Party has been at this position since its Wrynn Report of 2003). But a proportionality analysis requires more than picking the grounds. It requires us to think carefully about how the grounds would be framed in law and about how they would be put into practice. We need to pay attention to:

  • Stigmatising threshold tests for access to abortion: Decriminalisation is important and removing criminal sanctions would open up a range of possibilities for access to abortion. But the official grounds for access to abortion will matter. In a context in which abortion is decriminalised, there is a real danger that law’s stigmatising functions will shift elsewhere. If a ‘rape ground’ is included in a new Irish abortion law, access to abortion must not be made conditional on reporting the rape to the police or other offers of the criminal justice system. It must not be made conditional on some special medical examination. Disclosing the rape must be enough.  If some extra threshold test is required, it is because the law does not trust women and we think that their dishonesty can be exposed by the right experts.  Neither can the law distinguish between grades of sexual assault entitling women to an abortion. Similarly – and this was a debate which dogged the PLDPA – it cannot impose additional burdens on women who are mentally rather than physically ill. To do so is to play, again, into representations of women as deceitful and dangerous. It may be that, if we cannot guarantee that these grounds will be drafted or administered appropriately, it would be better not to have them at all and to make abortion available under more general ‘universally applicable’ health grounds instead. Women cannot be expected to go to court to contest discriminatory administration of the abortion legislation. It must be ‘stigma-proofed’ to begin with.
  • Beyond risk to life: It should be clear by now, following the death of Savita Halappanavar, that the existing ‘risk to life’ ground for access to abortion has been defined too narrowly.  A ‘health ground’ is necessary to cover cases in which. although the woman’s health is clearly very poor and the pregnancy worsens her condition, it cannot be said that her life is yet at risk.  Even with a health ground in situ, the law must avoid reproducing the risk of conservative interpretation in another place. This is a very real risk – even if doctors would no longer run the risk of criminalisation for ‘getting it wrong’. Any health ground should not be drawn so tightly that it is inaccessible to all but those whose life is ‘almost but not quite’ in danger, while other very ill women are left to travel even though their health is clearly compromised by the pregnancy, or their condition interacts with their social and economic circumstances in harmful ways.
  • Live birth: There will, inevitably, be demands for the law to impose a threshold or thresholds – whether time-based or otherwise – after which it will be  impossible to access an abortion. Rigorous scrutiny of existing medical practice is required at this juncture, even though these sorts of provisions will affect only a tiny minority of cases.
    • First, we must consider how the thresholds are defined. ‘Viability’ sounds good,  but what does delivering a baby at 24 weeks’ pregnancy look like?  ‘Fatal’ foetal anomaly has often been used to describe one of the key sorts of context in which abortion is necessary and permissible in the late second trimester or afterwards, but it is a similarly slippery term. We should be cautious about writing a provision into law which ensures that some women who would currently be advised to travel to Liverpool Women’s Hospital  for a termination can receive treatment at home, while others are left in the lurch.
    • Second, we must consider what happens to woman where these thresholds are not met – as for instance where a woman’s pregnancy is considered viable but the pregnancy poses a risk to her life. What does it mean to say that doctors would have an obligation to ‘preserve’ the life of a ‘viable’ foetus in this context? Consider Ms. Y’s case. Might a woman be detained and required to submit to medical treatment designed to prolong her pregnancy until it were safer for a baby to be born? Might she be subjected to an unwanted induction or C-section?  Can these interventions be considered a proportionate interference with her constitutional and other rights? Given how little reported case law we have to direct doctors or judges in the context, what sorts of statutory protection can we expect? How might protection for the foetus in this context bleed into other areas of medical care?
  • Medical power:  We need to think about what it is like for a woman to assert her right to an abortion against a conservative or reluctant doctor, or a hospital ethics board. Not all of those who will be involved in administering any new abortion laws are pro-choice….to put it mildly, and the PLDPA made no efforts to engage with this issue, much less regulate it. In designing, for instance, conscientious objection provisions, or statutory provisions determining whether a woman’s access to an abortion should be ‘certified’ or ‘authorised’ by a doctor, or in scrutinising potential conservative proposals designed to delay or inhibit abortion access, we need to think  very carefully about how power circulates in medical decision-making contexts. There are three kinds of questions here:
    • How can women be supported to make informed decisions, and to assert their wishes, in difficult medical contexts? How can law alleviate likely sources of coercion, undue influence and distress?
    • How can the state ensure that necessary medical services are made available, even if a large number of doctors are in practice unwilling to provide them? To what extent will we ultimately be relying on private clinics to establish bases here?
    • How does Irish medical practice around ‘preserving unborn life’ compare to practice in other jurisdictions? How does it impact upon maternal and abortion care? What do medical experts in jurisdictions which have adopted human rights compliant abortion law think of our approach?
  • Those who must travel: We must be cautious about proposals for law reform which do little more than take a few dozen women off the plane to England. If the ‘grounds’ for abortion are drawn narrowly, or administered narrowly in ways which undermine women’s rights or reproduce existing fear and stigma, then travel will remain a necessity (and the existing constitutional protections for it must remain in force). The majority of women make their abortion decision very early in pregnancy – if it were not for the many costs associated with travel, we could expect that most Irish women would terminate their pregnancies before 12 weeks. We know that the requirement to travel has profound discriminatory effects, particularly for impoverished women or women living in direct provision. To my mind the danger of expulsion of women through conservative interpretation of any new abortion law is the strongest argument for a legalised period of abortion ‘without grounds’, accessible where the woman requests it, and where it is clear that she is giving informed consent to the procedure. This sort of arrangement is the law in Germany, Hungary,  and in Spain and Portugal – countries with a Catholic heritage whose laws recognise the sanctity of unborn life. Perhaps the best hope – if we insist on running the risk of ‘window dressing’ legislation which changes very little – is that the efforts of campaigners in Northern Ireland will mean that soon, our women won’t have to travel too far. As a first step, the Information Act should be repealed, to enable pregnancy counsellors  and campaigners to do their utmost to assist women in this position.

Proportionality is a difficult measure of legal protection. The key question is: ‘Proportionate to what?’ The legal idea here is that the state is restricting individuals’ agency in order to achieve some broader public goal. Proportionality can only do its work if public goals are defined reasonably. My worry is that, even at this point in Ireland’s recurring abortion debates, the goals of any abortion law have not been fully articulated. Bear in mind that in international fora this state has insisted, for decades now, that the current constitutional settlement reflects the nation’s ‘nuanced’ consensus on the legal protection of unborn life. In the domestic context, political actors hold up the patronising spectre of the conservative rural constituent who is incapable of critical thought (and whose worries just happen to overlap with those of the disproportionately powerful Iona Institute and, on a bad day, Youth Defence).  It may be that, in the abortion debates to come, this stunted incarnation of the public interest will remain in place, and remain the legal measure of women’s rights. In the context of the marriage equality referendum debates, we have seen strong state investment in efforts to transform popular perceptions of gay couples’ proper legal position. Whichever government finds itself in the position of legislating for the 8th, its duty is to lead in articulating new norms of honour, autonomy and support where pregnant women are concerned, or (more accurately) in giving those existing Irish norms space in public discourse.

admin - Sat Dec 13, 2014 17:04
The Free Legal Advice Centres (FLAC) is now accepting applications for the 2015 Thomas Addis Emmet Fellowship in Public Interest Law. This is a unique opportunity awarded each summer to an Irish law student interested in working on critical social justice issues and developing skills in public interest law practice. Run in conjunction with the(...)

FLACThe Free Legal Advice Centres (FLAC) is now accepting applications for the 2015 Thomas Addis Emmet Fellowship in Public Interest Law. This is a unique opportunity awarded each summer to an Irish law student interested in working on critical social justice issues and developing skills in public interest law practice.

Run in conjunction with the University of Washington, the Fellow will spend two months with a public interest law justice centre at the forefront of human rights and social change in Seattle, Washington gaining hands-on experience of targeted public interest litigation, policy development and campaigns.

The Fellowship is open to all current law students, including students that have studied law as part of their undergraduate degree, postgraduates in law, and students of the King’s Inns or Law Society professional practice courses.

To apply please submit an essay on an area of public interest law of your choice (max. 2000 words) along with a cover letter and CV to info@flac.ie by Friday 13th of February 2015.

For more information, please download the information sheet here.

 

 

admin - Fri Dec 12, 2014 14:06
On December 12, 1975 the Supreme Court handed down judgment in De Burca and Anderson v. AG, and found the Juries Act, 1927 unconstitutional. Kevin O’Higgins’ Act had excluded women from jury service, in order to shield them from matters which ‘one would not like to discuss with the feminine members of one’s own family‘.  Anderson and De(...)

On December 12, 1975 the Supreme Court handed down judgment in De Burca and Anderson v. AG, and found the Juries Act, 1927 unconstitutional. Kevin O’Higgins’ Act had excluded women from jury service, in order to shield them from matters which ‘one would not like to discuss with the feminine members of one’s own family‘.  Anderson and De Burca were members of the Irish Women’s Liberation Movement, and were represented in court by Donal Barrington and Mary Robinson. The women had been arrested outside the Dail after a march against the Prohibition of Forcible Entry Bill, organised by the Committee Against Repressive Legislation.  The Bill was designed to outlaw the occupation of vacant houses; an important tactic for housing rights movements in the 1970s. Women were the primary victims of the Dublin housing shortage. The IWLM members had been charged with wilfully obstructing a police officer in the course of his duty. Nell McCafferty in her book Nell describes the events:

There were kerfuffles in the dark, at the entrance to the Dail, as ministers were leaving. We shouted at the lines of limousines, not realizing they were empty – the ministers had decided to leave by a back entrance and meet the chauffeurs there. Mairin de Burca and Mary Anderson were soon in the arms of the law, charged with breaching the peace, and quickly after that in the legal embrace of Mary Robinson, who was to represent them in court. The two women opted for trial by jury. Jury service was confined to property owners: they would have to face twelve property-owning men. Mairin, who had already one time in jail for an anti-Vietnam War protest [she and Marie McMahon, who was also jailed, had taken part in a protest which burned the American flag and smeared cows’ blood on the steps of the British Embassy] and been deeply marked by the loss of the privacy she cherished, wanted to be tried by a jury of her peers and wondered how she could insist on that, in court, without being sent down for contempt. Robinson thought they could take a constitutional action to challenge the Juries Act. They did. They won. Women now serve on juries. It took years to push the challenge through the courts…

GuestPost - Thu Dec 11, 2014 10:00
We are pleased to welcome this guest post from Dr Michelle Farrell, who is a lecturer in Law in the School of Law and Social Justice at the University of Liverpool. She is the author of The Prohibition of Torture in Exceptional Circumstances (Cambridge University Press, 2013). #Torture Torture is back in the headlines. On(...)

We are pleased to welcome this guest post from Dr Michelle Farrell, who is a lecturer in Law in the School of Law and Social Justice at the University of Liverpool. She is the author of The Prohibition of Torture in Exceptional Circumstances (Cambridge University Press, 2013).

#Torture

Torture is back in the headlines. On 9 December, the Senate Select Committee on Intelligence released its long awaited controversial report on the use of torture in the aftermath of 11 September by the CIA. The report was over 6 years in production, runs to thousands of pages, is heavily redacted and ? surprise, surprise ? illustrates that ? amongst other things ? the methods used were ineffective, were based on fabricated claims of effectiveness and were much more brutal and were used much more extensively than was recounted. The report?s release has caused a huge stir; so far there has been plenty of commentary on the question of criminal accountability and there have been lashings of liberal outrage at the extent and methods of violence used. Many have pointed out that the contents of the report ought to come as no surprise. We knew ? or suspected ? a lot of this already. The report will no doubt be dissected in great detail over the coming days, weeks and years.

Bad Torture v Good Torture

Ostensible liberal democracies do not like to be called out as torture practicing states. In an effort to explain away the violence, states seek ? as the Bush administration did ? legal and moral cover, intellectual and popular support in the form of torture apology and justificatory rationales in the form of necessity and life-saving information extraction. Moreover, states invariably try to recast torture as something else. For the Bush administration, it was ?enhanced interrogation techniques?. For the Israeli Landau Commission, it was ?moderate physical pressure?. These efforts at definitional gymnastics and legal and moral justification produce a torture compliant culture.

Revisiting the UK?s use of torture

Beyond the Senate report in which the UK is implicated, the UK government and indeed the European Court of Human Rights have a distinct ? yet not unrelated ? torture issue to handle. Earlier this month, on 2 December, Ireland?s Minister for Foreign Affairs, Charlie Flanagan, announced that Ireland would request the European Court of Human Rights to revisit its decision in the infamous case of Ireland v UK ? a torture-centred case ? decided in 1978. The decision of the Court in this case set the scene for much legal definitional wrangling over the meaning of torture. Ireland v UK was far reaching in impact and in a way that does not flatter. The decision was cited in the Bybee ?torture? memo and by the Landau Commission in Israel in the late 1980s to justify both states? unconscionable interpretations of torture.

Ireland v UK was initially taken by Ireland against the UK to the European Commission on Human Rights in December 1971. It concerned the alleged breach by the UK of a number of provisions of the European Convention on Human Rights following the introduction of internment in Northern Ireland in August 1971. At the heart of the case were allegations of the use of torture and other forms of ill-treatment by British agents against a number of individuals ? the so-called ?hooded men? – under interrogation in secret detention centres in Northern Ireland. Their torture has become known, euphemistically, as ?interrogation-in-depth? or the ?five techniques?. These five techniques were hooding, wall standing in a stress position, white noise, sleep deprivation and deprivation of food and water, perpetrated over a period of days and enforced through – as we now know – assaults and death threats.

Torture one day, inhuman and degrading the next

The European Commission found that the use of the ?five techniques? in the interrogation of fourteen individuals amounted to torture in breach of Article 3 of the European Convention. Article 3 states simply: ?No one shall be subjected to torture or to inhuman and degrading treatment or punishment.? The Commission reached this conclusion having reasoned that the techniques were deliberately employed to break the will of the individuals. Although, the Commission reasoned, the five techniques ?might not necessarily cause any severe after effects?, it saw in their use ?a modern system of torture?.

Following the release of the Commission?s report in 1976, the Government of Ireland had the case referred to the European Court, with a view to achieving an authoritative Court decision. The Court offered a different interpretation of the five techniques to that of the Commission. By a vote of 14 to 3, it found that, used in combination, the five techniques constituted inhuman and degrading treatment in breach of Article 3. However, the techniques did not constitute torture as ?they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood?. In reaching this determination, the Court introduced the idea that there is ?a special stigma? attached to torture which differentiates it from inhuman and degrading treatment.

The Torture Files

On 24 November, Amnesty International requested Ireland to reopen this case. Their request followed the unearthing of new evidence by the Pat Finucane Centre and by RTÉ, Ireland?s national broadcaster. In June 2014, RTÉ aired the Torture Files, a half hour documentary which disclosed archival material demonstrating that the British government had withheld evidence during the European Commission and Court hearings. The Torture Files also documents the experience of the fourteen men subjected to the five techniques, and it shows, sensitively and significantly, the immediate and the long-term suffering endured by the men. In one scene, the wife of one of the interrogated men, Pat Shivers, who died of cancer in 1985, remarks ?even yet, I think, I wish they had killed him then. It would have saved him the horrors of having to relive that over and over again?. Her words recall those of Jean Améry, a member of the Belgian resistance, tortured by the Gestapo in 1943: ?Whoever was tortured, stays tortured?.

New Disclosures

The Torture Files is not only effective in un-hooding the men, made so famous and yet anonymous by these European cases. It also demonstrates the extent of British bad faith during the proceedings. The documentary reveals that the British Government knew that the use of the five techniques produced long term psychological effects, a fact that it failed to disclose during the proceedings. In addition, the documentary exposes the extent to which the use of the five techniques constituted a political decision at the highest levels, sanctioned by then Secretary of State for Defence, Lord Carrington. At the Commission and the Court, the Government denied such responsibility.

The Troubling Role of the European Court

Whether or not this case is substantively revisited, I do think it is important to remember the damaging role played by the European Court of Human Rights in saving the UK from the ?special stigma? of torture. Whilst, of course, the real crimes in all of this were committed by the British authorities and the individual perpetrators, the European Court ought not to be excused for its erroneous decision in 1978 on the basis that it did not have all the evidence, since disclosed by the Torture Files. The European Court had the same information as the Commission. The Court reached its different determination on the basis of flawed and dangerous interpretations wielded because, in the face of one of Europe?s leading and influential liberal democracies, it acted politically and spinelessly.

Perhaps it is with the benefit both of hindsight and of being far-removed from the fractious politics of the 1970s that I and others can criticise the European Court for its decision in Ireland v UK. Yet those judges exercised arrogant discretion in finding themselves capable of determining how ill-treated these men were, even if deference to the UK was the underpinning motivation. The interpretational aids dragged in to the Court to decide Ireland v UK are still in play. Torture versus other forms of ill-treatment is still ? for the Court – a matter of severity of pain; it still has a ?special stigma?. The Court has generated a confused concept of torture. The treatment of the ?hooded men? was torture stricto sensu. To avoid the ?bad word?, the Court downplayed inhuman and degrading treatment. Oddly, therefore, the Court managed, by creating a special stigma for torture, to convey inhuman and degrading treatment as somehow less severe, less serious. And this was all done under the banner of human rights.

The European Court is powerless to stop torture. It does have the power to stay out of messy debates about thresholds of pain and suffering. More importantly, it has a responsibility to victims. The case was poorly and politically reasoned. It remains relevant because it has influenced global understanding of torture to date. It remains relevant because it concerned a state which has since gone on to practice torture again, in Iraq and elsewhere. And it remains relevant because it contains the kind of logic that has underpinned the whole US torture farce. Perhaps today?s judges will have the chance to correct their predecessors.

Liam Thornton - Wed Dec 10, 2014 11:02
On International Human Rights Day 2014, Community Law and Mediation has published volume 3(2) of the Irish Community Development Law Journal. This edition has a special focus on social welfare rights. Contributors to this edition include: Mary Murphy, Ireland’s Lone Parents: Social Welfare and Recession Liam Thornton, The Rights of Others: Asylum Seekers and Direct(...)

CLM logoOn International Human Rights Day 2014, Community Law and Mediation has published volume 3(2) of the Irish Community Development Law Journal. This edition has a special focus on social welfare rights. Contributors to this edition include:

Mary Murphy, Ireland’s Lone Parents: Social Welfare and Recession

Liam Thornton, The Rights of Others: Asylum Seekers and Direct Provision in Ireland

Pia Janning, Ireland’s Economic, Social and Cultural Rights Obligations and Budgetary Policy

Rosemary Hennigan & Molly Joyce, Public Interest Litigation & Access to the Courts: As Far as Practicable? 

You can access the full text of these articles here.

Charles O'Mahony - Fri Dec 05, 2014 14:36
A new book entitled ?Genetic Discrimination ? Transatlantic Perspectives on the Case for a European Level Legal Response? published by Routlegde will be launched on the 12th of December 2014.  The book edited by Prof Gerard Quinn (NUI Galway), Dr Aisling de Paor (Dublin City University) and Prof Peter Blanck (Syracuse University) will be launched by Marian(...)

9780415836937A new book entitled ?Genetic Discrimination ? Transatlantic Perspectives on the Case for a European Level Legal Response? published by Routlegde will be launched on the 12th of December 2014.  The book edited by Prof Gerard Quinn (NUI Galway), Dr Aisling de Paor (Dublin City University) and Prof Peter Blanck (Syracuse University) will be launched by Marian Harkin MEP at the European Commission Representation Office, Dawson Street, Dublin.

The book is timely as genetic technologies advance, genetic testing may well offer the prospect of detecting the onset of future disabilities. Some research also forwards that certain behavioural profiles may have a strong genetic basis, such as the determination to succeed, or the propensity for risk-taking. As this technology becomes more prevalent, there is a danger that that genetic information may be misused by third parties and that particular genetic profiles may be discriminated against by employers, by providers of social goods and services, such as insurance companies and even by educational facilities.

This edited book explores the different forms and potential uses of genetic testing. Drawing together leading experts in disability law, bioethics, health law and a range of related fields, it highlights the ethical and legal challenges arising as a result of emerging and rapidly advancing genetic science. On examining transatlantic perspectives on the matter, chapters in the book ask whether the US Genetic Information Nondiscrimination Act (GINA) is proving to be an effective tool in addressing the issue of genetic discrimination and alleviating fears of discrimination. The book also reviews what insights may be gained from GINA within employment and health insurance contexts, and asks how the UN Convention on the Rights of Persons with Disabilities (CRPD) may impact similar debates within the European Union. The book focuses particularly on the legislative and policy framework in the European Union, with an emphasis on the gaps in protection and the scope for specific legislative action in this area.

This book will be of great interest to scholars and students of discrimination law, bioethics and disability law, and will be of considerable use to legal practitioners, medical practitioners and policy-makers in this area.

The launch will take place on the 12th December 2014 at 5pm at the European Commission Representation Office, Dawson Street, Dublin.  If you are interested in attending please RSVP mary.faherty@nuigalway or telephone 091 ? 495888.

You can order a copy of the book here.

Máiréad Enright - Thu Dec 04, 2014 08:16
The closing date for applications to the symphysiotomy redress scheme is this Friday.  Assessment has already begun, some redress offers – a very small fraction of the total projected value of the scheme – have already been made and a very small number of those have been accepted. I have written before about the core(...)

The closing date for applications to the symphysiotomy redress scheme is this Friday.  Assessment has already begun, some redress offers – a very small fraction of the total projected value of the scheme – have already been made and a very small number of those have been accepted. I have written before about the core problem which has dogged this scheme since it was first proposed – it is simply incompatible, in principle, with the requirements of international human rights law. In particular, these women have not been offered any adequate remedy for breaches of their European Convention rights by the Irish state. O’Keeffe v. Ireland confirms that ex gratia redress without an acknowledgement of state liability cannot be considered an adequate remedy.1

Since the scheme was announced, less than a month ago, it has been roundly criticised by expert commentators including, most recently, Sir Nigel Rodley of the UNHRC. The devil is in the detail of the implementation. The time limit for application is unconscionable. Women had 20 working days to apply. This is the shortest time limit in the history of any state redress scheme: for example, the Residential Institutions Redress Board time limit was 3 years. The rudimentary progress reports published on the scheme website indicate that 70 women only received their application forms in the first week, because they requested them by telephone. The forms are, of course, available to download from the website, but the survivors of symphysiotomy are often very elderly and may not be computer literate.

Applications made after the deadline may be considered in ‘exceptional circumstances’, but in any case will not be considered if they are made after January 15 2015. ‘Exceptional circumstances’ is not defined within the terms of the scheme. It is worth noting that the same phrase affected the RIRB, and was interpreted in a very conservative fashion, to the particular detriment of applicants who took longer to apply  because they were socially isolated, had intellectual or psychiatric difficulties, or lived abroad.2 It is beyond doubt that some women who deserve, in principle, to have access to state redress will go without it because the government refuses to give them more time. 70 women have joined Survivors of Symphysiotomy since the UNHRC hearings in July and there may be others.  Two women recently brought a High Court challenge to the scheme because it was not clear that women with dementia could have a representative apply on their behalf.

The Department of Health said yesterday that 257 applications have already been made to the scheme. The progress reports give some indication of what is going on. It is not clear that the scheme can be considered a success. Certainly it is working very quickly. For example, in Week 1, 10 applications were made and 7 of these were assessed and offers made. Everything is moving so quickly, not only because the volume of applications was very low in the beginning, but because assessment is done entirely on paper and payments are not individualised. The sole question for the assessor is whether to put an applicant in one payment band or another, or none at all. There is no hearing, and no finding of liability. Some applications have been rejected, and there is no appeal from the assessor’s decision.

The fact that so many women have made an initial application  does not demonstrate that they are happy with this scheme or that they accept that it offers a better compensation package than they might obtain in court. On November 16, the majority of members of Survivors of Symphysiotomy (S.O.S.) voted overwhelmingly – not for the first time – to reject it. They have no obligation to accept any offer made under the scheme – they may yet withdraw.

The progress reports indicate that ‘a large number’ of the applications already received are awaiting  medical records from hospitals or the preparation of specialist medical reports. This sort of problem was to be expected. Some women, for example, do not have their records because hospitals had levied unaffordable charges to provide them, or had said they were unable to locate them. Access to particular records will make the difference between the minimum award of 50,000 euro and the higher award. Better consultation with Survivors of Symphysiotomy would have made this clear and the scheme could have been designed accordingly. There are about 400 survivors of symphysiotomy known to S.O.S. The women who have not yet made an application may be experiencing related difficulties. How many have the necessary support to travel for medical and legal appointments, gather hospital documentation and so on? It will be very interesting to hear about women’s experiences of compiling and submitting their applications.

The government insisted that most women would already have the necessary documentation available because they have been preparing to sue the relevant hospitals and the state. From the progress reports published, it is clear that this belief was mistaken.  The government envisaged a redress scheme which would be frankly parasitic on the very litigation it purports to protect women from.  Indeed the scheme allows the state to ‘buy’ the results of preparatory work for litigation by providing that solicitors who have already undertaken it will receive some fees and expenses. In a similar vein, the application form also asks applicants to submit copies of all legal pleadings and orders connected with their symphysiotomy.

The 20 day time limit, as the IHREC has noted, makes it very difficult for women to seek independent legal advice before submitting their application, especially if they are starting from scratch. A further 20 day time limit applies once an offer is made under the scheme.  A woman must sign a waiver to accept the offer, in which she agrees to discontinue any legal actions against the state or any of a raft of private parties, and agrees not to pursue any such claims in the future. The waiver is a waiver of constitutional and Convention rights.3  As such it is crucial that the woman waives voluntarily and with full understanding of the consequences. The pressurised time limit at play here should, accordingly, be a source of some concern. The initial 20 day time limit is crucial too. If a woman had three years in which to apply to the scheme, she might at least have more time to judge the progress of her civil claim and to weigh the associated risks and benefits against the possibilities of a redress payment. As things stand, the scheme is designed to deny her the opportunity for reasoned comparison. The requirement of acceptance within 20 days, similarly, is designed to kill litigation off at the earliest possible opportunity.

The State is the defendant in many of the upcoming High Court symphysiotomy actions. The first two will be heard early next year. So, when the State says that it is offering this scheme to spare women the burden of litigation, it is doing no more than claiming to protect these women from itself. Noreen Burns died last July while attempting to pursue her claim against Holles Street hospital, having been informed in terms reminiscent of the treatment of the late Brigid McCole, that the hospital would pursue her for costs. The ‘robust’ conduct of the defences in symphysiotomy cases has, so far, done the defendants little credit.

For now, the scheme trundles on. But this is not what proper redress looks like.


  1. See also Romanov v. RussiaYeter v. Turkey 

  2. See AG v. RIRB [2012] IEHC 492  

  3. It also, of course, cements the state’s refusal to ensure the possibility of prompt, independent and thorough investigation into the wrong done to these women, by closing off the possibility of private litigation. This was not done in the Magdalene compensation scheme. The waiver is the functional equivalent of an amnesty law, and we know that laws of this kind can be held inconsistent with the duty under the ICCPR to ‘exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities'; see eg Case of Barrios Altos v. Peru. Judgment of March 14, 2001  

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