Abortion in Ireland: X Case Revisited Again

Ireland has become a much more liberal country over the last few years - for example, around 73% of people support same sex marriage - but abortion is still a bitterly fought issue. In referendums in 1992 and 2002, the Irish people voted for abortion to be permitted where the mother's life is at risk, but no such legislation has been passed in the 20 years since the X Case that prompted the debate. Tragically a woman has recently died after a miscarriage, sparking an intense debate over the law and reproductive rights in Ireland.

From the Irish Times:

"...pro-choice campaigners have called on the Government to legislate for abortion when the mother’s life is at risk, following the death of Savita Halappanavar after she miscarried at University College Galway last month.

Ms Halappanavar (31) was 17 weeks pregnant when she presented with back pain at the hospital on October 21st. Her husband Praveen Halappanavar claims she was denied a termination despite asking for one several times following her miscarriage diagnosis because the foetal heartbeat was still present.

She spent two days "in agony" until the foetal heartbeat stopped and surgery was carried out to remove the dead foetus. She died of septicaemia on the 28th."

I've blogged in 2010 about the A, B and C case decided by the ECHR in Strasbourg, which ruled that Ireland had breached the convention by not legislating to make right to abortion as described under its own laws accessible to women. Note that this ruling did not change the law on abortion in Ireland, but rather stated that not giving effect to rights decided on nationally breached the convention. The current rules on abortion are very strict, and there is a danger of a chilling affect on doctors, making them afraid of breaking a law that is uncertain, or perhaps even allowing them to refuse abortions by using the legal uncertainty as cover.

While the government has called for people not to prejudge the result of inquiries into Savita Halappanavar's death, it is clearly an on-going scandal that there is no clear law in this area despite two referendums and human rights rulings. There is no excuse for the lack of legislation on this 20 year old issue, and the government needs to act to bring clarity to the law, as voted for democratically and in compliance with the courts. There must be no more hiding behind inquiry after inquiry and report after committee report: it's long past the time for action.

The Council of Minister of the Council of Europe, which oversees compliance with ECHR rulings, will report on Ireland's compliance with the A, B and C ruling at the start of December.

Appealing the Indeterminate Sentencing Ruling

The European Court of Human Rights in Strasbourg has ruled, rightly, that indeterminate sentencing in the UK without the means for prisoners to demonstrate that they have reformed is contrary to their human rights:

"Indeterminate sentences were introduced on the understanding that rehabilitative treatment would be made available to those prisoners concerned.

But the ruling published on Tuesday said the court found the "considerable delays in the applicants making any progress in their sentences had been the result of lack of resources, planning and realistic consideration of the impact of the sentencing scheme introduced in 2005".

The European judges note that the problems with IPP prisoners were the subject of "universal criticism" in the British courts. The ruling said the three inmates had been left in privately run local prisons for two and half years, where there had been few, if any, rehabilitation programmes.

"The stark consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired," says the ruling.

"Moreover, once the applicants' tariff had expired, their detention had been justified solely on the grounds of the risk they had posed to the public and the need for access to rehabilitative treatment at that stage became all the more pressing"."

The  UK coalition government seems to have agreed with this assessment before the Court made its ruling, since it has announced the end to indeterminate sentencing. However:

"The new justice secretary, Chris Grayling, told MPs he was disappointed by the judgment, and intended to appeal against it. He said: "It is not an area where I welcome the court seeking to make rulings.""

I'd like to hear what areas he thinks a human rights court should be making rulings, if not in the area of the right to liberty. It's also striking that the government is planning to appeal a ruling against a policy with which it no longer agrees - perhaps Conservative ministers enjoy the feeling that they could bring in sentences that effectively lock people up for longer than their sentencing without any hope of release!

In any case ensuring that the criminal justice system is fair and transparent - in other words, that it complies with the rule of law - is a basic part of human rights law, and it's exactly in these types of circumstances that the court should be intervening against the arbitrary actions of the state.

Commission to introduce legislation to combat invading alien species

The Commission has decided to table draft legislation to combat invading alien species ("IAS").

"Of course, it's not an eventuality that we expect to occur, but as scientists uncover an increasing number of planets in the habitable, or "Goldilocks", zone of their solar systems, we must consider the possibility of intelligent life, including hostile extra-terrestrials," said a Commission spokesperson for the DG Home Affairs earlier today. "While we hope that any first contact will be peaceful, we cannot neglect our duty by failing to plan for the worst. Therefore in the third quarter of this year, the Commission will unveil its legislative proposal on invasive legislative species."

This proposal has been included in the Commission's work plan for the year (page 9, PDF).

"Naturally this is only part of our comprehensive policy towards extra-terrestrial life forms. We are currently drawing up border measures to deal with alien immigration and asylum claims, including prototype specialised finger - or appendage - scanners. We must bear in mind that despite the economic crisis, the EU remains the richest market in the Solar System, and therefore we need workable borders along with national integration plans. We're confident that our proposals will find a receptive audience in the Council and Parliament."

Despite this, the UK government has already signalled that it will not opt into any Schengen scheme on aliens, stating that the UK needed to patrol its own sovereign borders.

"In the event of first contact, we are able to immediately heighten controls on the Channel Tunnel," said a UK official. "However, we will consult politically with our European neighbours on this issue, and explore the possibility of clarifying the definition of "human" in the European Convention on Human Rights."

He added, "While deportation to the planet of origin might not be so economical based on our current rocket technology, we are currently working on a treaty with Jordan that may prove to be mutually benefical."


(Ok, so it's obviously about biodiversity and not alien aliens, but, hey, I missed out on April Fools).

BBC Radio Four: Britain and the Human Rights Act

The Human Rights Act 1998, which transposes the European Convention on Human Rights into UK law, is controversal in British politics: the Liberal Democrats and Labour are for the HRA, while the Conservatives are against. The Conservatives want to bring in a British Bill of Rights, but it has never been spelt out what this means in practical terms. Will it contain less rights than the ECHR? More? Would the UK leave the ECHR (and therefore the Council of Europe - which only junta Greece has ever done)?

BBC Radio Four has produced an interesting programme this week on Britain and Human Rights, and what the practical legal implications of moves to change it are. You can listen to it here.

If the link doesn't work, try looking the programme up on the BBC Radio Four website - though you have to be in the UK to use the iPlayer, but I've been able to listen to BBC radio programmes through their websites from outside the UK before.

Withdrawing from the ECHR: a European "Civil Death"?

Increasingly there are calls for the UK to leave the European Convention on Human Rights, which has recently been brought to public attention because the of the Hirst v UK (No. 2) case, in which the Court ruled that the UK breached the rights of prisoners by having the loss of the right to vote as an automatic consequence of imprisonment. It should be noted that the Court of Human Rights is not connected to the EU, which is a different organisation - a mistake that people who should know better continuously make.

[Though the Convention has influenced the rulings of the court of Justice of the European Union, this was historically mostly because the EU Court wants to avoid confrontation with national courts like the Bundesverfassingsgericht over respecting rights, rather than some assumed desire to subordinate themselves to another court. Now the ECJ has to take into account Convention law under the Treaties, but this only applies to EU law - and why it's a bad thing that the ECJ should respect the ECHR has yet to be explained to me.]

The Court noted the state of the law in the 47 Council of Europe countries:

"Law and practice in Contracting States

33. According to the Government’s survey based on information obtained from its diplomatic representation, eighteen countries allowed prisoners to vote without restriction (Albania, Azerbaijan, Croatia, the Czech Republic, Denmark, Finland, “the former Yugoslav Republic of Macedonia”, Germany, Iceland, Lithuania, Moldova, Montenegro, the Netherlands, Portugal, Slovenia, Sweden, Switzerland and Ukraine), in thirteen countries all prisoners were barred from voting or unable to vote (Armenia, Belgium, Bulgaria, Cyprus, Estonia, Georgia, Hungary, Ireland, Russia, Serbia, Slovakia, Turkey and the United Kingdom), while in twelve countries prisoners’ right to vote could be limited in some other way (Austria, Bosnia and Herzegovina, France, Greece, Italy, Luxembourg, Malta, Norway, Poland, Romania and Spain).

34. Other material before the Court indicates that in Romania prisoners may be debarred from voting if the principal sentence exceeds two years, while in Latvia prisoners serving a sentence in penitentiaries are not entitled to vote; nor are prisoners in Liechtenstein."

The Court ruled that an indiscriminate restriction of the right to vote was contrary to the Convention. This doesn't mean that prisoners' right to vote cannot be restricted, but it has to be proportionate to the offence and not automatically applied to all prisoners regardless of the crime committed. I have heard few arguments against this per se, except that of the medieval concept of the civil death, where a prisoner looses all his or her civil rights upon conviction. The problem with this line of argument is that it hasn't been made in a very coherent way. The medieval concept entailed the loss of all rights - even that of the right to life, so that murdering such a person was not against the law (just like killing an animal isn't murder). Nobody is advocating that, but then that means that we distinguish between different types of punishment all the time. Some crimes result in a prison sentence, some do not. Much of the anger has been directed against the idea that murderers and rapists would get the vote - but this is not what the judgment is about, and the people in prisons are not solely murderers and rapists. Should I take it that serious violent crime is the sole criteria that people think would merit disenfranchisement, or are there other grounds?

Sadly, it has not been a subject of public debate to decide which crimes are worthy of disenfranchisement. It is a sad loss to the public debate, but it was raised by David Rennie of The Economist - the only place in the mainstream media I have read such an argument about the quality of this debate.

Jon Worth has looked at the international dimension to the idea of withdrawal from the Convention. Mutual responsibilities are important, and it's odd the way some people are eager to reject the argument that withdrawal would encourage other countries with worse human rights records to ignore the Convention or withdrawal as not the UK's concern (is it not in everyone's interest that their remains a culture of human rights and democracy in Europe? Like a garden, these things need to be maintained, and it's foolish to pretend that history is simply progressive and that things won't decline). The political culture in Europe and other European countries tends to spill over and become an argument in other countries, for good and bad. The argument that other countries should withdraw and take responsibility for these matters themselves - well, I don't find that convincing at all. I doubt that France's outburst over being called on the Roma expulsions was down to being part of a system of international law, but rather due to a feeling of entitlement, as if it should be allowed to do whatever it wants.

Similarly the attitudes of exceptionalism do not make good arguments for withdrawal. The idea that there is something unique about the UK that it will always deal with these matters well is not very reasuring. Likewise, I wouldn't believe France would be great at the job simply because it can claim that the Declaration of the Rights of Man and Citizen as part of its historical legacy. The UK's recent anti-terrorism laws have been a cause for concern for the UK courts, but some of these issues (unrestrained stop-and-search) had to reach the ECHR.

A claim that is also being made is that British judges can protect the rights of citizens better than the European Court. First of all, this ignores the fact that due to the doctrine of Parliamentary sovereignty, British judges cannot overturn breaches of human rights enacted by Parliament (say, if it legalised torture or restricted the franchise). Second, though it has been pointed out that some US states don't permit prisoners to vote, it's not a clear "continental European v the Commonwealth" dividing line, as Canada and South Africa have produced similar judgments. The question then becomes would the people who argue that the British judiciary should be able to protect rights accept it if the Supreme Court made the same judgment? Or is it more of an argument that it should be for the legislature rather than the judiciary (in which case it becomes a question of should the state be able to do what it wants - for no matter how democratic the decision is, it ultimately uses state power against the individual)? I'm afraid I've never been convinced by the argument that politicians should have absolute power.

Indeed, in a system where rights in general are conferred and may be taken away without reference to the rule of law it is hard to speak of rights as such. Surely the correct term for rights that are bestowed and may be taken away by an unchecked sovereign authority is "privileges"?

Fine Gael lacking courage and conviction in the Irish Abortion Debate

In my last post I wrote about the latest ECHR judgment concerning abortion - A, B and C v Ireland. On Tuesday the leader of the largest opposition party, Enda Kenny of Fine Gael, said that the issue was for an all-party committee to investigate, and would not commit to a referendum on the matter:

"Mr Kenny said abortion had been a very divisive issue in Ireland in the past and a re-run of those debates was not what the country needed right now.

[...]

“We had the X case way back in the 1990s and the European Court of Human Rights has given its decision now. This judgment required proper analysis and some in-depth discussion. What I would propose is that the next Oireachtas should establish a process to look at the core issues here. I am not going to shirk the issue but I am not going to predetermine what the outcome will be.”

[...]

“In this case, my view is that we should set up an appropriate all-party committee with terms of reference that would allow it to have access to the best legal advice, to the best medical advice . . . what should be done might range across a spectrum, from legislation to a list of State recommendations or regulations that the medical profession could adhere to and operate within,” he says.

“My position is I do not favour legalising abortion on demand. We have a situation where you have difficult, hard cases, and some people have gone through very difficult circumstances but there is an ECHR judgment, there is a Supreme Court decision and there is a constitutional position. If the next Oireachtas is to respond, it has got to determine what the facts are, the scale of the problem and the nature of it and see if we can arrive at a consensus on how to deal with it.”"

This is clearly a cop-out. It is understandable that the focus of FG in government would be the economic situation, but it's clear that FG don't know how to approach the matter at all. It's s clear example of the reluctance of the Irish political parties to think about these matters, never mind have a position on them.

The A, B, and C judgment basically said that Irish law did not ensure adequate access of women in Ireland to abortion where Irish law stated that they were entitled to it. The judgment quoted from reports, and it is clear that there have been research into this area before, and on a continuous basis. So if Kenny didn't want to draw attention to abortion as a devisive issue, he could have just stated that, said that a FG-led government would bring the law into line with the Constitution and the ECHR ruling.

The statement might be a result of tensions within the party (which is centre-right). Conservatives may want to retain strict abortion laws, while more liberal members may want to adopt more liberal abortion laws. From the Irish Times article it appears that Kenny wants abortion to be available where the mother's health would be affected, even if not on demand (currently it's only available if the mother's life is in danger). That would require a referendum.

There are 3 options:

1. Keep things the way they are, but make access to abortion were it's already permitted under the law more accessable in practical terms (the A, B and C line).

2. Have abortion were the mother health is in danger (also in cases of rape/incest/etc.).

3. Permit abortion on demand.

2 & 3 would require a constitutional amendment (which would have to be passed by referendum). In those cases you advocate a position and stick to it: the nitty-gritty of legislative work comes afterwards, when it permitted under the Constitution. The fundamental argument is political, and if the political parties cannot face up to taking a principled stand from wherever they stand on the political spectrum, it's a craven act of political cowardice.

ECHR and Abortion in Ireland

The ECHR has delivered its Grand Chamber judgment on the A, B, and C v Ireland case earlier this month, on whether the rights of three women under the Convention had been violated due to their inability to access abortion in Ireland. The current Irish abortion laws are very strict - some of the strictest in Europe - prohibiting abortion except in cases where the mother's life is at risk. This is a high threshold, as risks to the health of the mother are not enough. The issue is very sensitive in Ireland, as the right of the unborn to life is enshrined in the Irish Constitution (brought in via an amendment in 1983), and would require a referendum to change - something which there is little will for among the political parties. Ireland has held several referendums on the issue of abortion, and the parties have pretty much decided that there's no votes in opening up such a sensitive issue.

In short, the Court ruled that the fact that A and B had to travel to obtain abortion did not breach their rights under Article 3 (torture and inhuman/degrading treatment) or Article 8 (right to private life), but there had been a breach of Article 8 in the case of C, who feared that her pregnancy could cause a return of her cancer. The Court was essentially stating that Ireland had breached the Convention by not ensuring the effective protection of rights it was guaranteeing (a doctrine developed in Tysiąc v. Poland, which also concerned abortion), as the Court judged that there was a lack of sufficient means of obtaining a medical evaluation showing that a woman fell within the exception permitting abortion. Since C couldn't obtain such verification, there was a breach of her rights.

The judgment has been covered well by the ECHR Blog and Human Rights in Ireland. The Human Rights in Ireland article is a great brief explanation of the judgment's context in Irish law.

So claims that the Strasbourg Court is interfering in Irish abortion law are simply wrong. The Court just states the Tysiąc v. Poland position that if a state grants rights, then individuals should have adequate access to such rights. In a way, the Court is acting as a court of fourth instance on human rights here: no European-wide right to abortion has been recognised. Neither the Lisbon Treaty nor the ECHR ruling has changed anything regarding Irish abortion law. Not that this stops fundamentalist Catholic groups such as Youth Defence from decrying the judgment as interfering:

"The ECHR has no business interfering in Irish pro-life laws and they have no right to try to scare Irish women into believing that they would ever need an abortion to save their life."

Sadly, there is unlikely to be any political debate or moves for Constitutional amendment in the forseeable future. The current Fianna Fáil government brought in a blasphemy law provided for under the Constitution, rather than remove the Constitutional provisions via referendum, which would have been more in line with 21st Century Ireland. Though Fianna Fáil won't be in government for much longer, the next government's attention will hardly be focused on reforming the Constitution to remove the explicit Catholic ethos and to secularise the state further. So while the country becomes ever more liberal and secular in its attitudes, the entrenchment of a Catholic outlook in the Constitution gives groups like Youth Defence a stronger say than they would otherwise have - to the extent that they can claim their views are the patriotic ones.

On a final note, regarding the treatment of A and B, the Court should have dealt with things differently. The dissenting opinion views the core issue more clearly than the judgment: the Court should have balanced the rights of the mother and unborn child, rather than confuse the issue with the margin of appreciation the state has over determining the point at which the unborn child can be considered alive (the issue in Vo. v France). I'll not go into the dissenting opinion (this post is already long enough!), but it makes quite a convincing argument as to the approach the Court should have taken. Perhaps it is an example of the Court shying away from making politically sensitive judgments at the expense of the coherence of its case law.

Civilisational Europe: the Council of Europe

Fittingly, before we visited the Council of Europe, we went to Natzweiler Struthof, a former concentration camp where people were forced to work in freezing temperatures. It is always hard to describe a concentration camp, as no matter how often you see images of World War II on TV and in film, the experience of visiting a camp is always deeply disturbing. It was perhaps all the more so, because the camp is situated in a forested, mountainous area, so the journey there included passing scenic towns and villages. The weather was also icy cold, despite the lack of wind, and it was quickly brought home what kind of conditions the prisoners would have to face.





The European Court of Human Rights


An hour's drive saw us entering the European Court of Human Rights, which is the Council of Europe's most famous institution. It is based in the rather odd Palais des droits de l'homme. The Court has been amazingly successful, and it has promoted the spread and development of European norms in human rights across the continent. Given that our trip had a very legal focus, I won't go into too much detail, but aside from the legal discussions over labour rights and same sex marriage (which was the subject of a judgment earlier this year: Schalk and Kopf v Austria [2010]), the toughest challenges facing the Court today is simply the sheer scale of the workload it has to deal with. Though the Court has been around for many years, the right of individuals to apply to the Court and the membership of the Court has now really expanded, alongside the public's awareness of the Court. So in the last decade the number of applications has increased from 10,500 in 2000 to 57,100 in 2009. A lot of these are rejected, but 90% of the Court's output since its creation in 1959 has been in the years 1998-2009 (when the Commission was removed from the system).




Since a lot of discussion and debate centred around how to make the Court more effective and productive (and this problem seems to be the main one which haunts the registry), it was shocking to find out that the UK had proposed cutting its contribution to the Council of Europe by 25%, and the Netherlands had proposed a 15% cut. The registry has taken up a lot of the workload, but they appear to have reached the limits of efficiency and are haunted by the spectre of the Court being crushed under the sheer level of applications. It should bee remembered that the Council of Europe has a tiny fraction of the budget that the EU has, and the Court takes up about a quarter of this. Battles over the budget may force the question of the CoE's role - to focus on human rights and other limited areas it does well, and essentially become a pre-EU accession organisation; or to try and forge ahead with a full programme for its 47 member states?



Palais de l'Europe

The CoE itself is mainly housed in the fortress-like Palais de l'Europe, which contains the Parliamentary Assembly (the European Parliament used to use this space until their Strasbourg building was completed). The Council works in many different areas, including a project aimed at improving local government and democracy that we were introduced to. Though the presentation was probably intended to show us the wide range of activities the CoE undertakes, I have to admit that it left me with the impression that the CoE should try to focus more on its core functions (though as a law student my own focus is pretty much solely dominated by the Court). The project was voluntary and the standards it sought to promote weren't centrally set; (simplistically put) it consisted of meetings between local government members across participating local governments, and a local government award for living up to good standards, which also seemed to be nationally or locally set. The small budget for the project - €50,000 is miniscule when you compare it to EU or national projects and programmes - underlined the difference between the EU and CoE. Though I can see the value in cross-border local government meetings to exchange best practice, I wasn't convinced by the worth of the awards scheme.


There was a presentation on standard-setting by the CoE, which despite the boring name was revealing in the ways that Europe is integrating both outside the EU, and how other organisations can influence the work of the EU. The CoE works as an organisation to bring its members into agreement on binding Conventions and non-binding Recommendations, which not all member states have to sign up to - the CoE is a forum for these agreements to be made, and so it doesn't have to affect all member states. However, these have protential for European integration that shouldn't be overlooked. First, the "soft" norms that are set through Recommendations can spread throughout the member states and can bring European states closer together in our standards and practice. This can take on a harder edge, though, as the ECtHR has shown itself willing to use these Conventions and Recommendations in interpreting human rights law (see Demir & Baykara v Turkey [2008]), even when countries haven't signed up to them (this ties in with the "living instrument" and "European consensus" doctrines that the Court uses to develop European Human Rights law - see Handyside v UK and Tyrer v UK).

Second, the CoE has Conventions on making grooming a criminal offence andagainst sex tourism. These seem to have influenced the EU's own legislative process, because there's a new directive before the Council and Parliament on these kinds of offences (see the draft law here: PDF). Though the CoE may be overshadowed by the EU, it can inspire changes in EU law. Though I haven't read it yet, there's a report, the Junker Report (2005), on how the CoE and the EU interact.


Committee for the Prevention of Torture

The CPT is very impressive for an international organ - it has the power to conduct surprise inspections of any detention area in the member states and interview all inmates/patients/detainees/guards/staff and have access to all files, including medical files, to access whether or not torture has taken place, or any practice contrary to article 3 ECHR. Though the reports are not published by the CPT, there is an expectation that the member state will publish them (and I think apart from Russia, this has been the case), as the focus of the CPT is not to punish member states but to help them adhere to the proper human rights standards under article 3. Nevertheless, the CPT is quite exceptional for the broad powers it has to independently inspect the situation on the ground, and it preforms an extremely important function.


If the EU is Europe as a kind of system of government (or governance, if you prefer), then the CoE is "Civilisational Europe". Though all European countries lay claim to the common ideas, traditions and practices that make them European, the CoE has worked for over half a century to spread the European civilisational norms across the continent, and to help ensure that standards of hhuman rights are enforced. Though we may look at the CoE as a "soft" organisation, I think it helps to provide the idea off Europe with a backbone, and an everyday, practical, cultural reality.

The Moral Authority of Europe

Despite the rhetoric of the EU as the "EUSSR", a neo-liberal project or as some sort of Papist plot, Europe holds an - at times, surprising - amount of moral authority, even in the more Eurosceptic member states. This is probably because of the practice of using "Europe" as a continental yardstick (e.g. highest cancer death rate in Europe; lowest teenage pregnancy in Europe), and because of the legal certainty the EU and ECHR can lend to policies (if the European Court of Human Rights rules on something, it carries a lot of legal and moral authority, even if legal academics continue to argue and debate the reasoning).

Which is why I wrote an open letter to President Barroso, Commissioner Reding and European Council President Van Rompuy on the Roma issue, urging them to speak out (NOTE: the refusal of the Commission website to relay my email to Barroso, and the chore of moving house have meant that I only managed to send a paper version to Barroso earlier this week). While the EU has issued statements that they will monitor the legal status and treatment of the Roma, there is an important role for the Europarties and EU institutions to speak out for equality and rights (though they obviously need to be held to account on this score as well). So it was good to see Commissioner Reding finally making the wider argument for tolerance (hat tip @dicknieuwenhuis and @Anna_EU_webteam).

However, the argument against mass explusions and for equal treatment needs to be made continuously, and, in the future, the response should be faster. France's calls for a exclusive immigration summit and calls that the EU decide a "coordinated response" on how to "deal" with the Roma's deportation show that national politicians and leaders who support discrimination against the Roma as a group know that the nation-state is a badly tarnished vehicle for carrying out their prejudices. These summits and immigration meetings are attempts to legitimise Roma explusions as "the norm" and "legally acceptable".

So we need to keep making the case for tolerance and equal treatment at the European level. If we don't, one day we'll find discrimination being legitimised in Europe's name.

Not all coverage of European News is that bad

I've complained about journalists confusing the ECJ and ECHR before, so I thought I'd just point out an article that caught my eye last week in the Irish Times:

"European Court to be told Irish abortion ban violates rights".

It caught my eye because it does make the distinction between the EU and the ECHR, and it brings up an interesting case before the ECHR which affects some of the politics of the religious right who sided with the No side campaign in the Lisbon Treaty referendums. The claim that the Treaty would affect Irish law on abortion was a false one, which makes the distinction between the two courts in the media all the more important if there's to be a clear and proper debate on it.

"The court is to have a full hearing of the case before its grand chamber of 17 judges on December 9th.

Based in Strasbourg, the court, which is separate from the EU, adjudicates on human rights issues among all 47 member states of the Council of Europe. As a signatory to the European Convention on Human Rights – now incorporated into Irish law – the Government is obliged to seek to implement whatever decisions are made by the courts.

The identities of the women, known as A, B and C, will remain confidential as the case proceeds.

They include a woman who ran the risk of an ectopic pregnancy, where the foetus develops outside the womb; a woman who received chemotherapy for cancer; and a woman whose children were placed in care as she was unable to cope.

They argue that the lack of any effective remedy at home means they have satisfied the requirement to exhaust domestic legal remedies. In addition, they say that taking a case would have been costly, futile and could have forced them to relinquish their anonymity.

The Government, however, contends that domestic legal remedies have not been exhausted by the women. It also robustly challenges suggestions by them that there is a lack of post-abortion care or counselling in Ireland. Among the questions the court will ask of the Government, and the the three women, include:

Have the applicants exhausted domestic legal remedies available?"

Also, the case is interesting in itself, since it will consider whether a case will be taken on by the court if it hasn't been through the entire national legal system first. So it could be an interesting case to watch out for, with the hearing beginning tomorrow.

I first mentioned this case here.

Of minarets and democracy

In Switzerland, further construction of minarets has been banned after a referendum on the issue (57% in favour). This seems to strike at the heart of many debates: the separation of church and state, between the religious and the secular, on referendum and the tyranny of the majority, and on human rights and minority rights. This law seems objectionable for two reasons; one relating to rights and the rule of law, and one relating to liberal democracy. The draw of the argument that a referendum trumps these because it's the "will of the people" may be attractive on a first glance, but if we look at what we mean by the rule of law and the purpose and extent of democracy, it soon looses its force.

It might seem strange to ask if a law passed by a referendum is "legal", but, just as states are limited in their sovereignty over their people, so the sovereignty of "the people" is limited over the individual. This is done by constitutions (though these can be changed - usually, but not always, by referendum), but it's also done through international conventions and treaties on human rights - in the extreme is the outlawing of genocide; a crime over which all states have universal jurisdiction, so that even if the sovereign power makes it legal within its borders (even through referendum and the will of the people), other states can prosecute the perpetrators on their territory.

So is it legal? The EU Law Blog has a good article on this, and argues that it can't be held to be legal, since it violates the right to religion. there have been counter-arguments that the right to practice religion is qualified in its public form, but this misses the point that qualifications on rights must be justified. The referendum result cannot be this justification, just as "the state passed a law" cannot be in itself a justification - there must be some public necessity based on public health, order, etc., in order to limit the rights of individuals.

I very much doubt that any firm reason of public necessity can be given: only minarets are banned, not church spires or church bells, and the minarets that are already built will remain. The law is manifestly discriminatory, as it enforces a ban on one community without applying the same restrictions to others in similar positions, and without a set of valid reasons. On this basis it probably violates the European Convention on Human Rights, which Switzerland will ironically be chairing (though hopefully they won't be chairing it ironically).

It's because it violates this tradition of rights and raises the spectre of discrimination between religions that Julien Frisch has denounced the referendum as a Europe he wouldn't vote for. On its own, I think the above argument is enough - that not only is it a violation of rights, but an unjustified one.

Some may still argue that despite the rights-based argument, and arguments against the tyranny of the majority, the result is democratically legitimate and that should trump any other concern.

But to do so would be pushing towards breaking the distinction between the public and private spheres in liberal democracy. should everything be within the public sphere - or subordinate to it? Should everything be subject to the sovereignty of the state/people? Generally we consider the private to be superior - and that the public needs a good reason to interfere in the private sphere. Let's apply that to this case: this concerns private individuals, building on privately owned land with their own funds. The state is not involved. There are no planning permission-based objections. So we would say that the public sphere (in this case the state acting as an agent of the will of the people) needs a proper reason of public concern to interfere.

Extend it further: what if a private individual built placed a statue to the Virgin Mary on their land. Such statues aren't essential to Catholic worship/expression of religion, but they are a private expression of religion. Would a referendum banning the erection of statues of the Virgin Mary be legitimate? No; we'd say that it's an arbitrary rule that doesn't follow the rule of law. If it was a law banning the erection of all statues, the law would be more rational and less discriminatory, though it would still be unjustified - on what basis can the state intervene? If the complaint was that there was unreasonable light pollution from the light illuminating the statues, then there may be the beginnings of a reason if it: (1) could be proved that the light pollution was serious enough to be of real public concern, (2) there was no other way of preventing the light pollution. It would fail because: (1) it leaves the already erected statues alone, (2) the lights are at issue, not the statues themselves and the lights should be subject to a ban or a form of regulation to ensure they remain within certain limits. On the basis of religion, culture or politics objections, how is the statue adversely affecting the rights of others to religious, cultural or political expression? It doesn't.

This issue is not only about democracy and human rights, but on the extent of the state, the rights of the individual and the rule of law. There cannot be a coherent argument for the decision on the basis of democracy unless it's from the position that the will of the sovereign trumps everything, every time.

And I can't accept that level of state power.

Chasing Brussels #7: Playing Devil's Advocate

This is Chasing Brussels #7 (in my last post I accidentally labelled the latest episode as number 7). In this episode, released on Thursday, Joe and I discuss the ECHR ruling on crucifixes in Italian classrooms, and get philosophical on how far secularism should go...

Hope you enjoy it as much as we enjoyed the discussion!

The Observer, Europe and Blogging

Henry Porter's article in today's Observer is interesting for 2 reasons: (1) he repeats the mistake of confusing the ECHR and the EU and the role of the President of the European Council, and (2) he calls for a kind of enlightened scepticism of the EU's institutions - a good idea - that is undermined by the factors that bring about point (1). So I sent the Observer a letter (ok, email):

Henry Porter is convincing in his argument for a better scepticism when it comes to the EU institutions ("I saw the joy on German faces - but now I despair", 8th November). The need for civil society to debate and scrutinize European institutions is great, and the duty of the media to enable continuous debate is particularly strong. However, Henry Porter fell victim to a few assumptions that highlight the lack of media scrutiny in this area, and shows that without this scrutiny, it's hard to have an effective and informed scepticism.

Getting basic facts such as the difference between the European Court of Human Rights and the EU's European Court of Justice wrong (the ECHR belongs to the Council of Europe, a completely different organisation) can make such scepticism ill-informed and misdirected, since placing the blame at the EU's door for the ECHR's rulings would be ineffective. Similarly, the office of President of the European Council has been talked up to be a full-blown "President of the EU" (there's no such post), giving rise to fears of a powerful executive President who would be unelected - when, in fact, the post is one of chairman/woman who would only preside over the European summits, with no vote or veto on issues. The President would be more the role of a parliamentary speaker than a president, though with more publicity.

For such scepticism and political engagement to work, we need to not only see the EU as a set of institutions, but also take part in the political discussions at its heart - the EU isn't monolithic: there are many fractions in the Parliament and the Council arguing for different policies. We can't just blame "the EU" for faults and failings, we must identify who is in power (currently the centre-right EPP, with Barroso as Commission President), and what the opposition (Socialists and Democrats, the Greens, etc) is doing, and question their policies.

It is a demanding task to stimulate this kind of debate, but it's essential. The EU can try to open up all it wants (for example, the Commission President has to face a European version of PMQs before the European Parliament), but without the engagement of ordinary people and the media, it won't work. Will the Observer start scrutinizing the Brussels Bubble?

Conor Slowey

It's annoying to see that important political debates (over liberty versus security, and questions over the ECHR court case on cruifixes in Italy) being diverted off course by ingrained misinformation. The EU is mind-numbingly complex, and it can't just be explained in a short run up to European elections or each time there's a summit: there needs to be constant media scrutiny of the policies and political actors acting in the Brussels Bubble. Though I'd like to see the mainstream media improve it's journalism on the EU - and really open up a continuous debate on the issues and policies confronting the EU (as well as if the EU should confront them in the first place) - it'd be very naive to expect anything to change here.

So if the mainstream media won't do it, could there be a duty for civil society to step in? I'm generally sceptical of the power of blogging versus the mainstream media, although the mainstream media clearly doesn't always get it right, but could bloggers be said to have a certain duty in this instance?

Probably not. Bloggers are probably the most prickly of groups when it comes to independence and implying duties, and I can't see how you could convincingly say that people have a duty to investigate these things, except as, perhaps, the general and vague duty of voters who want to participate in the political process fully.

Still, I think that scrutinizing the polcies, actions and goals of the parties and fractions in the EU is vitally needed (despite the boring detail), and I'd encourage EuroBloggers out there to start looking into the Parties and holding them to account. EuroBloggers (and perhaps particularly myself) are guilty of focusing too much on the institutional/constitutional side of things, but hopefully that will change with the passing of the Lisbon Treaty.

It's certainly an area we'll be keen to look at on Chasing Brussels in the future.

Edit: Jon Worth has gotten wind of this journalistic mistake.

Council of Europe Reform and Protocol 14

The Council of Europe, which the European Court of Human Rights belongs too, is likely to proceed to implement reforms to the court system, despite the failure of Russia to fully ratify the reforming protocol necessary to achieve this (protocol 14 was originally proposed in 2004).

The reforms will try to free up the backlog of cases to the ECHR by having the admissibility of cases to the court ruled on by a single judge, rather than a panel of three judges, and by having routine cases ruled on by panels of 3 judges (rather than the current 7). The necessity of the reforms were caused by the accession of Russia, Ukraine and Romania to the European Convention on Human Rights, precipitating a flood of applications to the court. The UK was previously a source of many complaints to the court until the Human Rights Act 1998 was introduced; this meant that human right cases are usually resolved in the national court system before they have a chance to progress to the ECHR in Strasbourg.

Foreign ministers meeting in Madrid will vote on implementation of the reforms, which, if passed, will create a 2-tier system within the ECHR. However, it will be a great improvement to the system and will boost the effectiveness and credibility of the court.

A case from Ireland concerning abortion is seeking to be heard at the ECHR before going through the national court system. The main argument against this is the need to exhaust all national remedies first, and the need to protect the ECHR from being overwhelmed with applications. It will be interesting to see if these reforms will have an impact on the court's approach.

Irish Family Law and Europe

During the Lisbon Referendum, some Anti-Lisbon groups (notably Coir) argued that the Treaty could lead to the European Court of Justice legalising abortion in Ireland - a view that wasn't shared by the Catholic Church, or some of the other anti-Lisbons groups. Nevertheless, Ireland will be seeking some form of guarantee that family law will not be affected by the Lisbon Treaty/the EU.

But now it appears that perhaps the anti-abortion groups have been focusing on the wrong European organisation - the European Court of Human Rights (which is under the Council of Europe, and not connected with the EU) is considering hearing a case concerning 3 women who claim that Ireland's abortion laws have breached their rights under the convention. Ireland's defense is mainly centred on the fact that the three women (known only as A, B and C) haven't exhaused the court system here (since the ECHR hsn't decided to hear the case yet). A, B and C contend that there is no point in going through the whole court system in Ireland since the whole thing is pretty much a foregone conclusion - one which would be very expensive for the women to go through to reach before going on to the ECHR anyway, and one which would have revealed their identities.

The Lithuanian government has sent submissions since one of the women is a Lithuanian based in Ireland. The Lithuanian government wants the ECHR to set out clearly the "minimum degree of protection" that the convention gives to women who want to have an abortion. The Lithuanian government also seems to side with the women's interpretation that they would be unlikely to be successful in the Irish court system, so they shouldn't be forced to go through the whole system before they reach the ECHR.

The Irish Times article on this has a good explaination, and it outlines the facts behind each woman.