Human Rights in Ireland

On Friday 11 November, PILA and the PILS Project will host their inaugural joint annual conference at Croke Park Conference Centre – Political Commitment, Practical Protection: Using the ECHR North and South.

The conference is focused on the political commitment to and practical implementation of the European Convention on Human Rights (ECHR) in Northern Ireland and the Republic of Ireland since 1998′s Good Friday Agreement. Shami Chakrabarti, Director of UK human rights organisation Liberty, will deliver the keynote address. Donncha O’Connell  (Law Lecturer at the National University of Ireland Galway) is the conference’s chairperson, and there will be a range of other interesting and experienced speakers from both Northern Ireland and the Republic. The afternoon session considers the use of the ECHR in relation to specific people and issues: children, housing, mental health, prisoners and Travellers.

Registration is free and further details can be found here.

This morning the Grand Chamber of the European Court of Human Rights handed down its long-awaited judgment in Al Skeini & Others v United Kingdom, and its partner case of Al Jedda v United Kingdom, concerning whether the United Kingdom had any liability under the Convention for the alleged deaths and detention of individuals in SE Iraq during its military campaign there. The case raised a number of important issues for the Convention and, indeed, for military activities of COE member states acting as part of a multi-national force more generally. So anxiously was it awaited, in fact, that for a while this morning the HUDOC database—upon which the judgments of the Court are uploaded—crashed. However once the judgment became available it became clear that the Court had found that the individuals concerned were within the jurisdiction of the United Kingdom for the purposes of the Convention. Although the case is a headline maker for its mere subject matter, it was also an opportunity for the Court to bring some much-needed clarity to the extraterritorial scope of the Convention. Questions as to the detention of individuals in Iraq and compliance with Article 5 were raised in Al-Jedda and I will address them in a separate post tomorrow. Read Full Post »

Following on from Máiréad’s post here,  I thought it might be useful to provide a very quick primer on the Court and the Convention, particularly given the level of confusion that is already being expressed about it. For people familiar with the Court (pictured left) there will be nothing new here, but hopefully it will help to put the judgment into some context for people when it is released tomorrow. I proceed along a number of questions: what is the European Court of Human Rights, what is the Grand Chamber, is this part of the EU, are the judgments binding on Ireland, can the Court change the Constitution, and (broadly) what the implications of the judgment might be. Readers might also check out the ICCL Know Your Rights Pack on the ECHR, which can be downloaded here.

What is the European Court of Human Rights? Read Full Post »

Various developments in criminal justice policies and practice in Ireland and abroad exemplify a marked aversion towards risk, such as the restriction of the right to bail, situational crime prevention, and gated communities. While risk has always been of concern in the criminal justice context, commentators like Barbara Hudson and Lucia Zedner identify a new orientation towards it, in which the actuarial probabilistic language of risk is joined to the moral language of blame, and where wariness towards risk compromises due process norms. The imposition of preventive detention, which has recently been examined in Strasbourg in Grosskopf v Germany, is paradigmatic of this risk-oriented approach to penal policy. Indeed, the release of convicted sex offender Larry Murphy, which prompted debate about electronic monitoring and sentence remission, also sparked consideration of preventive detention in Ireland.

However, imprisonment for this purpose is not possible in Ireland. The Irish approach to sentencing, grounded in Bunreacht na hÉireann, requires that each sentence be formulated with the individual facts of the case in mind and be proportionate to the gravity of the crime and the circumstances of the perpetrator (People (DPP) v Sheedy [2000] 2 IR 184). As was reiterated earlier this year in Lynch v Minister for Justice Equality and Law Reform, preventative justice “has no place in our legal system” (People v. O’Callaghan [1966] IR 501) and “there is no form of imprisonment for preventative detention” (People (The Director of Public Prosecutions) v. Jackson (Court of Criminal Appeal, 26 April 1993). Read Full Post »

The Third Session of the Conference of State Parties to the Convention on the Rights of Persons with Disabilities is currently underway at the United Nations Head Quarters in New York.  The third session began today and concludes Friday.  The theme of this session is “Inclusion of Persons with Disabilities through the implementation of the Convention on the Rights of Persons with Disabilities”.  The Convention on the Rights of Persons with Disabilities was adopted by the General Assembly by resolution in December 2006 and the Convention was opened for signature in 2007.  Article 40 of the Convention requires that “[t]he States Parties shall meet regularly in a Conference of States Parties in order to consider any matter with regard to the implementation of the present Convention.”

Importantly this session will begin with the election of members of the Committee on the Rights of Persons with Disabilities.  There will also be substantive Read Full Post »

We are delighted to welcome this guest post from Maeve O’Rourke (left) who is a Harvard Law School Global Human Rights Fellow for 2010-2011 and a graduate of UCD and HLS.

It is now a year since the advocacy group, Justice for Magdalenes, provided the Dail with draft language for a redress scheme for survivors of Ireland’s Magdalene Laundries. Still, the government denies any state liability for the Magdalene Laundries abuse, maintaining that the laundries were private institutions, never regulated or inspected by the State. Flying in the face of the government’s argument is a series of international legal obligations upon the Irish state to prevent and suppress slavery and forced labour by non-state actors, beginning in 1930.

The very fact that the Magdalene laundries were not subject to regulation or inspection, when the State was aware of their nature and function, was a gross violation of the State’s duty to protect its citizens from such fundamental attacks on human freedom and dignity as slavery and forced labour. In the Ryan Report and the broadcast media, survivor accounts of Ireland’s Magdalene Laundries tell of abuse that matches up with a definition of slavery given by the UN Secretary General in reference to the League of Nations 1926 Slavery Convention: absolute control over a person, their labour and the product of that labour. The accounts further conform to the definition of forced or compulsory labour under the 1930 International Labour Organisation Forced Labour Convention: all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. Read Full Post »

It was confirmed yesterday that the Irish government has withdrawn its appeal to the Supreme Court against the High Court decision of McKechnie J in Foy v An t-Ard Chláraitheoir & Ors. In that case, the learned High Court judge held that the Irish state was in breach of the European Convention on Human Rights due to the absence in this jurisdiction of “any measures to honour the convention rights” of transgender citizens. This was based on the fact that under Irish law a citizen cannot have a birth certificate issued to them denoting a gender other than that declared at the time of birth. McKechnie J held that this situation constituted a breach of rights protected under Art 8 ECHR: the rights to private and family life.

The delcaration of incompatibility made under s 5 of the European Convention on Human Rights Act 2003 must be laid before the Dáil and the Seanad within 21 days of its issue. Obviously, given the appeal to the Supreme Court, this matter was delayed. However, the Irish Times reports that in anticipation of officially withdrawing that appeal, the government has established an interdepartmental committee on the legal recognition of transsexuals. This committee, the Gender Recognition Advisory Group, has been asked to provide the Heads of a Bill to address relevant matters including:

• the creation of a process for legally recognising the acquired gender of persons suffering from gender identity disorder who have made the transition from one gender to the other;
• the creation of a gender recognition register for such persons from which a document indistinguishable from a birth certificate can be issued;
• and, the establishment of an entitlement for transgendered persons to marry in their legally recognised acquired gender.

The Group will report on these matters to the Minister for Social Protection and it is hoped that Lydia Foy’s 13 year legal battle will conclude with the enactment of gender recognition legislation in the near future.

Since the European Convention on Human Rights Act 2003 came into effect in December of that year, it has perhaps had less of an impact on Irish litigation and on the politico-legal processes of the State than some might have anticipated or hoped for. However, the Act has created a potentially transformative system for the protection of rights originating in the Convention and based domestically in the statute. As such, it deserves a detailed consideration, and that is what this book by Fiona de Londras (UCD) and Cliona Kelly (NUI Galway), European Convention on Human Rights Act: Operation, Analysis and Impact provides. Although the greater part of this work centres on the obligations and remedies under the Act, the authors also address the largely neglected, but crucial issue of the roles that the Act envisages for important constitutional actors (such as the Attorney General) and statutory bodies (such as the Irish Human Rights Commission). Read Full Post »

Yesterday the UK’s Special Immigration Appeals Commission decided that a number of suspected terrorists (the so-called ‘Pathway Students’) could not be deported to Pakistan as they faced a real risk there of being subjected to torture, inhuman or degrading treatment or punishment in contravention of Article 3 of the European Convention on Human Rights. The open decisions are available here and here. This was notwithstanding the fact that the United Kingdom, which had wanted to deport them, had in fact acquired diplomatic assurances/memoranda of understanding from Pakistan assuring that they would not be subjected to any such treatment. The difficulty identified by the SIAC was not necessarily with the deportation so to speak or even with the concept of acquiring such assurances (they are permissible in some cases—see my article here for a quick overview), but rather with the fact that the assurances were to be kept confidential and, as a result, could not really be challenged or measured for compliance. At paragraph 36 of this decision, the SIAC put it thus:

It is theoretically possible that a written private assurance could [be satisfactory], but unless it was written and unequivocal, it would be open to later misunderstanding and would, in any event, be publicly deniable. Verification of a confidential assurance would be problematic and could not provide the protection to an individual which public scrutiny, by the High Commission, by local media, by family and by organisations such as Human Rights Watch and Amnesty International, can provide. For these reasons, we agree with SIAC’s observations in Y and Othman and would not be willing to accept confidential assurances as a sufficient safeguard against prohibited ill-treatment in a state in which otherwise there was a real risk that it would occur.

This is yet another set-back for the UK in its attempt to find ways around the European Court of Human Right’s decision in Chahal, since reinforced as absolute in Saadi (case | comment) that Article 3 includes an absolute obligation not to expel anyone to a country where they might be subjected to treatment that violates it. Read Full Post »

In the last ten days two men have died in or following Garda detention. On Saturday Johnny Nevin (39) of Tipperary was detained in Templemore Garda Station, became unwell and was transferred to Nenagh Hospital, where he died. On the 20 April a 39 year-old man was found dead in his cell in Tallaght Garda Station. Both deaths are now being investigated by the Garda Ombudsman Commission under s.102 of the Garda Siochana Act 2005.

The circumstances and causes of these deaths are not known and we should be careful to avoid speculation at this point until the investigations have been completed. There is no suggestion as yet that either man was injured by Gardaí. That said, that two men in their thirties should die in or following Garda custody should be of grave concern to all. For the time that they were detained they were in the care of the State. As the UK Joint Committee on Human Rights stated in its report on deaths in custody:

When the state takes away a person’s liberty, it assumes full responsibility for protecting their human rights. The most fundamental of these is the right to life. Read Full Post »