Head of state: Michael D. Higgins
Head of government: Leo Varadkar
Following a constitutional referendum, law reform began to expand access to and information about abortion. Concerns grew about homelessness and housing rights, and about “direct provision” accommodation provided to asylum-seekers. The law on political funding impacted civil society groups’ freedom of expression. Historical abuses against women and girls in Magdalene laundries remained inadequately addressed.
In March, Ireland ratified the UN Convention on the Rights of Persons with Disabilities, but not the Optional Protocol on individual complaints. Ireland’s National Human Rights Institution, the Irish Human Rights and Equality Commission, was assigned the role of independent monitoring mechanism for the Convention. A Disability Advisory Committee composed of persons with disabilities was also established.
Sexual and Reproductive Rights
In May, the people of Ireland voted by a two-thirds majority (66.4%) in favour of a referendum removing Ireland’s near-total constitutional ban on abortion. The 1983 Eighth Amendment of the Constitution had placed the “right to life of the unborn” on an equal footing with that of a pregnant woman or girl. This meant that a pregnancy could be lawfully terminated only where the life as opposed to the health of a pregnant woman or girl was at “real and substantial risk”, leading to serious violations of women’s human rights and health. The 2018 referendum was on removal of the Eighth Amendment from the Constitution.
The government decision to hold this referendum followed a series of intensive deliberations throughout 2017 within a government-established Citizens’ Assembly and a special parliamentary committee, the Joint Oireachtas (Parliamentary) Committee on the Eighth Amendment.
The May referendum outcome was subjected to unsuccessful challenges in the High Court and Supreme Court, following which it was finally signed into law in September. The government was then constitutionally free to begin the process of reforming the law on access to and information about abortion services. It introduced the Health (Regulation of Termination of Pregnancy) Bill 2018 to the Oireachtas in September. This draft legislation proposed to provide access to abortion services on request up to 14 weeks’ pregnancy, and thereafter up to foetal viability where there is a “risk of serious harm” to the physical or mental health of a pregnant person, and without gestational limits where there is a fatal foetal impairment or a risk to the life of the pregnant person. The Bill also proposed repeal of the severe statutory restrictions on the provision of information on abortion services.
While welcome, there were concerns that this Bill did not meet the requirements of international human rights standards on access to abortion. For instance, it did not provide for access to abortion where a severe as opposed to fatal foetal impairment is diagnosed, and it was unclear if circumstances like this would be deemed to pose a risk of serious harm to the pregnant woman’s health. Also, the Bill’s mandatory three-day waiting period for abortion on request was criticised as undermining women’s autonomous decision-making, medically unnecessary and a potential barrier to timely care.
The Bill also proposed the decriminalisation of women accessing abortions outside lawful grounds. However, it retained the criminal offence of “intentionally end[ing] the life of a foetus” beyond the circumstances provided for in law. Furthermore, it proposed to make it a criminal offence to “prescribe, administer, supply or procure any drug, substance, apparatus or other thing” for use in an unlawful abortion. In addition to the chilling effect these provisions could have on medical professionals, there was concern that the latter could be used to prosecute friends or family members who assist the pregnant person.
The government committed to the enactment of this new law by end-2018, and the provision of abortion services without cost within mainstream healthcare from early 2019.
Freedom of expression
There was concern at the growing impact of the Electoral Act 1997 on civil society organisations’ funding. The Act imposes a blanket ban on overseas donations, and severe limits on domestic donations, for campaigning for “political purposes”. This is so broadly defined that it can include the general advocacy work of a wide range of human rights and other organisations, and outside elections or referendum periods. It also carries burdensome reporting requirements. Failure to comply with these limits and requirements is a criminal offence.
The Standards in Public Office Commission (SIPO) is responsible for enforcing this Act, and has applied it to a number of civil society groups. For instance, Amnesty International Ireland was ordered by SIPO to return a grant it received from the Open Society Foundations (OSF) in 2016 to support its campaign to ensure abortion laws in Ireland comply with human rights. In July 2018, SIPO agreed to the Irish High Court’s quashing that decision, recognising that it was procedurally flawed. However, the Act’s provisions remain a concern for civil society freedoms of expression and association.
In January, a report by EU Fundamental Rights Agency on civil society freedoms also noted concerns at this Act, and that SIPO’s investigations were often triggered by complaints so enforcement could inadvertently be selectively targeted. It warned that a blanket ban on foreign funding could have a particularly serious impact on civil society organisations in Ireland, where most independent funding comes from trusts and foundations based outside of Ireland.
In October, a referendum to remove the criminal offence of blasphemy from the Constitution was passed by a two-thirds majority popular vote. Article 40.6.1 of the Constitution, on the right “to freely express … convictions and opinions”, provided that the “utterance or publication of blasphemous … matter” must be a criminal offence. The offence is provided for in the Defamation Act 2009, where it carries a possible fine of €25,000. While there have been no prosecutions under this Act, it had long caused concerns about its impact on freedom of expression. Now that the constitutional provision on blasphemous matter has been deleted, the government is free to remove the offence from the 2009 Act and has committed to doing so.
In June, the Government opted into and transposed the EU Reception Conditions Directive into domestic law. This put reception and accommodation conditions for asylum-seekers on a statutory footing for the first time. It also allowed people waiting more than nine months for a first instance decision on their asylum or protection claims to seek access to employment or self-employment.
There were growing calls for an alternative to the institutionalised “direct provision” accommodation system for asylum seekers, overseen by the government and delivered by private commercial companies. In October, it was announced that the weekly financial allowance for asylum seekers will increase to that recommended by a joint government-NGO Working Group in 2015. However, despite this and other improvements to “direct provision” based on this Working Group report, concerns remained about overcrowding, mental health impact, isolation and lack of privacy.
Despite the 2017 introduction of a single legal procedure for the determination of claims for asylum and other forms of protection, long delays in processing claims continued. The average wait just for an interview was 19 months. This meant that many asylum-seekers remained in “direct provision” for far longer than the six-month stay for which the system was first designed. In addition, due to the general shortage of housing, many who attain refugee status cannot leave direct provision. This together with a reduction in capacity within direct provision centres led to some asylum-seekers being denied accommodation due to a lack of space.
In July, in advance of the 2018 UN General Assembly and agreement on the Global Compact on Refugees, the government restated its commitment to establishing a community sponsorship programme for refugees. This scheme, which would allow communities across Ireland to directly support the resettlement of people fleeing conflict and persecution, was due to move to phased implementation in late 2018.
Right to housing
Increasing numbers of people were experiencing homelessness, many as a result of reduced availability of affordable privately owned rental properties. The number of homeless families increased by 21% between September 2017 and September 2018, with many children living in unsuitable hostel-type emergency accommodation. Research published by the Irish Human Rights and Equality Commission and the Economic and Social Research Institute in June concluded that children have been particularly disadvantaged by the recent increase in homelessness, comprising 29% of the homeless population. It also found that people with disabilities, lone mothers and young people were among specific groups experiencing discrimination and inequality in relation to housing.
In September, the Minister for Justice and Equality published Terms of Reference for a review of the investigation and prosecution of sexual offences, with a report due by 31 December 2018 or the earliest thereafter. The review flowed from concerns expressed about protections offered to victims in sexual offences investigations and trials. Concerns about “victim blaming” in rape trials were underpinned when, during a trial in November, a 17-year-old girl’s underwear was described to the jury by the defence, in a shocking bid to undermine her claim of rape. This led to public protests, and women posting pictures of their underwear tweeting #ThisIsNotConsent.
In August, the government submitted its response to the UN Committee Against Torture on the three follow-up issues identified in the Committee’s 2017 Concluding Observations on Ireland second periodic report. One of the follow-up issues was the Committee’s recommendation that the state undertake a thorough and impartial investigation into allegations of ill-treatment of women at the Magdalene laundries and, if appropriate, ensure the prosecution and punishment of perpetrators. Magdalene laundries were religious-run institutions which operated with state funding and oversight between the 1930s and 1996, where woman and girls were subjected to a range of human rights abuses, including inhuman and degrading treatment, arbitrary deprivation of liberty and forced labour.
It was disappointing that the government’s response reasserted its previously stated position that it did not consider that a new investigation was warranted. Its view was that the 2013 report of the Inter-Departmental Committee to establish the facts of state involvement with Magdalene Laundries revealed adequate information about these institutions. It again asserted that no factual evidence was found to support allegations of systematic torture or ill treatment of a criminal nature in these institutions.
This response again ignored the fact that this Inter-Departmental Committee was not mandated to conduct a comprehensive review of the abuses inflicted within these institutions, nor was it given a mandate to review any facts it uncovered within the framework of human rights law with a view to ensuring truth, redress and reparation for the victims. As the government’s response stated, the Inter-Departmental Committee “had no remit to investigate or make determinations about allegations of torture or any other criminal offence”. The focus of the Inter-Departmental Committee’s inquiries was simply to establish the facts of state involvement in the Laundries, not the nature and extent of the abuses. Also, the review conducted by the Inter-Departmental Committee did not meet the criteria for an independent inquiry.
Moreover, even based on its limited sources, the Inter-Departmental Committee still cited reports of physical punishment, and that “working conditions were harsh and the work physically demanding”, which underpins rather than negates calls for an investigation into alleged abuses in these institutions.
In June, the government agreed to extend its ex gratia Magdalene Laundries redress scheme to 14 additional institutions. This followed an Ombudsman report in November 2017 which found that the government had wrongly refused some Magdalene laundry survivors access to redress payments because they were officially placed in adjoining facilities, even though they were still required to work unpaid in the laundries.
The Commission of Investigation into ‘mother and baby homes’ continued its work. ‘Mother and baby homes’ were operated by religious orders with state funding for ‘unmarried mothers’ to give birth from the 1920s up to the beginning of the 1990s, a time when bearing a child outside marriage carried significant social stigma. There were longstanding concerns about how children and women were reportedly treated in these institutions, including apparently high child mortality rates, alleged illegal adoption practices, vaccine trials conducted on children without consent, and denial of medical care to some women.
During the year the Commission began investigating the burials of a large number of children who died while resident in Bessboro ‘mother and baby home’ in Cork between 1922 and 1998. In October, it announced that an unmarked burial site near a former ‘home’ in Tuam, Co Galway, would be forensically excavated. A “significant” number of infant remains had been discovered at that site. Between 1925 and 1960, 796 children had died at the Tuam ‘mother and baby home’.
The Commission’s role is solely to investigate and report on the burial arrangements of children and mothers who died while resident in the institutions within it remit. It does not have the power to award redress or reparation, or to refer matters to the police for investigation. There were growing concerns that its proceedings were being held entirely in private, and that former residents of these homes and the public were denied access to its files. There were further concerns that the Commission’s entire archive would be sealed once it finished its inquiry and published its findings, and relevant information might not be available to the police, civil courts, affected individuals or the public. This was just one of the issues set out in a Clann Project report on forced adoptions of children from these homes published in October by the Adoption Rights Alliance (ARA), Justice for Magdalenes Research (JFMR) and law firm, Hogan Lovell.
Concerns were revealed about how whistle-blowing is dealt with within Ireland’s national police force, An Garda Síochána. Garda Sergeant Maurice McCabe had made confidential complaints alleging corruption and poor practice by police officers. He claimed he was subsequently subjected to retaliation within the service, including false allegations of child sexual abuse. His claims led in part to the 2017 establishment of a Tribunal of Inquiry into protected disclosures. In its third interim report published on October 2018, the Tribunal vindicated Sergeant McCabe’s accounts and was critical of the former Garda Commissioner’s role. The current Garda Commissioner accepted the Tribunal’s findings and committed to ensuring a safe environment for Garda members to raise issues or concerns.
In September, the report of the expert Commission on the Future of Policing in Ireland was published. It was established by the Government in 2017 to undertake a comprehensive examination of all aspects of policing. Its report recommendations major reforms, including in police oversight mechanisms and in the area of national security.