Rights of Migrant Domestic Workers by Catherine Kenny

 

In recent years there have been significant developments in the expansion of international human rights standards for the protection of non-citizens. This blog post examines the progressive development of international standards relating to the rights of migrant domestic workers, a group that is marginalised not only because of their frequently precarious migration status, but also because of the often hidden and isolated nature of their work. In 2011 the ILO adopted a Convention and Recommendation on Decent Work for Domestic Workers. The rights of migrant domestic workers were the subject of the first General Comment adopted by the UN Committee on the Rights of Migrant Workers and their Families in 2010. Domestic work, and the particular challenges faced by migrant domestic workers, is also addressed by the UN CEDAW Committee in their 2009 General Recommendation on Women Migrant Workers. These developments and their implications for EU migration law and policy is the subject of a recently launched Irish Research Council Senior Fellowship project, led by Professor Siobhán Mullally, University College Cork. 

The numbers of domestic workers has increased significantly in recent years.  In Europe, the increased labour force participation of women, the ageing population in Europe and the consequential need for long-term care, the privatisation of social services and the decreased role of the State in the provision of care, are key factors in the increase in demand for domestic workers.   Statistics published by the International Labour Organisation (ILO), show that at least 52.6 million women and men over the age of 15 were engaged in domestic work as their main occupation.  Women comprise 83% of the total domestic workers worldwide. Many countries including some European States do not recognise domestic work as work and domestic workers do not enjoy the same protections under labour legislation as other workers.

In June 2011, governments, trade unions, and employers’ organizations that make up the ILO overwhelmingly voted to adopt the  Convention concerning Decent Work for Domestic Workers, supplemented by a Recommendation.   While only one Government voted against the adoption of the Convention (Swaziland), eight abstained including the UK and the Czech Republic.  The Czech Republic had during the drafting process supported the adoption of a (non-binding) Recommendation only. The UK representative explained that although the UK had legislation in place to protect domestic workers, it was not always appropriate to treat domestic workers identically to others which the Convention requires. The decision not to support the adoption of the Convention was widely criticised NGOs and other civil society groups in the UK..

The Convention and Recommendation were adopted after many years of campaigning and lobbying by workers organisations and other civil society organisations worldwide including the Irish Congress of Trade Unions (ICTU) and the Migrant Rights Centre of Ireland (MRCI).  The ICTU in its response to the draft Convention advocated in particular for legal standards to:  protect  domestic workers in diplomatic households; ensure that the right of domestic workers not to be required to undertake a HIV or pregnancy test and not to reveal their HIV or pregnancy status; include au pairs within the scope of the Convention and; require the adoption of  ‘dissuasive sanctions’ to protect domestic workers from having  passports and other documents retained by employers.

The MRCI highlighted the importance of ensuring that the Convention addressed gaps under existing international law and national legislation regarding the protection of domestic workers. It also advocated for attention to protecting access to social security benefits including maternity provisions.  Other issues raised included the need for limitations on payments in kind and equality of treatment with other workers in relation to occupational health and safety protections.

The Convention is significant for a number of reasons.  It defines domestic work and domestic workers, until the adoption of the Convention there was no internationally accepted definition of domestic work or domestic workers and some states did not recognise domestic work as work. However the Convention does not regard those who undertake domestic work occasionally or sporadically and not on an occupational basis as a domestic worker and article 2 permits states to exclude from its protection ‘limited categories of workers in respect of which special problems of a substantial nature arise.’

Article 3 of the Convention obliges Members to take measures to promote, protect and realise the rights of domestic workers to freedom of association and effective recognition of collective bargaining rights and other fundamental rights at work.  The right of domestic workers to form organisations or join organisations of their own choosing is also recognised.  Many domestic workers have been prohibited from joining trade unions. The Convention reaffirms minimum age standards set out in other ILO conventions and stipulates that states must take measures to ensure that domestic workers under 18 are not deprived of their rights to education and training (Article 4).  States are also required to take measures to ensure that receive effective protection against abuse, harassment and violence (Article 5) and that they will enjoy fair terms of employment and decent working conditions (Article 6).

Under the Convention domestic workers must  be informed of their terms and conditions of employment in an understandable manner, preferably through written contracts of employment, however, these shall only be provided where possible (Article 7).  States are also obliged to take measures to extend that minimum wage provisions (Article 11) and social security protection (Article 14) to domestic workers. Domestic workers will also receive equal treatment with other workers in relation to hours of work, overtime, rest periods and annual leave (Article 10). The Convention also provides that migrant domestic workers, who are recruited in one country for domestic work in another, will be provided with contract of employment setting out the terms and conditions of employment before the worker crosses national borders.  The contract must be legally enforceable in the country where the domestic work is to be carried out (Article 8). Article 9 provides that domestic workers are free to agree whether or not to reside in the home of their employer.

The rights of domestic workers are now on the international agenda. States can no longer ignore their responsibilities to domestic workers including migrant domestic workers. In 2005, Ireland adopted the Code of Practice Protecting Persons Employed in Other People’s Homes. Much remains to be done, however.  Unions have urged early ratification which they believe will build on the Code of Practice and extend to domestic workers their full working rights.  The MRCI while welcoming developments including the decision of the National Employment Rights Authority (NERA) to inspect private homes, continue to have concerns a number of areas including the lack of legal immigration channels for migrant domestic workers and situation of those working in diplomatic households and  are campaigning to ensure that national legislation reflects the provisions set out in the Convention.  The Government has not yet however given any indication of when ratification may take place only to confirm that it will be considered in the context of the State’s standard approach to the ratification of international treaties including whether any changes may need to be made to existing legislation

 

GPS tracking devices – The United States v. Jones by Maria Helen Murphy

Last Monday, January 23, the Supreme Court of the United Statesfailed to answer the big questions about the direction of the Constitutional right to privacy in the face of continued technological progress. United States v. Jones concerned the use of a GPS tracking device placed by government authorities on a car in order to track the movements and eventually convict Jones on drug trafficking conspiracy charges.  While the Supreme Court unanimously found that privacy rights had been infringed, the majority holding was not that a warrant is required for GPS tracking, but that a warrant is required for the physical act of placing the tracking device on the car combined with the use of the device.  WithGPS enabled smart phones (and many other devices) now ubiquitous, the importance of that distinction is clear.

 

While the use of tracking devices may not seem very different from ordinary observance of an individual’s movement that plays an established role in traditional investigations, the ease with which the data can be processed and analysed raises significant privacy concerns.  The use of a tracking device creates an electronic record of every place a person, vehicle, or thing has travelled.  Details such as how often a person visits a doctor, attends a religious site, or takes part in a political meeting are quickly accumulated, collated and interpreted.  With the aid of technological developments, a vast catalogue of data can be created that was not previously possible through “mere visual surveillance”.  This can reveal a lot about a person’s lifestyle, political associations, acquaintances, and friends.  The value of GPS tracking devices in police investigation and the serious threat GPS devices pose to privacy make it a key area of debate in surveillance law and practice.  The European Court of Human Rights dealt with its first case concerning GPS tracking in September 2010 in Uzun v. Germany.

 

While the European Convention on Human Rights describes a positive right to respect for private life, the right to privacy under USlaw is primarily derived from the Fourth Amendment.  Rather than describing a general right to privacy, the Fourth Amendment protects the right of people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  A key difference between US Constitutional protection and Convention protection is the Fourth Amendment focus on the warrant requirement (from a neutral and detached person) and the extensive and cumulative safeguard requirements that the European Courthas read into Article 8 ECHR. (See restatement of Huvig and Kruslin safeguards in Weber and Saravia v. Germany at paragraph 95)

 

Notwithstanding the differences in formulation, a careful analysis of the implications of the use of GPS tracking devices in investigation could provide a valuable tool to assess the ECHR law on this issue.  Unfortunately, the analysis of the Supreme Court serves more as an indicator of the difficulties inherent in this area, rife with tension between the public interest and individual rights.

 

While each Justice agreed that there had been an infringement of the Fourth Amendment, the grounds for that finding clearly differed.  Justice Scalia’s majority opinion was joined by Chief Justice Roberts, Justices Kennedy, Thomas, and Sotomayor (She also wrote a separate concurrence).  The final concurrence, written by Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan) pointed out flaws in the grounds for Justice Scalia’s holding. Justice Scalia found a breach on the grounds that the placing of the GPS on Jones’ vehicle, and the use of that device to monitor the vehicle’s movements constituted a “search” under the Fourth Amendment.  The narrow ground of the holding was described in the concurring opinion of Justice Alito as “unwise” and “highly artificial”.

 

The decision of the majority to avoid engaging with the broader issues is disappointing, and gives little guidance to USlaw enforcement as to how to proceed in the deployment of this technology.  Jones v. US gave the Supreme Court the opportunity to rule on this important issue and address whether the statement in United States v. Knotts that “a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements” applied to the use of GPS tracking devices.  With increased pervasiveness of GPS in consumer goods like cars, phones and navigation devices, the opportunities for government authorities to remotely access, track, and analyse location data are constantly increasing.  The focus of the Court on the physical property rights shows contrived blindness to the growing threat to privacy such technology creates.

 

The solution the Strasbourg Courthas offered to this issue, of a right to privacy in the public domain, is that private life considerations arise “once any systematic or permanent record comes into existence of … material from the public domain.” Following this reasoning, the use of GPS tracking devices are clearly an interference with the Article 8 right to a private life under Convention law.  However, the Strasbourg Courtconsiders GPS surveillance to be less intrusive than visual or audio surveillance. Accordingly, the “minimum safeguards” required under the Convention in cases of interception of telecommunications do not apply in the GPS context.  While judicial warrant is not essential under ECHR law, it is considered preferable and independent authorisation is an essential value.  Yet, due to the perceived lesser nature of the interference in Uzun¸ theEuropean Court accepted authorisation by the Prosecution and relied on the subsequent criminal proceedings to provide review as a sufficient safeguard.

 

While the Convention jurisprudence seems to offer a practical way to view the privacy interference that occurs from the use of modern tracking technology, it shies away from placing limits on national governments.  The Supreme Court appears to have done the same in Jones.  By focusing on traditional property rights issues, the Court has “kicked the can” on the tracking issue.  With growing potential for remote tracking and surveillance without the need for any physical intrusion, it seems clear that the Supreme Court has missed an opportunity to tease out a critical rights issue and draw appropriate guidelines. 

 

Maria Helen Murphy

The Garda Diversion Programme and the Juvenile Offender: A Contravention of the Right to Legal Representation By Anna Marie Brennan

 

The Garda Diversion Programme, as established under Part 4 of the Children Act 2001, as amended by the Criminal Justice Act 2006, offers a unique alternative to traditional criminal procedure by preventing the child from being exposed to the full rigours of the criminal justice system while at the same time allowing the child to avoid getting a criminal record. However, it is important to examine whether the Garda Diversion Programme properly observes the due process rights of juvenile offenders. In any judicial proceedings against juvenile offenders, certain due process rights and procedural protections must be observed. The observation of these rights is necessary to protect the dignity and the human rights of the juvenile facing coercive punitive court proceedings.

 

            Furthermore, Article 40(3) (b) of the Convention on the Rights of the Child states that the child’s human rights must be fully observed and legal safeguards must be adhered to during non-judicial proceedings designed to deal with a child alleged to have been involved in criminal behaviour. However, in the context of the Garda Diversion Programme it is uncertain whether the same due process rights are observed in particular, the right to legal representation. However, the advantages for the juvenile offender if he gains admission to the programme, including the fact that a custodial sentence cannot be imposed on him and that he will avoid a criminal record, may justify the application of different due process standards.

 

              The juvenile has the right to seek advice from a lawyer before consenting to be admitted to the diversion programme. This is because of the risk that the diversion programme could be utilised where there is little or no admissible evidence to prosecute the child for the alleged offence. This is especially relevant in light of section 48 of the 2001 Act, as amended by section 126 of the Criminal Justice Act 2006, to allow involvement in the Garda Diversion Programme to be cited when sentencing a person for a further offence. However, as Campbell rightly notes the right to legal representation is not provided for during the course of the conference.

 

              While the argument that children should have legal representation during the course of the conference is well founded, it is uncertain whether the need for a solicitor during the course of the entire conference is absolutely essential to safeguard the child’s procedural rights. Advocates for allowing legal representation during the conference argue that the Gardaí, the child’s parents and the victim of the child’s criminal behaviour may constitute a potentially formidable and punitive group from who the child needs support.

 

               The child’s parents, in particular, may exert huge pressure on the child to agree to a particular action plan. A lawyer, acting in the child’s best interests, would be able to ensure that the child is not placed in this type of situation. Moreover, there is a huge difficulty as regards proportionality because it is the Gardaí who determine the length of the supervision of the child and also devise the action plan to which the child must comply. There is no mechanism whatsoever in the 2001 Act for the action plan agreed to by the parties to the conference to also be endorsed or varied by a court.

 

            It would seem that the child is a very weak bargaining party who has very little input into the obligations which are being imposed on them. In turn the obligations imposed on the child may be more onerous than any obligations that could be enforced by a court.  Therefore, if a child had a solicitor present during the conference, it would guard against an excessive action plan being forced upon the child.

 

            On the other hand, the child’s right to legal representation has the potential to impede the whole process by preventing direct dialogue between the victim and the child. The whole purpose of the conference is to allow for mediation between the child and the victim in order to resolve the difficulties arising as a result of the offence. The victim is given the opportunity to convey to the child the negatives effects which the crime has had upon him.

 

            The conference therefore seeks to involve all parties on a voluntary basis, compared to formal criminal court proceedings where the process is dominated by legal professionals. For that reason, the stringent enforcement of the right of the child to have a solicitor present at the conference would be harmful to the conference’s beneficial elements. In these circumstances, the child would probably avoid participation in the process and would not participate in the process in a meaningful way. The child would therefore be able to rely on their lawyer to speak completely on their behalf. In addition to this, the presence of legal professionals incorporates formality into the process, by speaking in a formal tone which the child may not understand.

 

            A more efficient way of ensuring the participation of the child in the conference and that their due process rights are being properly protected would be to appoint an independent observer who would attend the conference and observe proceedings. This observer would also advise the child as to the overall procedure and also guide the child in a non-adversarial way. This arrangement would preserve the primary goals of the process, sustain the fundamental due process right of the juvenile offender and also guarantee the informal nature of the conference. In addition, another method would be to provide written information to the juvenile when the JLO meets him to discuss the child’s admission to the programme. The information could set out clearly the implication of the child’s admission to the programme and specify what exactly would be on their criminal record. Both alternatives would be sufficient to ensure that the child’s rights are being upheld, although it would be more economical to provide written legal advice instead of employing an independent observer to attend the conference.

 

            Although, recognition of the right to legal representation in the diversion process could frustrate positive communication between all participating parties the reality still remains that due process norms are fundamental to safeguarding the child’s rights in the diversion process so that the child has an opportunity to fully participate in the process which ultimately affects him. However, the need for such due process rights is more important now than ever before given the fact that the child’s admission to the programme may be mentioned in court in the event of the child being sentenced for a future offence. The amendment of the 2001 Act to allow this therefore demands the application of more stringent due process norms.

 

 

 

Call for Papers: 6th Annual CCJHR Postgraduate Conference, 26th April 2012

The Centre for Criminal Justice and Human Rights (CCHJR) at University College Cork is pleased to announce that the 6th Annual Postgraduate Conference will take place on Thursday, 26th April 2012. The conference is aimed at postgraduate researchers working in the areas of criminal law, criminal justice and human rights.

The theme for this year’s event is “Transformation and Reform: Structures and Mechanisms for Rights-Based Protections”. The aim is to examine the implications for individuals and rights-based protections that arise from recent proposals for major reforms at the national, European and international level, including proposals for changes to the Irish legal profession and potential constitutional amendments, reforms of the treaties and structures of the European Union, and the UN Treaty Body Reform process. This theme is intended to encourage debate and reflection on the challenging question of ensuring the protection of fundamental rights during periods of change and crisis.

This international one-day event is aimed at promising research scholars from Ireland, the UK and Europe in the areas of law, politics, philosophy and the related social sciences. We are especially interested in papers that relate to human rights, criminal justice, criminal law or the intersection of these fields from a national, European or international perspective. We will also welcome papers dealing with issues that fall within the broad theme of the conference.

The keynote address will be delivered by Professor Christopher McCrudden of Queen’s University Belfast. Professor McCrudden is currently working on an integrated theory of comparative human rights law, and is an expert on equality and discrimination, as well as the relationship between international economic law and human rights.

Papers will be streamed thematically. The two best papers, as selected by the conference organisers, will present their paper to the plenary session of the conference.

Abstracts for papers (max. 300 words) should be submitted to the conference organisers by 20th February 2012. Successful conference submissions will be notified by 20th March 2012. To be considered for the best paper and the opportunity to present to the plenary session, full papers should then be submitted by 16th April 2012. Submissions and further enquires should be directed to ucclawconf@gmail.com.

For further information and registration details please visit: www.ucc.ie/en/ccjhr

Please note: a CPD Certificate of Attendance will be available for this conference.

Upcoming Children’s Rights Lecture – Professor Kirsten Sandberg

Professor Kirsten Sandberg of the University of Oslo and member of the UN Committee on the Rights of the Child is giving a lecture at the Faculty of Law on Thursday January 5th at 5.30 pm. The lecture – on Child Protection and Children’s Rights – will be chaired by Emily Logan, Ombudsman for Children.

The event is organised by the Child Law Clinic at UCC and supported by the College of Business and Law Research Support Initiative.