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Human Rights in Ireland

offsite link Reflections on the Citizen?s Assembly (4): The Presentation of Dr. Dónal O?Mathúna Sun Feb 26, 2017 20:19 | GuestPost

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offsite link Reflections on the Citizen?s Assembly (3): The Presentation of Dr. Joan McCarthy Tue Feb 14, 2017 14:01 | GuestPost

offsite link Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides Tue Feb 07, 2017 05:44 | GuestPost

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GuestPost - Sun Feb 26, 2017 20:19
  We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the fourth of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly. In the context of debates about abortion, autonomy is often appealed to by […]


We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the fourth of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

In the context of debates about abortion, autonomy is often appealed to by those promoting greater legal access. Those who wish to restrict access to abortion must either argue that autonomy is not as ethically significant as is often assumed, or that in the specific case of abortion the autonomy of pregnant women should be limited. Dr. Dónal O?Mathúna explores each of these lines in his presentation to the Citizen?s Assembly.[1]

O?Mathúna?s initial characterisation of autonomy is very similar to that offered by Dr. Joan McCarthy: ?our freedom to make decisions about our own lives?.[2] He acknowledges that in general it is a good thing that personal autonomy has become more widely respected, but cautions that it is also possible to pay too much respect to it. Furthermore, he argues that this form of autonomy, which he terms ?self-rule autonomy?, is inadequate when it comes to thinking about abortion. He offers in response a notion of ?relational autonomy?, in which our autonomy should be limited by other ethical principles, such as the responsibilities we have towards others:

Self-rule autonomy leads to isolation because our focus is on ourselves, not our relationships. Relational autonomy involves those around the pregnant woman and reminds them of their ethical responsibilities.

The first problem with O?Mathúna?s argument is that he seems to mischaracterise self-rule autonomy and its role in ethical thinking. The principle of autonomy concerns the individual agent: if a decision concerns his or her own life, then he or she should be the person to decide what to do. O?Mathúna also makes claims about the autonomous agent, namely that he or she will be concerned only with his or her own interests or desires: ?Self-rule autonomy means I choose what I want?. But this is not what the principle says. An autonomous agent is free to make decisions concerning her own life, but it does not follow that she will not (or should not) take anyone else?s interests or opinions into account. Autonomy does not require us to be either selfish or focused on ourselves.

The second problem is that O?Mathúna does not distinguish two very different points which one might raise about self-rule autonomy. First, one might point out that this form of autonomy is of little help in determining which choices are morally speaking better than others. Second, one might argue that autonomy does not apply in certain cases, or can be limited, in that certain actions should not be permitted by law.

The difference between these points is crucial in the context of discussing whether and in what way autonomy should be legally limited. The first point is of little use in such discussions. Appeals to autonomy are not usually intended to help decide what we ought to do, but rather to decide who ought to be allowed to choose. The fact that autonomy does not determine what we should do does not show that it should be limited; rather, it suggests that autonomy should be supplemented in our ethical decision-making by other ethical principles, reasoning, and empathy. Also, note that this supplementation concerns ethics, a person or persons deciding what they ought to do; it does not concern how the law should be framed. Of course, the law should not be completely divorced from ethical concerns, but nor should it simply mirror our ethical views, and not only because many of us in fact disagree concerning different ethical issues.[3]

O?Mathúna raises this first point at a number of places in his article, without seeming to realise that it is of doubtful relevance to the legality or illegality of abortion. He also seems to run together the first and second points, as in the following passage:

The whole basis of society is that certain autonomous acts are neither ethical nor legal. I can lie, cheat, hurt others, or just refuse to help them, but just because I freely chose those things does not make them ethical. We may have the freedom to choose, but still we must decide if our choices are ethical.

It is true that certain autonomous acts are neither legal nor ethical. However, that certain actions are unethical does not by itself mean that they should be illegal. In general, many acts which most of us agree are unethical are permitted by law, in large part out of respect for personal autonomy. Indeed, some O?Mathúna?s examples illustrate this. In Ireland there is no law against lying (except in specific circumstances, such as when one is under oath), nor against hurting others (unless one does so in certain ways, e.g., violently), nor against refusing to help others. These actions may be unethical, but on its own this does not seem a good basis for arguing that they should be illegal.

O?Mathúna is on firmer ground when making the second point, as when he gives examples where certain actions are proscribed: ?We put limits on people?s autonomy legally, by insisting they pay taxes or obey the rules of the road?. However, if we regard respect for autonomy as an important part of deciding which laws should hold, limits to autonomy need in each case to be supported by appropriate ethical argument. And there is surprisingly little of this in O?Mathúna?s presentation. In support of limiting the autonomy of pregnant women, he briefly mentions that abortion both harms the foetus and constitutes an injustice to it. But in neither case does he engage in any detail with the substantive ethical and philosophical issues which such claims raise: e.g., how morally significant is the harm which abortion causes to the foetus? Is a foetus the kind of entity for which questions of justice or fairness can arise? If abortion is unjust to the foetus, does it always outweigh the possible injustice of forbidding women access to abortion? Without discussion of these and related issues, O?Mathúna?s defence of the need to limit the autonomy of pregnant women is sketchy at best.

As mentioned earlier, O?Mathúna puts forward a notion of relational autonomy, on which autonomy is balanced by other ethical principles, such as ?the responsibilities intimately linked to our choices?:

If we get into bed with someone, we take on certain responsibilities whether we acknowledge them or not. Intended or unintended, a pregnancy may result. This is partly why becoming sexually active is such a momentous decision, with most societies urging that it be reserved until a committed, permanent relationship exists to welcome a child into society.

By agreeing to sex, one does take certain ethical responsibilities, most obviously towards the person with whom one is having sex. But it is not clear whether one also takes on any responsibilities to a person who is not yet conceived. Furthermore, it is not clear whether the responsibilities one takes on in agreeing to sex carry enough ethical weight that one should be legally prevented from acting in certain ways. In this context, it is worth noting that regardless of what responsibilities one thinks a person who has sex thereby takes on, relatively few societies, and none in the Western world, outlaw sex outside of a committed, permanent relationship.

Abortion in cases where the pregnancy is a result of rape presents a different challenge. O?Mathúna?s position is that this does not make a difference, ethically speaking, to the issue of whether or not to allow abortion: ?If allowing the unborn to grow and experience life is the right thing in other situations, it does not matter how the pregnancy came to be.?

Many people would regard this view as doctrinaire, and as minimising or ignoring the moral plight of the woman who has been raped. This criticism may not be necessarily well-founded. For someone convinced that the life of the foetus is as morally significant as that of any other human, abortion is not the kind of action which could ever be permitted on the grounds of minimising suffering, even the suffering of someone who has been terribly wronged. By way of (an imperfect) analogy, it is illegal for relatives of a murder victim to kill the person responsible out of vengeance, no matter how grievous the loss they have suffered. This is compatible with understanding the completely human urge many people would have to do so.

However, whether or not it is defensible on its own terms, this view of abortion after rape seems to be quite unpopular in Ireland.[4] More generally, such cases present opponents of a referendum on abortion with a quandary. Arguing against abortion in such circumstances, even if it is consistent with their ethical views, risks presenting their position as at best unsympathetic and at worst downright callous. O?Mathúna?s notion of relational autonomy can be seen as in part an effort to present the anti-abortion case in a softer light, but it is doubtful whether he succeeds.

A final point about O?Mathúna?s notion of relational autonomy, in the context of discussing Ireland?s abortion laws. If the responsibilities pregnant women have towards others justify prohibiting abortion, it is reasonable to ask whether they would justify prohibiting women from travelling to access abortion in jurisdictions where it is legal. If they do not justify prohibiting travel, it is worth asking why this might be. It is not clear whether the notion of relational autonomy allows one to distinguish between these cases, or how it might do so. This suggests that relational autonomy is of limited use in considering the law around abortion, or at least that it stands in need of much greater development if it is to bear the weight of the argument O?Mathúna is asking it to carry.

[1] Dr. O?Mathúna?s presentation is available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Ass... .

[2] Dr. McCarthy?s presentation is also available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Ass... .

[3] One might disagree with this claim, but in that case it is hard to see how there could be a place for any substantive principle of autonomy in one?s view of either ethics or the law.

[4] In an Irish Times/Ipsos MRBI poll, 74% of people wanted abortion available in circumstances including where the pregnancy is the result of rape (Stephen Collins, ?Irish Times Poll: Majority Want Repeal of the Eighth Amendment?, Irish Times 7/10/2016 http://www.irishtimes.com/news/social-affairs/irish-times-poll-majority-want-... ).

GuestPost - Mon Feb 20, 2017 11:13
The Hague Justice Journal First Edition in Association with the International Criminal Tribunal for the former Yugoslavia launches its call for submissions The editorial board of The Hague Justice Journal (HJJ) is delighted to announce that it is soliciting submissions for its 2017 volume relating to the ICTY?s legacy in this its final year of […]

The Hague Justice Journal First Edition in Association with the International Criminal Tribunal for the former Yugoslavia launches its call for submissions

The editorial board of The Hague Justice Journal (HJJ) is delighted to announce that it is soliciting submissions for its 2017 volume relating to the ICTY?s legacy in this its final year of operations. Such submissions will include selected papers from the ICTY Legacy Conference due to be held from 23-24 June 2017 in Sarajevo, Bosnia, and will be published in Autumn 2017. The HJJ undertakes this endeavor in formal cooperation with the ICTY, in line with a number of legacy-related activities being organized in 2017 by the ICTY and by the Peace, Justice and Security Foundation.

The objective of The Hague Justice Journal is to promote a profound collective reflection on the problems and challenges facing international law. Rejuvenated in 2016 by a group of international lawyers, the Journal addresses the major dilemmas of international justice from inter alia the perspectives of law, international relations, jurisprudence, criminology, sociology, penal philosophy, and the history of international judicial institutions. It is an online law journal intended for the benefit of academics, practitioners, graduate and post-graduate students, government officials, as well as the many people working for international organizations.

For more information on the journal please see: http://haguejusticejournal.org/?utm_source=rss&utm_medium=rss

In keeping with the general theme of the ICTY Legacy Conference selected papers for publication should ideally address:

  • Institutional and Administrative Legacy g.Witness protection and support ? post testimony support: needs and resources; reparations and victim status; gender sensitive witness support.
  • Normative Legacy ? Synergies, cross-fertilization, and discrepancies between the jurisprudence of the ICTY, national jurisdictions, regional courts, and other international courts and tribunals; with a special focus on: how ICTY jurisprudence has influenced national jurisdictions, for instance in the region of the former Yugoslavia; and how domestic law and jurisprudence has informed international justice.
  • Operational Legacy/Complementarity ? Challenges faced by the Office of the Prosecutor in investigating and prosecuting conflict-related crimes, including challenges in building leadership cases and obtaining access to evidence; OTP’s capacity building challenges and outcomes; perspectives on operational challenges facing national jurisdictions and potential/demonstrated solutions (including through lessons learned and applied from OTP’s experience).
  • Legacy on Access to Justice for Women ? The evolution of jurisprudence on conflict-related sexual violence; participation of women in the justice process; working with NGOs and civil society to identify witnesses; protection of sensitive witnesses/victims; compensation mechanisms for sexual violence victims in national jurisdictions.
  • Participatory Legacy ? Defence in international criminal trials at international and national courts; defence investigations; defence organizations and offices; rights of the accused.
  • Historic Legacies ? Historic value of the extensive records of the ICTY; records as a means of combating denial; access to ICTY records and archives in the region; importance of user friendly information sharing and judicial databases.
  • Non-Judicial Legacy ? The ICTY and its limitations; to what extent can a judicial institution contribute to peace, reconciliation and deterrence/prevention or otherwise non-repetition of crimes; how to fill the gap through non-judicial mechanisms; the importance of memorialisation and the consolidation of the rule of law through capacity building.
  • Leaving a Legacy: Outreach Activities ? What should be the scope and goals of outreach on the ICTY legacy after the closure of the Tribunal; what are the needs of local communities in respect of the ICTY’s legacy; what are the responsibilities of different societal actors ? g.politicians, journalists, the legal community, civil society?

If who are interested in publishing a paper in the journal you should get in touch by email to the Chief Editor, Dr Anna Marie Brennan at: submission@haguejusticejournal.org

If you are interested in contributing to the volume please submit a 300-word abstract of the paper by 28 April 2017 to submission@haguejusticejournal.org along with the following information;

  1. The author?s name, title, and affiliation (if any)
  2. The author?s curriculum vitae/résumé; and
  3. The author?s contact details including phone number or email address.

Abstracts will be reviewed and successful contributors will be invited to submit first drafts of papers by email to: submission@haguejusticejournal.org in Microsoft Word format by  1 August 2017.

Papers between 6,000-12,000 words are invited. In exceptional cases, the editorial board will increase this limit to 15,000 words for Articles that make an important contribution to the field.

All manuscripts are double-blind peer reviewed. Receipt of all manuscripts will be acknowledged as soon as possible. All manuscripts should be double-spaced with a single spaced abstract and footnotes. Heavy footnoting is discouraged. Authors are invited to follow OSCOLA, which is the journal?s style guide, which may be obtained from the editorial assistant upon request, or from the journal?s web page.


GuestPost - Tue Feb 14, 2017 14:01
We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here.  While debates over the status of the […]

We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here

While debates over the status of the foetus are central to ethical and philosophical discussions of abortion, the freedom of women to choose to have abortions is crucial to political debates on this subject. Dr. Joan McCarthy presented a defence of this freedom, taking as her starting point ?the body and the life of the woman or girl who is pregnant?, considered as a moral agent, i.e., as making ethical choices in concrete situations.[1] In assessing the choices such women face, McCarthy draws on two principles: autonomy and justice.

By autonomy, McCarthy means ?an individual?s right to be free to live their lives according to their own values and beliefs without being arbitrarily restrained or limited by anyone else?. Respect for a person?s autonomy requires us to ?not unreasonably restrict or constrain the life choices? he or she makes. Autonomy is the basis for respecting the bodily integrity of other persons and allowing them a large degree of control over their own bodies.

In the case of pregnancy, McCarthy notes that while it can give rise to moral concerns or dilemmas for both men and women, the pregnancy itself occurs within the body of the woman, and because of considerations of bodily autonomy ?she has a special moral claim to make decisions about whether or not to continue the pregnancy?. This is the basis of the woman?s right to choose to have an abortion. McCarthy correctly notes that the sense of ?choice? which is relevant here does not connote anything the woman herself wants or finds attractive, but rather expresses her right to decide what to do with her own body and to live her own life. She articulates this view as follows:

Respect for their reproductive autonomy means respecting the choices that women or girls make in light of their values and goals and their views of the health and life risks that they feel able or willing to take [?] Refusal to accept their decisions is to treat woman and girls as passive objects and their bodies as containers or mere life support systems ? as means to achieving reproductive goals which are not their own.

This is a powerful argument, drawing on familiar and widely-accepted ideas of personal freedom, and noting just how drastically opponents of legal abortion are committed to restricting women?s freedom. Versions of this argument are perhaps the most commonly-articulated defences of legal abortion.

In assessing this argument, it is useful to consider the most common response offered by opponents of legal abortion. This response draws on a general point about autonomous actions, and a more specific point concerning the specific situation of a pregnant woman

First, as McCarthy herself notes, the principle of autonomy only applies in certain conditions. Autonomy should not be ?arbitrarily? or ?unreasonably? restricted, and part of what is at issue is which restrictions on autonomy count as unreasonable or arbitrary. More precisely, while moral agents are autonomous, they act in specific circumstances, which will often determine whether or not their action is morally or legally permissible. A familiar range of moral and legal debates concern circumstances which might held to limit our autonomy, ranging from the use of narcotics to driving while not wearing a seat belt to killing in self-defence. McCarthy is correct to draw our attention to the specific circumstances in which women are forced to choose concerning their pregnancy, but her opponents will point to other aspects of these circumstances, principally the life and moral status of the foetus.

Many opponents of abortion would accept that considerations of bodily autonomy mean that a pregnant woman ?has a special moral claim to make decisions about whether or not to continue the pregnancy?. For instance, it is widely accepted that while the man who helped to conceive the foetus may have a genuine moral interest in whether or not the pregnancy continues, the final decision should be left to the woman: pregnancy affects her bodily and personal integrity in a way in which it can affect no man. But opponents of abortion will argue that while the woman has a special moral claim to make decisions regarding the pregnancy, for the same reason she also has a special moral burden or duty of care towards the foetus. This moral duty, the argument will continue, is the basis for a legal prohibition of abortion. Personal autonomy allows each of us to perform a wide variety of actions, but certain actions are not morally permissible under any circumstances. These actions often involve harming other persons, but not always (for instance, consider laws governing animal cruelty, or laws prohibiting actions which might cause harm to others but which do not necessarily do so, e.g., prohibitions on drink driving).[2] Abortion, it will be suggested, is one such action: in this case, it is the harm to the foetus which is the moral basis for its prohibition.

The balance between McCarthy?s appeal to autonomy and her opponent?s appeal to the moral status of the foetus might be weighed in two different ways. The first is that McCarthy has presented what is at least a strong prima facie case in favour of allowing women the freedom to have abortions; her opponent has raised what might be a counter-argument, but one which needs to be supported by further reasons for thinking that the foetus actually has a moral status which can outweigh the bodily autonomy of the woman.

The second is that McCarthy has offered at best part of an argument in favour of the right to choose: considerations of autonomy are relevant, but they only justify the right to an abortion in conjunction with some further reason to think that such an action falls within the woman?s sphere of autonomous action, those actions which her autonomy allows her to perform should she choose. In other words, on the first way of weighing the arguments McCarthy has at least done enough to place the burden of proof on her opponent; on the second, McCarthy still has a burden of proof to discharge.

The second principle to which McCarthy appeals is justice, ?the right to be treated equally?, which ?requires that pregnant women are treated on an equal footing with non-pregnant people?. McCarthy outlines two ways in which Ireland?s current legal regime places extra burdens on pregnant women: medical uncertainty and the need to travel to access abortion procedures. These burdens, she suggests, are ?unequal? and ?disproportionate?. Not only do laws prohibiting abortion infringe on the autonomy of women; in doing so, they require that pregnant women not be treated on an equal footing with other persons.

As with the principle of autonomy, how one understands these extra burdens will partly depend on one?s background assumptions. First, the principle of justice can only apply in the way McCarthy uses it if there is no morally relevant difference between pregnant women and non-pregnant people; but whether there is such a difference is part of what is at issue. Indeed, as we have seen McCarthy assumes that a pregnant woman is not, strictly speaking, on an equal footing with others when it comes decisions about whether or not to continue the pregnancy; on the contrary, the pregnant woman has a special moral claim to make such decisions. It certainly does not follow that the principle of justice does not apply to pregnant women, but an opponent of abortion can argue that it cannot be assumed that any difference in how pregnant women are treated is thereby unjust.

It is true that McCarthy?s opponent faces difficulties when it comes to the specific burdens she mentions. For instance, it is difficult to think of many other scenarios where a patient may be legally compelled to risk serious damage to her health for the benefit of anyone but herself. An opponent of abortion will find it hard to defend the justice or fairness of these specific kinds of case. But proponents of abortion will often face challenging cases of their own. If the right to choose is based on a woman?s autonomy, it is hard to see why she should not have the right to choose to have an abortion for any reason at all ? and many people, by no means limited to opponents of abortion in all circumstances, will find it troubling that a woman could in principle chose to have an abortion because of the sex of the foetus, or because the foetus is diagnosed as having a condition such as Down?s Syndrome. The point is primarily not to do with how many women would actually choose an abortion on these grounds, but rather with the view that an abortion chosen on these grounds is itself an unjust act, or at any rate one which does not show respect for the life of the foetus. The possibility of these cases, even in principle, is arguably the greatest challenge facing a defence of abortion on the grounds of autonomy and justice.


[1] Dr. McCarthy?s presentation to the Citizen?s Assembly is available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Ass... . Full disclosure: I know Dr. McCarthy from when we were both studying at UCC.

[2] McCarthy does note that ?Autonomously chosen actions can justifiably be limited if it can be demonstrated that they cause harm to others? (fn. 4). But the above examples show that in many jurisdictions autonomy is limited on other grounds, and it is not obvious that none of these grounds provide a legitimate basis for limiting autonomous actions.

GuestPost - Tue Feb 07, 2017 05:44
We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the second of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here. Debates about abortion can often be traced back to […]

We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the second of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here.

Debates about abortion can often be traced back to disagreements about the status of the foetus, e.g., whether it is a being with any independent moral significance. All parties to this disagreement share two assumptions: that ethical debates over abortion are primarily a matter of the moral importance of the foetus, and that the nature of the foetus is what determines its moral status. Hence many opponents of abortion will appeal to the fact that the foetus is a human being, e.g. it has a soul or has the potential to become a rational being; many proponents of liberal abortion laws will counter that the foetus, at least early in its development, lacks certain capacities which are crucial to having moral status.[1] The arguments here are often complex and involve subtle points of metaphysics which are not easy to resolve. More generally, regardless of what one thinks about these issues, it might seem that such esoteric matters are not appropriate as a basis for legislation.

In her submission to the Citizen?s Assembly, Prof. Bobbie Farsides outlines an alternative approach: a way of justifying a pro-choice regime which seeks to avoid disputes about the nature or moral status of the foetus.[2] Farsides starts by citing Mary Warnock?s observation that it is highly unlikely that an agreement on the moral status of the foetus will be forthcoming. Rather than trying to reach what is bound to be an elusive consensus on this issue, and basing the law on that agreed moral status, we should instead set this topic aside, and aim

to reach some form of societal consensus on the important question of how to treat the fetus in the full knowledge that we may never agree on its moral status.

Farsides?s suggestion is that once the different views on the nature and status of the foetus are set aside, each woman should be allowed to decide for herself what to do when pregnant. In this way each woman can be guided by her own views about foetus and about abortion, without any one such view being used as the basis for the law:

The pro-choice position also asks that in place of imposing a unitary approach on this most metaphysical of issues we should trust women to act morally and make choices that they can individually live with.

This position is obviously one which pro-choice advocates would support, but it is not based on any contentious claims about the nature of the foetus, or when it acquires moral status.

This kind of argument is likely to give rise to a dialectical dispute. Opponents of this argument will claim that it is only acceptable if one already tacitly accepts that the foetus has no genuine moral status. For suppose that the foetus does have such a status. In that case, allowing each pregnant woman (or anyone) to do what they wish with the foetus would be tantamount, morally speaking, to legalising the homicide of a particular class of persons. I take it that no-one would accept an argument in favour of allowing infanticide which appealed to the slogan ?If you don?t agree with infanticide, don?t kill your child?. The reason we would not accept this argument is because we regard infanticide as gravely wrong, so wrong that it should not be left up to the child?s parents, or to anyone else, whether or not to commit it. When this position is contrasted with Farsides? argument concerning abortion, the challenge becomes clear: what is the difference between the two cases which makes a moral difference, which justifies permitting abortion while prohibiting infanticide? What is it about infants which gives them a moral value which foetuses lack?[3] There are various ways of trying to answer these questions, but most of them will involve engaging with precisely the questions concerning the status of the foetus which Farsides sought to avoid.

Proponent of Farsides? argument would be well advised not trying to answer this last question. Rather than appealing to some difference between infants and foetuses which confers moral status on the first but not the second, they should appeal to the fact that, as a society, we have profoundly different attitudes to each case. While there is almost total consensus that infanticide is wrong, the fact is that no such consensus exists regarding abortion, in large part because no consensus exists on the nature or moral status of the foetus. In such a circumstance, it becomes all but impossible to determine what the law should be by determining what should, ethically speaking, be done in the relevant cases. So rather than trying to tie the law to some ethical standard, the best course of action is to trust individual citizens to make their own decisions as best they can.

Crucially, to make this response does not require that one regard the foetus as having no moral status. All it requires is that there not be an overwhelming case that the foetus does have moral status; and while there are numerous arguments supporting the moral status of the foetus, all rest on contentious assumptions and none are close to being conclusive. The same, it might be said, is true of arguments designed to show that the foetus has little or no moral status. It is because of this fundamental uncertainty that the position offered by Farsides may be plausible. This response will not of course satisfy many of those convinced that the foetus has full moral status ? but it puts the burden of proof on them, to provide a convincing argument in support of their case.

However, the position offered by Farsides faces further challenges. First, it may be vulnerable to charges of subjectivism or relativism, of denying that there is any objective ethical standard by which abortion can be judged. As stated, this criticism does not seem correct: Farsides? approach does not require that there be no objective ethical standard for abortion, only that the law governing abortion should not be based on any specific ethical view. However, this response raises a further question, concerning the degree to which the law governing an ethical issue can be divorced from what is ethical permissible or correct. Farsides is aware of this question; she describes her approach as taking a stand, not on the ethics of abortion, but on the dispute between ?moral liberalism and absolutism? concerning the law. In other words, the question she is seeking to answer does not concern the ethics of abortion but how the law on abortion should be framed in a society with a variety of different ethical views.[4] But it may reasonably be asked whether the law should be independent of ethical considerations in this way. After all, people disagree on a great number of different ethical issues, in many cases with little hope of compromise. Allowing individuals to do what they wish in each such case would seem to require a thoroughgoing libertarianism. This, it seems to me, is a genuine problem for Frasides? approach: it threatens to apply far more generally than many people would be happy with.

The approach outlined by Farsides faces another problem, in the context of debates about repealing the Eighth Amendment. Philosophically, it seems to have the virtue of moderation, avoiding disputes about the nature or status of the foetus. However, when translated to the political context of contemporary Ireland, the position advocated by Farsides appears far from moderate. If legislated for, it would amount to recognising that every woman should be allowed to have an abortion should she wish, without having to cite any specific grounds for having one. Opinion polls suggest there is at present limited support in Ireland for such a regime.[5] It may be that while Farsides? approach is useful as an alternative to disputes about the status of the foetus, in the context of Irish public debate it may not be the best line for the pro-choice side to take.

[1] For an example of such disputes, see the presentation to the Citizen?s Assembly by Dr. Helen Watt (https://www.citizensassembly.ie/en/Meetings/Second-Meeting-of-the-Citizens-As... ), and my comments on Dr. Watt?s presentation (http://humanrights.ie/constitution-of-ireland/reflections-on-the-citizens-ass... ).

[2] Prof. Farsides? presentation is available at https://www.citizensassembly.ie/en/Meetings/Second-Meeting-of-the-Citizens-As... .

[3] A variant on this objection concerns time limits. Most jurisdictions which allow abortion place limits on how far into the pregnancy a woman can access this procedure (or at any rate, how far into the pregnancy a woman can access this procedure without having to cite some specific grounds, e.g., a grave threat to her health). The challenge for the proponent of Farsides? approach is to justify some specific time limit, or indeed the need for any time limit prior to birth.

[4] A similar distinction was proposed by Dr, Mark Sheehan in his presentation to the assembly (https://www.citizensassembly.ie/en/Meetings/First-Meeting-of-the-Citizens-Ass... ).

[5] For instance, in an Irish Times/Ipsos MRBI poll, only 19% of respondents thought that abortion should be available ?in all cases requested? (Stephen Collins, ?Irish Times Poll: Majority Want Repeal of the Eighth Amendment?, Irish Times 7/10/2016, http://www.irishtimes.com/news/social-affairs/irish-times-poll-majority-want-... ).

Liam Thornton - Mon Feb 06, 2017 18:10
The length of time that asylum seekers reside within direct provision accommodation, continues to cause significant concern, as it has done so for almost seventeen years.  The practical impact of the implementation of the limited recommendations contained within the  McMahon Report still remains to be fully seen. The Minister for Justice and Equality has stated that 80% of […]

imagesThe length of time that asylum seekers reside within direct provision accommodation, continues to cause significant concern, as it has done so for almost seventeen years.  The practical impact of the implementation of the limited recommendations contained within the  McMahon Report still remains to be fully seen. The Minister for Justice and Equality has stated that 80% of all recommendations made by the McMahon Report are implemented or are being implemented. However, this claim has not to date been backed up with comprehensive assessment from the Department of Justice.  The commencement of the International Protection Act 2015 on 31 December 2016, will hopefully ensure that persons in the protection system receive a fair, procedurally proper and clear decisions on whether they qualify for protection in a timely manner. However, as noted by David Costello, Chief International Protection Officer at a seminar last week, there are 4,000 cases to hand in the International Protection Office (IPO) due to the commencement of the International Protection Act. [With thanks to Fiona Finn, CEO of NASC for making me aware of this]. Oldest cases will be decided first. Those already with a negative determination of refugee status by the now abolished Office of the Refugee Applications Commissioner under the old law, will return to the IPO for determination of their subsidiary protection claim. If subsidiary protection is rejected by the IPO decision maker, then both refugee and subsidiary protection appeals will be considered by the International Protection Appeals Tribunal. Whether this impacts slightly or majorly on timely and fair delivery of protection decisions remains to be seen. A case decided last week may have significant impacts on the right to a timely decision on a protection claim.

State Obligations and Culpable Delay in Asylum Cases

On Friday, 3rd February, the Free Legal Advice Centres (FLAC) had a significant victory in the High Court, where White J. stated that protection applicants have a right to a proper and timely consideration of their protection claims. [The case D.N (a child), suing by his mother and next friend, A.S., and A.S. v Chief Appeals Officer, Minister for Justice and Equality, Attorney General and the Minister for Social Protection (decision of 3 February 2017) is not yet on courts.ie. Many thanks to Michael Farrell and Yvonne Woods (FLAC) for providing me with a copy of the decision]. The D.N. decision relates to a number of different issues, in particular when the right to claim child benefit arises (see previous High Court decision from January 2017 which White J. followed). Therefore, my engagement with this decision is solely restricted to matters arising which relate to the system of direct provision, which is incidental, or an underlying feature I would argue, to this case.

On the delay in determining the protection claim within a reasonable time frame, White J. noted that D.N.’s parents claimed protection in January 2006. There was a refusal of refugee status for D.N.’s father in January 2007 and for D.N.’s mother, Mrs A.S., in March 2007. An application for subsidiary protection was made by the parents promptly. However, a judicial review of the refugee decision followed, so the subsidiary protection application was stalled. The judicial review was withdrawn by D.N.’s parents in February 2009. The parents ultimately made a renewed subsidiary protection application in January 2010.  A.S. was granted subsidiary protection on 01 May 2012.

White J. noted (at para. 27). that, where there is no question of a protection applicant contributing to the delay, [my emphasis in quote],

If an applicant for refugee status or subsidiary protection or other application to remain in Ireland is in direct provision for a very lengthy time, it is incumbent on [the Minister for Justice and Equality] to ensure that their applications are processed within a reasonable time.

The Minister for Justice was unable to provide any explanation for a two year delay in this case in determining the subsidiary protection application. White J referred  to commentary of Advocate General Bot in the M.M. decision, where AG Bot criticised the entirety of Ireland’s (then) status determination systems for a delay of two years and three months. AG Bot deemed this delay to be “manifestly unreasonable”.  White J. adopted this persuasive reasoning, including the importance of the right to good administration under EU law (paras 30-31 of D.N. (a child)), in finding that the applicants were entitled to:

  1. A declaration that their rights were violated under European Union law and the constitution, due to the delay in determining the subsidiary protection claim [White J. noted that the subsidiary protection application should have been determined within 12 months]; and,
  2. A.S. was entitled to compensation for this delay. The level of compensation is to be determined at a later stage.

In the course of his judgment, White J. stated (at para. 22), that

The direct provision system meets the basic needs of the applicants but it is far from ideal.

At para. 23 of the decision, White J. stated that,

….very lengthy periods in direct provision are undesirable.

White J.  noted the affidavit of Noel Dowling, Principal Officer in the Reception and Integration Agency, where the rationale for the operation of direct provision was described as preventing “pull factors”, outlined the perceived benefits of maintaining a system similar to the United Kingdom and (at para. 22 of the decision), and,

[h]aving regard to the existence of the common travel area, there is a serious concern that should protection applicants be allowed access to full social welfare housing, and labour rights, Ireland could very quickly find itself dealing with an asylum crisis of significant proportions…

Mrs. A.S. (at para 23 of decision) noted in her affidavit that she was a qualified nurse, her husband a qualified engineer, who

…found it deeply frustrating that we could not use our professional skills and expertise to provide for our son and establish an individual family home for him instead of the institutionalised regime in Mosney

The precise impact of this decision will take time to become clear. However, for now, it can be stated  that a two-year delay in deciding a subsidiary protection application (and one would also imagine a refugee application) for those who are subsequently recognised as in need of protection, will give rise to a right to compensation for violation of constitutional and EU rights to good and proper administration. It is important to note that this may not impact on the rights of those who are ultimately not recognised as being in need of protection. Nor will it apply where the reasons for delay can be placed upon an applicant. With the commencement of the single procedure since 31 December 2016, it would be arguable that the entirety of the protection claim should not (unless there are good reasons) go beyond one year. Yet of course, it remains to be seen whether this decision will be supplanted onto the new single procedure.

“Time” and Direct Provision in the Irish Courts

I have concerns about seeing the core issue with direct provision as being one of “time”. Mrs A.S’ affidavit noted that the facilities in Mosney and low level of direct provision allowance (?19.10 per week per adult; ?15.60 per week per child) were merely symptoms of a highly disciplinarian regime for containment of asylum seekers in Ireland.  Reducing issues with direct provision to solely an issue of time is reductive. Yet, “time” is the issue identified within political and judicial discourses as the key problem with direct provision. The focus on time can see soothing political and judicial statements of regret and concern, yet limited legal avenues, until now, to reclaim the most basic of human rights to control over one’s life.  In the first case that challenged the system of direct provision directly before the High Court,  “time” was seen as the core question. The applicant in that case, Ms C.A., would eventually be granted subsidiary protection. In the costs decision for this case, Mr Justice Colm MacEoichaidh, noted (at para 26):

That a vulnerable group of people have been living in the challenging circumstances of direct provision for extremely lengthy periods of time, well beyond the six months for which the scheme was intended, is exclusively attributable to inefficiencies on the State side. The sorry saga of direct provision cannot be described as the State?s finest hour. A legal challenge of some sort was surely inevitable – as inevitable as the public campaign addressed to the Government. To award the respondent the costs of the issues which it won would have a chilling effect on litigation of this sort and might have the effect of denying vulnerable and marginalised people their constitutional right of access to the courts.

Time in direct provision, as an issue of judicial concern, also arose in the right to work for asylum seekers case of N.H.V. (Burma).  (You can read an excellent summary of this case by Maria Hennessy here). The majority of the Court of Appeal (Hogan J.’s dissent here), noted the “unfortunate situation” (para 25) of Mr. N.H.V, who had been waiting a lawful decision on whether he was entitled to protection from Ireland for over seven years at the time of the Court of Appeal decision. However, legal interpretation of the prohibition  of the right to work for refugee and subsidiary protection applicants found that there was no breach of constitutional or other fundamental rights. Rather, according to Finlay Geoghegan J. (at para. 31),

the real complaint in this case is the delay which has occurred in the processing of the appellant?s asylum application…[Mr N.H.V.] may have constitutionally protected right to fair procedures, although the ambit of that right remains to be determined.

The decision is now being appealed to the Supreme Court. However, whether the right to work issues will be considered by the Supreme Court is unclear, given that Mr N.H.V. was recognised as a refugee,  eight years after his initial application. In a December 2016 Supreme Court decision (involving whether the denial or reduction of the right to education on racial/ethnicity  grounds was persecution),  Clarke J.  and Charleton J.  both noted that  the Supreme Court was faced with a case of a ten year old child (E.D.) whose refugee claim had not been ultimately determined for a period of eight years.  The Supreme Court was not criticising the child’s parents for bringing a judicial review (they had succeeded in the High Court), nor the decision maker in the Refugee Appeals Tribunal, whose initial decision was restored by the Supreme Court. Charleton J., at para 13  of his decision, stated:

With the change in our laws by referendum through the 27th amendment to the Constitution in 2004 and the economic turmoil of banking irresponsibility which became manifest in 2008, numbers of applicants have been affected. Possibly, part of the delays which characterise the asylum application system is due to the piecemeal adjustment to procedures which had meant that those applying for refugee status could not, and were not required to, apply for subsidiary protection at the same time. Hence, there were several hearings and multiple possibilities for judicial review applications, the volume of which overwhelmed court resources. Judges were no doubt anxious to search for genuine applicants and a complex web of case law built up. Both phenomena fed into each other and contributed to the kind of delay that this case exemplifies. This process of the review of asylum decisions by the High Court is still one of judicial review. The form of orders has not been shown by the relevant precedents to be important in this area, while jurisdiction in terms of the analysis of fact amounting to unreasonableness and reasons for decisions as to conclusions have come to the fore.

That direct provision may have to be “endured” for 1 year, 2 years, 5 years, or 8 years reflects poorly on Irish law, politics and society. The D.N. (a child) decision is exceptionally welcome. The Courts have become used to dealing with a significant number of individuals whose lives have been paused or delayed  for several years by poor State administrative practices within refugee/subsidiary protection decision making. That such a delay decision has now been made should not have come as a major surprise to the institutions of the State. At one level, providing an avenue to punish the State, retrospectively, for poor administrative decision making processes, is not before time. But this, I’d argue, is not recognising fully the harms that can be caused in the system of direct provision. I feel uncomfortable with a judicial system whose decisions, to my mind, do not flesh out constitutional concepts of human dignity and ponder more forcefully the powers and limits of a State to condemn individuals to the highly restrictive and punitive direct provision system.

GuestPost - Fri Feb 03, 2017 06:20
We are pleased to welcome this guest post from Dr Dug Cubie, UCC. In it, he reworks Fuller’s Story of King Rex for contemporary times. In Lon Fuller?s 1969 book The Morality of Law, Fuller set out the story of King Rex as a cautionary tale of the need for clarity, consistency and predictability within legal […]

We are pleased to welcome this guest post from Dr Dug Cubie, UCC. In it, he reworks Fuller’s Story of King Rex for contemporary times.

In Lon Fuller?s 1969 book The Morality of Law, Fuller set out the story of King Rex as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the ?inner morality of the law.? Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller?s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump?s administration?

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex.

Eight Ways to Fail to Make Law

Tex came to the throne with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Tex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad.

His first official act was, however, dramatic and propitious. Since he needed a clean slate on which to write, he announced to his subjects the immediate repeal of all existing law, of whatever kind. He then set about drafting a new code. Unfortunately, trained as a lonely property developer, his education had been very defective. In particular, he found himself incapable of making even the simplest generalisations. Though not lacking in confidence when it came to deciding specific controversies, the effort to give articulate reasons for any conclusion strained his capacities to the breaking point.

Becoming aware of his limitations, Tex gave up the project of a code and announced to his subjects that henceforth he would act as a judge via Twitter in any disputes that might arise among them. In this way under the stimulus of a variety of cases he hoped that his latent powers of generalisation might develop and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code. Unfortunately the defects in his education were more deep-seated than he had supposed. The venture failed completely. After he had handed down literally hundreds of fabulous decisions within the confines of 140 characters neither he nor his subjects could detect in those decisions any pattern whatsoever. Such tentatives toward generalisation as were to be found in his opinions only compounded the confusion, for they gave false leads and alternative facts to his subjects and threw his own meagre powers of judgment off balance in the decision of later cases.

After this fiasco Tex realised it was necessary to take a fresh start. His first move was to subscribe to a course of lessons in generalisation. With his intellectual powers thus fortified, he resumed the project of a code and, after many hours of solitary labour, succeeded in preparing a fairly lengthy Executive Order. He was still not confident, however, that he had fully overcome his previous defects. Accordingly, he announced to his subjects on Twitter that he had written out a GREAT CODE and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his family. To Tex?s surprise this sensible plan was deeply resented by his subjects, who took to the streets in their thousands to protest. They declared it was very unpleasant to have one?s case decided by rules when there was no way of knowing what those rules were.

Stunned by this rejection, Tex undertook an earnest inventory of his personal strengths (which were legion) and weaknesses (of which he had none). He decided that life had taught him one clear lesson, namely, that it is easier to decide things with the aid of hindsight and by reflecting on the good old days than it is to attempt to foresee and control the future. Not only did hindsight make it easier to decide cases, but ? and this was of supreme importance to Tex ? it made it easier to give reasons. Deciding to capitalise on this insight, Tex hit on the following plan. At the beginning of each calender year he would decide all the controversies that had arisen among his subjects during the preceding year. He would accompany his decisions with a full statement of reasons. Naturally, the reasons thus given would be understood as not controlling decisions in future years, for that would be to defeat the whole purpose of the new arrangement, which was to gain the advantages of hindsight. Tex confidently announced the new plan to his subjects over Twitter at 3am, observing that he was going to publish the full text of his judgements with the rules applied by him, thus meeting the chief objection to the old plan. Tex?s subjects received this announcement in silence, then quietly explained through their more enlightened democratic representatives that when they said they needed to know the rules, they meant they needed to know them in advance so they could act on them. Tex muttered something to the effect that they might have made that point a little clearer, but said he would see what could be done.

Tex now realised that there was no escape from a published code declaring the rules to be applied in future disputes. Continuing his lessons in generalisation, Tex worked diligently on a revised GREATER CODE, and finally Tweeted that it would shortly be published. This announcement was received with universal gratification. The dismay of Tex?s subjects was all the more intense, therefore, when his code became available and it was discovered that it was truly a masterpiece of obscurity. Legal experts who studied it declared that there was not a single sentence in it that could be understood either by an ordinary citizen or by a trained lawyer. Indignational became general; and soon a protest appeared before Tex?s gaudy palace of gold carrying signs that read, ?How can anybody follow discriminatory immigration rules that nobody can understand??

The GREATER CODE was quickly withdrawn. Reluctantly recognising for the first time that he needed assistance, Tex put a staff of experts who he hadn?t purged to work on a revision. He instructed them to leave the substance untouched, but to clarify the expression throughout. The resulting GREATEST CODE was a model of clarity, but as it was studied it became apparent that its new clarity had merely brought to light that it was honeycombed with contradictions. It was reliably reported by respected journalists that there was not a single provision in the code that was not nullified by another provision inconsistent with it. An even larger protest appeared before the golden palace, carrying signs that read, ?This time the king made himself clear ? in both directions.?

Once again the code was withdrawn for revision. By now, however, Tex had lost patience with his subjects and the negative attidude they seemed to adopt toward everything he tried to do for them. He decided to teach them a lesson and put an end to their carping. He instructed his remaining experts to purge the code of contradictions, but at the same time to stiffen drastically every requirement contained in it and to add a long list of new crimes such as practicing a different religion or being an immigrant. Thus, where before individuals summoned to the throne were given ten days in which to report, in the revision the time was cut to ten seconds. It was made a crime, punishable by ten years imprisonment to cough, sneeze, hiccough, faint or fall down in the presence of the king (he stressed that he was a germaphobe). It was made treason not to understand, believe in, and correctly profess that fossil fuels and human activity have no impact on climate change whatsoever.

When this GREATEST EVER CODE was sent out on Twitter a near revolution resulted. Leading citizens declared their intention to flout its provisions. Someone discovered in an ancient author a passage that seemed apt: ?To command what cannot be done is not to make law: it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos.? Soon this passage was being quoted in a hundred petitions to the king.

The code was again withdrawn and a staff of experts chaired with the task of revision. Tex?s instructions to the experts were that whenever they encountered a rule requiring an impossibility, it should be revised to make compliance possible. It turned out that to accomplish this result every provision in the code had to be substantially rewritten. The final result was, however, a triumph of draftsmanship. It was clear, consistent with itself, and demanded nothing of the subject that did not lie easily within their powers. It was printed and distributed free of charge through social media.

However, before the effective date for the new GREATEST EVER CODE, REALLY had arrived, it was discovered that so much time had been spent in successive revisions of Tex?s original draft, that the substance of the code had been seriously overtaken by events. Ever since Tex assumed the throne there had been a suspension of ordinary legal processes and this had brought about a climate of uncertainty for the economy and institutions of the country. Accommodation to these altered conditions required many changes of substance in the law. Accordingly as soon as the new code became legally effective, it was subjected to a daily stream of amendments. Again popular discontent mounted; an anonymous blog appeared online carrying scurrilous cartoons of the king and a leading article with the title: ?A law that changes every day is worse than no law at all.?

Within a short time this source of discontent began to cure itself as the pace of amendment gradually slackened. Before this had occurred to any noticeable degree, however, Tex announced an important decision. Reflecting on the misadventures of his reign, he concluded that much of the trouble lay in bad advice he had received from experts. He accordingly declared he was reassuming the judicial power in his own person. In this way he could directly control the application of the new code and insure his country against another crisis. He began to spend practically all of his time hearing and deciding cases arising under the new code.

As the king proceeded with this task, it seemed to bring a belated blossoming his long dormant powers of generalisation. His opinions began, indeed, to reveal a confident and almost exuberant virtuosity as he deftly distinguished his own previous decisions, exposed the principles on which he acted, and laid down guidelines for the disposition of future controversies. For Tex?s subjects a new day seemed about to dawn when they could finally conform their conduct to a coherent body of rules.

This hope was, however, soon shattered. As the online record of Tex?s judgments became available and were subjected to closer study, his subjects were appalled to discover that there existed no discernible relation between those judgments and the code they purported to apply. Insofar as it found expression in the actual disposition of controversies, the new code might just as well have not existed at all. Yet in virtually every one of his decisions Tex declared and redeclared the code to be the basic law of his kingdom.

Leading citizens from all walks of life began to hold private meetings to discuss what measures, short of open revolt, could be taken to get the king away from the bench and back on the throne. While these discussions were going on, Tex was impeached for nepotism and conflict of interests, old before his time and deeply unloved by his subjects.

The first act of his successor, President Hex, was to abolish the monarchy and introduce genuine democracy and the rule of law based on the values of non-discrimination and accountability of elected officials.

Coda: During their famous debates in the 1950s over the legality of the Nazi regime and so-called grudge informers, Lon Fuller and HLA Hart disagreed on the role of morality and the law. Hart was swift to point out that Fuller?s concept of the inner morality of the law, and his eight principles of legality, could actually uphold unjust laws. Hart argued that Fuller?s procedural natural law approach failed to engage with the substantive morality of flawed laws, as a legal system may be structurally sound yet still allow unjust laws. Fuller meanwhile countered that when people are ?compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness…? Both Hart and Fuller?s arguments have resonance today. The cautionary tale of King Rex was based on some of the most brutal regimes in history. One can only hope that these warnings are heeded over the next four years.


With thanks to my legal theory colleagues Patrick O?Callaghan and Natasa Mavronicola for their illuminating comments.

Eoin Daly - Wed Feb 01, 2017 17:15
We are pleased to welcome this post by Dr. Tom Hickey, School of Law and Government, Dublin City University. Sometimes constitutional law has an ironic effect and one that perhaps goes against the intuitions of lawyers, and of people generally. It prevents one arm of government from doing justice in order to allow another arm of […]

We are pleased to welcome this post by Dr. Tom Hickey, School of Law and Government, Dublin City University.

Sometimes constitutional law has an ironic effect and one that perhaps goes against the intuitions of lawyers, and of people generally. It prevents one arm of government from doing justice in order to allow another arm of government to do its job well. In today?s High Court judgment in Kerins v McGuinness, we see something like that at play, although it is probably better to say that in this instance constitutional law prevented one institution (the courts) from considering whether to offer a remedy for alleged injustices done unto Angela Kerins in order to allow another institution (parliament) to freely carry out its functions.

The constitutional norms that prompted the outcome concern parliamentary privilege: they provide that ?utterances made in either House [of the Oireachtas] shall be privileged? (Article 15.12) and that TDs and Senators are not ?amenable to any court or any authority other than the Oireachtas? for ?any utterances in either House [of the Oireachtas]? (Article 15.13). These rules were not thoughtlessly adopted nor are they in any sense arbitrary. In fact they are concerned in the first instance with promoting the goals of good and non-arbitrary government. The Oireachtas has two pretty important tasks: a) to make those who wield public power answerable for how they exercise it and b) to make laws for the state. And the constitutional rules at issue are concerned with ensuring that parliamentarians are not constrained in how they go about these tasks by fear of court sanction. That is the basic rationale of these norms, and they go back at least as far as the Glorious Revolution.


So what was the case about? Angela Kerins was chief executive of the Rehab Group, a registered charity that receives a lot of funding from the HSE to carry out various health and social care. Following all kinds of public disquiet about the charity sector, including supposedly exorbitant executive pay and travel expenses, Ms. Kerins was invited to attend the Dáil Public Accounts Committee (PAC) in early 2014. For various reasons, she was not under an obligation to attend: the Committee did not compel her to do so. But she did attend, presumably in part because she felt that her refusal would not play well with the public. At the PAC proceedings, she was subjected to what she deemed to have been unfair treatment: members of the Committee had asked her questions about her pension arrangements and other issues despite not having given her advance notice that they would do so; it was suggested to her by various members of the Committee that she was ?grossly overpaid,? that she ran Rehab ?like a personal fiefdom,? and that she had done more damage than good to the charity sector. She thus sought from the High Court declarations including that the PAC?s activities had been unlawful and tainted by bias as well as an order removing from the record of the PAC all references to her. She also sought damages.

The judgment by the President of the High Court, Peter Kelly is quite emphatic on a point of distinction between the application brought by Ms. Kerins and that brought (successfully) by Jock Haughey against a PAC inquiry that led to the famous In Re Haughey [1971] IR 217 judgment as well as that brought (also successfully) by various members of the Gardaí against a PAC sub-committee inquiry that led to the Abbeylara judgment (Maguire v Ardagh [2002] IR 38). In both of those instances, those whose reputations were on the line had been compelled to attend Oireachtas inquiries. This tended to render the inquiries adjudicative as far as the judges were concerned: they took on powers associated with courts and were concerned with adjudicating on disputed questions. And it also brought the question of jurisdiction into play. That is, a key question for the judges in those instances was: did the Oireachtas committees have the jurisdiction, or the power, to compel the witnesses?

Angela Kerins?s case was different insofar as she had not been compelled to attend the PAC. She could have refused to do so without any fear of legal sanction. (As it happens, later in 2014 she was invited to re-attend, but this time she refused, effectively concluding the liaising between her and the PAC). She could have simply upped and left the Committee as it proceeded, similarly without any fear of legal sanction. Thus, when the parliamentarians had never managed to exercise any of their compellability powers (they applied for them after she declined her ?invitation? to re-attend, but the relevant Oireachtas committee rejected the application for reasons I ignore here) the judges could hardly subsequently rule that they had breached those powers. And when her In Re Haughey procedural rights had not been engaged in the first place ? insofar as she could have simply left the scene ? she could hardly now seek a court order declaring that they had been breached.

The inquiries leading to In Re Haughey and Abbeylara similarly purported to make findings against individuals, in the latter instance, potentially including a finding of unlawful killing. Angela Kerins?s case was different on this front too, despite the characterisation put on it by her lawyers. This was not an inquiry set up to investigate her conduct and it did not purport to make any finding against her. Thus, for the High Court judges, the utterances of the parliamentarians in the PAC were mere expressions of opinion by them individually, and were ?devoid of any legal force? (as distinct from considered findings made as a dedicated Oireachtas inquiry).

Reading Kelly P?s judgment, it looks as if these elements alone made it a difficult case for Angela Kerins to win. But there was also the question around privilege for utterances made in the Oireachtas, referred to above. This is a broader constitutional principle of some general democratic import, but it would also be relevant to anyone considering litigation against parliamentarians for claims made during parliamentary debates concerning matters of public interest (or indeed otherwise).

In referencing Article 9 of the Bill of Rights 1689 as ?one of the forbears of Article 15?, Kelly P. invokes the notion that the constitutional norms at stake were part of a range of mechanisms aimed at promoting parliamentary autonomy so as to rein in arbitrary power. They were important in that period in part so as to render monarchy constitutionally subordinate to parliament. But they remain so, or so the idea goes, so as to ensure that any individual or group that wields great power ? perhaps financial power ? combined with a litigious inclination, can less easily lord it over parliamentarians, eyeballing them so as to not ask questions they might not want asked. As Murphy J observed of Article 15.13 in Garda Representative Association v Ireland [1989] IR 193:

This provision is expressed in wide terms and obviously it is desirable that it should be interpreted in such a way as to permit and encourage members of the Oireachtas to engage in debate on matters of national interest without having to restrict their observations or edit their opinions because of the danger of being made ?amenable to any court or any authority? at the suit of some person who may feel aggrieved by the statements made in the course of debate.

Kelly P. goes on to emphasise that the strong nature of parliamentary privilege has been found not to be inconsistent with the access to justice provisions of Article 6.1 of the European Convention on Human Rights. In A v United Kingdom [2002], the Strasbourg Court referred to its being a ?virtually universal principle? that was ?designed not to protect individual members, but Parliament as a whole, and operated only where it was strictly necessary, namely within Parliament itself.?

It is hard to see the Kerins judgment as in any sense a new departure. It distinguished the Abbeylara judgment, and ? while its overall thrust may be distinctive: a boon for parliament rather than a curse ? it is hard to see that it is inconsistent with it, as such. It is interesting in that it reminds us of that ironic effect of the principle of comity so fundamental to public law: it is surely no less damaging to an individual to be defamed in the Oireachtas than in any other forum, yet Articles 15.12 and 15.13 prevent judges from remedying defamation that occurs there (or indeed from considering whether defamation has occurred there). Similarly with public discussion of what an individual might think of as his private affairs: it is no less burdensome if that happens in parliament than in some other public forum. But such is the constitutional norm. This is not an arbitrary concession to injustice; rather it is premised on the notion that the right of one citizen against defamation cannot trump the value of unrestrained parliamentary discussion for all citizens.





GuestPost - Wed Feb 01, 2017 08:25
We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the first of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly. Regardless of what one thinks about the need for a Citizen?s Assembly, its deliberations […]

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the first of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

Regardless of what one thinks about the need for a Citizen?s Assembly, its deliberations have already thrown up a number of interesting approaches to thinking about ethical issues, particularly concerning abortion. What follows is a series of articles on the presentations by ethicists to the assembly, examining the arguments that they offer and their potential implications for a possible referendum to repeal the 8th Amendment.

Dr. Helen Watt presented an argument against abortion which was of interest, particularly in the context of Irish debates about abortion, in not relying (at least not explicitly) on religious doctrine. Indeed, Watt?s arguments rest on certain assumptions which are difficult or impossible to reconcile with the beliefs of many religions, for instance the belief in an immortal soul. But as with more familiar religiously-motivated discussions, Watt?s argument appeals to the nature of the foetus to justify its having a certain moral status. By the ?nature? of the foetus I mean not just its physical or biological features but those features which might be thought to give it moral significance in and of itself, regardless of what anyone thinks about it. This kind of moral significance is what is usually meant when ethicists speak of the ?moral status? of the foetus.

Watt begins by asking ?What am I??, and answers this question as follows:

what I am is surely a human animal ? a living, bodily being or organism. By saying that, I do not mean to say that human beings lack any kind of spiritual dimension. Rather, I simply want to stress the embodied nature of the unified beings we are throughout our lives: we are bodily beings, not disembodied ghosts. I am my living body and my living body is me.

In this passage Watt makes two assumptions which one might question. First, in philosophical circles the claim that I am (in the sense of being identical with, which is presumably what Watt intends) an animal, an organism or a living body is in fact rather contentious.[1] That said, Watt?s paper is not intended as a thorough discussion of the metaphysics of human beings, and it would be churlish to place too much weight on this rather technical point.

Second, Watt glosses the claim that I am an animal as the claim that we are embodied beings throughout our lives. But the claim that each of us is necessarily embodied is not the same as the claim that each of us is identical with a certain living body (for instance, there are a number of philosophical positions in which these two claims come apart).[2] And the difference between these two claims really does matter. This is because the claim that each of us is embodied is relatively uncontentious, but it is the claim that each of us is identical with a certain body which will play a crucial role in Watt?s argument. By eliding them as she does, Watt is in danger of conflating a controversial premise of her argument (that each of us is identical with a living body) with a much less controversial claim, that each of us is embodied.

Each of us, Watt continues, is

a member of one very special kind of living being: a thinking, choice-making, rational human kind of being. Because I am a human being, I should be able to think and choose when awake and mature enough to do so.

The notion of a rational kind of being requires careful consideration. Note that Watt is not saying that every human being is rational, i.e., actually has the capacity to reason (this would be a rather controversial claim, particularly with regard to a foetus). Rather, she uses the term ?rational? to qualify the kind of being to which human foetuses belong. To say that a foetus belongs to a rational kind of being is to say that it will be rational when it has fully developed, assuming that it develops as it should. The term ?should? here is best understood not in a moral but in a biological sense, the sense in which, e.g., the function of my heart is to pump blood through my body; if my heart is not pumping blood then it is not functioning as it should.

Why does Watt stress the kind of being which humans are, as opposed to the features of individual humans? The answer is revealed a little later, when Watt addresses a further question: how should I be treated?

The answer to that question depends on what I am (a special, rational, human kind of being) and also on what is good for that kind of being: my interests or what I have a stake in.

All human beings have full human status and basic human rights, in that all human beings have an important stake in their own future as beings of the special, rational kind they are. [?] human beings are equal in their basic interests, and in their basic human rights and status.

The moral claim being argued for is that all humans have the same moral status; Watt suggests that this status is conferred by the fact that all humans, including human foetuses, belong to the same kind and so have the same basic interests.[3] So even though different humans have very different features ? even though, for instance, some humans lack any capacity to reason ? there are certain things which are good for every human, since we are al beings of the same kind.

In considering what is good for beings of a certain kind, i.e., what interests they have, it is important to note that the terms ?good? and ?interests? cannot be assumed to be always moral, in the sense of carrying any moral weight or conferring any moral status. For instance, a fountain pen may be good or bad, but a good fountain pen is not morally better than a bad one. Likewise with interests. Any living organism will have interests, e.g., it will flourish in certain conditions and not in others. But the flourishing of, say, daisies is not obviously a moral good, and the interests of daisies need not themselves weigh in our moral deliberations. (It is no moral blemish to my actions if I destroy some daisies in the course of mowing the lawn.)

Of course, a foetus is not a daisy. But the point being made here does not rest on any analogy between them. The point is simply that in order to move from the claim that something is good for a certain kind of being to the claim that beings of that kind have a certain moral status, we need some reason to think that the good or interests in question are morally significant.

Watt?s argument is that the interests of a human foetus are morally significant because they are interests of a member of a rational kind. An opponent of Watt?s may respond that the interests of a foetus, at least earlier in its development, are purely biological and not morally significant. The foetus is not itself a person or even a subject of experiences, and so its interests do not carry the same moral weight as those of a human adult or an infant. One way to put this disagreement is as follows: does membership of a rational kind make the interests of a foetus morally significant, or is it the specific interests of an entity which are, or are not, morally significant? Another, perhaps more contentious way to express the disagreement is to ask whether you were ever identical with the foetus from which you developed. As we have seen, Watt would say that you were. But one may try to resist this claim, on the grounds that it is certain mental features or capacities (e.g., the capacity to have experiences) which are definitive of the kind of being you are. Or one may argue that it is having a functioning brain or central nervous system, rather than one?s body as a whole, which determines your identity. In this way, Watt?s initial answer to the question ?What am I?? may become the focus of dispute.[4]

While Watt?s argument rests on claims about the nature of the foetus which may be open to question, the line I have sketched for her opponent is itself vulnerable to criticism. In particular, by linking the moral status of the foetus to its actual features (e.g., those capacities which it has or lacks), Watt?s opponent seems committed to the view that both the capacities and the moral status of a human being may wax and wane over the course of its lifetime. Many people will worry about the implications of this claim for, e.g., the moral status of infants or the senile. In contrast, Watt?s position provides a basic moral status for every human being: it straightforwardly delivers the result that certain rights are indeed human rights, in the sense that they are possessed by every human being in virtue of their being human. Whatever one may think of her position, this is a powerful rhetorical advantage.

Faced with these disputes over the nature and status of the foetus, one may well wonder whether any of this is a sound basis for the law of the land. It will be worth considering whether there are any arguments about abortion which avoid these issues.


[1] For discussion of some of these issues see Stephan Blatti ?Animalism?, The Stanford Encyclopedia of Philosophy (https://plato.stanford.edu/archives/win2016/entries/animalism/?utm_source=rss... ).

[2] See the views discussed in Blatti, ?Animalism?, § 2.3

[3] By ?interests? Watt does not mean something a human is interested in ? rather, she means something which matters to the wellbeing of that human.

[4] These disputes have given rise to a vast literature. For a brief introduction, see J. S. Blumenthal-Barby, ?Head Transplants, Personal Identity, and Derek Parfit? (http://www.bioethics.net/2015/03/head-transplants-personal-identity-and-derek... ). For a more thorough discussion, see Carsten Korfmacher, ?Personal Identity? (http://www.iep.utm.edu/person-i/?utm_source=rss&utm_medium=rss ).

Eilionoir Flynn - Tue Jan 31, 2017 09:28
Over the next two days, two pieces of legislation which the government has deemed necessary for Ireland?s ratification of the UN Convention on the Rights of Persons with Disabilities will be debated in the Dail. While several calls have been made by the disability community to ensure that Ireland ratifies the Convention without delay, there […]

Over the next two days, two pieces of legislation which the government has deemed necessary for Ireland?s ratification of the UN Convention on the Rights of Persons with Disabilities will be debated in the Dail. While several calls have been made by the disability community to ensure that Ireland ratifies the Convention without delay, there are ongoing human rights concerns with the legislation being proposed which will have a significant impact on the day to day lives of people with disabilities in Ireland.

The Criminal Law (Sexual Offences) Bill is going through its Report and Final stages in the Dail tonight. This Bill includes an amendment by Minister Fitzgerald to define sexual consent, which is vitally important and widely supported by civil society. The wording of the Minister?s amendment in respect of persons with disabilities could however be improved. For example, the amendment states that a person does not consent to a sexual act if ?he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act.? The term ?physical disability? seems unnecessarily limiting here, as there are many different physical and psychological reasons that might prevent the person from communicating consent or refusal. Instead, it would be preferable if the amendment provided that a person does not consent if ?he or she is experiencing an impairment which prevents him or her from communicating whether he or she agrees to the act.?

The main human rights concern for people with disabilities in Ireland relates to Part 3 of the Bill. The Minister has maintained the need for a separate offence of sexual act with a ?protected person? (section 21) ? as well as introducing a new offence against a ?relevant person by a person in authority? (section 22). Despite many submissions by organisations of persons with disabilities (e.g. Connect People Network, Inclusive Research Network) and their allies (e.g. Inclusion Ireland, Centre for Disability Law and Policy), calling for a disability-neutral approach to sexual offences legislation the Minister has maintained the need to have separate sexual offences in the Bill which only apply when the victim has a mental or intellectual disability, or mental illness.

Part 3 of the Bill singles out people who lack capacity to consent to sex because of a disability. There are many reasons why a person might lack capacity to consent as now recognised in the Minister?s amendment defining sexual consent ? for example, due to consumption of alcohol or drugs, or where the person is asleep or unconscious. Therefore, there should be no separate offence targeting victims with disabilities who lack the capacity to consent to sex. If someone engages in sexual intercourse with a person who does not consent to it (for example because the person lacks capacity to consent) then this constitutes rape and should be prosecuted as such. Therefore, the new offences introduced in Part 3 should be removed, along with the existing, discriminatory section 5 of the Criminal Law (Sexual Offences) Act 1993 which they seek to replace.

The second piece of legislation being debated in the Dail today and tomorrow is the Disability (Miscellaneous Provisions) Bill. The Bill will introduce long-overdue reform in the areas of access to goods and services, jury service, electoral laws, and will establish national implementation and monitoring mechanisms for the Convention in Ireland. However, many of the most significant provisions in the Bill, including those relating to deprivation of liberty, have not yet been published, and will be introduced as amendments at Committee stage. This is a grave concern as it means there will be little opportunity for public debate and even less opportunity to amend the provisions once they are introduced. Many civil society organisations working in the areas of disability and mental health have expressed concern about the Bill and you can read more about these concerns in this press release. The Irish Human Rights and Equality Commission has also made observations on the legislation which can be read here and here.

Given the increasing pressure on the government to ratify the Convention, it is important to have a robust debate in the Oireachtas on the laws which are being passed to enable Ireland to ratify. Ratification without real change in our laws and policies, the kind of change demanded by people with disabilities and their allies, is meaningless, and undermines the hard work of so many campaigners and activists, including the late Martin Naughton, who worked tirelessly to bring about real change in the lives of people with disabilities in Ireland. To stimulate debate on these issues, I?ve developed a list of questions TDs could ask the Minister on both Bills (Questions for TDs) . The Centres for Independent Living have also devised a list of questions on the Disabilities Bill which can be accessed here.


Darren O'Donovan - Tue Jan 31, 2017 09:12
This post is authored by Dr Darren O’Donovan, Senior Lecturer in International Law, Administrative Law and Human Rights, in  LaTrobe Law School, Melbourne.  A lot of Irish media discussion in the preclearance debate has begun to feature rhetoric such as Ireland can?t ?let the United States operate preclearance given the new executive order?, or that ?Ireland […]

This post is authored by Dr Darren O’Donovan, Senior Lecturer in International Law, Administrative Law and Human Rights, in  LaTrobe Law School, Melbourne. 

A lot of Irish media discussion in the preclearance debate has begun to feature rhetoric such as Ireland can?t ?let the United States operate preclearance given the new executive order?, or that ?Ireland should make a statement and close preclearance?. Opponents (they would call themselves realists) would argue that as a small country with a small economy this is far too dramatic a foreign policy step. To debate the legality of preclearance fully however, we need to emphasise that United States obliged, under international law, to operate its preclearance in line with the bilateral agreement between Ireland and the United States signed in 2008.

In this post I want to therefore frame questions for the United States government, and for use by United State citizens. The big one is of course simply: Is the United States in breach of its international legal agreements with Ireland by applying the executive order in Irish airports? The key provision of the 2008 Agreement Article II (1) which states that:

?Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland and, where applicable, the United States.?

As we have discussed in an earlier blogpost there are a range of potential, to be explored, arguments as to why the application of the executive order within Ireland?s jurisdiction may be unlawful under Irish law. What is significant however, is that we in Ireland cannot simply say that US law is a matter for US authorities. US law in fact sets the scope of their international legal obligations towards us, and it may even require us to give redress to some individuals (see question 4 below). We need to fold the United States? bilateral obligations into the debates about preclearance.

Questions for the US Embassy/State Department:

  • As under the Article II of the 2008 Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under Irish law, what steps have you taken to ensure that the application of the executive order does not exceed the terms of the 2008 Agreement?
  • As under Article II of the Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under United States law, can you confirms what steps you have taken to confirm that the provisions of the executive order are compliant with United States law?
  • In the event you determine the executive order is not compliant with Irish law, are you willing to commit to not applying the executive order in preclearance areas at Dublin and Shannon Airport?
  • Given the close and abiding bilateral ties between the United States and Ireland, is it appropriate for the executive order to be applied in Irish airports while it is currently before the United States courts? We refer you in particular to Article IV(2) which appears to require Ireland to provide a system of redress in event of the ?unlawful exercise of powers associated with the administration of preclearance?. This Article is not limited in its express terms to the unlawful administration of Irish law . Can you provide your view of the extent to which the Government of Ireland may be liable to provide redress for the actions of US government officials under this Article?

Ireland: The Supporters of the Preclearance System

What this post attempts to show is that being a supporter of preclearance means actually enforcing the agreement we made in 2008, and exploring potential United States? breaches of it. It is difficult to imagine Irish parliamentarians not supporting the principle that preclearance only extends to the scope of the 2008 Agreement. Any Irish legislation which implements this principle does not ground any United States entitlement to immediately modify or withdraw from the 2008 Agreement. It would enjoy only its usual right to withdraw after one year. It should, however, be noted that in the event the United States is in material breach of the treaty, Ireland enjoys the right to suspend or withdraw from the 2008 Agreement after a brief period of consultation (as per Article 60 of the Vienna Convention on the Law of Treaties).

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