The Shame of Ireland

The Shame of Ireland

Frances Fitzgerald on Human Rights - July 2014 - Geneva

Human Rights Committee considers report of Ireland

Human Rights Committee 

15 July 2014

The Human Rights Committee today completed its consideration of the fourth periodic report of Ireland on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Frances Fitzgerald, Minister for Justice and Equality of Ireland, stated that reform of police accountability was the central priority of the Ministry.  The Irish Human Rights and Equality Commission Bill was nearing completion of the enactment process, and a Chief Commissioner should be appointed shortly.  It was lawful to terminate a pregnancy in Ireland if there was a real and substantial risk to the life of the mother.  In February 2013, the Taoiseach (Prime Minister) had made a formal apology to the women who had worked in the Magdalene Laundries, and a scheme of payments and benefits for those women had been put in place on an ex gratia basis.
During the discussion, Committee Experts were particularly interested in the issue of reparations for the mass abuses committed in the Magdalene Laundries and the practice of symphysiotomy [a medical practice in Ireland when the pelvis of a pregnant woman is spread by doctors so she can deliver a baby].  Other questions raised included implementation of the Ryan report on child abuse, corporal punishment, easing restrictions for abortion, women employment, domestic violence, definition of terrorism, special criminal courts and conditions for declaring a national emergency, trafficking in persons and asylum seekers, and the treatment of the Roma and the Travelers minority groups.
In concluding remarks, Nigel Rodley, Chairman of the Committee, said that it had been an excellent, constructive and informative dialogue.  The delegation had worked hard to provide answers to multiple inquires by the Committee.  Ireland was a country where human rights were very much part of the public discourse.  The Dublin Process had significantly helped strengthening the treaty bodies.  Many of the social issues needed further work, such as the Magdalene Laundries, mother and baby homes, or child abuse.
Ms. Fitzgerald said that, while Ireland had made significant progress in many areas, the Government had an ambitious reform agenda in a number of other fields.  The exposure to the international perspective in that regard was very much appreciated, as Ireland could largely benefit from it.  It was encouraging to see a strong representation of the Irish civil sector at the meeting, which was a valued partner to the Government.
The delegation of Ireland included representatives of the Department for Justice and Equality, Office of the Attorney General, Department of Health, Department of Foreign Affairs and Trade, and the Permanent Mission of Ireland to the United Nations Office at Geneva. 
The next public meeting of the Committee will take place at 3 p.m. this afternoon when it will begin its consideration of the sixth periodic report of Japan (CCPR/C/JPN/6).
The fourth periodic report of Ireland can be read here (CCPR/C/IRL/4).

Presentation of the Report
FRANCES FITZGERALD, Minister for Justice and Equality of Ireland, presenting the report, said that Ireland had great respect for and attached great significance to the United Nations human rights treaty monitoring process.  Support for the role of the treaty monitoring bodies was a cornerstone of Irish foreign policy in respect of the promotion of human rights globally.  Ireland had played an instrumental role in the treaty body strengthening process. 
Ireland had held a transparent and consultative process in the preparation of the current report.  Civil society activism provided impetus to Ireland’s continued efforts to respect, protect and fulfil the rights of all those living in Ireland. 
Reform of police accountability was the central priority of the Ministry for Justice and Equality.  The Government was making progress on a package of measures aimed at restoring confidence in the performance, administration and oversight of policing in Ireland, including through the creation of an independent authority.  The Irish Human Rights and Equality Commission Bill was nearing completion of the enactment process.  A Chief Commissioner should be appointed shortly, in accordance with the Paris Principles, and the Commission was expected to start its work in the autumn. 
The Gender Recognition Bill was being processed, with a view to publishing it later in the year.  A person aged 16 or 17 might apply for a court order exempting them from the requirement of gender recognition.  The Protection of Life during Pregnancy 2013 had been enacted to regulate access to lawful termination.  It was lawful to terminate a pregnancy in Ireland if there was a real and substantial risk to the life, as distinct from the health, of the mother.  The Act upheld the right to life of the unborn where practicable, and the right to life of a pregnant women whose life was threatened by her pregnancy.  Necessary clarity was provided for medical professionals to implement the revised legislative regime.  The constitutional and legislative framework in Ireland reflected the nuanced and proportionate approach to the considered views of the Irish electorate on that profound moral question, dealt with in Article 40.3.3 of the Constitution.
On the issues of survivors of symphysiotomy, [a medical practice in Ireland when the pelvis of a pregnant woman is spread by doctors so she can deliver a baby] the Government had decided to establish an ex-gratia scheme for the survivors, applying a non-adversarial approach.  The affected women continued to receive a range of health and social care support from the State.  The Government was committed that people of non-faith or minority religious backgrounds and publically identified lesbian, gay, bisexual and transgender persons should not be deterred from training or taking up employment as teachers in the State.  In 2010 and 2011, the application of domestic violence orders to civil partners had been extended. 
In February 2013, the Taoiseach [Prime Minister of Ireland] had made a formal apology to the women who had worked in the Magdalene Laundries.  A scheme of payments and benefits for those women had been put in place on an ex gratia basis.  The Office of the Ombudsman would provide an independent appeals procedure in line with the recommendations of the McAleese Report.
Legislative reform aimed at establishing a single application procedure for asylum was one of the key priorities of the Government.  The non-Irish now made up 12 per cent of the population in Ireland.  It was equally important to address the particular needs of some of the more disadvantaged of Ireland’s new communities, such as the Roma.  Following a report by the Ombudsman for Children, the Government had apologized for the removal of two Roma children from their families.  An implementation group had been established to oversee the actions in response to the report’s recommendations.
Questions by Experts
An Expert said that it was regrettable that the mandate of the new Human Rights and Equality Commission excluded the possibility of invoking the Covenant and other non-incorporated human rights treaties into domestic law in domestic courts.  Could the delegation turn the Committee’s attention to any important court cases in which the Covenant had been invoked in courts since the consideration of the previous report?
What would the annual budget of the new Commission be? What role was envisioned for the Parliament in overseeing the work of the Commission and ensuring that it had the necessary resources?  Would the Commission be able to deal with the cases previously dealt with by the Equality Tribunal, and in a more expedient manner?
The Expert wanted to know more about the oversight of the conduct of Irish corporations overseas.  Had the general policy statement and Ireland’s commitment to the United Nations Guiding Principles on Business and Human Rights been translated into practice and transmitted to the private sector?
While the 2013 act on abortion did represent a step forward regarding the life of the mother, in other cases abortion was criminalized, such as in instances of rape and incest.  It remained unclear what the “substantial risk” for woman’s life included.  It was regrettable that Ireland did not show readiness to expand the list of criteria for abortion, the Expert commented. 
How did the Government see the next steps regarding the offences of symphysiotomy, especially with regard to the victims’ opposition to the limited nature of accountability?
It was regrettable that pre-trial detainees were kept in the same space with convicted prisoners. 
Would the State party consider removing its reservation to article 20.1 of the Covenant, dealing with the prohibition of war propaganda?
Regarding the Magdalene Laundries, the Government seemed to be pleased with the McAleese report, an Expert said.  Why was the Government reticent in examining that case head on?
An Expert raised the issue of prison sentences for those who could not afford to pay financial debts, and asked whether an alternative system could be found.
What was the definition of a terrorist act in Ireland?  The Committee was concerned over the apparent lack of the definition and what it covered.  Did “subversive acts” count as terrorism?  Who fell under the jurisdiction of special criminal courts?
Could the delegation explain the reasons for the low levels of prosecution for police abuse of power, an Expert asked.  In order for the Garda Siochana [police force of Ireland] Ombudsman Commission to carry out its duty properly, sufficient funds ought to be allocated.  How did Ireland plan to improve the working of the Commission?
As of October 2013, police had been notified of 181 child abuse cases, 50 of which had been investigated.  The Government of Ireland had taken many actions to fully protect children from abuse.  Could more information be provided about the Ryan implementation plan?
A question was asked about the application of the recovery and reflection period for victims of trafficking in persons.  Asylum seeking victims of trafficking had less chances of acquiring permanent status in Ireland – could the delegation comment on that?
Did the Government plan to organize a referendum on all issues that the Constitutional Commission was tasked to deliberate on?
Could the delegation inform the Committee about the review of the National Women Strategy 2008-2016, and provide information about the rates of women in employment? 
An Expert asked whether there was a specific timeframe in place for the draft bill on employment to be adopted.  Did it include affirmative action provisions for disabled persons?
Was it possible to have disaggregated data on victims of domestic violence by gender, age, and ethnic origin?  That way, public policies could be better targeted.  Forms for seeking protection were complicated and the fees could often deter those unable to pay them. 
Details were asked about the procedures for declaring a national emergency.

Response by the Delegation
On the incorporation of the Covenant provisions in domestic law, the delegation explained that a precise tabulation of all individual rights listed in the Covenant did not exist.  The Government had identified a range of international obligations under various treaties, while the focus now was on their implementation.  Ireland had a dualist system, which created an obligation to introduce international duties into the national legal system through domestic laws.  Dualism was not an impediment, but had to be taken into consideration when applying the Covenant’s provisions. 
Reservations made by Ireland to international treaties were constantly under review, and withdrawn when possible.  While citizens had full freedom of expression, conduct that was likely to lead to a breach of peace and any incitement to hatred was prohibited, and at the moment there were no plans to withdraw that reservation.
The Human Rights and Equality Commission had been created in accordance with the Paris Principles and took into consideration founding acts of other national human rights institutions.  The Commission could not take actions which were in remit of the courts, but had an unfettered mandate to promote international human rights standards.  Only the Parliament had the authority to make laws.  The rationale for merging previous organs into one single Commission had been to have one single address for human rights and equality related complaints.  There were delays in processing complaints, but the time needed for their processing had been reduced over the previous few years.
A review of the migrant integration strategy was underway, a delegate explained.
Answering the questions on the oversight of policing in Ireland, the delegation explained that the new supervisory body would start its work in 2014.  The independent body – Garda Siochana Ombudsman Commission - would have powers to initiate its own investigations, and look into polices, practices and procedures.  The Commission would work closely with the Ombudsman’s office.
With regard to the operation of Irish businesses abroad, the delegation stated that export licenses were granted only after extensive consultations and assurances that business practices were conducted in accordance with both national and international law.  Effective implementation of the United Nations Guiding Principles was the best way to deal with that complex issue.  The Irish Government had made known its concerns over working conditions in Qatar, where a number of Irish businesses were active.
On gender equality and women in public life, the Government had accepted recommendations on the need to amend article 41.2.1 of the Constitution, on which a task force was in place.  Any new text should be gender-neutral and might include mention of other carers in and beyond the home.  There was a commitment to hold a referendum on that issue.  There were efforts to increase female representation on both public and corporate boards.  There was a proposal to have at least 40 per cent of either gender on State boards. 
Trying to get visibility on domestic violence might be very difficult, and the issue of gathering of data was not always easy, but necessary.  There was a national office in place for the prevention of domestic and sexual violence.  Ireland was committed to signing and ratifying the Istanbul Convention, which was a sign of how seriously Ireland was dealing with the issue.
A new draft bill would enable people with disabilities to exercise their capacities in practice and be subject to affirmative action. 
A delegate stated that the Constitution provided that in the time of war, the two Houses of the Parliament could resolve that a state of national emergency existed.  No actions taken in the past had been incompatible with the Covenant, or found to be discriminatory on any ground.  There had never been derogations from relevant provisions of the Covenant. 
On the Magdalene Laundries, the head of delegation said that the recommendations of the independent McAleese Report had been fully accepted by the Government.  The redress scheme was being implemented; 750 victims had submitted requests for redress, out of that number, 346 payments had been made so far, amounting to 12.4 million euros.  Women were thus coming to the redress scheme and payments were being made.  An inquiry would be conducted into various practices of mother and baby homes. 
The Ryan implementation plan on the abuse of children had arisen from another series of disturbing events of the past.  A mixed monitoring group was overseeing how the report’s 99 recommendations were being implemented.  There would be new legislation in place to make reporting child abuse mandatory; a monitoring group would also be constituted to observe the implementation of the “Children First” policy.
Irish law in relation to abortion had evolved over time and in the democratic process, a delegate stated.  The gradual evolution of law had always tried to seek a careful balance between the provisions on the life of the unborn and protecting the life of the mother.  Protecting life was a central tenet of Ireland’s national and international obligations.  There had been five referenda on the issue.  National clinical guidelines were being developed to ensure universal approach in health centres across Ireland. 
Responding to questions on trafficking in persons, in 2012, 48 persons had been alleged to be victims, some of whom had been identified as Irish citizens and some as European Union citizens.  The number of people who needed a permission to remain in the State was very low.  There would be a much higher rate of recovery and reflection period if more victims were coming from third countries.  Asylum seeker trafficking victims did not get the same right to work as persons outside of the system.  It was emphasized that one did not remain in an abusive relationship in order to preserve a right to stay in Ireland. 
In recent years, the number of persons sent to prison for not being able to pay their debts had been constantly decreasing.  A new Fine Payments and Recovery Bill would be adopted in 2014. 
Speaking of the necessity for special criminal courts, a delegate said that dissident military groups, which had rejected the peace deal in Northern Ireland, continued to pursue their goals through violence.  There was no explicit definition of terrorism.  In March 2014, the Supreme Court had clarified that decisions by special criminal courts were open to review.
On the issue of symphysiotomy, the Ministry of Health was trying to establish facts in order to provide closure for women who had suffered from it.  It had been an exceptional procedure, which had affected some 1,500 women (0.05 per cent of all cases) between 1940 and the 1980s; they had not been carried out secretly.  It had been aimed at avoiding Caesarian sections, as the maternal mortality rate had been lower with symphysiotomy.  An ex-gratia scheme was in place, the overall cost of which was estimated at 34 million euros; women were also receiving a range of support services from the State.  The Government profoundly regretted and condemned the very serious and profound effects that symphysiotomy had had on women and their families.
Answering questions on the separation of prisoners, the delegation said that the Government was working on bringing the existing prison infrastructure up to modern standards.  The State could still not live up to that principle, which was why it was currently unable to implement the provisions on this issue.
The Irish Human Rights and Equality Commission would be strongly engaged with Parliament.  The Commission would report annually to Parliament, to which it would also present its strategic plans.  The Commission would also regularly engage with the Justice Committee.
Questions by Experts
An Expert inquired about the time frame for the proposed amendment of the article of the Constitution dealing with the role of women. 
Overcrowding seemed to be an ongoing problem in Ireland’s prisons, the Expert noted.  High levels of intra-prison violence had also been reported. 
Were there any limitations in practice for the upper limit of pre-trial detention?  Could the delegation assure that pre-trial detainees and immigrants would be kept separately from convicted prisoners?
It was welcome that the Government had abolished the Defamation Act of 1961, thus bringing the legislation in line with the Covenant.  The Defamation Act of 2009 nonetheless still defined blasphemy as a criminal act.
Another Expert commented that the delegation’s response, both in writing and orally, to the issue of the Magdalene Laundries was not fully satisfactory and in line with the Covenant. 
The lack of a clear definition of terrorism was also worrying, the Expert commented.
On corporal punishment, it was unusual that the Government had reviewed only mothers on whether such practices were in place.  Could the delegation assure that the State was now committed to legislating the issue?
The fact that Ireland was a dualist country was not a reason not to incorporate the Covenant into domestic law, but quite the contrary.  The dualist nature should not prevent the Human Rights Commission from investigating violations of the provisions which had not yet been incorporated. 
The Expert was troubled by the argument that the will of the Irish electorate could enforce deviations from the key provisions of the Covenant, and asked the delegation to consider withdrawing such a statement.
Had the information on Ireland’s involvement in secret rendition flights, as leaked by the WikiLeaks, been investigated, and what was the outcome?
The issue of the religious oath had been raised by the Committee in 1993, and the matter was yet to be fully addressed. 
The number of non-denominational schools in Ireland was still minuscule, and there were no plans currently to create more such schools as there was reportedly no sufficient demand for such education.  How did the State party plan to deal with the protection of non-Christian or atheist teachers?
Another Expert wondered whether at all times when there was a public emergency, the State had to officially proclaim a state of emergency.  Could the Supreme Court make that decision and suspend the powers of Parliament in that regard?
What was understood by the term “voluntary patients” in mental hospitals?  It was rather the case that those people were often sent to hospitals and treated without consent.  An improved definition and practical application would need to be improved, so that such individuals were treated properly.  Physical restraint and seclusion seemed to continue to be used quite widely. 
The Committee requested the State to ensure that the Roma and the Travellers were recognized as minority ethnic groups.  This had been called for by various United Nations human rights treaty bodies.  Those communities had lower life expectancy and higher suicide rates.  The State party should take more proactive steps in addressing the existing situation. 
Another Expert stressed that human rights could not be denied by a majority vote in a referendum or in Parliament. 
Ireland was the only European Union Member State that did not have complete procedures for examining asylum requests. Was the immigration bill expected to be enacted in 2014? Was the Government planning to establish a quasi-independent tribunal to deal with violations in that regard?
On transgender persons, the Committee welcomed the upcoming gender recognition provisions that could now be legally recognized.  Transgender youths were particularly vulnerable.  Did the authorities take into consideration a person’s gender identity when assigning persons to particular parts of prisons?
The issue of abortion was raised by an Expert, who asked if the Irish people had ever been given the chance to vote on reducing restrictions on abortion.  Recent opinion polls showed that 70 per cent of the people supported abortion in cases of fetal anomaly, incest and rape.  The Committee put the right to life and health of the mother first.  Was the situation that some women had to travel abroad to seek abortion not considered as discrimination against those who could not afford so?
With regard to symphysiotomy, had the women been consulted? Was it considered an experimental treatment?
Response by the Delegation
Regarding prisons in Ireland, the delegation explained that there were currently 500 fewer prisoners than two years ago.  In one of the prisons mentioned, there was now full in-cell sanitation for all 560 prisoners, and similar upgrading works were being completed in other jails.  The Cork prison was being fully reconstructed, and would meet international standards.  Overall, substantial progress had been made across the system.
There was a commitment to ensure segregation in prisons, in line with international requirements.  By the end of 2014, there would be a total segregation between juveniles and adults once a new facility was completed. 
The Supreme Court’s decision from March 2014 had created new rights to detainees on the top of their existing statutory rights, allowing access to counsel before questioning, and the right not to be interrogated without being able to receive legal advice first. 
The Government had responded to abuses of children by strengthening legislation and improving services.  There was need for further inter-agency, coordinated cooperation in that regard.  A new agency dedicated to child and family issues had been established in January 2014.  A complete ban on corporal punishment in all settings in Ireland was currently under review.   New attitudinal studies collecting high amounts of data would help the Government better define relevant polices.
Answering the question on rendition, a delegate said that the Government was clear that it did not permit the usage of its airspace and airports for purposes not in line with the dictates of international law.  The report from 2013 that an Expert had referred to contained allegations which had already been responded to by the Government.
The review of the mental health act was currently underway in Ireland.  It would provide greater protection to patients to whom electro-convulsive therapy was administered. 
The scale and complexity of the immigration bill was one of the reasons why the process was moving relatively slowly.  The Government was aware of the need to have a single protection procedure, which was why a separate protection bill was identified as the best way to move ahead.  The complaints procedures in place were in line with the recommendations of the Ombudsman office.  The Ombudsman and the Ombudsman for children did not have the authority to address asylum issues dealt with by other public bodies.  Asylum seekers could attend courses of English language and Irish culture.
The Gender Recognition Bill was somewhat delayed due to the national consultation process.  In Ireland, a person would become legally adult at 18; the bill sought to provide various safeguards to persons under that age.
It was stressed that the Human Rights and Equality Commission simply could not apply provisions of the Covenant which were not part of Irish domestic legislation.  It was important that the Code of Practice was not challenged by including references to what was not part of the Irish legal practice.
A delegate said that all children had a constitutional right to education.  Twenty new primary schools were to be established by 2017, most of which would be multi-denominational.  There was sufficient parental demand for a wider variety of schools in many regions.  There was no obstacle to the establishment of secular or non-denominational schools if there was enough demand by parents and patronage support.  No student could be forced to attend any religious instruction if it went against the will of his parents. 
The Government was committed to holding a referendum to formally remove blasphemy from the list of criminal offences.  There had been no public prosecution for blasphemy since the mid-nineteenth century.
On abortion, the delegation fully understood points raised by the Committee that the majority will should not and could not derogate from basic human rights provisions.  It would require a new constitutional referendum to expand the list of grounds for abortion.  Opinion polls had varied in relation to the topic, and did reflect changing views.  There were a number of agencies providing advice and assistance for women who experienced crisis pregnancies.  The number of teenage pregnancies and women traveling abroad for abortions had been significantly reduced. 
There was a demand to have three doctors examine a pregnant woman who could be at the risk of suicide.  Information had to be given to the woman in a counseling environment, and provide her with the explanation of all the available options.
With regard to ethnic minorities, it was explained that the Government understood its obligations
under international conventions.  All the key anti-discrimination provisions in Irish law specifically singled out Travelers as a vulnerable group with particular needs, and did not enjoy any less protection than they would if they were recognized as an official ethnic minority.  The Roma community was largely made up of European Union nationals, and were not registered or counted separately; it was estimated at 3-5,000 people. 
In a follow-up answer on symphysiotomy, the delegation said that in a number of cases, procedures had been carried out without women’s knowledge or consent.  It had sometimes been conducted as an emergency intervention. 
Questions by Experts
An Expert asked whether the delegation believed that a neutral studying environment should be provided in denominational schools outside of religious instruction.
Another Expert inquired if the State would consider the review of procedures on considering “B” complaints from prisons.  Was there an independent complaints system in place?
Concluding Remarks
FRANCES FITZGERALD, Minister for Justice and Equality of Ireland, said that while Ireland had made significant progress in many areas, the Government had an ambitious reform agenda in a number of other fields.  The exposure to the international perspective in that regard was very much appreciated, as Ireland could largely benefit from it.  It was encouraging to see a strong representation of the Irish civil sector at the meeting, which was a valued partner to the Government.  The Government would consider expanding the independent complaints system to “B” complaints.
NIGEL RODLEY, Chairman of the Committee, said that it had been an excellent, constructive and informative dialogue. The delegation had worked hard to provide answers to multiple inquires by the Committee.  Ireland was a country where human rights were very much part of the public discourse.  The Dublin Process had significantly helped strengthening the treaty bodies.  The approach to assisted decision-making to those with mental health challenges was one of the positive developments.  Some Committee members remained concerned about the system of special courts.  Good progress was at last being made in improving prison stock.  Many of the social issues needed further work, such as the Magdalene Laundries, mother and baby homes, or child abuse.  It was welcome that the delegation was ready to hear out the Committee’s concerns over abortion regulations, and that the life of the woman was given priority over the unborn.  It was regrettable that the revised abortion provisions did not extend to the health of the woman.

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