In a withering assessment, Nigel Rodley, a leading expert in international human rights law, and a former UN Special Rapporteur on Torture, said Ireland’s collection of human rights failures have gone on for a period that was hard ‘to imagine any state party tolerating’.
From Magdalene laundries and the mother-and-baby homes to child abuse and symphysiotomy, recent years have seen the UN repeatedly criticise Ireland’s human rights record on a range of fronts.
Compiled by the Irish Council for Civil Liberties, here is a sample of those failures and what the State is doing to address them.
X case is legislated for but little more
Various, including the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; and the UN Convention on the Elimination of All Forms of Discrimination Against Women.
The European Court of Human Rights in 2010 ruled, in the case of A, B, and C vs Ireland, that the State had failed to provide an accessible and effective procedure whereby a person could establish whether she qualified for a lawful abortion in Ireland.
In 2011, when Ireland was reviewed under the UN Human Rights Council’s Universal Periodic Review (UPR) mechanism, numerous UN member states made recommendations to Ireland to give greater protection to women’s reproductive rights, including access to abortion.
Ireland will be reviewed under the UPR again in 2016.
In July 2014, the UN Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights, reiterated its concerns regarding the highly restrictive circumstances under which women in Ireland can lawfully have an abortion.
In particular, the committee raised concern about the criminalisation of abortion in section 22 of the Protection of Life During Pregnancy Act, including in cases of rape, incest, fatal foetal abnormality, and serious risks to the health of the mother, which may lead to 14 years’ imprisonment, except in cases that constitute a “real and substantive risk” to the life of the pregnant women.
The committee also raised concern about: n The lack of clarity around what constitutes “real and substantive” risk to life as opposed to health of the pregnant woman; n The discriminatory impact of the Act on women who are unable to travel abroad to seek abortions; n Strict restrictions on the channels via which information on crisis pregnancy options may be provided and the imposition of criminal sanctions on healthcare providers who refer women to abortion services outside of the State party under the Regulation of Information (Services outside the State for the Termination of Pregnancies) Act 1995; n The severe mental suffering caused by the denial of abortion services to women seeking abortions due to rape, incest, fatal foetal abnormality, or serious risks to health.
The committee recommended the State revise its legislation on abortion, including the Constitution, to provide for abortion in cases of rape, incest, serious risk to the health of the mother, or fatal foetal abnormality. It also recommended that the State swiftly adopt the guidance document to clarify what constitutes a “real and substantive risk” to the life of the pregnant woman; and to consider making more information on crisis pregnancy options available through a range of channels. It also wants to ensure healthcare providers who provide information on safe abortion services abroad are not subject to criminal sanctions.
In June, the UN Committee on Economic, Social, and Cultural Rights will review how Ireland is implementing its obligations under the International Covenant on Economic, Social, and Cultural Rights. The right to the highest attainable standard of physical and mental health (including reproductive health) and protection from discrimination are provided for in this. It is likely the committee will raise the issue of abortion in June.
The UN Committee on the Elimination of all Forms of Discrimination Against Women also expressed concerns over the restrictive abortion laws when it reviewed Ireland’s implementation of its obligations under the UN Convention on the Elimination of All Forms of Discrimination Against Women in 2005. Ireland was due to report to the committee again in 2007 but this report is still outstanding.
The Government has legislated for the X case by enacting the Protection of Life During Pregnancy Act, which provides for lawful abortions to be carried out in cases where there is a “real and substantive risk” to the life of the pregnant woman. An Implementation of the Protection of Life During Pregnancy Act 2013: Guidance Document for Health Professionals was published in 2014. Abortion in cases of rape, incest, fatal foetal abnormality, or serious risk to health remains unlawful.
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Protocol has been signed, but has not been ratified
International Convention on the Rights of Persons with Disabilities (ICRPD) and the Optional Protocol to the ICRPD (OP ICRPD) Optional Protocol to the Covenant on Economic, Social and Cultural Rights (OP ICESCR).
The ICRPD has been in force since 2008. This treaty specifically protects the civil, political, economic, social, and cultural rights of persons with mental and physical disabilities. It also requires the creation of a national monitoring mechanism on the rights of persons with disabilities.
The OP ICRPD creates a complaints mechanism which allows individuals or groups of individuals to make a complaint to the UN Committee on the Rights of Persons with Disabilities if they believe that their rights under the ICRPD have not been upheld by the State and if there is no remedy available to them in their own country.
The OP ICESCR has been in force since 2013. It creates a complaints mechanism which allows individuals or groups of individuals to make a complaint to the UN if they believe their rights under the ICECSR, such as the right to health, adequate housing, or education, have not been upheld by the State and if there is no remedy available to them in their own country.
Ireland signed ICRPD in 2007 but has not yet ratified it.
This means that the ICRPD is not yet legally binding on the State. Successive governments have claimed the reason for delay in ratification is the need to enact new mental capacity legislation to bring Ireland in line with international human rights standards.
In 2013, the Government introduced the General Scheme of the Assisted Decision Making (Capacity) Bill introducing reforms necessary to enable ratification of ICRPD. To date, the bill has not been enacted.
Ireland has not signed the OP ICRPD. No complaints mechanism currently exists in Ireland.
Ireland signed the OP ICESCR in 2012 but it has not yet ratified it. This means that the OP ICESCR is not yet legally binding on the State. Similar complaints mechanisms also exist as part of other UN human rights treaties by which Ireland has agreed to be bound.
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Symphysiotomy redress criticised
International Covenant on Civil and Political Rights
Last July, the UN Human Rights Committee expressed concern in relation to the practice of symphysiotomy during childbirth, reportedly numbering in excess of 1,500 since the 1940s and often conducted without securing the consent of the mother involved.
The committee recommended that the State initiate a prompt, independent, and thorough investigation into the practice and, where possible, prosecute those responsible for wrongdoing.
The committee also recommended that women were provided with adequate redress (compensation), including the right to challenge awards through the courts.
In November 2014, the Government published details of a redress scheme for the victims of surgical symphysiotomy and invited applications from survivors.
Awards under the scheme are granted ex gratia and are limited to three categories — €50,000, €100,000, and €150,000, depending on the degree of injury suffered and its resulting impact.
Criticism of the redress scheme includes the statutory requirement that women who accept an award must sign a legal waiver which indemnifies and holds harmless a large number of State and private actors including hospitals, medical personnel, and religious orders, for example, the Medical Missionaries of Mary, which ran the hospitals in question from any future legal action.
In addition, no mechanism to facilitate truth finding or to identify and prosecute potential wrongdoers has been established despite the recommendations of the Human Rights Committee.
Concern at lack of effective investigation into institutions
UN Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT); International Covenant on Civil and Political Rights (ICCPR)
In 2011, the UN Committee against Torture concluded Ireland should institute a prompt and thorough investigation into allegations of mistreatment of women in the Magdalene laundries, that known perpetrators should prosecuted and punished for any wrongdoing, and that all victims should have an enforceable right of redress. These recommendations were echoed in the Concluding Observations by the Committee on the Holy See (Vatican) made in 2014.
In 2014, the UN Human Rights Committee expressed particular concern at the lack of effective investigations into allegations of abuse, mistreatment or neglect of women and children in a number of institutional settings in Ireland, including in relation to Magdalene laundries, children’s institutions and mother-and-baby homes. In his concluding remarks during Ireland’s Fourth Periodic Examination on Ireland, committee chair Nigel Rodley referred to the impact of a dominant ideology (referring to the role of the Catholic Church including in providing services) on women and children, an ideology which had, at times, “sought to dominate the State”.
Magdalene Laundry Redress Scheme: In a report to the UN Human Rights Committee in 2014, the Government argued that the Report of the Interdepartmental Committee to establish the facts of State Involvement in the Magdalene laundries (the McAleese Report) found no evidence of torture or ill treatment of a criminal nature, no evidence of unlawful detention, and no evidence of women kept for long periods against their will.
It should be noted that the terms of reference of the McAleese report did not include investigating or making findings in relation to torture or ill-treatment of women and that the conclusions in relation to same fell outside the remit of the report. In addition, information including testimony of survivors and staff, was received by the interdepartmental committee, but not included in the final report. However, the findings of the report have formed the basis of the redress scheme currently in operation. Entry into the scheme includes the necessity to sign a waiver against future action. The report was criticised in 2013 in a letter to the Permanent Representative for Ireland to the UN in Geneva by the special rapporteur on follow-up on concluding observations and vice-chair of UNCAT, Felice Gaer, as lacking many elements of a prompt independent and thorough investigation as recommended by UNCAT.
Mother and Baby Home Inquiry: In January, the Government, announced a Commission of Investigation into mother-and-baby homes and certain related matters. The announcement received a broad welcome from advocates and rights groups, including the ICCL, which noted that the terms of reference emphasise “the need for the investigation to be prompt and thorough in accordance with State’s obligations under international human rights law.”
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