Sep 12 Autoclavemore >>
Bristol indymedia site under state attack again as ISP served court order by UK police 02:11 Sep 02 1 comments
George Galloway attacked 04:42 Sep 01 0 comments
Germany: Large-scale police operation against refugees in Berlin 19:14 Aug 27 0 comments
Mayo needs to wake up to Fracking 23:37 Aug 25 0 comments
What's really going on with Ukraine 06:54 Aug 24 0 commentsmore >>
For lefties too stubborn to quit
?What you had maybe meant to keep: Irish political ephemera? appearing in New Ross 17:54 Tue Sep 02, 2014 | WorldbyStorm
Ah, bless the elites who know so much more than you or I. 17:41 Tue Sep 02, 2014 | WorldbyStorm
Interview with Peter McVerry 17:09 Tue Sep 02, 2014 | WorldbyStorm
And over at the SBP? 12:09 Tue Sep 02, 2014 | WorldbyStorm
Commemoration Wars ? and what of Unionism? 05:11 Tue Sep 02, 2014 | WorldbyStorm
Life should be full of strangeness, like a rich painting
I SEE THE CLICHÉ CHICKENS ARE BACK AGAIN TED 10:02 Sat Aug 30, 2014
IRELAND?S TAX HAVEN INDUSTRY 22:01 Tue Aug 05, 2014
IPA Summer School - Social Justice, Poverty and Ireland - 28 July 2014 11:56 Mon Jul 28, 2014
Feminist Economics - Cuts are a Feminist Issue 08:21 Wed Jun 18, 2014
Feminist Economics - Care and Social Reproduction 16:11 Fri Jun 13, 2014
Joined up thinking for the Irish Left
From Alpha 2 Omega Podcast #53: What?s Next? Part II Mon Sep 01, 2014 16:11 | Tom O'Brien
After the Gaza Massacre and After the Marches, What Do We Do? Thu Aug 28, 2014 16:10 | David Landy
Two London Exhibitions: Two Ways of Seeing Thu Aug 28, 2014 10:07 | Seán Sheehan
Connelly Youth Movement Talk: Latin America Today, Saturday 14:00, Connolly Book... Thu Aug 28, 2014 08:39 | Irish Left Review
Dismal Job Numbers Expose Government Spin Wed Aug 27, 2014 13:04 | Michael Taft
Two Funded Doctoral Scholarships Offered by the School of Law at NUI Galway: Human Rights and Consti... Tue Sep 02, 2014 15:17 | Charles O'Mahony
Win Lin v Governor of Cloverhill Prison. Mon Sep 01, 2014 15:40 | GuestPost
DCU School of Law and Government Inaugural Conference: ?Judges, Politics and the Irish Constitution.... Mon Sep 01, 2014 09:27 | Sinead Ring
Presumption of Guilt: Islamic State and UK Criminal Law Fri Aug 29, 2014 19:15 | Colin Murray
Time for Our Referendum Sat Aug 23, 2014 13:57 | Vicky Conway
Two Funded Doctoral Scholarships Offered by the School of Law at NUI Galway: Human Rights and Constitutional Law
Charles O'Mahony - Tue Sep 02, 2014 15:17
The School of Law at NUI Galway is currently accepting applications for two Doctoral Scholarships. Applications are sought from students who intend to pursue doctoral-level research on topics related to either: (a) European Human Rights, and/or (b) Constitutional Law Applications are particularly encouraged from but not confined to those interested in any of the following(...)
The School of Law at NUI Galway is currently accepting applications for two Doctoral Scholarships. Applications are sought from students who intend to pursue doctoral-level research on topics related to either: (a) European Human Rights, and/or (b) Constitutional Law
Applications are particularly encouraged from but not confined to those interested in any of the following areas: the domestic application of international human rights law; the role of the Ombudsman in the area of human rights; public interest litigation and public interest law; processes of constitutional reform; or the right to equality.
The successful students will be supervised by Professor Donncha O?Connell, Head of the School of Law. These Scholarships will commence before the end of 2014 and are available for a period of four years, subject to satisfactory performance.
Scholarships comprise an annual stipend of ?16,000 inclusive of University tuition fees (accordingly a student receives a tax-free scholarship of approximately ?11,755 per annum).
The holder of a Scholarship is expected to reside in Galway, Ireland and, under the guidance of Professor O?Connell, will engage in a reasonable amount of research and research support, teaching and administrative tasks in the School of Law, NUI Galway, in addition to pursuing his or her own doctoral research.
Those interested in applying should submit the following:
GuestPost - Mon Sep 01, 2014 15:40
We are pleased to welcome this guest post from Wendy Lyon, who is a trainee solicitor with KOD Lyons, a human rights and criminal law firm. The recent High Court case of Win Lin v Governor of Cloverhill Prison ( IEHC 214) allowed a brief light to shine on the issue of trafficking for forced labour(...)
We are pleased to welcome this guest post from Wendy Lyon, who is a trainee solicitor with KOD Lyons, a human rights and criminal law firm.
The recent High Court case of Win Lin v Governor of Cloverhill Prison ( IEHC 214) allowed a brief light to shine on the issue of trafficking for forced labour in cannabis growhouses. In Ireland and the UK, this appears to be a growing problem, affecting mainly Vietnamese and Chinese migrants. Despite strong evidence of coercion in many cases, they are regularly prosecuted under the Misuse of Drugs Acts, some receiving lengthy custodial sentences. A recent report by the Migrant Rights Centre Ireland provides some detail on the scope of the problem.
Penalising people for offences they were trafficked to commit is a breach of Ireland?s European and international obligations. Under Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings, states are obliged to ?provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so?. Article 8 of EU Directive 2011/36/EU goes further in requiring states to also allow for non-prosecution, where the alleged offence was committed as a direct result of human trafficking. The Irish government considers these provisions to be satisfied by DPP guidelines which state that in such cases ?the prosecutor should consider whether the public interest is served by a prosecution of the suspect?. However, reading Article 8 in conjunction with Recital 14 of the same directive, it is clear that a policy of prosecutorial discretion will only suffice if that discretion is actually exercised in appropriate cases.
Win Lin?s case was an Article 40 (habeas corpus) application brought while Mr Lin was awaiting trial on cannabis cultivation, having been found by Gardaí locked into a growhouse. He argued that his prosecution ? and hence his detention ? was unlawful, having regard to the above-mentioned EU Directive. In his judgment, delivered on 23rd April, Justice Gerard Hogan declined to interpret the Directive as affording victims of human trafficking an entitlement not to be prosecuted; ?Article 8?, he wrote, ?at most ensures that the public prosecutor of each Member State is entitled to stipulate that no prosecution will take place where a trafficked person has been compelled to commit crimes which are as a direct result of having been trafficked?. He did, however, recognise that such a policy could not exist on paper only: ?it is clear that serious consideration would have to have been given by the Director of Public Prosecutions as to whether there should have been a prosecution in the first place?. Judge Hogan also made reference to the recent UK case L, HVN, THN and T v R, in which the Court of Appeals held that any such prosecution would be deemed an abuse of process.
Mr Lin?s application failed, however, on the basis that he had not established he was a victim of trafficking in the first place. It is this aspect of the decision that is concerning, as it seems to apply a stricter definition of ?trafficking? than that intended under Irish or international law.
The legal definition of ?trafficking? is poorly understood, and frequently misrepresented in both media and advocacy. It derives from the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. While some countries (notably the Netherlands and UK) have vastly expanded the definition in their own domestic law, Irish law follows the Protocol by requiring the presence of three elements, which are often summarised as the ?what?, the ?how? and the ?why? of human trafficking. These elements are contained in Sections 1 and 4 of the Criminal Law (Human Trafficking) Act 2008 as amended:
? The “what” element is satisfied where the trafficker procures, recruits, transports or harbours a person; transfers, delivers or places a person in the custody of another person; causes a person to travel into, out of or within the State; takes custody, care or charge of a person or takes a person under their control; or provides a person with accommodation or employment.
In Mr Lin?s case, Judge Hogan explicitly accepted that the “why” element was present: ?It is true that Mr. Lin was exploited in the sense that I have found that his incarceration in the growhouse amounted to conditions of servitude within the meaning of s. 1 of the 2008 Act.? He also appeared to accept the presence of the “how” element: ?Mr. Lin was deprived of his liberty under the nascent ? but real – threat of violence for a significant period in circumstances where, by reason of his very vulnerability in terms of language and immigration status, he could not effectively independently secure his release?. Inexplicably, however, Judge Hogan?s approach to the “what” element failed to have regard to the criteria as outlined above (and as contained in the same Section 1 of the 2008 Act that he refers to in addressing the ?why?). Instead, he found that there was no evidence to show that Lin had been trafficked into the State. But there is no requirement in law that alleged victims show they were trafficked into the State. They simply have to show that they were trafficked, via the “what” and “how” elements, into the exploitative situation.
It is clear from the accepted evidence that the “what” conditions were, in fact, met: at minimum, Mr Lin was given accommodation and work by his exploiters. Indeed, this is likely to be the easiest condition for any alleged trafficking victim to satisfy. The threshold for the other two elements will generally be harder to reach; in particular, alleged victims may find it difficult to establish coercion. It is surprising to see an applicant succeed in proving those aspects of his claim, but fall on the other.
In media reports of this case, much was made of a photograph taken of Mr Lin posing with Gardaí during the visit of Queen Elizabeth. This was also a factor against him in the judgment, as it was taken to demonstrate that he was “at liberty” for some period of time. Yet Judge Hogan also accepted that at the time Lin was found, he was not at liberty and in fact had no ?obvious means of escape?. The importance Judge Hogan placed on the question of how Lin entered the State prevented him from considering that the trafficking offence could have taken place after the period in which he was at liberty. But nothing in the 2008 Act, or anywhere else, suggests that it couldn?t.
There are some positives to take from this judgment. The finding that Lin?s conditions did amount to servitude and coercion will undoubtedly serve as a useful precedent, and the approval of the ?abuse of process? jurisdiction for trafficked defendants is welcome (although the high degree of compulsion required under the UK judgment is a matter of some concern). Nonetheless, it is a harsh outcome for Mr Lin, who seems to have met all the criteria envisaged by the Oireachtas. It is likely to lead to harsh outcomes for others who seek to be identified as victims of trafficking – whether by the courts, the DPP or the Garda National Immigration Bureau. It will be very worrying if this judgment is seen as establishing a principle that complainants must prove they were trafficked at and from the moment they entered the State. As it is not required by the legislation, it is a burden that alleged victims of trafficking should not have to meet.
DCU School of Law and Government Inaugural Conference: ?Judges, Politics and the Irish Constitution.?
Sinead Ring - Mon Sep 01, 2014 09:27
Dublin City University School of Law and Government will be holding its Inaugural Conference on “Judges, Politics and the Irish Constitution” this Thursday September 4th from 9am. The conference brings together members of the judiciary, lawyers, academics and postgraduate students who will be delivering papers on themes such as socio economic rights, democracy and judicial(...)
Dublin City University School of Law and Government will be holding its Inaugural Conference on “Judges, Politics and the Irish Constitution” this Thursday September 4th from 9am.
The conference brings together members of the judiciary, lawyers, academics and postgraduate students who will be delivering papers on themes such as socio economic rights, democracy and judicial power, historical perspectives and theory and interpretation. Three Human Rights in Ireland authors will be addressing the conference: Eoin Daly on ?Reappraising judicial supremacy in the Irish constitutional tradition?, Mairead Enright on ?Judges? Troubles: The Northern/Irish Feminist Judgments Project? and Fiona de Londras on?Judicial innovation and constitutional evolution?.
The provisional programme for the conference is now available here. It includes details of the opening plenary, the panels and chairs, directions and contact information. To register please contact email@example.com.
The venue for the conference is the Nursing Building, Dublin City University, Glasnevin, Dublin 9.
Colin Murray - Fri Aug 29, 2014 19:15
Today the UK terrorism threat level has once again been raised to severe, as a result of ‘developments in Syria and Iraq where terrorist groups are planning attacks against the west’. Within hours of the increased threat being announced, David Cameron was on hand (in Downing Street, not in Cornwall) to ominously declare a “greater(...)
Today the UK terrorism threat level has once again been raised to severe, as a result of ‘developments in Syria and Iraq where terrorist groups are planning attacks against the west’. Within hours of the increased threat being announced, David Cameron was on hand (in Downing Street, not in Cornwall) to ominously declare a “greater and deeper threat to our security than we have known before”.
One of the stories frequently trotted out in criminal law classes throughout the UK is that a person can see a child drowning in a pond and pass by without helping, even though it would not be difficult to do so, without any fear of criminal sanction. It’s an effective story. The message is that the UK’s criminal justice systems are so rooted in the liberal notion that people should not be compelled to perform actions against their will under threat of criminal sanction that a person is free to act in such a reprehensible way. But if a person is so moved by the plight of dying children in Aleppo or Homs to travel to Syria to fight against the Assad regime, many commentators are happy to see the situation reversed.
From early this year the UK Government has been increasingly concerned that such individuals will return to the UK as trained and violent jihadist operatives. The Government’s approach to the issue has followed a predictable pattern. In April, as reports circulated over 400 Britons had travelled to Syria since the start of the uprising against the Assad regime, the police launched a national awareness campaign to attempt to persuade relatives who suspected a family member was planning to travel to Syria to report this to the police. The line advanced by Greater Manchester Police was avowedly non-confrontational:
At this point the security services must have considered the situation to be in hand. After all, the circumstances were not far removed from the Spanish Civil War, when fears had been stoked that Britons like George Orwell fighting on the Republican side would return to the UK as fifth-columnists acting on behalf of the Soviet Union. Then, the rickety provisions of the Foreign Enlistment Act 1870 proved unable to secure convictions.
Under current counter-terrorism law extensive provisions exist to criminalise terrorist training, be it weapons training (section 54 Terrorism Act 2000) or indeed training in any form of activity useful for terrorist ends and with an intent to commit acts of terrorism (section 6 Terrorism Act 2006). Even though the focus of these provisions is on criminalising training in the UK, they are buttressed by the offence of undertaking any ac preparatory for terrorism (section 5 Terrorism Act 2006). This means that any steps taken within the UK in furtherance of an intention to take part in terrorist training overseas, are criminal. For the purposes of these offences it is irrelevant that the terrorist intent (which can mean seeking to overthrow a government) is not directed at the UK Government (but instead at a regime like that in Syria).
This approach appeared to be working. Close contacts between the police and the Muslim community in Portsmouth led to the arrest and conviction (under the acts preparatory offence) in May of Mashudur Choudhury. For all the rhetoric about the police approach not being about criminalising people, 40 Syria-related arrests had been made in the first three months of 2014, a 75% increase on the year total for 2013. For the Independent Reviewer of Counter-Terrorism Legislation, the offences already available to the police have proven themselves useful in the context of returnees from Iraq and Syria: ‘[The] ?precursor offences? were applied during the period under review not only domestically but to the actions of those suspected of training or fighting abroad, particularly in Syria.’
David Cameron’s speech this afternoon cited three factors as contributing to the cranking up of the threat level and the shift towards new counter-terrorism powers. First, although the numbers of Britons who have travelled to Syria to fight remains low (latest estimates suggest around 500), the involvement of UK nationals in the murder of James Foley has raised the profile of the threat. This increased profile of UK members of Islamic State comes as the group has surged to form a transnational caliphate across swathes of Syria and Iraq. And at the forefront of the Prime Minister’s mind was the May murders at the Jewish Museum in Brussels (suspected to have been carried out by a French national returned from fighting in Syria): ‘the attack in the Jewish museum in Brussels was perhaps the clearest indication yet that this is an organisation that wants to kill entirely innocent people in pursuit of its agenda.’
In these circumstances, both Bernard Hogan-Howe, the Chief Constable of the Metropolitan Police, and Boris Johnson, London Mayor, have urged curbs on the presumption of innocence. With the rhetoric surrounding the threat reaching such crescendos, such calls were inevitable, and drowned out the Independent Reviewer’s analysis that ‘few of the Muslims who leave Europe to fight in Syria intend at that stage to practise terrorism on their return’. Until today, and despite badgering from Theresa May as Home Secretary, the Prime Minister had held firm against further extensions of counter-terrorism powers (a spokesperson pouring cold water on Johnson’s knee-jerk proposals). Now an announcement on new powers is expected in the Commons on Monday and is likely to reflect the Home Secretary’s wish list.
This sudden frenzy of activity seems to mark the end of the phase of patient application of existing counter-terrorism powers in response to the supposed threat of terrorist returnees, and could undo much of the good work resultant from repealing executive measures such as control orders and running down their replacements, TPIMs. More legislation aimed towards a specific threat emanating from within the UK’s Muslim communities is likely to have a corrosive impact on relations with the police.
Even under the existing law, the police are able to not simply to arrest any returnees, but to extend the threat of criminal sanction over anyone who knew about their plans and failed to inform the authorities (section 38B Terrorism Act 2000). Muslims in the UK could be forgiven for feeling singled out as being under special obligations alien to the ethos underpinning the criminal law. That this power has been very rarely used speaks to the police being well aware that their repertoire of powers already exceeds the limits of usability.
Vicky Conway - Sat Aug 23, 2014 13:57
The following is the text of a letter written by a number of regular HRinI contributors and signed by over 100 academics, which was published in the Irish Times today (full list of signators only available online). Here we have added a number of additional signatures received after the letter went to press. Others who wish(...)
The following is the text of a letter written by a number of regular HRinI contributors and signed by over 100 academics, which was published in the Irish Times today (full list of signators only available online). Here we have added a number of additional signatures received after the letter went to press. Others who wish to express their desire for a referendum to repeal the 8th Amendment to the Constitution should sign the petition organised by the Abortion Rights Campaign here.
We are people in or from Ireland. We are under the age of 50. We could not vote in the 1983 abortion referendum which profoundly limited women’s autonomy. No subsequent referendum has provided an opportunity to undo that damage. Many of us have lived our whole lives under an abortion regime in which we have had no say. As a generation we have grown up knowing that the State would compel us to travel if we wished to exercise substantive control over our reproductive lives.
We never allowed ourselves to think, at least since Miss X, that we lived under a regime willing in principle to marshal its power against a distressed young woman to compel her to carry her pregnancy to viability. We have never been given the democratic opportunity to expand the circumstances in which an abortion can be sought in Ireland. We have repeatedly asked for this chance, but the State failed to listen. The law punishes women in our name, but never bore our mark. We are disappointed and concerned by the latest news, but we know that disappointment and concern are not enough. It is time that this generation had its referendum. That referendum must transform the law on access to abortion care.
Women in and from Ireland are entitled to autonomy, to bodily integrity, to be free from unjustified detention, to be free from inhuman and degrading treatment. Women in and from Ireland should not have to expose or prove vulnerabilities and private matters in order to access medical treatment.
As long as the Constitution confers equal rights on the mother and the foetus, doctors and nurses will be unable to treat women ethically. As long as the Constitution remains as it is, those privileged enough to afford to travel will make those difficult journeys without the support they need. As long as the Constitution remains as it is, we consign the most vulnerable women and girls in our society to a system which will not listen to them, which will not give them any say over their own bodies, which will prioritise birth over any long term trauma caused to them.
The people should be given the opportunity to repeal the 8th Amendment to the Constitution and to enact a law that places women’s capacity to make decisions regarding their bodies and their futures at the heart of their medical treatment. The government claims it has no mandate to act on the 8th Amendment. This group of 100 academics, comprising women and the men who support us, adds its voice to the demands that the government finally listens, finally acknowledges that this mandate exists and finally gives us our referendum.
admin - Fri Aug 22, 2014 11:01
Irish Community Development Law Journal is a peer reviewed online journal, published twice a year by Community Law & Meditation (formerly Northside Community Law & Mediation Centre) in Coolock, Dublin. The journal seeks to offer a platform for interaction that encourages greater scholarly and academic collaboration in the areas of social policy, law and community development,(...)
Irish Community Development Law Journal is a peer reviewed online journal, published twice a year by Community Law & Meditation (formerly Northside Community Law & Mediation Centre) in Coolock, Dublin. The journal seeks to offer a platform for interaction that encourages greater scholarly and academic collaboration in the areas of social policy, law and community development, promoting the practice of community economic development law and policy in Ireland and learn about these initiatives in other countries.
The deadline for submissions is Friday 17th Oct 2014
Economic, Social and Cultural Rights focusing in particular upon Social Welfare Rights.
This edition will examine economic social and cultural rights focusing in particular upon social welfare rights in times of economic and social crisis. Austerity has been the core budgetary strategy for several years now which has posed a real challenge for social welfare policy.
The challenges posed to social welfare policy have also highlighted the difficulties in enforcing the right to social security/assistance before the Courts in light of the fact that economic social and cultural rights generally are not directly justiciable.
With unprecedented high levels of unemployment and a very large percentage of the population dependent on social welfare payments as their only means of livelihood it is timely to consider whether the right to social security should be justiciable and to explore what human rights mechanisms could be relied upon in that regard. Given the impact of austerity and rising levels of poverty it is also important to consider whether it is incumbent upon the State to adhere to a minimum income threshold below which no person should be asked to live regardless of their circumstances
Submissions are welcome from practitioners and academics working across a broad spectrum of professions and academic disciplines.
If you are interested in writing an article, a book review or case?study, please email: firstname.lastname@example.org
To access previous editions of the journal and for more information, go to our new website here.
Máiréad Enright - Wed Aug 20, 2014 12:00
This piece is partially cross-posted from Critical Legal Thinking. Those not familiar with the facts of the case as reported by Irish Times journalist Kitty Holland can find a full account of those, and of the basic law behind this case there. In a sense I cannot add to, or improve upon, William Wall’s elegant reflection on(...)
This piece is partially cross-posted from Critical Legal Thinking. Those not familiar with the facts of the case as reported by Irish Times journalist Kitty Holland can find a full account of those, and of the basic law behind this case there.
In a sense I cannot add to, or improve upon, William Wall’s elegant reflection on the case in which a young migrant to Ireland was wrongfully refused an abortion. But I can underline and re-iterate what it may mean for Irish abortion law. As things stand, we do not know when we will discover how the state’s organs and agents reasoned to brutalising this young woman. Doctors for Choice have asked for an independent inquiry, headed by the man who chaired the inquiry into the death of Savita Halappanavar. But we are unlikely to get one. The HSE will conduct an inquiry into this case. But it will not consider the reasons why a C-section, rather than an abortion was performed in this instance, at likely great cost to the health of this woman and the baby. Somewhere in the High Court digital recordings archive is the evidence of the legal arguments made by lawyers for the HSE, the woman and the then unborn baby at a time when it was sought to compel this woman to accept medical treatment including, apparently, Caesarean section to facilitate a birth she plainly did not want. In particular we do not know whether the arguments accepted by the High Court when it made its hydration order were based on the woman’s own best interests, on on the the basis of some previously undisclosed right of the ‘unborn’ to be born alive. Precisely what law shadowed this woman’s experience? What were its terms? The not knowing is a form of regulation. Any worthwhile inquiry must answer these questions. We keep being told we are not ‘in full possession of the facts’ about this case - a subtle undermining of protest by those who like to frame themselves as ‘in the know’. We are not in full possession of the law. We are not in full possession of ourselves.
But even against this backdrop of grave uncertainty, we can make three key claims, which must become the subjects of government and public debate.
For those who are interested in interrogating and reforming the law in Ireland, there are several options:
GuestPost - Tue Aug 19, 2014 08:15
We are pleased to welcome this guest post from Dr. Ruth Fletcher of Queen Mary University of London. I want to respond to Máiréad Enright?s thoughtful call to discuss what happened in this recent case of abortion refusal and cruel treatment. How have certain forms of legal thinking got us to this place? How might this(...)
We are pleased to welcome this guest post from Dr. Ruth Fletcher of Queen Mary University of London.
I want to respond to Máiréad Enright?s thoughtful call to discuss what happened in this recent case of abortion refusal and cruel treatment. How have certain forms of legal thinking got us to this place? How might this case have gone differently? Does this woman have any remedies? And if not, why not? These are my initial thoughts. They focus on the legal significance of the abortion refusal decision. I hope to address the hydration order and the performance of the Caesarean section at a later date. Comments are welcome.
The basic facts that gave rise to this legal decision appear to be these: A pregnant woman presents to the health service for abortion care. She is distressed and says that she wants to die. She is pregnant as a result of rape. She is a foreign national with limited English language skills. She is young and vulnerable. Her ability to leave the country to avail of abortion care elsewhere is legally curtailed, it now appears because she is an asylum seeker. A panel is convened under section 9 of the Protection of Life During Pregnancy Act 2013 (PDLPA), around 12 weeks after she first presented, and finds that her life is at risk. But the panel of two psychiatrists and one obstetrician refuses to authorize the abortion. Instead it puts in motion a process, which would culminate in the delivery of a live child by Caesarean section at about 25 weeks gestation and includes a High Court order to hydrate the woman who went on hunger strike.
To justify the original care decision of denying an abortion under section 9, the HSE appointed panel must have decided that a termination was not the only reasonable way of averting the risk to the woman?s life, given the need to preserve unborn human life as far as practicable. Her constitutional right to a life-sustaining abortion was engaged, but outweighed by the possibility of delivering a live child, as regulated by the PDLPA and the (as yet unpublished) Guidelines. Their grounds for refusing this life-saving abortion seem to have been that they thought it was reasonable to perform serious abdominal surgery on a woman against her wishes in order to preserve the life of the foetus.
Although the woman is reported as having ultimately consented to the C section, it is also reported that she did not consent initially and that the HSE were preparing to ask for a High Court order authorizing the C section. In other words, the performance of a C section against her wishes was clearly anticipated as the reasonable and practicable alternative to a termination, an alternative which justified refusal of that termination. As Maeve Taylor of the Irish Family Planning Association pointed out to me recently, this HSE interpretation appears to have narrowed the scope of a woman?s constitutional right to abortion under the X case, through the means of a problematic implementation by the PLDPA test under section 9 and the Guidelines.
This is the first troubling aspect of this case from a legal perspective. There weren?t many optimistic moments during the recent passing of the PDLPA (on the discussion of suicidal women see Murray?s presentation, and forthcoming article). But occasionally some of us clung on to the hope that at minimum the Act would enhance women?s procedural rights to have their abortion requests heard in a life-saving context (on the importance of procedural rights, see further Erdman?s chapter in Cook, Erdman and Dickens, 2014). This case however seems to have delivered on our more pessimistic interpretations of those procedural rights. The abortion approval/refusal process may in itself harm women by subjecting them to the kind of judgmental scrutiny which produces mental anguish.
Irish civil society voiced this concern to the Oireachtas (or Irish Parliament, for non-Irish speakers) before the Act was adopted, to the UNHRC in July 2014 a year after the Act was passed, and to the media all the time. Indeed, the national statutory body responsible for human rights promotion and protection, the Irish Human Rights Commission, noted that the Bill could be in breach of human rights norms for failure to provide effective and accessible procedures for protecting the right to life of women and girls. The UNHRC found that the panels entail ?excessive scrutiny? in breach of civil and political rights. At minimum, the HSE needs to revisit interpretation of the test under section 9, as interpreted by the Guidelines, in order to comply with the ECtHR decision in ABC. They need to ensure that women?s procedural rights deliver on the purpose for which they were intended: the provision of life-saving abortion care to women at risk of suicide in a manner which respects their Convention rights to private life and freedom from discrimination.
The second troubling aspect of this abortion refusal is that it reiterates just how unethical the substance of Irish abortion law is. Irish abortion law imposes CIDT, violates integrity and autonomy, discriminates against women in general, and against women with mental health issues, women with few economic resources and women with limited mobility options, in particular. It does all this to conscious, sentient, thinking, feeling women in the name of protecting unconscious and non-sentient life forms in one of the more spectacular examples of upside-down thinking in human rights discourse (for an example see Binchy, for a critique of this kind of thinking see Rodley). I won?t say any more on this now, but see any one of the 6 pro-choice civil society submissions to the UNHRC for the July 2014 hearings for arguments and evidence in relation to the human rights violations performed by Irish abortion law. There is ample evidence of past and continued efforts to push the state further towards harm reduction and rights promotion in this context and many others. But right now, the state is not listening.
A third troubling aspect, and the main point I want to focus on here is the panel?s apparent views of what counts as reasonable and practicable treatment of women who are pregnant, at risk of suicide, survivors of rape, young, possibly incapacitated and of precarious migration status. Section 9 requires that ?in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure.? Footnote 22 of the Guidelines provides: ?If the unborn has reached viability, and the best course of action is deemed to be an early induction or caesarean section, this medical procedure would not fall under the Act as it is not a medical procedure during which or as a result of which an unborn human life is ended. Once delivered, the medical staff should ensure the necessary care for the neonate in accordance with clinical guidelines and best practice? (emphasis added). I want to suggest that the HSE panel may well have been legally wrong in its assumptions about what counts as reasonable and practicable treatment, and the best course of action (hereinafter referred to as ?reasonable?) for the following four reasons:
1. The abortion refusal may not have been reasonable because it was not likely to avert the risk of suicide and in fact did not avert that risk. As Doctors for Choice have consistently argued, the evidence of an obstetrician is not relevant to the assessment of suicide risk, and operates as a barrier to access on this ground. In the context of suicide risk, where the woman is severely distressed by her unwanted pregnancy and the possibility of being denied an abortion, treatment options such as C section and early delivery, are not likely to address her distress and reduce risk. A C section may be a reasonable treatment option in cases of physical threat, if the woman wants, and is not threatened by, a live delivery. But it is unlikely to be a reasonable option in cases of mental anguish and suicide risk.
If the offer of a Caesarean was unlikely to avert the risk of suicide and the threat to the woman?s life, it was not a reasonable or practicable way of vindicating her right to life with due regard to the unborn?s right to life. And indeed this seems to have been borne out by the consequences of the refusal. Rather than experience some relief from her distress, her distress seems to have been exacerbated as she turned to hunger strike as a means of making herself heard. In going on hunger strike, she was acting on her threat of suicide. The risk to her life, which the HSE had an obligation to reduce, eventuated in the form of acts of self-harm through the refusal of food and water.
Given this key legal and clinical distinction between kinds of life-risk, which require different kinds of clinical expertise in their assessment, the best way to interpret footnote 24 of the guidelines is to read it narrowly as applying only to those rare cases where a suicidal woman?s distress is likely to be alleviated by C section and early delivery, because they accord with her wishes. Otherwise the Guidelines have introduced a foetal viability criterion as a way of limiting the scope of a woman?s right to abortion due to suicide risk, in a manner which is not authorized by the legislation or the X case precedent (thanks to Maeve Taylor and Mairead Enright for discussion of this point).
In X, the Supreme Court decided that when there is a direct conflict between a woman?s right to biological life and a foetal right to biological life, the woman?s has to take precedence. The court was silent on the issue of whether this was limited by gestation. I would argue that it is unreasonable to think of it as limited by gestation because a woman?s life should always trump a foetus?s life in situations of conflict (see here, here and here). Of course, it is possible that a court might decide differently on the length of gestation issue, as de Londras and Graham have argued. But I think there are strong legal and ethical arguments for avoiding such an interpretation since it would still require sustenance until viability and performance of serious surgery, against the woman?s will.
2. The abortion refusal on grounds of the C section alternative may not have been reasonable, because the C section was not a real, voluntary alternative for the woman in this case. The apparent consent to the C section may not have been ?real? in the legal sense, potentially rendering the C section a trespass on the person for which the state could be liable in civil law. In Fitzpatrick and another v K and another IEHC 104, Laffoy J cites Walsh J in G v An Bord Uchtala  IR 32 (SC) in emphasizing ?that to be valid the consent must be ?free and willing?, in other words it must be voluntary?. K turned on issues of capacity in the context of treatment refusal, so these comments are obiter dicta. But they are an articulation of the generally accepted legal rule that consent needs to be voluntary, as well as informed and capacitated, in order to be valid.
On the assumed facts, there seem to be 2 reasons why this woman?s apparent consent may not meet the legal test of voluntariness. First, the HSE had already got an order for forcible hydration, to which she had been subjected. Second, the HSE was planning on seeking an order for a C section, if she did not consent. Asking someone to consent to a C section in these circumstances seems like an invocation of a superficial ?tick box? exercise, rather than the execution of legally meaningful consent. Could her consent have been free and willing if it was obtained through the implicit threat of force, and with no other realistic options available to her? If consent was not real, then the C section was a non-criminal battery (assuming the absence of bad faith) and she may have a civil case against the Health Service for trespass against the person.
3. Offering a C section to a woman who is at risk of suicide may not be a reasonable action because it falls below standards of good medical practice. The woman in this case had a legal right to abortion on grounds of suicide risk. The norms of good medical practice, which include minimizing harms to her, as well as listening to her and taking her views seriously, should have applied in this case. And if doctors acted below the norms of good medical practice in treating her, they may be liable in negligence if any harm resulting from the abortion refusal was caused by that breach in standards.
Such negligence would probably be difficult to prove in this instance since negligence law continues to adopt a more professional oriented, rather than a patient oriented, standard of care (usually known as the Bolam standard, see Dunne v National Maternity Hospital  IR 91 (SC)). This means that if some body of healthcare professionals thinks it is reasonable to treat women in this way, then it is difficult to prove a breach of the standard, even if goes against the mainstream views of the profession. As there are a significant number of doctors who believe that abortion is not an appropriate treatment for women at risk of suicide, it is possible that an abortion refusal may not fall below the standard as set by ?a body of professional opinion?.
But we should always be arguing for a more patient-centred standard in medical negligence law?s response to maltreatment. And indeed Irish law together with most other common law jurisdictions (except the UK) does adopt a reasonable patient standard in the context of medical negligence?s response to the issue of information (see Fitzpatrick v White  IESC 51). If the courts do move more towards a patient-centred perspective in all aspects of medical negligence law, then care which fails to take patient?s reasonable views of harm seriously will not be satisfactory. As Mark Murphy discussed recently, ?doctors of pro-choice conscience? have consistently pushed clinical standards more towards a patient-centred, human rights norm as they argue for those standards in their clinical practice.
[There may be other aspects of this woman?s treatment which could give rise to a negligence claim. First, the reported delay between her reported presentation at 8 weeks and the eventual triggering of a s 9 process at around 20 weeks gestation could be a failure to observe good medical practice which resulted in harm. Second, the forcible administration of fluids would also seem to many people to be a harmful breach of the norms of good medical practice, particularly in these factual circumstances. This is why we need to know more about the High Court?s reasons for ordering forced hydration, as Enright says. Why did the Court think this was legally justifiable? Were there grounds for appeal? Third, it seems possible that the usual process of informed consent, which does adopt a more patient-centred standard, see Fitzpatrick v White  IESC 51, was not properly observed in the context of her apparent consent to the C section, which could also ground a negligence claim. But I will have to leave further analysis of these issues aside for now. Thanks to Mary Donnelly, Claire Murray and Peadar O?Grady for discussion of these points.]
4. Refusing an abortion on grounds that a C section is an alternative treatment is not likely to be reasonable when a) performing that C section and 2) delaying treatment until foetal viability are forms of cruel, inhuman and degrading treatment.
If women?s constitutional and international human rights are legally significant, then the standards by which health care decisions are made have to be interpreted in light of those rights. Ending a pregnancy by C section and delivery of a live child against that woman?s wishes violates her bodily integrity and autonomy and subjects her to cruel, inhuman and degrading treatment (CIDT). ICCPR and ECHR rights norms clearly recognize that denying abortion to a rape victim is a form of CIDT. Irish law has not yet taken this formal step, but clearly it should if it wants to ring true in its commitment to human rights and ethical principles. The Health Service could have chosen to interpret practicality and reasonableness as excluding the imposition of CIDT. But it didn?t. Instead it appears to have interpreted reasonableness and practicality as ensuring the delivery of a viable foetus against a woman?s will and as forcibly hydrating a woman who has already been violated through rape.
The case has been reported in the Irish media, who have commented that the baby is doing well. This seems unlikely given birth at 25 weeks gestation approx. It provides another problematic example of ?bare life? being represented as wellness. They have said little or nothing about how the woman is doing. Is it too cynical to suggest that the mainstream media is a little too accepting of a HSE version of events? In whose name does the Irish state subject pregnant women, women who are vulnerable and distressed, victims of crime, and precarious migrants, to such cruel treatment? Not mine.
admin - Mon Aug 18, 2014 16:21
As coverage of the case of a young woman who was refused an abortion under the Protection of Life During Pregnancy Act 2013 continues in Irish newspapers and on radio and television, we thought it might be useful to journalists and producers to outline some of the expertise available from the HRinI contributors. The full(...)
As coverage of the case of a young woman who was refused an abortion under the Protection of Life During Pregnancy Act 2013 continues in Irish newspapers and on radio and television, we thought it might be useful to journalists and producers to outline some of the expertise available from the HRinI contributors. The full list of contributors is here, and people whose research engages directly with the relevant legal issues are listed below.
Claire Murray: consent to medical treatment, medical law, the Act
Fiona de Londras: the constitutional position, the Act, abortion, international human rights law
Liam Thornton: asylum & immigration, travel restrictions, international human rights law
Máiréad Enright: the constitution position, the Act, abortion, international human rights law
Sinéad Ring: trauma, rape
Máiréad Enright - Sat Aug 16, 2014 15:13
Update: I have added notes to this post to take account of what has been published elsewhere since the Independent report quoted below. Reporting of the case has been patchy, and sometimes confused. See RTE.ie, the Sunday Independent (quoting this piece), the Sunday Times and the Examiner. Dearbhail McDonald of the Irish Independent reported on Saturday on what she(...)
Update: I have added notes to this post to take account of what has been published elsewhere since the Independent report quoted below. Reporting of the case has been patchy, and sometimes confused. See RTE.ie, the Sunday Independent (quoting this piece), the Sunday Times and the Examiner.
Dearbhail McDonald of the Irish Independent reported on Saturday on what she believes was the first application made under the Protection of Life in Pregnancy Act. The article summarises the facts as follows:
This article provides scant detail on the facts. [It is not clear how this story came into the public domain. Last year, some details of a termination carried out at the National Maternity Hospital similarly emerged into the media. The Irish Human Rights Commission in its comments on the Bill, warned of the need to take measures to protect women's privacy. These measures are relevant where termination is refused as well as where it is granted. We can only hope, as @OireachtasRetort observed on twitter last night, that one day women's reproductive choices will no longer make the national headlines in Ireland.] [It is now clear from the Sunday Times that the story has emerged into the public domain through restricted reporting of two court hearings in respect of this woman - an application for permission to administer certain medical treatment which led to granting of a hydration order, and an application for permission to perform a C-section, which became unnecessary, as the woman consented to it.]
I will confine my (very tentative) remarks to exploring, insofar as the reported facts allow, how this case connects to the existing law. Comments are very welcome.
This woman applied for a termination under s.9 of the Act. Guidelines for doctors have been drafted, but not yet officially published. S.9 requires that ‘three medical practitioners, having examined the pregnant woman, have jointly certified in good faith that
This is a two stage test. It is not only a matter of determining that the woman’s life is at risk, but that an abortion is the only reasonable means of eliminating that risk. The Guidelines contemplate that a woman in this position would be referred to her GP, who would refer her to the local consultant psychiatrist. That psychiatrist, having agreed to certify, would have referred her to a second psychiatrist, who in turn, having agreed to certify, would have referred her to a obstetrician, who then refused to certify. We do not know from the article whether the obstetrician refused termination on one ground or the other. (Doctors for Choice have consistently raised the prospect of an obstetrician vetoing two psychiatrists’ findings on risk to life from suicide.) But the panel’s decision must be unanimous, or a termination under the Act cannot go ahead.
How then, to explain the Caesarean? The Act clearly directs the panel of three to consider other measures which would preserve the life of the foetus, and to take them, where possible. Premature Caesarean delivery would appear to fall within the scope of ‘reasonable’ options under the Act. Fiona de Londras has argued that the X case provides, in circumstances where the foetus is viable but a woman’s life is at risk, as here, that the woman may have a constitutional right to have the pregnancy ended in Ireland, but no right to end the life of the foetus. (See Gerry Whyte, quoted here, disagreeing, and arguing that in X the girl’s pregnancy was still in its early stages, and so the X ruling simply does not give any guidance on what should be done where live birth is possible). The constitution may require that other measures are taken to allow live birth. During the Oireachtas debates on the Bill, in which deputies raised the issue of ‘term limits’ or ‘late term abortion’, the Minister for Justice acknowledged the possibility of early delivery. It is important to note that the Draft Guidelines , in a footnote at page 29, contemplate that this ‘early delivery’ falls entirely outside the scope of the Act. It says that:
The footnote captures the legal divide on which this case turns. Abortion is an exceptional procedure and requires intensive regulation. Premature Caesarean is simply medical treatment, even if it has its origins in a request for an abortion. None of the things that happened to this woman after she was refused a termination are governed by the legislation. They are in a separate ‘fallout’ space, regulated by ‘best practice’, which may be creative and sustained by human rights, or not. [The government should be asked whether a 'viability' threshold is introduced into the Act by the 'back door'. Is it the case now that a woman who is suicidal, but whose pregnancy is in the late second trimester, cannot obtain a termination in practice, but will always be offered an alternative treatment designed to secure live delivery of the foetus? Can women on the cusp of viability be managed into this zone?]
This case raises a series of difficult questions, and the reported facts are too scant to provide deep analysis. In particular, it is difficult to tell how much time elapsed between the woman’s seeking medical treatment, the s. 9 application and the final Caesarean. However, these facts certainly raise the issue of what should happen where a woman – as initially happened here – refuses the medical procedure presented to her as an alternative to a requested abortion. The Draft Guidelines, as published on the Guardian website, do not provide transparency about this sort of situation, and that is a problem – for doctors, for women, and for the wider public who authorise this law.
The State’s obligation under the Constitution is ‘as far as practicable’ to defend and vindicate the right to life of the unborn. Scenarios like the one reported in the Independent raise the question of what ‘practicability’ has come to mean. Several commentators have been recalling Sir Nigel Rodley’s ‘vessel’ comments at the UNHRC in July. [If the reports that this woman was raped are accurate, then we are squarely within the territory of these criticisms - the UNHRC expressly noted Ireland's failure to provide for victims of rape under its abortion law. This litigation would suggest that the public discussion of the UNHRC's comments has had precious little effect on those charged with enforcing the 2013 Act] It is quite clear that we do not know enough about the possible chains of events to which a vulnerable woman exposes herself if she makes an application under s.9 of the Act. The image of a competent, very distressed woman resorting to the threat of hunger strike – the classic last ditch protest action of those interned, or denied civic voice – in an effort to assert her autonomy should give serious pause for thought. The Irish Independent calls it ‘tragic’. ‘Tragedy’ is often a word we use to signal detachment, from exceptional and rare suffering brought about by fate – events that we can only gawp at from a distance. But this particular set of circumstances is, in an important sense, the product of a constitutional amendment which was never fit even for its proponents’ purpose, and which has been punishing women for far too long. [It is to be hoped that, as a first step, TDs will seek clarity in the Oireachtas on the Attorney General's involvement in the case, and the government's position on the orders sought and made in this litigation. The Sunday Times reports that the Ministers for Health and Justice were briefed on the case.]