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Dublin Opinion
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Human Rights in Ireland
www.humanrights.ie

offsite link Call for Submissions: Irish Community Development Law Journal Fri Aug 22, 2014 11:01 | admin

offsite link Suicide and the Protection of Life During Pregnancy Act: Where Are We Now? Wed Aug 20, 2014 12:00 | Máiréad Enright

offsite link Contesting the cruel treatment of pregnant women ? Ruth Fletcher Tue Aug 19, 2014 08:15 | GuestPost

offsite link Expertise on Abortion in Ireland Mon Aug 18, 2014 16:21 | admin

offsite link Suicide and the Protection of Life in Pregnancy Act 2013. Sat Aug 16, 2014 15:13 | Máiréad Enright

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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 DevelopmeCLM logont 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: editor@communitylawandmediation.ie

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.

  1. On the facts as reported, this woman’s human rights were violated. Given the shape of our public discourse Irish people sometimes have difficulty in grasping that a woman is legally wronged by the abortion regime even if she does not die.  Under the International Convention on Civil and Political Rights, as a raped woman, she was entitled to access an abortion. But she also suffered violations under our law.  The long delay between the time at which this young woman first reported the risk to her life to the authorities and the time when she was first assessed under the Act  may be repairable, in theory, by publishing new protocols or guidelines. But the delay was a sustained breach of her rights to privacy, and to freedom from inhuman and degrading treatment. In a very real sense, her experience was very close to that of Ms. C in A, B and C v. Ireland. She was entitled to access a termination in Ireland, but no reliable accessible mechanism was available – despite the new legislation – to enable her to vindicate that entitlement.  Let us be clear. Ireland remains in breach of its obligations under the ECHR. The Government has not kept its own limited promises to address that breach. It has not published, yet, its much-vaunted Guidelines. It did not make provision for women with limited English, or for marginalised women who would find it hard to access medical help.
  2. There is a very real risk that the suicidal woman’s constitutional right to access a life-saving abortion is illusory after a certain number of weeks. It may be that the courts, and the HSE and its doctors are enforcing an interpretation of the Constitution which requires the state to ensure an opportunity for live birth by some forced intervention: by C-section, or by induced labour. Potentially, this interpretation might require the pregnancy to be sustained for a period until viability even against the mother’s firm objection. Let us be clear. The case did not consider this sort of scenario – Miss X was only 12 weeks pregnant, and so the question of what an ‘equal’ right to life at a later stage of pregnancy might entail did not arise. We have had no judicial guidance in this area. Moreover, the Act does not, contrary to HSE suggestions, provide that a woman who is constitutionally entitled to an abortion may be required to undergo a C-section to terminate the pregnancy instead. Even a cursory reading of ss.8 and 9 discloses that the Act only governs access to medical procedures which end ‘unborn life’. The Act undoubtedly allows for life-saving abortion at 24 weeks, and performing C-section is only consistent with refusal of access to abortion. It seems very likely that the Constitution, and the Act designed to implement it, are being interpreted here by petty unelected officials to require practices which are, as Ruth Fletcher has written here,   harmful for the woman, if not dangerous for the child.  What is an intensely vulnerable woman supposed to do in this situation? Demand an appeal? Resist imposition of the C-section in the High Court? The HSE are about to publish guidelines on the treatment of women whose lives are placed at physical risk by pregnancy, which reportedly express a similar inclination to attempt induction where possible, instead of allowing the woman to access an abortion. While the guidelines are intended to ensure that doctors do not allow a woman’s physical condition to deteriorate for as long as the foetus has a heartbeat – as happened in Savita Halappanavar’s case – it would be troubling if the option of dilation and evacuation were not available to women who want it , where the foetus is not viable.  This sort of interpretive work generates a hidden Constitution. We need a public explanation and justification of this sort of reasoning, so that we can decide whether law reform is required to prohibit it. We could amend the existing Act. Asking for this is not asking for ‘comments on individual cases’ or breaches of privacy. It is asking for clarity on government policy.
  3. It would be foolish ever to think that stories of what happens to women under their laws will necessarily move the Irish political classes to action. Remember that the Act does not change the law which contributed to the death of Savita Halappanavar. Remember that they are able to divorce the memory of the Magdalenes, and of symphysiotomy, from what happens in today’s maternity hospitals. I hope that all political parties now recognise that it was wrong to pass the Protection of Life During Pregnancy Act in its current form and will commit, despite their instinctive reluctance, to a referendum in the lifetime of the next government. (See Fiona de Londras here and here) #Repealthe8th is a coherent accessible demand. But we cannot solve the sorts of problems reported in this case simply by repealing the Eighth Amendment. The issues require deeper discussion, and even pro-choice lawyers will disagree about the best route to take.
    1. I favour stripping the abortion provisions from the constitution and decriminalising abortion. Irish people under 50 have never had an opportunity to vote on an abortion law which was not strangled by a constrictive interpretation of the ‘right to life’. I think that the genesis of the Amendment, and the subsequent referenda, though they met the minimum standards to effect constitutional change, were almost uniquely politically dysfunctional (see Sandra McAvoy here) to an extent that puts their legitimacy in serious question. (It was truly astonishing to see one of the architects of this constitutional provision denigrate aspects of international human rights law as ‘political’ while standing over this provision this week). Finally, I think that by removing that provision, we can at least attempt to free the law from certain difficulties of conservative constitutional interpretation – by judges but, more importantly by state agents charged with applying the law - which have dogged the Amendment since its passage.
    2.  I think that we should resist efforts to insert a new provision covering, for example, rape, incest and fatal foetal abnormality while leaving women in other situations to ‘travel’. By exceptionalising abortion – by taking the position that it is generally to be permitted only in the most gruelling of circumstances – we run the risk of creating new, if presently unforeseeable, categories of  devastating hard interpretation cases  further down the line.
    3. Any change to the text would need to be accompanied by clear-sighted discussion of what the Constitution might be read to ‘say’ about life, bodily integrity, autonomy, privacy, inhuman and degrading treatment and so on in the Eighth’s absence. Because there has been so little strategic domestic litigation of the Amendment, at least by pro-choice agents – we are very much in the dark here. It may be that, as has been suggested, a Constitutional Convention is an appropriate forum in which to discuss issues of this kind, provided it does not become a delaying tactic.
    4. Finally, whatever the text of the Constitution becomes, we must unpack and reform the legislation passed to enforce it – including the Abortion Information Act and the Protection of Life During Pregnancy Act.  We must unpack and rethink the multiple intersecting lines of policy - medical, immigration, child protection, mental health and so on – which shape women’s access to abortion. We must research, understand, unpack and challenge  the forms of ‘clinical best practice’, habitual power or well-intentioned but thoughtless routine which would subject women to degradation and distress of the kinds reported in this case and that of Savita Halappanavar. We must determine, for ourselves, the rights standards which will animate the interpretation and application of any new legislation.  Once legislation is in place, we will likely need to be prepared to litigate to defend it. In truth, nothing short of a wholesale orientation of the Irish state approach to the care and support of pregnant women will bring us to an acceptable legal position.  No blue pencil can do that work, and none of it can be rushed. Repealing the Eighth, for me, is the first of several slow steps.

For those who are interested in interrogating and reforming the law in Ireland, there are several options:

  • Lawyers, legal academics and law students  - whether based in Ireland or abroad -can join the new advocacy organisation Lawyers for Choice – lawyers4choice@gmail.com.
  • Come to this September event on building a coalition to Repeal the Eighth.
  • Protests are taking place in cities across Ireland today at 6pm. Speaking of Imelda, pictured above, are co-organising an event in London at the same time, outside the Irish Embassy.
  • Several important issues of reproductive justice will be considered as part of the Northern/Irish Feminist Judgments Project (www.feministjudging.ie).  This will provide a much-needed forum for rethinking the habits of constitutional interpretation, legal argument and legal education which generate cases of this kind. You are welcome to express an interest in the project by emailing irishfeministjudge@gmail.com.

 

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[2008] IEHC 104, Laffoy J cites Walsh J in G v An Bord Uchtala [1980] 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 [1989] 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 [2007] 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 [2007] 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:

The woman sought to end her pregnancy by invoking Section 9 of the 2013 Protection of Life During Pregnancy Act which permits lawful termination on suicide grounds. [New reports of the case suggest a woman sited at several punishing junctures of Irish abortion law: young, raped, suicidal, with precarious migration status. The Sunday Times reports that the woman was a 'foreign national', unable to travel abroad freely because of her immigration status. She discovered she was pregnant at 8 weeks (the Sunday Independent reports she discovered in the second trimester), and immediately sought a termination, apparently because she had been the victim of a traumatic rape. The Sunday Independent suggests that the woman was afraid of how family members would react to the pregnancy. It is not clear how much time passed between her first request for a termination and the consideration of her application under s.9. We do not know whether she applied for a visa to facilitate travel for a termination abroad, or whether this was refused. We know that asylum-seeking women in particular face delayed access to abortion abroad because they must seek permission to travel. Her lawyers argued in the High Court that there had been an unreasonable delay in ensuring access to the process, but it is not clear what the outcome of this argument was. If the delay was a matter of months, as the Times suggests, we are firmly back in the territory of the ECHR judgment in A, B and C v. Ireland - inordinate delay and ineffective procedures rendering the constitutional right to an abortion ineffective and inaccessible.] 

The termination was refused by an expert panel.

It was refused even though the consultant psychiatrists on the three-person panel believed that an abortion was justified on suicide grounds, notwithstanding the advanced gestation. 

It was deemed, in this tragic case, that the best course of option for maternal and foetal health was to deliver the baby.

The option of a caesarean section in lieu of a termination caused further distress to the woman who insisted she wanted a termination.

The woman then refused liquid or fluids – effectively going on hunger strike.

A care order was sought in court to safeguard the mother and baby’s welfare amid fears the mother would starve herself. [It seems, again from the Times, that this was not a care order. Orders were sought in the High Court by the HSE to allow medical treatment of the woman, including hydration. A further application was brought to require the woman to submit to a Caesarean section but no order was made because the woman had consented by then.The Times says the case returned to court for a third time after the baby's delivery - it does not say why, but possibly this is the source of the 'care order' reporting.].

But she ultimately agreed to have her baby delivered by caesarean section and the baby was born at around 25 weeks before the care order could be finalised.

[The Sunday Times says that the Attorney General was notice party to the proceedings, and that the unborn was also represented by counsel. The latter, so far as I am aware, is a novel move, since this is not an Article 26 reference case. Can we expect to see this happen in the future?]

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

  1. there is a real and substantial risk of loss of the woman?s life by way of suicide, and
  2.  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.’

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 the girl’s pregnancy was still in its early stages, and so the 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:

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.

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 question of consent is a knotty one, and the facts are not entirely clear.  In different circumstances, it would be possible to read the Caesarean as a ‘way out’ of restrictive abortion legislation, as in last year’s Salvadoran case of Beatriz.  But here, the woman refused the Caesarean initially. The law will vary according to whether or not the pregnant woman is a minor, and whether or not she is competent to make this medical decision for herself. A woman who is suicidal is not necessarily incompetent, and the article refers to this woman’s agreement to Caesarean section. Katherine Wade recently published a very useful article on this issue in the Medical Law Review . Wade notes that, unlike in the UK, a competent pregnant woman’s ‘right to refuse treatment is not absolute in the Irish context, as it is curtailed by a competing right, namely the right to life of the unborn, which the State is mandated to defend and vindicate under the Constitution’. This is acknowledged in the National Consent PolicyHowever, as yet, we have no clarity on the ‘balance’ to be struck between women’s right to refuse medical treatment and the constitutional right to life of the unborn. A key problem is that the relevant judgments on pregnant women’s right to refuse treatment have not been published. Wade’s article discusses two cases: South Western Health Board v K and Anor (2002) and Health Service Executive v F (2010). In K, Finnegan P considered the case of a woman who was refusing medical treatment which would reduce the risk of transmission of HIV to the foetus. He advised the woman that if she refused to give birth in a hospital, he would have to make ?much more serious orders affecting her bodily integrity?. It is not know what those orders would be, or whether they could require a woman to be confined to hospital for a period of treatment. Wade suggests that a court might be more reluctant to order a Caesarean section because of its invasive nature, which would bring strong considerations around the right to privacy, and freedom from inhuman and degrading treatment into play. In HSE v. FBirmingham J. stated that a woman who was refusing a Caesarean section could not be compelled to have it. No further details of the reasoning are available. In F, as in this case, the woman eventually agreed to Caesarean section. Softer techniques of persuasion leading to eventual consent and falling short of actual imposition of medical treatment do not raise the same legal issues, though the process of  ‘getting to consent’ may be very distressing, and may generate delays – for instance – in accessing the right to travel. (We can imagine circumstances, following P and S v. Poland, in which a long and difficult process of persuasion would engage the right to freedom from inhuman and degrading treatment under the ECHR).  It may be that a new Act is required to clarify the law on maternal care in this sort of instance. [In addition, we might ask why it is possible to put footnotes in the Draft Guidelines which effectively imply a 'viability' threshold at which Caesarean is offered, but apparently impossible to offer guidance on attempting to ensure women's bodily integrity and privacy in treatment]. We don’t really know what background the 2013 Act is operating against when it favours alternatives to abortion including early delivery. [For further reading on this issue I suggest Rosamund Scott's Rights, Duties and the Body. None of the newspapers have provided accounts of any legal arguments made in this application in respect of the right to life of the unborn, though the Sunday Times suggests the unborn had its own legal counsel. It is difficult to speculate on what those arguments might have been.][As Dr. Peadar O'Grady notes in the comments below, we should consider whether, in all probability, a woman in this situation, under a forced hydration order and deeply distressed, would have been able to refuse consent to a C-section].
  • [The circumstances of the care order mentioned here are not at all clear. It may be that the woman is a teenager, in which case a care order would be sought to allow a District Court judge, or the HSE to consent to medical treatment on her behalf (see p. 105 of the Guidelines). The unborn is not a child for the purposes of the Child Care Act. However, it may be that the foetus here was the subject of a pre-birth assessment, with a view to obtaining an interim care order upon birth.  Pre-birth assessments are done where an aspect of the parent's lifestyle - such as drug use - poses a serious risk to the unborn, or where the parents' children have previously been taken into care. It is not clear to me whether, as is sometimes done in England and Wales, Irish courts have exercised inherent jurisdiction to make an order before birth which for implementation once the child is born. (In England, of course, there is no concept of the 'unborn child' as legal subject.)  Perhaps readers can assist in the comments.] [It seems reasonably clear now that the care order was made in respect of the child once born. Several papers have reported that the baby is now doing well, in the care of the HSE. There has been no reporting of the woman's current medical condition. The Sunday Times writes that a hydration order was granted, and a week passed before the second application for a Caesarean was sought. The grounds for  making this order are not clear. We do not know whether the woman was hydrated for a week in order to preserve the life of the unborn child, or whether hydration was deemed to be in her own best interests. If the order was made in her own best interests, then it would appear that there was an issue around her capacity to make medical decisions. The order made would be anal0gous to orders made in respect of the feeding of women with anorexia, who have lost the capacity to make decisions for themselves. See here and here. If there was no issue over her competence, then the possibility that a distressed woman refused an abortion, refusing food was forcibly hydrated for a week in order to bring a foetus to viability would raise serious questions under Articles 3 and 8 ECHR.  It is important that we learn what legal arguments were made in this case, so that we can be sure that this did not take place and could not have taken place.]
  • It seems from the report that this woman did not exercise her rights to seek a second opinion, or a review under the Act. The Irish Human Rights Commission raised questions about the extent to which the Act’s procedures are made accessible to very vulnerable women. [The Sunday Times says that this woman had limited English. The IHRC expressly raised the issue of whether the Act process was accessible to women with language and literacy difficulties].
  • Finally, it is unclear how the decisions taken in this case interact with the constitutional right to travel. S. 18(2) of the Act says that nothing therein shall operate to restrict any person from travelling abroad for an abortion which would amount to a criminal offence in Ireland. The Guidelines do not provide any further detail.  A woman might be able to obtain an abortion in the UK after 24 weeks, on limited grounds, including to save her life or to prevent grave permanent injury to her physical or mental health. In many cases, as we already know too well, the right to travel is meaningless to the wide variety of very vulnerable women unable to access it. However, it is likely that reports like this one may discourage women from making applications under the Act at all.

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.]

GuestPost - Fri Aug 15, 2014 09:46
Kristian Lanslett is a lecturer in criminology in University of Ulster. The Transitional Justice Institute (University of Ulster), the Centre for Post-Conflict Justice (Trinity College Dublin), and the Institute for Research in the Social Sciences (University of Ulster) invite proposals for a one- day postgraduate student research seminar to be held on Friday 7 November(...)

University of UlsterKristian Lanslett is a lecturer in criminology in University of Ulster.

The Transitional Justice Institute (University of Ulster), the Centre for Post-Conflict Justice (Trinity College Dublin), and the Institute for Research in the Social Sciences (University of Ulster) invite proposals for a one- day postgraduate student research seminar to be held on Friday 7 November 2014.

This year?s event, on human rights, transitional justice and peace building, will encourage interdisciplinary exchange and networking around challenging questions which arise for societies emerging from conflict or dealing with the legacy of human rights abuses. Papers are invited from current PhD students, from any discipline, whose work relates strongly to the theme.

Researchers wishing to be considered should submit an abstract of no more than 300 words, with their name, institution, discipline, year of study, and a 200 word biography by 31 August 2014, to Gwawr McGirr, email  mcgirr-g1@email.ulster.ac.uk . Places are necessarily limited, so unfortunately not every paper may be able to be accepted. We anticipate that final acceptances will be notified by the end of September. Non- presenting participants will then be welcome to register to attend, subject only to limitations of space.

About the research day: This conference is being run by and for postgraduate students from universities across Ireland, in conjunction with the Transitional Justice Institute (University of Ulster), the Centre for Post-Conflict Justice (Trinity College Dublin), and the Institute for Research in the Social Sciences (University of Ulster).

Accepted papers will be organised into thematic panels, with short (max. 12 minute) summary paper presentations followed by expert feedback from an established academic in the field, then general Q&A. While there is no registration fee, and lunch will be provided on the day, we regret that we are unable to cover travel and accommodation costs.

This event takes place during the Belfast version of the ESRC Festival of Social Sciences, 1-8 November, and so there will also be other events of interest happening across the city

About TJI: The Transitional Justice Institute, attached to the University of Ulster School of Law, studies the role of law and legal institutions in moves from conflict to peace. See www.transitionaljustice.ulster.ac.uk.

About CPCJ: The Centre for Post-Conflict Justice at Trinity College Dublin explores how societies come to terms with episodes of extreme violence in war, civil war and prolonged civil and political unrest. See www.tcd.ie/cpcj.

About IRiSS: The Institute for Research in Social Sciences at the University of Ulster works on a broad range of social and public policy matters. See  http://www.socsci.ulster.ac.uk/irss/index.html.

GuestPost - Tue Aug 12, 2014 13:36
2015 marks the 25th anniversary of Equality Studies and Women?s Studies in UCD and the 10th anniversary of the UCD School of Social Justice. Leading up to the celebration of these milestones, graduate students of the School invite you to a conference to highlight social justice, equality studies and women?s studies as fields of scholarship and to(...)

UCD School of Law2015 marks the 25th anniversary of Equality Studies and Women?s Studies in UCD and the 10th anniversary of the UCD School of Social Justice. Leading up to the celebration of these milestones, graduate students of the School invite you to a conference to highlight social justice, equality studies and women?s studies as fields of scholarship and to identify from current research how we can address injustices in everyday life in Ireland.

The School of Social Justice was formed in 2005 bringing together the Equality Studies Centre and the Women?s Studies Centre to promote social justice both locally and globally, using interdisciplinary, feminist and egalitarian approaches to teaching, learning and research.

Details and Call for Abstracts

When: 4th October 2014

Where: FitzGerald Chamber, Student Centre, UCD, Belfield Dublin 4.

The theme of this conference is Challenging Injustice in Ireland: Learning from the Past, Lessons for the Future

We welcome contributions from students and graduates from third-level institutions across Ireland, activists and practitioners in NGOs, Community Groups, and Partner Organisations working for equality and social justice. There will be an opportunity to present your research, participate in workshops, and attend an exhibition showcasing the work of of the school. Opening and closing lectures will be delivered by academics and activists.

There are four options for participation:

  • Present a full paper (15 minute presentation)
  • Short paper (less than 5 minute presentation, highlighting a specific ?burning issue? or question)
  • Poster presentation
  • Practice stand (for NGOs, community groups, etc.)

Abstracts should include:

  • Your name, contact details, institution/NGO/group
  • A short outline
  • The format of your presentation, as per options above
  • A short bio (no more than 150 words)

Our objective is to collate as many papers as possible for publication after the conference.

Abstracts should be submitted to ssjconference2014@gmail.com before the 12th September 2014. Registration and further information is available here and here.

GuestPost - Thu Aug 07, 2014 18:01
King’s Inns will be offering an Advanced Diploma in Immigration and Asylum Law from October 2014 for a period of 18 weeks. The course is open to both lawyers and non-lawyers, and may be of particular interest to those in the public sector and NGO employees, academic and government researchers, industry, policy-makers, lawyers and regulators. The course will(...)

Honorable_Society_of_King's_Inns,_DublinKing’s Inns will be offering an Advanced Diploma in Immigration and Asylum Law from October 2014 for a period of 18 weeks. The course is open to both lawyers and non-lawyers, and may be of particular interest to those in the public sector and NGO employees, academic and government researchers, industry, policy-makers, lawyers and regulators.

The course will cover some of the following topics:

  • Main components of law on immigration and asylum in Ireland
  • Law on international protection
  • Citizenship , nationality law and statelessness
  • EU law on free movement
  • ECHR caselaw
  • Employment law issues
  • Immigration law and children
  • Visas, borders and entry to the State
  • Legal migration and right to reside
  • Illegal migration and removal from the State
  • Trafficking and people smuggling
  • Immigration fraud
  • Judicial review
  • Immigration into the future

Application details are available here or through downloading the course brochure here: King’s Inns: Immigration & Asylum Law

 

GuestPost - Thu Aug 07, 2014 10:30
Human Rights in Ireland welcomes this guest post from Mairead Healy, Dean Brennan Perth and Alina Balc. Mairead is the Executive Director of Future Voices Ireland and an Ashoka Global Fellow; Dean and Alina are secondary school students and have undertaken the Future Voices Ireland Flagship programme.  Future Voices Ireland is an innovative youth empowerment NGO(...)

FVIHuman Rights in Ireland welcomes this guest post from Mairead Healy, Dean Brennan Perth and Alina Balc. Mairead is the Executive Director of Future Voices Ireland and an Ashoka Global Fellow; Dean and Alina are secondary school students and have undertaken the Future Voices Ireland Flagship programme

Future Voices Ireland is an innovative youth empowerment NGO which works directly with disenfranchised young people in Ireland to help them find their voices. We do this through the medium of human rights, in exploring what human rights means to the young people in their daily lives, communities and in relation to the wider policy context. It is our hope that the young people we work with, will go on to be the future voices in Ireland, and in doing so, ensure more representative and diverse decision making in our legal, political and civil service spheres, which better reflects all communities including their own.

Over the course of our programme this year, we have been amazed and astounded by the insights that the young people have given us as program leaders, on their views of the world and in understanding how the young people often do not feel listened to by society at present.

At our recent end of year presentations chaired by Dr Liam Thornton at UCD Sutherland School of Law, we were delighted to be joined by an esteemed judging panel including Mr Justice Frank Clarke (Irish Supreme Court), Children?s Ombudsman Emily Logan, Professor Donncha O?Connell (NUI Galway) and human rights lawyer Gareth Noble from KOD Lyons Solicitors.  As organisers working with the young people for the past 2 years, even we were completely blown away by how articulate, empathetic and confidently the teens presented difficult human rights issues with their own solutions, in front of their peers and the judging panel. The task was incredibly difficult for the judges and whilst the two poems below did not win, we wanted to share them widely, as we believe they are incredibly moving and poignant, in confronting difficult issues as seen through the eyes of teenagers in Ireland.

The first poem below was written by Dean Brennan Perth on the issue of homelessness. Dean was motivated to write this poem by seeing homeless people around the streets in Dublin, which he believes is a continuing problem which needs to be solved. Dean is 15, and from Ballyfermot. He loves music, drama, acting and writing stories in his spare time- when he is not out with his friends. In the future, Dean hopes to become a youth worker or a barrister in the juvenile courts.

?Homelessness?

Why is everyone so blind to see

The person hurt is him not me,

You see no home, no food, no money, or no voice

This man is affected by coldness and ice,

He has what he wears and lives in places he fears,

Because with no vote or voice, there are no listening ears to hear what he needs,

What he begs and what he pleads,

This man spends his day praying with his holy beads.

The second poem was written by Alina Balc, a Transition Year student at St Joseph’s, Stanhope Street on the issue of LGBT rights. Ali?s motivation to write this poem was that for her, it’s easier to express her views and feelings through poetry because she feels she is not good at talking about them. She felt that the issue of LGBT rights was an important topic to talk about and to get the message out there to people. Hopefully in the future, Ali believes she can be a part of the many changes that will come along.
The year was 1829
And being gay was a crime
Two men in the same bed
Could result in them being dead
Offences against the persons act 1861
Meant that the death penalty was gone
But in its place was life in jail
Or at least 10 years without bail
In 1983 David Norris took a case
Which he lost but he didn’t give up the race
To the European Courts he next took the case
Where he won and was like in your face
Same sex was decriminalised in 1993
Which meant that being gay was free
But that’s not really true
There’s still a lot of things they cannot do
They can’t get married, they can’t have kids
All they’re allowed is a civil partnership
Their birth certificate cannot be changed
But a referendum is being arranged
In 2015 hopefully it will all be changed.

Liam Thornton - Wed Aug 06, 2014 15:57
Over the last number of weeks, there have been potentially significant developments in relation to the system of direct provision for asylum seekers in Ireland. Last week, the High Court case challenging the system of direct provision concluded. A decision is expected over the next number of weeks (see here for background). Speaking on 24(...)

End Direct provisionOver the last number of weeks, there have been potentially significant developments in relation to the system of direct provision for asylum seekers in Ireland. Last week, the High Court case challenging the system of direct provision concluded. A decision is expected over the next number of weeks (see here for background). Speaking on 24 June 2014, the Government indicated the continuance of the system of direct provision in its current form. The Minister for Justice, Frances Fitzgerald noted:

Direct provision is a system which facilitates the State providing a roof over the head of those seeking protection or on other grounds to be allowed to stay in the State. The Reception and Integration Agency (RIA) of my Department is responsible for the accommodation of protection applicants in accordance with the Government policy. I acknowledge that the length of time that residents spend in Direct Provision is an issue to be addressed. My immediate priority is that the factors which lead to delays in the processing of cases are dealt with so that protection seekers spend as little time as necessary in direct provision.

Changes to the system of direct provision were indicated in mid July in the Statement of Government Priorities 2014-2016, where the following commitment was provided:

While ensuring continued rigorous control of our borders and immigration procedures, we will treat asylum seekers with the humanity and respect they deserve. We are committed to addressing the current system of Direct Provision for asylum seekers to make it more respectful to the applicant and less costly to the taxpayer.

In late July,  the new Junior Minister for Justice, Aodhán O? Ríordáin stated:

Direct provision needs radical reform. It is unacceptable that a child could spend half their life in a direct provision centre ? in poverty, marginalised, stigmatised. I  will be working closely with the Minister [for Justice, Frances Fitzgerald] and officials on this. A lot of work has in fact already been done, and there is an awareness within the department it has to change.

Within the space of one month, the system of direct provision, continuously defended by the current government heretofore (see, for example, here)  is now in need of serious reform. The UN Human Rights Committee of the International Covenant on Civil and Political Rights, expressed ?concerns? with the system of direct provision, in particular recommending that an independent complaints mechanism needs to be established for those currently in direct provision centres and stated that stays in direct provision accommodation centres need to be for the shortest duration possible.

So what next?

An important stage has now commenced as regards discussions on what may replace direct provision. Any such discussions must include consultation with asylum seekers currently in direct provision, former asylum seekers who spent a period of time in direct provision and civil society organisations representing those in the protection status determination process. Away from the important questions on eliciting views of those most affected by direct provision, there are several other issues that I believe are important for the government to keep in mind:

  1. The centrality of the rights of asylum seekers as human beings needs to be the fore of any reform of a system for permitting those seeking protection to have their claims heard;
  2. Warehousing of a particular group  should no longer occur, whether the person is an individual, an adult or a child, a single person or part of a family.
  3.  While granting of forms of protection status are for the status determination bodies (ORAC and RAT), consideration should be given to examining the feasibility of the Department of Social Protection having responsibility for meeting the needs of asylum seekers who do not have access to their own resources.
  4. Introducing a direct provision ?lite? system is not the answer to ensuring a rights compliant reception system that fully respects the civil, political, economic, social and cultural rights of those seeking asylum.  Regardless of who is running direct provision centres (be it the government, business or non-governmental organisations), such a system is anathema to dignity and respect of the individual.
  5. Any new system needs to have parliamentary approval and so must be put on a legislative basis. In the interests of avoiding duplication, the Department of Social Protection already has machinery in place for determining entitlement, so social rights for asylum seekers fit more easily within this Department than in the current Department of Justice and Equality.
  6. The role of the Reception and Integration Agency needs to be fundamentally re-evaluated and placed on a statutory footing (if continued in its present form or at all).
  7. The government is already committed to significantly reducing the time that those seeking protection have to await the determination of their asylum/protection/leave to remain claims. Legislation that deals with protection issues can be acted relatively speedily and it would be better to separate asylum issues from general issues relating to immigration law.

For the first time in over 14 years, there seems to be serious momentum as regards the need to bring some closure to the whole issue of direct provision. It remains to be seen what precise reforms will be proposed, but (finally!) having this discussion is in itself a victory for the many asylum seekers campaigning on this issue, and for groups who have for many years challenged the system of direct provision (even when it was not popular to do so).

Human Rights in Ireland >>

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