Launch of ‘Authors Meet Readers’ online series

Convenor: Prof Siobhán Mullally, Director, Centre for Criminal Justice and Human Rights

Over the comings weeks and months, we will be welcoming graduates of UCC Law to this new CCJHR blog series. As many of you will know, the ‘authors meet readers’ series at major international conferences, are wonderful opportunities to engage directly with new authors and their work. This new online series of blog posts gives us an opportunity to celebrate the research and scholarship of UCC Law graduates, many of whom have completed postgraduate and PhD degrees here at the Law School and are now making significant contributions to academic and policy debates in the fields of criminal justice and human rights.

Today’s opening blog post is from Dr Liz Campbell, who joins us from the School of Law, University of Edinburgh. Liz has recently published her doctoral research, completed at UCC, with leading law publishers, Hart Publishing: Oxford. Her book Organised Crime and the Law: A Comparative Analysis (2013), engages in a critical analysis of the concept of organised crime, and the changes in criminal justice that have evolved in recent years in Ireland and in the UK.

Liz is now a Senior Lecturer at the University of Edinburgh, where she teaches criminal law and evidence, and a postgraduate course in global crime and insecurity.  She previously lectured at the University of Aberdeen 2007-12, and was awarded a Fulbright Scholarship to the USA in 2011. She is currently involved in comparative research with Dr Nessa Lynch of the University of Wellington (NZ) on DNA collection and retention, a project that is funded by the Law Foundation of New Zealand. (Nessa is also a UCC graduate). Liz is also co-author (with Shane Kilcommins and Catherine O’Sullivan, UCC Law Faculty) of the leading textbook,  Criminal Law: Cases and Commentary (Clarus Press: 2011).

Liz completed her BCL, LLM and PhD studies (under the supervision of Prof Shane Kilcommins) at UCC, supported by a Government of Ireland, Irish Research Council scholarship. We are delighted to welcome her back ‘virtually’ to UCC, to celebrate the publication of her book and her ongoing research. More information on Liz’s many publications and working papers can be found here: http://edinburgh.academia.edu/LizCampbell

Organised crime in Ireland

Dr Liz Campbell, senior lecturer in criminal law and evidence, University of Edinburgh, liz.campbell@ed.ac.uk Author of Organised Crime and the Law: A Comparative Analysis, Hart, 2013.

 Since the murders of Veronica Guerin and Jerry McCabe in 1996, organised crime has not strayed far from the top of the political agenda and from popular debate on law and order in Ireland. It is the legal means of dealing with such criminality, both in Ireland and UK, that form the focus of my recent book Organised Crime and the Law: A Comparative Analysis. In it I present a novel, contextualised analysis of the legal measures used address this phenomenon in the UK and Ireland, and situate these laws as part of wider trends in the criminal justice realm.

 

As I examine in the book, organised crime is a contested concept: nonetheless the term is viewed generally as encompassing systematic illegal behaviour, carried out by a group motivated by profit, usually underpinned by the threat or use of violence. In additional to these definitional ambiguities, relevant crime statistics in Ireland are complex and do not indicate a clear trajectory in recent years. Even so, the widespread perception is that organised crime is ever worsening, that organised crime groups are more violent, ruthless and sophisticated, and that the State is constrained in addressing this type of criminality effectively. In particular, due process protections in the criminal process are regarded as stymying successful investigation and prosecution. This leads to the conclusion that robust and innovative legal reactions are warranted to prevent, identify and punish such crime.

 

Indeed, it is clear that actions perpetrated by criminal organisations are more problematic than those by individuals. Groups can capture significant market power and thereby generate considerable profits from illicit products; the likelihood of detection is diminished because of the dispersal and subdivision of tasks, and there is an increased possibility of violence to evade detection and ensure compliance, whether that is against police officers, the public, witnesses, jurors, or other members of the group. Moreover, criminal groups are more likely to corrupt officials and to displace legal means of dispute resolution. Collaborating to act as a part of a group means that the offence is more likely to be completed through the commitment to the group. Furthermore, absence or withdrawal of an individual will not usually stymie the plans – the organised crime group and its actions are larger than the sum of its parts, so to speak.

 

As I suggest in my book, organised criminality may in fact pose special types of problems as regards policing and prosecution. So, any liberal state seeking to address such serious criminality must contend with the ineluctable tension, in Packer’s terms, between crime control and individual due process protections. Indeed, too often a false dichotomy is set up, whereby security is seen as distinct from liberty, and as not encompassing individual rights also. In other words, the security of the citizen is viewed as comprising safety from criminality only, rather than also encompassing protections from the state and its institutions. Overall, the protections in the criminal justice system are seen as compromising effective crime control, rather than as critical aspects of a liberal justice system that is predicated on the presumption of innocence and limited stated interference. Moreover, the situation is often presented as a zero-sum game, where measures protecting suspects denigrate victims and the ‘law abiding’ community; conversely, abrogation of such protections often are seen as benign developments.

 

In Ireland, as has occurred elsewhere, various flurries of legislative action prompted by concern about organised crime have made changes to all stages of the criminal process, from investigation to sentencing. In addition, some broadly framed counter-terrorism measures are used in the context of organised criminality, or provide a prototype that is emulated in subsequent laws. Many of these measures are controversial in a rights sense, others are questionable in terms of their effectiveness while other are implemented inconsistently.

 

For example, the possibility of juror intimidation means that organised crime cases sometimes involve judge-only trials in the Special Criminal Court. Though this scheme has an equivalent in the UK (except in Scotland), the legislation is drawn and interpreted more tightly. In Ireland, the Director of Public Prosecutions (DPP) may order such a trial under the Offences against the State Act 1939 if she believes the ordinary courts are inadequate for the administration of justice and the preservation of public order. There is no appeal against this, as long as the DPP’s decision is made in good faith. In addition, certain organised crimes, such as directing a criminal organisation, now lead automatically to juryless trials under the Criminal Justice (Amendment) Act 2009. Though protecting jurors from potential harm of course is understandable, this is problematic in terms of the right to equality, as was emphasised by the UN Human Rights Committee. Moreover, there is no empirical evidence on the extent of juror intimidation, nor has there any appraisal of alternatives to jury abolition, such as through the use of anonymised juries, or the use of CCTV.

 

In addition to the alteration of trial processes, the means of tackling organised crime has moved into the civil context through the use of asset forfeiture. This provides the focus for chapter seven of my book. The logic behind such a mechanism is to target and seize the wealth that underpins, motivates and sustains organised crime. Drawing on examples from the US and from a domestic measure introduced to deal with paramilitary funds in the mid-80s, the Criminal Assets Bureau was established in 1996 to seize and retain property believed to be the proceeds of crime. Critically, there is no need for a criminal conviction, and evidence must be proved on the balance of probabilities (rather than beyond reasonable doubt, as in criminal trials).

 

The legality of civil forfeiture is beyond dispute, given it has withstood challenge in domestic and European courts. Moreover, its recouping of assets for the public coffers and its targeting of unexplained wealth mean this is a hugely popular response to organised crime. Nonetheless, I suggest in the book that civil forfeiture is problematic, as it is essentially a criminal measure under another name. It focuses on allegedly criminal behaviour, and so the blameworthiness of the individual seems pivotal, as in criminal cases. And, although there are preventative and reparative elements, it involves condemnation, retribution and deterrence, which are the aims of criminal punishment. Furthermore, the link between the Gardai and CAB undermines claims that the process is civil in nature. CAB is a hybrid of state agencies and authorities, including the Garda Siochana and it has significant powers of investigation. These factors indicate that asset forfeiture is not civil in nature, and so the individuals whose property is targeted should be entitled to due process protections.

 

Normatively speaking, my book adopts a liberal, due process stance, and stresses the need for caution in addressing organised crime. Essentially, what appears to be occurring across Ireland and the UK is the prioritisation of the demands of security and the resolution of crime. Having said that, due process protections and criminal processes are not fixed or static, and of course some degree of amendment may be necessary. However, what appears to have occurred in Ireland is a dramatic heightening of public concern and the concomitant introduction of robust measures which are dubious in a rights’ sense but which are also not predicated on a solid evidence base. While we may be rightly concerned about systematic, grave criminality, we should be wary in extending the powers of the state in this manner.

 

Dr. Ruth Fletcher’s submission to the Health Committee on the General Scheme of the Protection of Life during Pregnancy Bill, 2013.

We are pleased to welcome this cross-post from the Human Rights in Ireland blog of Dr. Ruth Fletcher’s submission to the Health Committee on the General Scheme of the Protection of Life during Pregnancy Bill, 2013. Ruth is Senior Lecturer in Law and Director of the Centre for Law, Ethics and Society at Keele University. She spoke at the final day of the Committee’s hearings on the government’s proposed abortion legislation. Ruth also presented at the CCJHR Reforming Abortion Law: Comparative Perspectives conference at UCC in March 2013.

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Introduction

The proposed legislation is welcome for its recognition of a public obligation to implement an existing constitutional right to life-saving abortion.  The state is under a duty to enforce existing constitutional rights, and failure to act is a clear breach of that duty.  The movement away from absolutist protection of foetal life is welcome in a context which requires the balancing of public interests in protecting foetal life and in protecting women’s lives.  But the proposed legislation does not do enough to address certain material considerations for this legal balancing act.  I will focus this submission on 4 key points in relation to the definition of the unborn, the significance of risks justifying a termination of pregnancy, the limits on the right to conscientious objection, and the inappropriateness of criminalization.

Unborn – Head 1

Head 1 suggests that the unborn shall be defined to mean “following implantation until such time as it has completely proceeded in a living state from the body of the woman”.  The reference to implantation as the beginning point for defining unborn life is justified by reference to the Supreme Court decision in Roche v Roche, which addressed whether stored embryos were unborns for the purposes of Article 40 3 3.  With respect, the legal and ethical arguments for choosing the point of implantation as the significant moment for legal protection have not been adequately addressed.  Given past failures to interrogate the assumed wrongness of abortion and given the particular factual context of Roche v Roche, it is open to the Legislature to consider more fully the criteria by which the ‘unborn’ should be defined in this legislation.

There are strong ethical arguments for choosing sentience as an alternative rationale for the protection of unborn life (Steinbock, 2011).  Sentience is the capacity to feel pain or pleasure and is regarded by many moral theorists as the characteristic of living things which imposes obligations on others.  Trees may be living things which are biologically valuable, but they do not have the capacity to be harmed in the same way that sentient beings do and so are not owed harm-reducing duties.  A recent review of the evidence on foetal awareness by the Royal College of Obstetricians and Gynaecologists (2010) came to the view that 24 weeks gestation was the earliest moment at which sentience was possible, and that the foetus may not be sentient or aware at all during pregnancy given the effect of the uterine environment.  If protection of the unborn is about the protection of human life then sentience is arguably the best candidate for the key feature of human life that make it intrinsically worthy of legal protection.

Obviously there are candidates for justifying the protection of unborn life before sentience, the main contenders being the biological or human species argument, and future/potential personhood argument.   But these are not strong enough to justify the kind of full legal recognition which the legislation assumes.  One version of the human species argument would protect unborn human life from conception, because it is precious as God-given life.  While individual people should be free to let this view inform their moral decisions, it cannot be a view which informs the law in a pluralist society of many faiths and none.  Another version of the human species argument is the biological individuation view, that there is something precious about the embryo as an individual member of the human species.  The problem with this position is that it does not tell us what it is about the human species that makes harm to a human wrong.  If another species has capacities to think, to feel, to act, or to live, is it unworthy of protection because it is not human?

Probably the best argument for legal recognition of the ‘unborn’ from its earliest stages is that it will, subject to assistance from the pregnant woman, become a person in the future.  If this is accepted as the justification for the reference to implantation, it should be noted that this does not apply to fetuses with lethal genetic abnormalities.  They do not have a future as persons, and so should be excluded from the legal definition of ‘unborn’ in the legislation.     A second important aspect of this argument is that it rests on the potential to become a person, not on actual personhood.  Potential personhood is arguably best regarded as giving the unborn some moral value because of what it will become in the future.  This potentiality may be ethically significant, but it is not the same as the moral status that comes from the actual ability to feel pain or pleasure.  Nor is it the same as the higher moral status which comes with personhood and the capacities for rationality and communication.   As Thomson (1971) has argued the person’s interest in bodily and moral integrity may justify limitations on our duties to sentient beings.  This is because part of what makes life valuable is the person’s ability to reflect on her life over time and make her own moral choices.

Conclusion: The following categories provide a better ethical rationale for the protection of unborn human life than the assumed significance of implantation.

  • Pre-sentient foetal life has moral value rather      than moral status.  It should be taken into account in moral decision-making,      but it does not impose harm-reducing duties on others.
  • Sentient foetal life has moral status and may      impose a duty not to be harmed on others.
  • Self-aware personhood is a higher moral status      than sentient life and may limit the duties owed to sentient life in      important ways.

Recommendation 1:

The unborn should be defined to mean “the foetus following the earliest moment at which sentience is possible”

Recommendation 2:

The unborn should be defined not to mean those foetuses which have lethal abnormalities and will not have a future independent life.

Risk of loss of life justifying a termination of pregnancy – Heads 2-4

Heads 2-4 provide for the kinds of risk to a woman’s life which will legally justify a termination of pregnancy. Here I would like to focus on the narrowness of the risk to life ground for abortion.  This ground has been drawn very narrowly in part because it has been assumed that Article 40 3 3 requires the life of the pregnant woman to be treated the same as the life of the embryo or foetus

As Irish equality scholars, Baker, Lynch, Cantillon and Walsh have argued, equality does not mean sameness. Rather treating entities equally requires the accommodation of their material and vital differences.   Even if one accepts the contested view that the foetus ought to be legally protected as if it was a person with rights and responsibilities, that in itself does not determine how a conflict between the life of the foetus and life of the pregnant woman should be resolved.  Vindicating the life of the unborn with due regard to the equal right to life of the mother should entail a full evaluation of scope of the unborn’s interests vis a vis those of the pregnant woman.  To state the issue concisely, women are conscious, sentient beings with moral views and responsibilities to others, when foetues are not.  Foetuses have value as bearers of biological life and as future persons, but this is not the same kind of value as that of a breathing, feeling, thinking woman.   The current legal test treats women and fetuses as if they are the same, and in doing so, it devalues the significance of each form of life.

Recommendation 3:

The legal test should be:“It is not an offence to carry out a medical procedure when there there is a real and substantial threat to the life of the woman, including to her life interests in mental and bodily integrity.”

If the Oireachtas is not willing to adopt this recommendation, the minimum alternative is to remove the discriminatory distinction between the evidence requirements for a risk to life from a threat of self-destruction and a risk to life from a threat of physical illness.  This distinction is based on a particularly problematic view of women as morally untrustworthy, and does not address adequately the duty not to harm women’s lives.

Conscientious objection – Head 12

In principle the inclusion of a conscientious objection clause is defensible, subject to 2 conditions.  It must be applied to individuals rather than organisations and only in circumstances where alternative provision is readily available.  If respecting human life includes respecting the personal choices which give life meaning (Dworkin, 1992), then healthcare practitioners may avoid performing healthcare which infringes their moral values.  This is an interest which inheres in the individual as the moral agent of her own life, not in an institution such as a hospital which has a corporate personality.  As the Explanatory Notes acknowledge, conscientious objection is not an absolute interest, and is limited by the need to prevent harm to others, pregnant women in this instance.  Moreover, healthcare practitioners have a duty of care to pregnant women, which includes promotion of their health and well-being.  Conscientious objection to the provision of healthcare is only defensible therefore in circumstances where it would not entail damage to women’s interests in health and well-being.  Delays in accessing healthcare could damage women’s health and well-being because a woman is left living with the physical and mental stresses of unwanted pregnancy for longer, and because later terminations are riskier than earlier ones.  In circumstances where a healthcare practitioner cannot arrange alternative provision without undue delay, their right to conscientious objection may be limited by the duty to prevent harm and promote health and well-being.  In practice therefore, the wording of Head 12 does not give enough weight to the harm-reducing limits on the right to conscientious objection.

Secondly, the phrase “as per current medical ethics” should be removed.  Medical ethics usually refers to philosophical inquiry into the ethically right courses of action in medicine.  There is usually a range of ethically defensible courses of action in a given area of medicine and so a reference to ‘medical ethics’ in this sense raises more questions than it solves.  If  “current medical ethics” is meant to refer to the current ethical guidelines adopted by the Medical Council, then this should not be included in a statutory provision.  It is unnecessary, and may cause confusion about the relevant legal standard should the Council Guidelines change.

Further, I would ask the Committee to note that this recognition of healthcare practitioners’ consciences is inconsistent with the lack of legal recognition to date of pregnant women’s consciences.  If conscientious objection to the provision of abortion is legally acceptable then so is a ‘conscientious objection’ to the sustenance of an embryo/foetus within one’s body.  If a woman’s conscience tells her that terminating a pregnancy is the best moral resolution of the various issues which may arise in a given pregnancy, then that conscience also deserves respect and legal accommodation.

Offence – Head 19

The criminalisation of women’s decisions to end their pregnancies is a disproportionate and unfair response to the constitutional direction to vindicate the life of the unborn as far as practicable.  Criminalisation does not achieve the objective of protecting foetal life and it makes the mental and physical experience of unwanted pregnancy worse. The Legislature has other options under Article 40 3 3 and it does not, as the Explanatory Notes suggest, have to criminalise those abortions which fall outside the tests in Heads 2-4.  The Legislature could regulate the terms under which women access abortion in the Irish health service without punishing those women who fall outside those terms.  It could vindicate unborn life by investing in pregnancy-related care and research into miscarriage.  In choosing to punish women rather than to adopt more neutral or positive measures for the support of foetal life in pregnancy, the Legislature would be acting unfairly.  Head 19 is unfair because it asks women, rather than the state, to bear the weight of the public duty to vindicate foetal life.

Recommendation 4(a):

Repeal sections 58 and 59 of the Offences Against the Person Act 1861, without providing for a new offence.

Recommendation 4(b) (as an alternative to 4(a)):

If the Legislature is not willing to take the route of decriminalisation, it should at minimum define the offence so that it excludes attempts to end a pregnancy.  The phrase “[A]ny act with the intent to destroy unborn human life” is too broad and may include those acts which are ultimately unsuccessful in destroying unborn human life.  Secondly, the maximum penalty for the offence should be reduced significantly from 14 years.  This penalty is disproportionate in punishing a decision which implements the defensible moral choices of women and their healthcare providers.

 

A Separate Process for Suicide within the Scheme of the Protection of Life during Pregnancy Bill 2013 by Dr Claire Murray

After considerable speculation, a number of delays, and a few leaks the draft Scheme of the Protection of Life during Pregnancy Bill 2013 was published on Wednesday 1st May. The Taoiseach was keen to state that the draft legislative framework did not in any way extend the rights of women in Ireland. The sole purpose was to provide clarification for doctors and women on the availability of abortion in Ireland in accordance with the extremely narrow terms set out in Article 40.3.3 and the Supreme Court ruling in the X case. The Scheme of a Bill outlines the general shape of the proposed legislation and it will now be sent to the Joint Oireachtas Committee on Health and Children forfurther discussion and debate.Relevant persons will once more be invited to address the Joint Oireachtas Committee and further information on making a written submission can be obtained here. The intention is that the legislative process will be complete by the end of July 2013.

This post will focus on the process contained in Head 4of the draft Scheme to assess “the risk of loss of life from self-destruction.” The inclusion of suicide within the draft legislation has been the primary site of struggle in the recent debates on abortion in Ireland.Once it became apparent that, despite vigorous campaigning, the legislative framework would include a risk to life by suicide the focus of anti-choice campaigners shifted fromarguingthat suicide should be excluded to arguing that there should be a distinct process for assessing the risk to life from suicide and that this should be a more rigorous and onerous process. I have blogged here about the narratives of the untrustworthy, unreliable and hysterical woman underpinning this position. Making it more difficult to obtain an abortion where the risk to life is from suicide is portrayed by those who argue from an anti-choice perspective as the only effective barrier against “opening the floodgates” to “abortion on demand” in Ireland. Clearly these negative narratives have influenced the politicians as the Scheme of the Bill does include a separate process for assessing a risk to life through self-destruction. This distinguishes suicide as a case apart and one that is worthy of additional checks and balances to ensure that the system (and the medical professionals involved) are not manipulated by women who want abortions but do not meet the very strict criteria.

The Heads of the Bill propose that where the risk to the life of the woman is from self-destruction there should be three medical specialists involved in assessing whether there is a risk to her life which can only be averted by providing her with an abortion.Where the risk to life arises from a physical condition two medical specialists are sufficient to certify that the test has been satisfied. The three specialists to be involved are an obstetrician/gynaecologist and two consultant psychiatrists. Both consultant psychiatrists must be employed at a centre that is registered by the Mental Health Commission and one of them must be attached to an institution which has a public obstetric unit.The Scheme requires all three medical practitioners to unanimously certify “in good faith” that there is a real and substantial risk to the life of the woman by self-destruction that can only be averted by obtaining an abortion. At least one of the medical practitioners on the panel must consult with the woman’s GP “where practicable.” In forming their opinion the medical practitioners “should examine the woman.” There is no definition of examination provided in the draft scheme of the Bill. Head 4, subhead 4 states “[i]t will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is permissible under this Act.”

The inclusion of a separate process for assessing risk to life by self-destruction involving three medical practitioners is in line with Option 3 set out in the Report of the Expert Group. According to the explanatory notes under Head 4 this provision arises “from the recognised clinical challenges in accurately assessing suicidal intent, and the absence of objective clinical markers.” The Bill does not provide that the three doctors examine the woman together or that they examine her at the same location. Detail has not been provided in the draft legislation on how a referral to the panel might occur in a case where a woman is seeking an abortion and experiencing suicidal thoughts. The reason given is that clinical situations of this nature are bound to be unpredictable and complex and so flexibility should be allowed for standard medical practice to respond to the circumstances that arise.

The provisions contained in the draft Billappear relatively level-headed and balancedafter the leaks that emerged over the past few weeks. Suggestions that women would be required to be assessed by a panel ofsix medical practitioners were generally met with a sense of disbelief that this could be considered practical or appropriate. The proposals were described by Dr. Anthony McCarthy, President of the College of Psychiatrists in Ireland and one of only three perinatal psychiatrists practising in the country, as “abusive” and “some sort of sick joke.” However the leaking of these proposals served a purpose. As a result of those leaks there is now a considerable sense of relief that the legislation does not include anything so clearly excessive. Three doctors assessing the risk to life by self-destruction is now viewed as a compromise position, perhaps the best we could hope for, rather than being criticised for being unduly onerous and unnecessary.

In this context I think it is important to reiterate the objections to includingin the legislation a separate process in circumstances where the risk to the life of the woman is from suicide. These difficulties were recognised by the Expert Group in their Report when they suggested including a distinct process in relation to suicide.First, it is inherently discriminatory to have a different procedure in place for women who are experiencing mental health difficulties or suicidal ideation and wish to avail of a lawful abortion. Second, these “safeguards,” as they are termed, serve to reinforce the stigma surrounding mental health conditions in Ireland by treating it as a case apart. Finally this proposal places an extra burden on women by requiring three doctors to make the final decision in cases involving suicide. In general society accepts that one psychiatrist can assess suicidal ideation and this is a routine procedure for clinical psychiatrists.For further discussion on this issue see de Londras athumanrights.ie.

The requirement set out in the draft Scheme that the decision of the three doctors assessing the risk to life be unanimous may create practical difficulties. It allows for the possibility that one medical practitioner could veto the decision in circumstances where the other two doctors are willing to certify that the legal test has been satisfied. Given the recent statement issued on behalf of 113 consultant psychiatrists in Ireland to the effect that “legislation that includes a proposal that an abortion should form part of the treatment for suicidal ideation has no basis in the medical evidence available” it is clear that there is a difference of opinion within the psychiatric profession on this issue. There are, therefore, legitimate reasons for fearing that this situation will arise. The perception of suicidal women seeking an abortion as inherently untrustworthy will continue to impact on the operation of this process once it is introduced.

The inclusion of obstetricians in the panel to assess the risk to life from suicide is also worthy of comment. Obstetricians have no training or expertise in assessing suicidal ideation or risk to life by self-destruction and so it is unclear what they will add to the panel in making this decision. This was highlighted in the response of Doctors for Choice to the Heads of the Bill.The explanatory notes under Head 2 of the Scheme, which relate to assessing a risk to life, other than from self-destruction,note that in all situations, except emergency circumstances, one of the certifying medical practitioners will always be an obstetrician/gynaecologist. The note goes on to state “[t]his provision is deemed appropriate for two reasons. Firstly, in accordance with current clinical practice, an obstetrician/gynaecologist isobliged to care for the pregnant woman and the foetus and, therefore has a duty of care toboth patients and to have regard to protecting the right to life of the unborn and to bring thatto bear on the care of the woman and her unborn child. Secondly, a termination ofpregnancy will most likely be carried out by, or under the care of, anobstetrician/gynaecologist, and therefore their inclusion here should be central in accessingservices and ensuring patient safety.”The obstetrician therefore seems to be included in order to ensure that the position of the unborn is given sufficient consideration in any decision being made.

The suggestion in the Scheme that consultation take place between one of the panel members and the woman’s GP is sensible, but under this scheme the GP will have no direct input into the decision-making process. Arguably it would have made more sense, given the acknowledgement of the valuable contribution that can be made by the woman’s GP in the explanatory notes under Head 4, that the GP be included on the panel making the decision in relation to the risk to life. This is not a suggestion that a fourth doctor should be added to the panel. Rather, if the general position is that two doctors are required to assess the risk to the life of the woman then where that risk is of self-destruction a GP and a consultant psychiatrist would seem to be a reasonable combination. In the context of involuntary admission under the Mental Health Act 2001 the process requires a GP toprovide a recommendation for admission and the final admission order is made by a consultant psychiatrist. There should not be a more onerous process in place under the 2013 Bill in relation to suicide.

Finally, the draft legislation does not provide that the woman must be examined by all three medical practitioners at the same time. While this approach may have been adopted to avoid the process being described as similar to an inquisition, a term that was used in respect of the proposals for six medical practitioners to assess the woman, it may have other negative consequences. Allowing for the possibility that a woman in distress, who states that she is suicidal,might be required to attend at three different appointments to meet with three different medical practitioners and to recount her story three times is questionable. It has the potential to draw out the process and it gives the appearance of a series of obstacles being placed in the way of the woman. It is likely that the repeated recounting of her story by the woman may operate to compound her distress. There is also the risk that any slight variations in the story told by the woman over multiple examinations could be seen as evidence that she is not being entirely truthful. It may be the case that this issue will be addressed in regulations or guidelines, but the provisions in the draft Scheme of the Bill are troubling.

The proposed legislation will provide a degree of clarity to medical practitioners and women in Ireland. However, it will affect only a tiny proportion of women. Those women who have been the victim of rape or incest, those who are carrying a foetus with a fatal abnormality incompatible with life outside the womb, those women whose health will be seriously affected by carrying a pregnancy to term, and those women who wish to obtain an abortion for socio-economic reasons will continue to travel outside of the jurisdiction. Doctors for Choice note that it is unclear whether the Bill would provide an “effective and accessible” procedure for someone in the position of SavitaHalappanavar. The Irish state will continue to ignore the difficult circumstances ofmany women. In order for the debate on abortion in Ireland to move forward and begin to engage with issues of autonomy, choice and reproductive rights it is necessary to repeal the 8th Amendment to the Constitution.

The Reality of cheap clothes: Reputation and Responsibility in South East Asian Garment Industries by Dr Fiona Donson

The tragic events in Bangladesh last week once again threw a spotlight on the harsh reality of sourcing products from developing nations. Yet it remains to be seen if this latest disaster will have any impact on the policies of transnational corporations and their customers seeking low priced goods.  Today, International Labour Day, the official death toll from the collapse of the Rana building near Dhaka was has passed 400, but estimates place the casualties as being over four times that figure. The facts of the disaster are in many ways typical of the story of factory operations in many developing nations. A largely unregulated industry operating in unregulated buildings, with limited health and safety laws and/or implementation, cramped working conditions, poor pay, and with limited unionisation.

Bangladesh has one of the lowest levels of labour unit cost in the world with a living way currently standing at US$64 a month. It therefore operates at the bottom end of the garment industry in an environment that regularly results in tragedies. As Human Rights Watch noted this disaster is a new event:

The Rana building collapse is the latest in a long list of factory building tragedies in Bangladesh, Human Rights Watch said. In April 2005, 73 garment workers died in a factory collapse in Savar. In February 2006, 18 workers were killed in a garment factory collapse in Dhaka. In June 2010, 25 people were killed in a building collapse in Dhaka. In November 2012, more than 100 workers died in a fire at a factory in Dhaka.

These large scale tragedies however, overshadow the day to day cost of cheap labour.

Yet Bangladesh has failed to come to terms with the problems within the sector. Human Rights Watch highlight that they have ongoing and well recognised problems with labour inspections – employing just 18 inspectors to monitor an industry employing over 3 million people. Companies are given prior warnings of inspections and the consequences of breaching the labour law are small and unlikely to act as a deterrent in the face of profits – the most common punishment is a fine of US$13 per case.

In this context, the role of unions is critical but the government has consistently worked to limit the right of workers to unionise. The factories within the Rana building were not unionised, and it is likely that no union would have stood by and allowed their workers to enter a building that had previously been evacuated on safety grounds. Yet, without such representation, employees were bullied back into a building that would collapse within hours. The environment for union activists within Bangladesh is dangerous and challenging as was noted in the International Trade Union Confederation 2012 report. Human Rights Watch highlight the following:

The April 2012 torture and murder of labor rights activist Aminul Islam, who had earlier been arbitrarily detained and tortured by government security forces remains unsolved. Over a dozen labor rights leaders currently face criminal charges on a variety of spurious grounds. The government has continued to pursue legal action aimed at intimidating the Bangladesh Center for Worker Solidarity (BCWS), a nongovernmental organization (NGO) that works closely with trade unions, and has arbitrarily revoked its NGO accreditation.

Although Bangladesh is regarded at the bottom end of the garment sector in South East Asia in terms of worker conditions, and cost, the picture elsewhere is equally troubling. In Cambodia, a country which has worked hard to market itself as having a responsible garment sector, similar problems have continued to dog the industry despite some progress made with the help of the ILO.

Flaws within Cambodia’s “ethical” Garment Industry

Central to Cambodia’s cleaner manufacturing image has been the cooperation between GMAC (Garment Manufacturers Association in Cambodia) and the ILO Better Factories Cambodia project. Established in 2001 Better Factories has a stated aim of benefitting workers, employers and consumers through the assessment and reporting of working conditions in Cambodian garment factories against both national and international labour standards. Operating on the basis of unannounced inspections, the results of which are then fed back to garment factory managers, the idea is to foster and development effective compliance. The project has been regarded as a success story, reportedly changing an industry bedevilled with a “sweat shop” reputation to one operating at the forefront of ethical manufacturing. It is a model that has since been exported to other jurisdictions such as Vietnam.

However, looking beyond the headlines, it is clear that the Cambodian industry, while clearly better than that operating in Bangladesh, is far from ethical. As John Hall has noted in his article A Viable “Sweatshop Free” Model? The ILO’s Better Factories Program and Labor Rights in Cambodia’s Garment Industry, enforcing on paper compliance with specific labour code requirements such as overtime is important, but ultimately limited in the face of larger political and institutional problems such as corruption, union intimidation and a failure to provide effective wage rises over time. In addition, on paper compliance has tended to ignore the reality of employer bullying of workers and the changed employment context.

The Community Legal Education Center, a Cambodian NGO with a long standing record of working on labour issues has regularly cooperated with the Better Factories Project. However, it is also a critic of the Project. In its 10th anniversary report on the Better Factories Cambodia, produced in partnership with Clean Clothes Campaign, it noted that “working conditions in Cambodia’s garment industry remain very poor generally”. Whilst the project has done nothing to address low wages – as Dr Jeroen Merk, Research Coordinator of Clean Clothes noted on the CLEC website

The real wages workers receive have actually declined 14 per cent since 2000 in relation to inflation rates. In other words, garment workers have become poorer since the Better Factories Cambodia program was launched. The ILO should do more to keep global buyers like H&M or GAP accountable for poverty wages.

After difficult negotiations, the Cambodian government forced GMAC and Unions to agree a settlement which comes into effect today, International Labour Day. The deal sees the minimum factory workers salary rise from US$61 to US$75 per month but the amount still fails to address the impact of inflation on the cost of living.

In addition, employment has shifted to short term temporary contracts and there are reports that workers are regularly threatened with non-renewal if they refuse to work overtime, or engage in unionised activities. No collective bargaining agreements have been agreed within the country, and the use of yellow unions, set up by factories to discourage real unionisation, is widespread within the industry.

In relation to unionisation, a key factor within the country remains the imprisonment of Born Samnang and Sok Sam Oeun for the murder of labour leader Chea Vichea in 2004. The two men were wrongly convicted in 2005 of the shooting dead of the prominent leader of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC). They were released provisionally by the Supreme Court in 2008 but re-imprisoned in late 2012 by the Court of Appeal to serve the remainder of their 20 year sentence despite overwhelming evidence of their innocence. NGOs and labour groups within Cambodia and beyond continue to campaign for their release, but fear that little can be done now, particularly against a backdrop of worsening human rights abuses and difficult labour issues in the country. The deeply disturbing miscarriage of justice highlights the vulnerability of union leaders and ordinary people in a system which cares little about the criticisms of national and international organisations. Indeed, Chea Vichea was not the last union leader to be murdered in Cambodia, Ros Sovannareth was killed in May 2004 and Hy Vuthy in February 2007, both were FTUWKC union leaders and to date no one has been brought to justice for their deaths.

The responsibilities of corporations and consumers

The final point to be made here relates to the responsibilities of western clothing firms and their customers. In relation to the Bangladeshi disaster, Primark, along with other companies, this week announced that it would compensate the victims. The package would include “long-term aid for children who had lost parents and financial aid to those who were injured.” At the same time, however, it continued to refuse to agree to an action plan on building safety.

The head of Oxfam Ireland, Jim Clarken, described the offer on RTÉ’s Morning Ireland as “a minimum gesture”, and he must surely be correct. Financial compensation may provide immediate and probably temporary aid to the victims, but it cannot and will not prevent further tragedies. Without a commitment to achieving real change in the operation of garment manufacturing in developing nations, transnational corporations continue to benefit from cheap manufacturing while accepting little real responsibility. In recent years there has been a trend for corporations to support local NGOs improving their ethical credentials. For example, both Adidas and Nike have a relatively long track record of philanthropic work. NGOs are often willing to take their money, and in challenging financial times there may be little choice with such financial support helping critical projects. Yet transnational corporations tend to remain reticent at best when it comes to critical questions of labour law and workers rights.

As to consumers, Shane Darcy’s excellent blog post earlier this week – The Price of Cheap Clotheshighlighted that 49% of those interviewed in a survey on responsible business in Ireland believed that purchasing power could affect the behaviour of companies, but that a majority felt they did not have enough information. In reality, the information is readily available if you choose to ask the question of where your clothes come from and who makes them. The issue is not an invisible one, with campaigners working hard to highlight the real cost of cheap clothes. But there are also the self-branded ethical claims of corporations, with their nice pictures and pet NGO projects that fail to provide the full picture of the impact of their business deals on developing countries. The question really is whether consumers are willing to recognise that they too are responsible for the cost of their low price purchases. People have to accept this by recognising that the real cost is more than just the cost at the till but includes the impact of cheap labour, poor employment practices, exploitation and worse on the lives of those who make their clothes in places such as Bangladesh and Cambodia.

I speak from experience having worked on projects in and around Cambodian garment factories. I have seen good factories and bad, and know from experience that transnational corporations can have a significant impact on the operations of their suppliers. In turn, those corporations impose those requirements because their customers have insisted on ethical trade practices that live up to their claims. Equally, it is clear that corporations do turn a blind eye to many of the employment and working condition practices that go on in such countries thus ultimately bearing some responsibility alongside the factory owners who decide to ignore building regulations and endanger the lives of hundreds of workers. Where does that leave the consumers who don’t want to ask those tricky ethical questions?

Call for Papers: Irish Yearbook of International Law

 
iyilThe editors of the Irish Yearbook of International Law welcome submissions for publication the next volume. Articles should not be published or under consideration for publication elsewhere. Selected papers will appear in Vol VII of the Yearbook. An annual, peer reviewed publication, the Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer pieces will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.
Authors are asked to conform to the Hart Publishing house style. Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Siobhán Mullally (s.mullally@ucc.ie) and Fiona de Londras (fiona.de-londras@durham.ac.uk) by 21 June 2013. People wishing to review a particular title in the Yearbook’s book review section are also invited to contact the editors.
Initial enquiries can be directed to either or both Editors. Further information on the Yearbook (including style guide) is available at the IYIL website: http://www.hartjournals.co.uk/iyil/