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Joined up thinking for the Irish Left
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For lefties too stubborn to quit
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Life should be full of strangeness, like a rich painting
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Cliodhna Murphy - Thu Sep 22, 2016 13:38
We are pleased to welcome this guest post from Charles O’Sullivan, doctoral candidate at Maynooth University. In recent days, the Department of Social Protection (DSP) has announced that since January 1st of this year, 4,242 jobseekers have been subjected to penalties for refusal to engage with services, refusal to take up an offer of training […]
We are pleased to welcome this guest post from Charles O’Sullivan, doctoral candidate at Maynooth University.
In recent days, the Department of Social Protection (DSP) has announced that since January 1st of this year, 4,242 jobseekers have been subjected to penalties for refusal to engage with services, refusal to take up an offer of training or education, or failure to attend meetings. These benefit sanctions can involve a recipient receiving ?44 less per week, and where the failure persists after the sanction has been imposed for 21 days, social welfare payments may be withdrawn in full for a period of 9 weeks. In some instances, a complete ejection from the welfare system is possible.
This figure represents a low in comparison to the roughly 6,500 sanctions applied throughout 2014, but far in excess of the 359 issued in 2011. It must also be born in mind that sanctions can now be applied for far lower infractions, such as failure to upload a CV to a government website, demonstrating the degree of coercion now in force.
This increased emphasis on sanctions overlaps with several years of prolonged austerity within Irish society, and what is now a government focused on the continued retrenchment of public services for ideological reasons. Consequently, welfare recipients are required to overcome ever more burdensome procedural hurdles in order to access increasingly limited funds. Callan et al have previously highlighted that those under 25 years of age, single parents, and low-income families with multiple children have suffered the most with each new series of welfare reforms, and have seen their entitlements cut far more than others. The gendered dimension of these cuts must also not be overlooked, as single parents, most of whom are women, are 35% more likely to fall into poverty than other groups. From the perspective of applying sanctions, Adler notes that in the UK groups such as these, as well as the disabled, and immigrants with low levels of English comprehension will be more likely to receive them. This means that the already vulnerable are not only targeted in relation to cuts in welfare rates but also in how much they are policed. Inevitably this will lead to higher levels of deprivation among these groups.
Secondly, the DSP emphasises that any sanctions imposed are proportionate. The result is that the highest penalty of ?44 will only be applied to jobseekers in receipt of the top rate of ?188 per week, while those receiving, for example, a lower rate of ?84.50 would see their benefit temporarily reduced to ?64 per week for the prescribed period of time. However, even if one ignores that these are more likely to be imposed on the already vulnerable, that sanctions can be applied to the lowest rates of payment is particularly troublesome.
A further potential consequence is that in forcing jobseekers to stretch their resources even further while sanctioned, they may be less able to comply with the necessary conditions and that this will result in additional sanctions. Research interviews conducted in Scotland show evidence of this, as well as the potentially significant amount of time spent by welfare recipients in order to avoid sanctions which could be spent on something more productive (such as searching for employment).
Finally, the idea that these sanctions are likely to encourage higher rates of compliance and employment is highly problematic. Sanctions essentially act as a means of ejecting, either partially or wholly, the recipient from the welfare system, and make it more difficult for them to engage with the labour market. Research from the United Kingdom found that those who left the welfare system following the imposition of sanctions often do so without having obtained employment, meaning that many are simply left without state income supports. Other research has found that those who do find employment are more likely to take up low-skilled labour, attracting far lower rates of remuneration, and with less certainty as to tenure and working conditions. This also presupposes that there is a high demand for such labour, and where the supply of jobseekers exceeds the demand for them in the labour market, it emphasises that in spite of clear structural deficits it is somehow the jobseeker who is responsible for their continued unemployment. Where higher levels of support are given, even if it means a person being unemployed for longer periods, this can lead to better outcomes in terms of transitioning into employment and the kind of employment they will find.
The legal basis upon which these sanctions can be challenged is somewhat limited for individuals on whom they are imposed. The Constitution itself does not specifically provide for a right to social welfare. Article 45 does allude to the directive principle of supplying income supports and protecting the vulnerable but is not justiciable as a cause of action, and is simply a guiding principle for social policy. Minister for Social, Community and Family Affairs v Scanlon  IESC 1, saw the Supreme Court find that existing rights such as the right to property in Article 43.1 may also not be invoked, as any entitlement to social welfare benefits is created through ordinary legislation alone. Nor do legal principles such as estoppel or ?reasonable expectation? create a presumption of entitlement as established in Galvin v Minister for Social Welfare  3 IR 240, and Wiley v Revenue Commissioner  ILRM 482 respectively. Such a challenge would also be impractical for an individual of limited means regardless of how likely or unlikely it is to succeed.
The case of Hurley & Ors v Secretary of State for Work and Pensions saw the English High Court find that a limit being placed on the amount of welfare benefits an individual can receive is indirectly discriminatory where they act as the carer for a person with a disability, based on Articles 8 and 14 of the ECHR. In theory a similar challenge could be brought here, but may still face a judiciary that is deferential to the way in which the State allocates funds and which views welfare payments as a solely statutory right.
Any appeal of sanctions triggered at a national level is as such limited to the appeals mechanism set out in the Social Welfare (Consolidation) Act, 2005 and its supporting instruments, with appeals being lodged through the the Social Welfare Appeals Office, based on the procedure established in Section 318 of the 2005 Act.
It is possible that the systemic issues with sanctions could be raised under the Covenant on Economic, Social and Cultural Rights. As McLachlan recently highlighted, the results of the United Kingdom?s periodic review from the Committee on ESCR were quite unfavourable with regard to benefit sanctions and their detrimental effect on the lives of welfare recipients. During Ireland?s own review last year, this issue was not raised, but it would be possible for civil society and other social actors to raise this issue in future in the hopes of a similar outcome. This would require that the circumstances in Ireland are of a comparative standard and are clearly demonstrable. However even this would require that the State is amenable to altering the current system, as a being found to have violated rights within the Covenant would not immediately trigger the need for changes by itself. Consequently, any substantive, systematic changes require a political will that seems to be absent at present.
Máiréad Enright - Wed Aug 10, 2016 12:42
Mairead Enright (@maireadenright) Does the unborn have rights other than the right to life enshrined in the 8th Amendment? It is clear that, under Irish law, foetuses cannot have any greater rights than children already born. However, recent cases have raised the prospect that they have some of the same rights and interests as born children. In PP v. […]
Mairead Enright (@maireadenright)
Does the unborn have rights other than the right to life enshrined in the 8th Amendment?
It is clear that, under Irish law, foetuses cannot have any greater rights than children already born. However, recent cases have raised the prospect that they have some of the same rights and interests as born children. In PP v. HSE, for instance, the High Court referred to the ?best interests? of the foetus who has no prospect of survival outside the womb, analogising its position to that of a child on life support. It is not clear that the ‘unborn’ (the entity recognised or created by the 8th Amendment) is, for constitutional purposes, a child like any other. Recently, the courts have been asked to consider whether foetuses carried by Irish citizens have particular rights other than the right to life, which the state should take into account in assessing whether to deport their non-citizen fathers. Another, broader, way of putting this question is to ask whether the unborn?s rights derive exclusively from the 8th Amendment, or whether it may also enjoy rights grounded in other parts of the Constitution.
The E position: foetuses may be treated as having constitutional rights other than the right to life.
In E (the case of Kunle Eluhanla) Irvine J. applied an old common law maxim that the unborn should be treated as born in law where its interests require it. This meant that the Minister for Justice, in deciding whether to deport E’s father should have treated the then unborn E as if he was born. In practice this meant that Michael McDowell as Minister for Justice should have taken into account E?s rights to the society and support of his parents, amongst many others. In taking this step Irvine J. paid particular attention to the fact that the Minister had been notified of E’s impending birth at the time he made his decision, but ultimately decided to make his order just 9 days before E was born. Irvine J. was struck by the injustice of allowing the Minister to take capricious advantage of the circumstances of pregnancy and childbirth, noting that if E had been born prematurely, the Minister would have had to take his existence and needs into account in making the decision.
She held that the unborn,in cases of this kind, can be treated as having all of the personal rights of the citizen under Article 40.3 of the Constitution.These rights were enumerated in G v. An Bord Uchtala (a case about ?illegitimate children?) and include the ?right to bodily integrity, the right to be reared with due regard to religious, moral, intellectual, physical and social welfare, to be fed, to be educated, to work and to enjoy personal dignity… ?. As Irvine J. noted, these are the ?natural and imprescriptible rights of all children?, now recognised in Article 42A of the Constitution.
The Ugbelese position: the rights of the foetus are confined to those conferred by the 8th Amendment.
In the later case of Ugbelese, by contrast, Cooke J. took the position that the unborn does not have any rights other than the right to life. Cooke J. argued that Irvine J. over-extended the common law maxim mentioned above, which he argued had previously only been used in a backward-looking way, to allow financial recovery for injuries suffered in the womb, and not to allow assertion of future rights before birth.
In any event, he argued that her decision was inconsistent with the Constitution. For Cooke J. the purpose and effect of the 8th Amendment is to definitively set out all of the rights of the unborn .Indeed, whereas Irvine J. derives the unborn’s rights to family life from Article 40.3, Cooke J. notes that the 8th Amendment is a specific amendment to that Article, indicating that the unborn is not intended to enjoy those personal rights as born citizens do. Before 1983, he argued, there had been some limited judicial discussion of the rights of the unborn (McGee, Finn v. AG and G v. An Bord Uchtala), but these were not definitive: the Amendment was intended to clear up this uncertainty. The Amendment does not give any rights to the unborn other the right to life (which for Cooke J. also implies the right to bodily integrity; the right to protection from any wilful interference with the natural course of gestation.) Any additional rights of the child are prospective and inchoate until birth, when they can be exercised in society and community as an independent person.
So, after Ugbelese, the High Court had taken two distinct stances on this question. Recently, Humphreys J. decided between them.
Humphreys J. chooses the E position: the IRM case.
In IRM v. MJELR, Humphreys J. was asked to determine whether the State in deciding whether to deport the father of unborn child of an Irish citizen is obliged to consider the unborn?s future rights to family life as well as its the right to life enjoyed under the 8th Amendment.
Humphreys J prefers the reasoning of Irvine J. in E, and holds that in deportation cases, the state must consider the family rights that the unborn will enjoy in the future. He rejects the Cooke argument in Ugbelese (above) that the 8th Amendment was intended to completely embody all of the unborn?s rights. His judgment criticises Cooke J. at length for his excessively ?literal? reading of the 8th Amendment, which Humphreys J. contends is incompatible with the principle that the constitution is to be read as a whole. In addition, whereas Cooke J. presents the 8th Amendment as resolving a problem of uncertainty about the status of the unborn in Irish law pre-1983, Humphreys J. argues that the obiter statements about foetal life in McGee, Finn v. AG and G v. An Bord Uchtala clearly indicate that the rights of the unborn pre-dated the Amendment, and were simply confirmed or supplemented by the Amendment.
Humphreys J. goes on to specify the following rights of the unborn:
Humphreys J’s judgment reflects an obvious frustration with a state which wishes, in his view to have its cake and eat it – holding the unborn as sacrosanct but not affording it any rights which would inconvenience the state. However, in respect of family life, this is not a judgment about the constitutional rights which the foetus automatically enjoys in the womb. Humphreys J. did not have to resort to the legal fiction used in E because IRM was framed as a test case on the very question of the extent of the rights of the unborn in deportation cases. However, his judgment, like Irvine?s judgment in E is designed to compel the state to have regard to ?the prospective situation which is likely to unfold, and particularly such rights arising from a child?s status as a citizen as are likely to exist, rather than the state of affairs as it exists as a snapshot on the date which the Minister?s decision is made in isolation from matters which are imminently prospective as a matter of likelihood?. He argues that under the old decision in East Donegal Co-Operative v. AG the state is required to guard against prospective threats to constitutional rights.
What does this mean for campaigns for liberalisation of Irish abortion law?
Some of the language employed in Humphreys J’s judgment is worryingly reminiscent of pro-life literature. At various points he refers to the state as ‘sneering’ at the rights of the unborn; notes that all adults were ‘unborn’ once, and argues that the unborn must be a child in principle because happy expectant parents think of their pregnancies in this way.The troubling analogy drawn between foetuses and profoundly disabled born children noted above also calls to mind anti-abortion campaigners’ appropriation of disabled people’s experience. Ultimately, his failure to consider, even in passing, the wider repercussions for women of his approach to the unborn is cause for concern. However, even if his judgment is good law (and a Supreme Court which takes a more restrained approach to constitutional interpretation is unlikely to think so), it is of limited relevance to the campaign for repeal of the 8th Amendment.
 Baby O  2 IR 169
  IEHC 622. See further http://humanrights.ie/gender-sexuality-and-the-law/pp-v-hse-futility-...
  IEHC 68
  IR 32, 69
 Ugbelese  IEHC 598. was preferred by Hogan J. in A v MJELR  IEHC 397. E was cited approvingly by MacEochaidh J in FO v. Minister for Justice  IEHC 236 and again in Dos Santos v. Minister for Justice  IEHC 237, appearing to equate the rights of the unborn child in the context of deportation with the rights of children generally.
 Cooke J. also argues that he is not bound by the judgment in E because Irvine J. did not intend her judgment to be determinative of the constitutional issue of the rights of the unborn.
 29 July 2016
 p. 21
 p. 22
 See e.g. Baby O  2 IR 169 and Roche v. Roche  IESC 82
 Baby O  2 IR 169 (right to bodily integrity); Ugbelese  IEHC 598 (right to travel and privacy); PP v HSE  IEHC 622 (right to dignity in death)
 p. 19.
 p. 38
 Aslam v. MJELR  IEHC 12
admin - Mon Jul 11, 2016 13:40
The Northern/Irish Feminist Judgments Project brought together a collective of academics and practitioners to write the ?missing feminist judgments? in appellate cases which have shaped Irish and Northern Irish law. Beginning in 2014, we held a series of events, to support and publicise the work of the Project. We held four ?Drafting Workshops? at which our Judges presented versions of […]
The Northern/Irish Feminist Judgments Project brought together a collective of academics and practitioners to write the ?missing feminist judgments? in appellate cases which have shaped Irish and Northern Irish law. Beginning in 2014, we held a series of events, to support and publicise the work of the Project. We held four ?Drafting Workshops? at which our Judges presented versions of their ?missing judgments? for discussion and feedback. To accompany the Workshops, we curated a series of interdisciplinary panels, which facilitated broader reflection on aspects of gender, identity and the law in Ireland and Northern Ireland.
We are pleased to announce that our book will be published in January 2017. The book is available for pre-order here and a table of contents is available here. Pre-publication versions of some of the book?s contents are available online:
Events and Outreach
In March, the Transitional Justice Institute at the University of Ulster hosted a discussion on the project which featured contributions from the first women judges of the Northern Irish High Court; Mrs. Justice Keegan and Madam Justice McBride. The project has also featured at events including Law, Revolution and Sovereignty at NUIG (a video of Mairead Enright?s talk is here), the Gender, Sexuality and Law Research Seminar at Northumbria University and ?Abortion and Reproductive Justice: The Unfinished Revolution? in Belfast. Aoife O?Donoghue spoke about the project onNearFM. At DCU, students participating in the Aoife King Internal Moot drew on lessons from the feminist judgments project. We also featured in the University Observer.
For further information, email firstname.lastname@example.org. The project website is at www.feministjudging.ie?utm_source=rss&utm_medium=rss or you can follow us @irishfjp on twitter.
admin - Thu Jun 23, 2016 09:46
This letter is cross-posted from today’s Irish Times. Sir, ? The UN Human Rights Committee has found that Amanda Mellet?s right to be free from cruel, inhuman or degrading treatment, her right to privacy, and her right to equality before the law were violated because Irish law did not allow her to access abortion in […]
This letter is cross-posted from today’s Irish Times.
Sir, ? The UN Human Rights Committee has found that Amanda Mellet?s right to be free from cruel, inhuman or degrading treatment, her right to privacy, and her right to equality before the law were violated because Irish law did not allow her to access abortion in Ireland in a case of fatal foetal abnormality.
It has held that Ireland must amend its abortion law, including the Constitution if necessary, to ensure compliance with the International Covenant on Civil and Political Rights (ICCPR), including ensuring effective, timely and accessible procedures for pregnancy termination in cases of fatal foetal abnormality in Ireland.
The Taoiseach and others have noted that the findings of this committee are not ?binding?.
Here are six legal and policy reasons why Ireland must take good faith steps to implement the findings and comply with its international obligations:
1) In 1989, Ireland voluntarily ratified the ICCPR. Under international law, it must now comply with the treaty in good faith. It cannot invoke its Constitution, or any other domestic law as rationale for failure to comply (Articles 26 and 27 of the Vienna Convention on the Law of Treaties).
2. Although the UN Human Rights Committee does not have the status of an international court, Ireland has accepted its competence to hear individual complaints and to give authoritative interpretations of the ICCPR. Its members are impartial and independent. Ireland recognised the committee?s competence to issue determinative interpretations of the convention when it ratified the ICCPR and its optional protocol.
3) When Ireland subjected Ms Mellet to cruel, inhuman or degrading treatment, it committed an internationally wrongful act. International law, including the ICCPR, requires it to remedy this wrongful act, provide reparations and guarantee non-repetition. Ireland cannot invoke provisions of its domestic law as rationale for a failure to do so (Article 2 of the International Covenant on Civil and Political Rights; Articles 1, 3, 30-32 of the Principles on Responsibility of States for Internationally Wrongful Acts).
4. It is immaterial to Ireland?s responsibility under international law that the relevant treaties have not been incorporated into domestic law or that as such the decisions of the committee are not necessarily enforceable in Irish courts. Under international law a lack of enforcement options under domestic law, or the fact that under domestic law the committee?s decision is not binding, can never be used as justification for non-compliance.
5) If Ireland does not remedy the harm suffered by Ms Mellet and guarantee non-repetition it will place Irish medical professionals in profoundly difficult ethical situations and place them at risk of complicity in cruel, inhuman or degrading treatment.
6) If Ireland does not remedy the harm suffered and guarantee non-repetition it will leave itself open to repeated future litigation against the State before the UN committee or other international bodies, including the European Court of Human Rights.Until the legal framework is brought into line with Ireland?s international legal obligations, the likelihood is that women will continue to engage with international legal institutions to seek recognition of rights violations, remedy, and guarantees of non-repetition.
? Yours, etc,
Prof. Fiona de Londras, University of Birmingham Law School
admin - Mon Jun 20, 2016 12:29
On September 9th 2016, the Socio-Legal Research Centre, Dublin City University will host its biennial law and society conference. Following on from the success our inaugural conference on Judges, Law and the Irish Constitution in 2014, the theme of this year’s conference is State Accountability for Vulnerability. The purpose of the conference is to analyse […]
On September 9th 2016, the Socio-Legal Research Centre, Dublin City University will host its biennial law and society conference. Following on from the success our inaugural conference on Judges, Law and the Irish Constitution in 2014, the theme of this year’s conference is State Accountability for Vulnerability. The purpose of the conference is to analyse the response of the Irish State to present and historic vulnerability caused or exacerbated by public policy. The conference will have two streams, one which examines the detail of vulnerability in defined areas. A second examines the various accountability mechanisms which have or could be used to acknowledge the State?s role in creating and/or contributing to this vulnerability and to provide remedies to victims/survivors.
The conference will bring together academics, practitioners; judges; politicians; representatives from NGOs and other civil society organisations and postgraduate students. We welcome submissions from any discipline on issues relevant to the conference theme. Papers should address aspects of the theme in at least one of the following categories:
Historic institutional abuse;
The deadline for submission is Friday June 24th 2016.
Abstracts should be a maximum of 300 words and should fit within the conference theme. While practice-oriented papers are encouraged, they should engage with more general historical, socio-legal or theoretical dimensions. As well as considering the academic merit of the abstracts, the assessors will also consider whether the proposed paper fits with the general theme and specific categories. We aim to notify applicants of our decisions by Thursday June 30th 2016.
A selection of papers from our previous conference Judges, Politics and the Irish Constitution were compiled in an edited collection and published by Manchester University Press. This book will be officially launched on the evening of the conference. We hope to produce a similar peer-reviewed edited collection from the papers presented at this conference.
Prof Nina A. Kohn, Syracuse University College of Law
Prof Titti Mattsson, Lund University
Lord Lester of Herne Hill, QC
Noeline Blackwell, Dublin Rape Crisis Centre
Dr James Gallen, Socio-Legal Research Centre, DCU
Dr Tanya Ní Mhuirthile, Socio-Legal Research Centre, DCU
24/06/2016 Submit abstract
admin - Thu Jun 16, 2016 08:17
Aoife O'Donoghue - Mon Jun 13, 2016 10:48
The Irish Society for European Law recently re-launched the Irish Journal of European Law as an e-journal. The Journal, which has been published since 1992, is a leading international journal on European law edited by Irish scholars and practitioners. The 2014 and 2015 volumes are available on the Society?s website at https://www.isel.ie/journal. The Journal – […]
The Irish Society for European Law recently re-launched the Irish Journal of European Law as an e-journal. The Journal, which has been published since 1992, is a leading international journal on European law edited by Irish scholars and practitioners. The 2014 and 2015 volumes are available on the Society?s website at https://www.isel.ie/journal?utm_source=rss&utm_medium=rss.
The Journal – which is blind peer-reviewed – is now issuing a call for original papers for its 2016 volume. Long articles (indicative length 8,000 – 12,000 words) and shorter articles (3,000-4,000 words), and analyses of any length of recent developments are invited.
While submissions on Irish-European legal issues are of special interest, the Journal welcomes submissions on all areas of European law. In addition to the more traditional form of academic article, comment and opinion pieces on European-Irish affairs with a legal dimension will also be considered. ??Submissions are to be sent to email@example.com by Monday 15 August 2016 in WORD format, size 12 font, single spaced. The referencing style guide is OSCOLA Ireland, which is available online at:
Irish Journal of European Law
Co-Editors: Anna-Louise Hinds & Diarmuid Rossa Phelan; Members of the Editorial Board: Una Butler, Karole Cuddihy, Catherine Donnelly, David Fennelly, Sonja Heppner, Anna Hickey, Clíodhna Murphy
Máiréad Enright - Thu Jun 09, 2016 18:54
As readers will know by now, the UN Human Rights Committee today held that Ireland’s abortion law violated Amanda Mellet’s human rights under the ICCPR. The foetus she was carrying was diagnosed with a fatal foetal abnormality. Irish law criminalises abortion except as a last resort to save the pregnant woman’s life, and thus compelled her […]
As readers will know by now, the UN Human Rights Committee today held that Ireland’s abortion law violated Amanda Mellet’s human rights under the ICCPR. The foetus she was carrying was diagnosed with a fatal foetal abnormality. Irish law criminalises abortion except as a last resort to save the pregnant woman’s life, and thus compelled her to travel to Liverpool for an abortion. This is the first time that any international court or human rights body has found that the criminalisation of abortion is in itself a violation of women’s human rights. The Committee held that the Irish law:
The Committee’s emphasis on the woman’s entitlement to expect a certain level of compassion, care and attention from the state is very welcome. Amanda Mellet, Termination for Medical Reasons Ireland, their legal advisors and the Center for Reproductive Rights must be commended for their work in bringing this case to the Committee.The government is required to respond to the Committee’s decision within 180 days, outlining the concrete steps which it will take to remedy the identified human rights abuses, and to prevent future similar harm to other women. The ruling will contribute significantly to the existing moral pressure on the government to hold a referendum on the Eighth Amendment (see further discussion by Fiona de Londras here). The Health Minister, Simon Harris, has indicated that he wants to see law reform in this area. However, the government of which he is a member has continued to drag its heels on the issue of abortion law reform.
This post is by Mairead Enright of Kent Law School – firstname.lastname@example.org
Fiona de Londras - Thu Jun 09, 2016 10:58
In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for […]
In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.
The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:
Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here?and the Committee made this quite clear?is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.
Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.
This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.
In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.
Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.
It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this?the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.
But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.
This post is by Professor Fiona de Londras, University of Birmingham School of Law. She can be contacted by email at f.delondras[at]bham.ac.uk
Ntina Tzouvala - Fri May 06, 2016 11:36
Dr Alan Greene The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to […]
Dr Alan Greene
The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to be enacted. Similarly, it can no longer expect to be able to veto opposition legislation or opposition tabled amendments to Government bills. This has a potential to reinvigorate the Oireachtas, enhancing constitutional dialogue, not just between the legislature and the executive, but also between the legislature and the courts in instances where there may be doubts as to the constitutionality of a proposed bill.
Constitutional Debate and the Oireachtas
To date, the Oireachtas has essentially treated the Irish courts as having a monopoly on constitutional interpretation. Certainly, there is an arguable case to be made that this is a result of the strong form judicial review seen in the Irish constitutional structure which potentially stymies political debate. The Oireachtas has relied heavily on the expert legal opinion of the Attorney General with in the questionable constitutionality of a bill often used as a reason for the Government to vote it down at an early stage. Despite the clear importance that this evidence has in the overall outcome of the debate, the opinion of the Attorney General is never published.
A textbook example of this can be seen in the manner in which the last government voted down Clare Daly?s Bill to allow for the termination of a pregnancy in the case of a fatal foetal abnormality. During the Dáil debate on the Protection of Life during Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, Taoiseach Enda Kenny argued that the bill was quite clearly unconstitutional. Moreover, he refused to publish the advice of the Attorney General on the matter as, ?It has been a long-standing situation in this country, where the advice given by the Attorney General of the day has never been published.?
In light of this, judicial supremacy as seen in Ireland has been criticised by political constitutionalists who argue that it takes decisions about human rights away from the legislature. Human rights, according to this conception, are ?the statement of a political conflict masking as the resolution of it?. Instead, human rights should beconceptualised as political contestations that people invariably agree over. The resolution of such disputes should, as a result, be done by the representatives of the people in the democratic branches of government.
Even notable bastions of political constitutionalism have, however, come around to the idea of some degree of judicial protection of human rights. The UK?s Human Rights Act 1998 (HRA) is seen as conceptualising a ?third way? between judicial supremacy on the one hand and parliamentary supremacy on the other. Moving away from this adversarial conceptualisation of the legislature and judiciary, instead, it seeks to foster a dialogue on rights between courts and the British Parliament with the final say resting with Parliament. It does this through requiring courts to interpret legislation compatibility with the European Convention on Human Rights (ECHR) so far as it is possible to do so, and also gives courts the discretionary power issue a declaration of incompatibility when it believes it cannot reconcile the statutory provision in question with the ECHR. The resolution of this incompatibility therefore resides with Parliament. Dialogue is also created through the work of the Joint Committee on Human Rights (JCHR) and the requirement under s19 of the HRA for government ministers to issue a declaratory statement before Parliament that a bill is compatible with the Convention.
Such attempts at constitutional dialogue are not alien to Ireland. Ireland?s equivalent to the HRA ? the European Convention on Human Rights Act 2003 ? mirrors closely the interpretive obligation and the declaration of incompatibility provisions of the HRA, thus leaving the resolution of such incompatible provisions in the hands of the Oireachtas.
Indeed, a referral of a bill to the Supreme Court for a pre-emptive test as to its constitutionality under Article 26 of the Constitution is also a possibility for dialogue to take place between the legislature and the judiciary in Ireland as to the scope of constitutional rights. This potential for dialogue has, however, been significantly weakened by the Second Amendment of the Constitution Act 1941 which amended Article 34 to prevent bills deemed constitutional under an Article 26 reference from ever having their constitutionality challenged again. As a result, consecutive presidents ? themselves constituent parts of the legislature ? have been reluctant to make use of this power. This is particularly so in light of the fact that Article 26 cases are based on hypothetical legal argument, thus lacking the force or urgency of concrete facts to illuminate the actual impact of the legislation in question. The Second Amendment of the Constitution Act 1941 was not enacted by referendum but was instead done through a simple legislative procedure in accordance with the transitory provisions of the Constitution.
Moreover, judicial supremacy is not inimical to dialogue on rights. With regards to ordinary challenges to the constitutionality of legislation, while the courts under the Constitution have the final say in an individual case as to the scope of constitutional rights; this does not mean that the courts should or do have the only say along the way. Procedural aspects to constitutional challenges ? the presumption of constitutionality, reaching constitutional issues last, and the double construction rule? are all mechanisms by which courts show respect to the Oireachtas? democratic mandate. In addition, saying that once a judgment of the Supreme Court is issued does the debate stop is problematic. A statement as to the content of a constitutional, convention or other rights provision is rarely, if ever, the final statement as to the condition of law for all time. Human rights do not work like that; law does not work like that. The constitution is a living and breathing document and constitutional dialogue is important for it to evolve.
Judicial Supremacy or Executive Supremacy?
Constitutional dialogue, however, has been stymied in Ireland but this is not the fault of judicial supremacy; rather, this argument overlooks the exceptionally strong hold the executive branch in Ireland has had over the legislature. Strong governments have instead used legal opinion as a justification to avoid contentious issues, halting legislation at an early stage before the Oireachtas has gotten a chance to scrutinise the legislation in earnest.
Returning to the earlier example of Claire Daly?s private members bill on fatal foetal abnormalities, the constitutionality of this bill was not as clear cut as the Taoiseach suggested. There is, at present, ambiguity in Article 40.3.3° of the Constitution as to whether ?unborn? extends to foetuses that have no chance of surviving outside the womb. This very point was raised by the Irish Government before the European Court of Human Rights in D v Ireland. In that case the applicant was pregnant with twins and was informed by her doctor that one foetus has stopped developing after 8 weeks? gestation and that the other foetus tested positive for Edward?s Syndrome, the median age of survival of which is 6 days. The applicant, ?unable to tolerate the physical and mental toll of a further five months of pregnancy with one foetus dead and with the other dying? travelled to the UK for an abortion. She did not consider any legal proceedings in Ireland as her various doctors indicated to her that they ?appreciated that she was not eligible for an abortion in Ireland? when she informed them of her decision to terminate the pregnancy.
D?s case under Article 3, 8, 10, and 14 was, however, dismissed as inadmissible by the Fourth Section of the Court on the grounds that she had not exhausted all domestic remedies. The Court upheld the Irish Government?s submission that:
It was an open question as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland in the applicant?s circumstances?[A]lthough it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was ?at least a tenable? argument which would be seriously considered by the domestic courts to the effect that the foetus was not an ?unborn? for the purposes of Article 40.3.3 or that, even if it was an ?unborn?, its right to life was not actually engaged as it had no prospect of life outside the womb.
Minority Government and Constitutional Dialogue
In actuality, it is not judicial activism or judicial innovation in Ireland that is stymieing debates on rights and constitutionality in Ireland; rather, it is an overly strong executive that has a stranglehold on both houses of the Oireachtas. Legal advice is used as a convenient excuse to kick apparently contentious issues such as reproductive rights to touch.
Indeed, inaction can sometimes be louder than action. The UK Government?s failure to enfranchise prisoners despite a declaration of incompatibility under the HRA and a finding of a breach of the Convention from the Grand Chamber of the ECtHR is a concrete example of this. Similarly, the failure for over 20 years of successive Irish governments to legislate for the X-Case could be interpreted as these governments disagreeing with the Supreme Court?s judgment that abortions are lawful in Ireland where there is a real and substantial risk to the life of the mother arising from suicide. Two separate attempts to over-turn this judgment (the proposed 12th and 25th amendments respectively) via a constitutional amendment would also corroborate this; however, it also reveals the importance of an additional voice to the dialogue on rights in Ireland: the direct voice of the people through a referendum.
A reinvigorated Dáil therefore has an opportunity to break free from the domination of the executive branch and increase its scrutiny of legislation. No longer can an opinion of the Attorney General act as a de facto legislative veto. Indeed, it may be the case that such evidence may have to be published where it is suitable in order for the Oireachtas to scrutinise its substantive content. Merely claiming that the Attorney General advises that a proposed bill is unconstitutional may convince those subject to the minority government?s whip; however, the opposition benches may require a stronger justification than an appeal to authority. In this way, the Oireachtas can contribute more forcefully to the debate regarding the scope of constitutional rights protection in Ireland.
Ultimately, if the Oireachtas disagrees with a judgment of the Courts, it can submit a constitutional amendment to the people for ratification. This process can act as a safety valve, relieving political pressure that may build up in the face of a particularly contentious decision of the Supreme Court. In this way, the temptation to pack the court with ideological counterparts that may be seen in the United States is avoided as there are simpler, quicker, and more reliable ways to over-turn such a judgment.
The value of political constitutionalism or republican conceptualisations of human rights lies in processes. It requires legislative processes to be fora for disagreement rather than a mere rubber-stamp government decision-making. The prospect of a minority government is perhaps the best opportunity Ireland has had for such a culture of justification to embed itself in parliamentary processes. Time will tell whether this newly invigorated Dáil with grasp this opportunity.
Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. He tweets @DrAlanGreene.
Image credit: https://flic.kr/p/eRVtiA?utm_source=rss&utm_medium=rss
 JAG Griffith, ?The Political Constitution? (1979)42(1) Modern Law Review 1,14.
 Francesca Klug, ?The Human Rights Act – a “third way” or “third wave” Bill of Rights?  EHRLR 361.
 Prohibition on torture or inhuman and degrading treatment
 Right to respect for privacy and family life
 Freedom of expression
 Prohibition on discrimination
 D v Ireland, para 69.