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.

 

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/

Best Paper Prizes: 9th Annual North South Criminology Conference incorporating the 7th CCJHR Postgraduate Conference 2013

This year the CCJHR is pleased to announce that there will be three cash prizes given for Best Paper at this year’s 9th Annual North South Criminology Conference incorporating the CCJHR Postgraduate Conference 2013. These prizes are generously supported by the Graduate School of the College of Business and Law. In order to be considered for these prizes, candidates must be accepted for the conference and be a postgraduate student. In order to make a submission, please submit a paper based on your presentation of not more than 3000 words (excluding footnotes) before the 31st of May 2013.The submission must be in Word format (New Times Roman, Size 12, Space and a half). The submission must be based on the conference contribution you will make at the conference. Please submit the document in word format to ucclawconf@gmail.com. The results will be announced and presented on Thursday the 20th of June at the Conference wine reception and will be published as Working Papers on the CCJHR website.

Programme for Reforming Abortion Law Conference March 22 2013

Conference

Reforming Abortion Law: Comparative Perspectives

March 22nd 2013 (1.30pm – 5.30pm)

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PROGRAMME

Registration 1 – 1.30pm

1.30pm Welcome (S. Mullally, Director of the Centre for Criminal Justice and Human Rights)

1.35pm Opening Remarks: The Hon. Mr. Justice Seán Ryan, Judge of the High Court (Chair)

Panel 1:

  • · 1.45 Professor Carol Sanger, Barbara Aronstein Black Professor of Law, Columbia University NY

‘About Abortion: Trying to Understand Abortion Regulation in the United States’

  • · 2.25 Prof Blanca Rodriguez Ruiz, University of Sevilla

Gender in constitutional discourses on abortion. Looking at Spain from a comparative

perspective’

  • · 3.00 Johanna Westeson, Centre for Reproductive Rights, NY

‘Abortion law and policy in Central and Eastern Europe. Recent trends and European human rights jurisprudence.’

3.25 – 3.45 Q+A

3.45-4.05 Break (Tea / Coffee)

Panel 2

  • · 4.10 Dr Ruth Fletcher, Keele University

‘’Abortion in the UK: Regulation and Resistance’

  • · 4.40 Dr Claire Murray, University College Cork

‘The narrative of the hysterical woman: the discourse on the inclusion of suicide in the Irish legislation on abortion’

  • · 5.00 Prof Siobhán Mullally, University College Cork

‘Reforming abortion law in Ireland; the limits of rights’

5.15 – 5.30 Q+A and Close

Conference convenors: Dr Claire Murray and Prof Siobhán Mullally, Law, UCC

BOOKING DETAILS:

Registration Fee: €40

Trainee Solicitors and Barristers €15

Students: €10

Online booking and fee payment available at: https://www.uccconferencing.ie/product/reforming-abortion-law-comparative-perspectives/

Registration Fee can also be paid at the event or preferably in advance by cheque payable to University College Cork Law Department (Send to: Noreen Delea, Dept of Law, University College Cork, Cork, Ireland)

Queries: Contact Noreen Delea at: ccjhr@ucc.ie

4 CPD Group Hours available

The venue is fully accessible. Please notify us of any specific accessibility requirements.

This event is supported by an Irish Research Council New Foundations Award and the Dean of Law Strategic Fund

 

The Price of Accountability by Dr Fiona Donson

Accountability is lost in the axing of the Mobility Allowance scheme

The decision by the Department of Health to close two disability schemes – the Mobility Allowance andMotorised Transport Grant – following sustained criticism of their operation by the Ombudsman raises some serious questions about the effective operation of accountability mechanisms concerning government departments; not least whether Government Departments are both willing and able to respond to structural criticisms.

The Department of Health closed the two mobility schemes on the 26th February 2013 to new applicants, and current recipients (4700: mobility allowance and 300: motorised transport grant) will lose their benefits on the 26th June 2013. No indication was given as to what would replace the schemes, not least because the Department has been unable to devise a lawful and effective mechanism within their apportioned budget of €10.6 million. In announcing the end of the schemes, Minister Kathleen Lynch T.D. stated that the Government had “agonised” over its decision, had found all alternatives to be illegal and thus had no choice but to end the schemes. The impression created is of a department striving to find a solution but being given no space by the law to fix the problem. However, the detailsof this saga reveal asomewhat different picture.

History of the illegality findings

The first formal finding of illegality in relation to these schemes came in 2011 with the launch of the Ombudsman Office report “Too Old to Be Equal”which found that Mobility Allowance scheme to be in breach of the Equal Status Act 2000 because the benefit was only available to those under 66 years old. This age restriction was not absolute, however, as those in receipt of Mobility Allowance before reaching the age of 66 continued to receive their allowance payments after that age. The report found that the Department of Health was aware of the illegality of the upper age limit, but that it had shown no “sense of urgency” to make the scheme compatible eleven years after the Equal Status Act had been passed. This despite having received similar warnings from the Equality Authority when it published a case report in 2008 relating to the Motorised Transport Grant following which the Department removed the upper age limit.

The Ombudsmanrecommended that the Department review the scheme and revise it to ensure compliance with equality legislation and that this be completed within a 6 month period. There was no recommendation as to how the scheme should be amended, but an emphasis that it should be compliant with the law.

In April 2011 the Department accepted the recommendation and agreed to carry out the review but then took no action. As a result the Ombudsman’s2011 Annual Reportstrongly condemned the Department’s failure:

“In my original Investigation Report I observed that the apparent inability of the department to deal with issues, such as the inclusion of an illegal condition in the Mobility Allowance Scheme, leaves it open ‘to the perception that it is unconcerned with the fact that it is operating a scheme which is at odds both with the law of the land and with human rights law more generally.’ More than a year later, the Department had not shown that this perception is unwarranted.”

One might assume that such strong criticism in a report from the Ombudsman would prompt a reaction, yet the Department continued to prevaricate with the result that a follow-up reportwas published in 2012 under section 6(5) of theOmbudsman Act 1980.

At this point the department statedthat it was in fact unable to act on the advice because it “would create liabilities the State could not afford”. The Office of the Ombudsman rejected that approach criticizing the

“attempt of the Department to represent its position as a common sense response to an unfortunate situation in which, in order to target limited resources effectively, it is necessary to infringe on the law. There are options to be considered on how best to use scarce resources. Breaking the law is not one of those options.”

The continuing violation of the law, and resultant complaints to both the Ombudsman and the Equality Tribunal, were in fact creatingliabilities to individuals who had been discriminated against by the illegal system. We do not have a figure as to how much the department paid in settling these liabilities but the “Too Old to Be Equal” report prompted a payment of €6000 to the family of the deceased original complainant in 2011.

The Department of Health’s response and accountability principles

The position of the Department of Health, in relation to this investigation,clearly conflicts withfundamentalaccountability principles.

  1. Integrity and trust – the public should be able to trust the state to act with integrity in areas of complexity particularly against a background of scarce resources. Unfortunately, the Department of Health has consistently failed to engender trust in its actions in this area. For example, representatives of the Department, including Minister of Health Reilly, gave evidence before the Joint Oireachtas Committee on Public Service, Oversight and Petitions on February 6th 2013. The hearing considered the operation of the schemes and discussed options, but at no point during the hearing did Department ofHealth officials indicate that the schemes were likely to be abandoned within three weeks of the hearing. The Minister announced the appointment of an external expert to review the transport needs of people with disabilities and Minister Lynch commented that “The comprehensive review required will be considered and if that can be done in a shorter period than six months we will be very happy. We need to emphasise again than this should not be an exercise that will drive fear into people.” That review has now developed into a “project group”designed to examine the schemes and recommend a solution, howeverthe likelihood of it agreeing on, andthen implementing such a solution within four months is improbable given the failure of the department to find a workable solution since 2011. It is in fact unclear as to whether the Department thinks that a solution is possible, if it is then one must question why they scrapped the schemes in advance of announcing its replacement. A more cynical view might be that they have concluded there is no acceptable solution, whether on cost or legal grounds, and that the project group is a way of legitimising the final termination of mobility supports.
  2. Honesty and transparency – State agencies should act in an open and honest way; if there was a danger that the Mobility Allowance Scheme was to be abolished or altered people affected should have been given the necessary information. However, as noted above, there was no warning. The statement by Minister Lynch in the Dáil that this “has not come as a bolt out of the blue for anyone” is therefore somewhat disingenuous– it was certainly known that something had to be done, but not that the Department would leave vulnerable people unsupported. Indeed, the Disability Federation of Ireland stated on RTÉs Morning Irelandthe morning after the announcement that the closure of the schemes had come “out of the blue” and that there had been no consultation with disability groups. The failure to consult and the high handed nature of the decision to cancel the schemes therefore casts doubt on the limited guarantees made as to future support in this area. The department’sstatementthat the decision was not a cut and that €10.6 million remained “committed to meeting the transport needs of relevant people” is a hollow commitment when it is placed alongside the Minister Lynch’s reassurance thata “full Government approach” examing how to introduce a universally accessible transport system was being carried out. That suggests a shift away from disability benefits moving the money to transport.
  3. Fundamental human rights norms – the apparent willingness of the Department of Health to override the fundamental principle of equality because of cost concerns appears to indicate, as the Ombudsman stated in her follow up report, that “it has a very weak sense of the importance of supporting human rights principles and, indeed, a very weak sense of the rule of law and of its obligation to act in accordance with the law.”The problem is that equality here, according to the department, would cost the state somewhere between €170million and €300 million. The cost of cutting the scheme completely and making everyone equally immobile is attractive on paper, though the knock on costs of the loss of access to jobs, family and community for those affected is unquantifiable in financial terms.

Accountability failures

The accountability context of this decision of Department of Health is extremely illuminating as regards the government’s overall attitude to the rule of law and the need to respect our mechanisms of accountability. In October 2012, the Government announced the expansion of the jurisdiction of the Ombudsman and finally steered through the long awaited Ombudsman (Amendment) Act 2012. This process involved a clear political endorsement of the Ombudsman as a key champion of the people. Yet at the same time, a major State Department was failing in its responsibility to follow her recommendations and bring an important disability scheme into line with the law. The Ombudsman used that moment, in an example of “the mobilisation of shame” to launch the follow-up report on “Too Old to be Equal”. However, it appears that the impact of both that report and the later hearings before the Joint Oireachtas Committee in February 2013 was to prompt the Department into what appears to be an impetuous decision of cancellation rather than to encourage a thoughtful response that would bring it in line with the rule of law and wider accountability and human rights principles.

The behaviour of the department over the last three years has therefore embodied the attitudes of resistance and unresponsiveness which undermine Government statements claiming that the Office of the Ombudsman, and an expansion of its remit, is essential for “ensuring that fair treatment is always provided” to the public and to achieving improved accountability in public bodies. There is clearly a tension in government between the acceptance of the need for an institution such as the Ombudsman and the rejection of its findings on the ground in situations, such as the mobility allowance, where those findings challengeestablished administrative practice or make life inconvenient for government.

For its part, the Office of the Ombudsman has maintained the moral high ground in this dispute. It might be criticised for failing to offer, from the start, any solutions to the breach of equality, though it would argue that it is not in a position to provide policy answers. By not engaging with the detail in the aftermath of its report, but focusing on the accountability framework it has maintained a consistently detached position from the rather murky political fray. Yet at the same time, has become a thorn in the side of the Department of Health, to such an extent that there is a clear problem in the relationship between the two as identified by the Joint Oireachtas Committee earlier this year.

As to solutions, it may be that the most obvious is one that maintains the discrimination, something the Ombudsman would have been reluctant to recommend. As Mel Cousins has argued, placing of the scheme on a statutory footing might have been sufficient to avoid a finding of illegality. And this point is important – the mobility allowance scheme, like so much of our government, operated with no statutory foundation and on the basis of unpublished guidelines. Whilst this was perhaps once normal, it is no longer acceptable to ignore accepted principles ofaccountability and the rule of law by allowing such administrative mechanisms to operate without transparency, openness and apparent fairness.

Caesarean Section Refusal in Ireland: Ireland’s Fragmented Case Law by Katherine Wade*

On Sunday, 10th March 2013, it was reported that Waterford Regional Hospital made an emergency application to carry out a caesarean section on a woman who refused the intervention, as she wanted the baby to be born naturally(Reilly, “Hospital Sought Court Order to Force Mother to Have C-Section, Irish Independent, 10, March 2013). The woman was 13 days overdue. The Court was told that the baby could die or have severe brain damage and the mother would be at serious risk of haemorrhage if the procedure were not carried out. It was later reported that when the case was called, the woman reconsidered and consented to the procedure. This is the second instance in which a caesarean section refusal has been reported in the media in Ireland. In 2010, it was reported that a woman refused a caesarean section in order to await a High Court ruling about whether her baby should be administered treatment for HIV on its birth, to which she refused consent.

The law is particularly unclear in the context of caesarean section refusal in this jurisdiction. In this context, two fundamental constitutional rights come into stark contrast with one another, namely, the right to autonomy of the woman and the right to life of the unborn. The issue of the balancing of these rights in the context of a treatment refusal by a woman has not been addressed to date in Irish case law. The balancing of these rights has developed in the context of abortion, and there has been little discussion in the case law about the interaction of these rights in other instances which involve a threat to the life or wellbeing of the foetus, such as maternal drug use or caesarean section refusal.

It is clear that there is right to refuse treatment in Irish law. This was held to be part of the right to autonomy in Re a Ward of Court [1996] 2 I.R. 79. The right to life of the unborn is contained in Article 40.3.3°, which states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

The first thing to note is that Article 40.3.3° is not a constitutional provision about abortion. It is a general provision relating to the requirement on the State to protect the right to life of the unborn. Therefore, it would be centrally relevant in caesarean section refusal cases, where the refusal causes a risk to the life of the unborn child.  However, as noted the main focus in relation to this constitutional provision has been on the issue of abortion. Attorney General v X[1992] 1 I.R. 1is the seminal case in relation to this constitutional provision. It held that an abortion is permissible

[I]f it can be established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible.

It was also held that a risk to a woman’s life caused by the threat of suicide satisfies the test laid down in X. In the context of abortion, the right to life of the unborn can only be subordinated to the right to autonomy of the woman, if there is a real and substantial risk to her life. A core problem with this is that the meaning of “real and substantial risk” is unclear. For example, it is unknown where the line should be drawn between life and health in these circumstances. The question which arises in the caesarean section context is whether a woman can refuse a caesarean section on the grounds that it will cause a reduction in her quality of life. This happened in England and Wales, in Rochdale Healthcare (NHS) Trust v C[1997] 1 FCR 274, wherein a woman refused a caesarean section due to back pain and painful scars suffered from a previous caesarean section. The other issue relates to the level of risk which must be posed to the life of the unborn to mandate State intervention to protect its right to life. It is unclear, for instance, if the State must intervene in a situation where the unborn is at risk of being born with a disability as a result of the refusal, which was a reported risk in the current case.

One case which can give some guidance in this regard is G. v. An BordUchtála[1980] I.R. 32 wherein Walsh J. stated that the right to life of the child, having been borninvolves the right to be reared and educated, the right to liberty, work, rest and recreation and the right to maintain that life at a proper human standard in matters of food, clothing and habitation.  This case refers to the right of the child “having been born”. The meaning and scope of the right to life of the child before it is unborn remains unclear. However, it could be argued that since the born child has the right to liberty and recreation etc., it has the right to be born in the healthiest state possible in order to realise these rights. This might mean that measures which could reduce its risk of developing brain damage, for example, such as an enforced caesarean section, should be carried out if necessary. As Sherlock (1989) notes, G v An BordUchtála seems to suggest that the right to life of the child entails more than just the right to be born and involves a certain quality of life. However, she also argues that since the right to life of the foetus and woman are equal, it may be assumed that the woman’s right to life also includes these rights. Thus, this might mean that if a caesarean section were to lead to a reduction in her health or quality of life, the refusal could be constitutionally permissible.

In relation to guidance on the specific issue of caesarean section refusal in Ireland, not much can be gleaned from the case law. It is clear that if the woman refuses the intervention and is found to lack capacity to make this decision, a decision will be made on the basis of her best interests. This is line with the Supreme Court judgment in Fitzpatrick and Another v. K and Another [2008]. However, the possible approach of the Irish courts in relation to a competent woman’s refusal to consent to a caesarean section is difficult to assess. In this situation, the rights of the woman and the unborn would have to be balanced against each other. The only available information about how the courts have approached this issue in the past comes from media reports of two cases. For example, the 2002 case ofSouth Western Health Board v K and Anor[2002] I.E.H.C 104indicated that a woman’s autonomy could be subordinated to the rights of the unborn. In this case, a woman refused to undergo treatment which would reduce the risk of transmitting HIV to her foetus. Although this does not relate to caesarean section refusal, one aspect of the case is relevant. Finnegan P. advised her that if she refused to give birth in a hospital he would have to make “much more serious orders affecting her bodily integrity” (Irish Times, 20 July 2001). However, as Casey (2002) notes, since further details are not available,it is unknown whether such orders could mean forced confinement, twenty-four hour supervision or the forced administration of medicine. It could be argued that while the latter interventions come within the scope of “practicable” measures, as permitted under the Constitution, a caesarean section is not “practicable”, due to the invasiveness of the procedure.

In contrast,in the unreported case of Health Service Executive v F, (High Court, ex tempore, Birmingham J., November 20, 2010) a different approach appeared to have been taken.  In this case, the HSE secured a High Court order allowing a doctor to administer certain drugs to the baby of a pregnant woman upon birth with the view of reducing the risk of transmission of HIV. The woman declined to consent to this treatment. She also refused a caesarean section on the day that was medically advised, but agreed to have it four days later. In the interim she wanted the court to determine whether it was in the child’s best interests to be treated with the drugs.It was reported that ‘Justice George Birmingham had earlier stated that she could not be forced to have a caesarean section and said no order could be made requiring her to undergo such a procedure’ (Mooney, ‘Court: Baby Must Have HIV Drugs’, Sunday Times, 21 November 2010, 8). However, since no further details on the case are available, it is unknown how such a conclusion was reached and how the constitutional rights of the woman and the unborn are to be balanced in a case of caesarean section refusal.

 

The current case gives little added guidance in this area. It was reported that “Judge John Hedigan said that if it is not necessary, then it is appropriate that no court order is made”. This could mean that if it had become necessary to carry out the caesarean section, the Court would have made an order for its enforcement. On the other hand, it may be a general statement that unless it becomes completely necessary, it is inappropriate for the Court to make any order in this regard. It is hoped that a reported judgment might become available in order to ascertain whether the Court dealt with the issue of the interaction of the right to life of the unborn and right to autonomy of the woman in any detail. In the two cases involving caesarean section refusal, the woman eventually relented and agreed to the procedure. Therefore, the Court has not had to engage in an in-depth analysis of the scope, meaning and interaction of the constitutional rights at issue. An analysis of article 40.3.3° in the Courts and in the literature has been, to date, confined to the area of abortion. Its meaning and scope in the context of a competent woman’s refusal to consent to a caesarean section remains to be seen.

 

*Katherine Wade, PhD Candidate, University College Cork, Department of Chidlren and Youth Affairs Research Scholar.

Citations:

A. Sherlock, “The Right to Life of the Unborn and the Irish Constitution” (1989) 24(1) Ir. Jur. 13.

G. Casey, “Pregnant Woman and Unborn Child: Legal Adversaries” (2002) 8(2) M.L.J.I. 75.

 

 This has been cross-posted from www.humanrights.ie

 

 

Submission to the Joint Oireachtas Committee on legislating for abortion by Dr Claire Murray

Submission to the Joint Oireachtas Committee on Health and Children on Legislation to Give Effect to the Constitutional Right to Access an Abortion in limited circumstances

11th January 2013

Dr. Claire Murray, Lecturer in Law, University College Cork

 

  1. 1.     Constitutional Position

Article 40.3.3 provides that “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

The right to life of the unborn is protected under Irish constitutional law, but it is not an absolute right, and must be balanced with the equal right to life of the mother. In Attorney General v X[1] (the X case) the Supreme Court, when interpreting Article 40.3.3, established that there is a right to a lawful abortion in Ireland in very limited circumstances i.e. where, as a matter of probability, there is a real and substantial risk to the life of the mother, including a risk to life through suicide, and that risk can only be removed through the termination of the pregnancy. The risk does not have to be immediate. In any circumstances outside that narrow situation e.g. where the health or well-being of the mother is at risk, there is currently no legal provision for an abortion in this jurisdiction. Therefore, if an abortion was carried out in circumstances which were subsequently found not to come within the test set out in the X case there is a risk, however small, of criminal sanctions for both the woman and anyone who assisted her.[2]

In two subsequent referenda, in 1992 (proposed 12th Amendment) and in 2002 (proposed 25th Amendment) the people voted to reject proposals to remove the threat of suicide from the grounds for lawful abortion, which would have restricted the decision of the Supreme Court in the X case. The possibility of broadening the grounds on which abortion is lawful in Ireland has never been put to the people by way of referendum. Therefore it is settled law that it is lawful for a woman to access an abortion in this jurisdiction where it can be established as a matter of probability that there is a real and substantial risk to her life, as distinct from her health, which can only be avoided by the termination of her pregnancy. The difficulty is that there is no legal guidance available as to how to give effect to this right. This was the core issue in A, B, and C v Ireland.

  1. 2.     The decision of the European Court of Human Rights in A, B and C v Ireland[3] and the Government decision to legislate

The ECtHR found that the State’s failure to provide a framework to give effect to constitutionally permitted abortions was a breach of C’s right to private and family life. Under Article 8, the State has a positive obligation to provide effective and accessible means of protecting the right to respect for private life. The ECtHR concluded that the uncertainty around the implementation of Article 40.3.3 had resulted in “a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation.”

The ECtHR was quite clear in stating that there is no right to an abortion under the ECHR. A majority of the Court ruled that it was within the margin of appreciation afforded to the State the extent to which, if any, it allowed for abortions within the State.[4] However, the ECtHR found that because Ireland had allowed for legal abortions within a very narrow set of circumstances i.e. within the terms of the X case, and therefore women already had a constitutional right to access abortions in Ireland where they satisfied the threshold, the State had an obligation to ensure that this right was an effective one in practice.

The decision of the ECtHR did not change the legal position on abortion in Ireland. It has not extended the circumstances in which an abortion in permissible. It merely requires us, as a State, to ensure that the rights we afford our citizens are real rather than illusory.

Following the Report of the Expert Group on the Judgment in A, B, and C v Ireland the Government has committed to introducing legislation, supported by regulations, to provide a clear framework for accessing abortions in this jurisdiction within the narrow constitutional grounds. This option was described by the Expert Group as being “constitutionally, legally and procedurally sound.”[5]

  1. 3.     Core issues for consideration in legislating for abortion in Ireland

 

  •  Repeal of sections 58 and 59 of the Offences Against the Person Act 1861

The ECtHR observed in the A, B and C case that the criminal provisions of the 1861 Act constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been made. The need to address this issue was further highlighted by the UN Special Rapporteur on the Right to Health who stated on his visit to Ireland in December 2012 that “criminal laws and other legal restrictions disempower women, who may be deterred from taking steps to protect their health, in order to avoid liability and out of fear of stigmatization.” While it may be considered necessary to guard against unlawful abortion in the jurisdiction it is not necessary to do so by means of an extremely outdated provision of the criminal law.

  • Procedure for determining when the constitutional test is satisfied

The question of when there is a risk to the life of the mother is a clinical decision. The purpose of the legislation is to set out a clear procedure within which these clinical decisions can be made. It is important that the procedure included in the legislation is not too burdensome. This is a medical procedure and should not become too adversarial or too bureaucratic. It is also vital that the clinical decisions are made in a timely manner to enable women to make appropriate healthcare choices. The recommendation by the Expert Group that two doctors be involved in the process is sensible.[6] It is crucial that a formal review process be established for circumstances where there is a disagreement between the woman and the medical professionals involved or between doctors. The review body should be independent, competent to review the reasons for the decision and the relevant evidence, there should be a possibility for the woman to heard, the body should issue written reasons for its decision, and the decisions must be timely.[7]

  • The risk of suicide

A threat to the life of the mother, including by reason of a threat of suicide, is part of the test set down by the Supreme Court in the X case. It is therefore settled law and must be included in the statutory provisions relating to abortion. As noted above the Irish people have twice rejected the possibility of removing the risk of suicide from the test. It is deeply disrespectful towards women to suggest that including a provision to this effect in the legislation will result in women fabricating suicidal ideation in order to obtain an abortion in this jurisdiction. This suggestion also contributes to further stigmatisation of persons with mental health difficulties.  There is no justification for including in the statutory scheme a different procedure to determine if there is a real and substantial threat to the life of the mother where that threat arises as a result of suicidal ideation, particularly where the suggestion appears to be that the threshold would be higher in these circumstances because of the risk of fraud. To do so would be unjustifiably discriminatory.

 

  1. 4.     Beyond legislation for X

Any legislation introduced cannot go beyond what is currently constitutionally permissible. Therefore legislation in accordance with the decision of the Supreme Court in the X case will not allow for access to abortion in circumstances where the health of the woman is at risk or where the pregnancy is the result of a rape. However, a recent opinion poll suggested that 82% of the electorate would support the availability of abortion in these circumstances.[8] It is also not yet clear whether the current constitutional position includes cases of fatal foetal abnormalities, given that the life of the mother is not at risk in these circumstances, and the courts have not yet interpreted how the right to life of the unborn applies in such a difficult and traumatic situation. The result is that many women travel abroad to access abortions in these circumstances. Introducing legislation to give effect to the decision in the X case will not address these issues and therefore a mature debate on how the State will meet the needs of these women is required.  Broadening the grounds on which abortion is available in Ireland would require the repeal, by way of referendum, of the 8th Amendment to the Constitution.

Author Profile: This submission is made by Dr. Claire Murray, Lecturer in the Department and Faculty of Law, University College Cork. Dr. Murray is a graduate of UCC (BCL, PGCTLHE, PGDTLHE, PhD) and Kings Inns (BL). She researches in the areas of mental health law, feminist theories of rights and family law. She lectures in welfare law, family law and tort law and is a coordinator of the Gender, Law and Sexuality research initiative within the Law Department in UCC. Dr. Murray holds a pro-choice position on abortion.  


[1] [1992] 2 IR 1.

[2] Section 58 of the Offences Against the Person Act 1861 criminalises abortion and states that a person who procures a miscarriage “shall be guilty of a felony, and being convicted thereof shall be liable to be kept in penal servitude for life.” Section 59 further provides that anyone who assists in procuring a miscarriage through the provision of drugs or instruments shall be guilty of a misdemeanour.

 

[3] [2010] ECHR 2032.

[4] The margin of appreciation allows States to interfere with rights to the degree to which it is necessary and proportionate in a democratic society.

[5] Report of the Expert Group, page 49.

[6] Expert Group Report, page 32.

[7] Expert Group Report, page 38.

[8] Sunday Business Post/Red C opinion poll published on December 2nd 2012.