We got a chance in the Seanad yesterday to see some real, unscripted discussion on what a piece of law reform should be about, and thanks are due to Senator Averil Power and Aodhán Ó Ríordáin TD, the junior minister for equality for naming the issues and following through with the implications of what they thought about them.
After a break of 15 months, Senator Ivana Bacik’s bill to amend the notorious section 37 was back in the Seanad, following a decision by the government on Tuesday to accept it, but with amendments. Section 37 — specifically, subsection 1 — is the clause in the Employment Equality Act 1998 that allows church-run schools, hospitals and medical institutions, and other religious institutions to have certain exemptions from the ban on discrimination in order to protect their ethos.
The INTO and the other teacher unions, along with BeLonG To and GLEN, the main gay advocacy organisations, have been lobbying for many years to have it removed. Articles on religion and on education in the Constitution mean they were never going to get their way without a referendum, so the real question has been: how far can the exemptions be diluted?
Bacik’s approach was to add an exception to each of the exemptions in section 37(1). Her exceptions would apply to schools and medical institutions that are funded by the state. It would have the virtue of bringing the vast bulk of schools and hospitals within the scope of her exceptions while having the vice of not changing the fundamental underlying values in the law — the stronger protection for lgb people (and divorcees, cohabitants, and lone parents) would be an exception to the core piece of law.
Procedurally, the debate picked up yesterday from where it left off last year, on amendment no. 4 to the bill, from Senator Katherine Zappone. Under standing orders, when Ó Ríordáin was responding to that discussion, he should have dealt only with that amendment, but he read into the record his intention to bring forward amendments at the next stage of the process, the report stage debate. (Most of these have nothing to do with section 37.) His main amendment, he said, would introduce a three-part test that schools and medical institutions must meet if they want to take action in response to the conduct of an employee that the institution believes damages the ethos of the institution.
Having breached procedure by bring up matters unrelated to the business at hand in his first speech, Ó Ríordáin then unhelpfully respected procedure by not circulating the text of his amendments, but Power knows this subject inside out having been the first to bring in a bill to reform section 37 in the current Oireachtas — defeated when she pushed it to a vote in 2012 — and she tackled Ó Ríordáin on two of the key flaws in his proposal: that although abstract standards that are to apply to the conduct of teachers, doctors, etc., are to be spelt out, the ‘conduct’ is not defined; and that he appeared to be leaving Bacik’s distinction between state-funded and privately funded institutions untouched.
Three-part legal tests containing standards like “proportionate to the conduct” and “rationally and strictly related to the ethos” are the kind of rule that law lecturers and High Court judges get their kicks from, and are paid handsomely to get those kicks, but they’re not much practical use to a lesbian teacher who is wondering if it’s OK to mention in the staff room but not the classroom that she got engaged at the weekend, and who has no idea what the three-part test means — if she even knows it exists — if a student asks about her engagement ring when she’s driving him and two others to the inter-school debating competition.
Power challenged Ó Ríordáin on whether prohibited conduct under his three-part test could include a teacher responding to a student being bullied because he has two mothers with an admonishment to the bullies that all families are entitled to equal respect, or could it include taking part in a pride parade. She told the Seanad about a gay man in the USA who was legally sacked when he announced he was getting married; if we are not clear that this is not conduct a religious hospital or school can prohibit, we will make a mockery of the vote of the people in the marriage referendum.
Power probably did not intend her remark about the American man to be a pointed one, but it had an additional edge for some of those in the chamber. Zappone’s spouse, Dr Ann-Louise Gilligan, was in the public gallery. A decade ago, when she and Zappone took their High Court case to have their Canadian marriage recognised in Ireland, she feared that her job in St Patrick’s College of Education, in Drumcondra, Dublin — which is under the patronage of the Roman Catholic archbishop of Dublin — because of the scope of section 37(1). Both Dr Gilligan’s spouse — Zappone — and lawyer in that case — Bacik — were in the chamber on the other side of the protective glass.
Senator David Norris chipped in with a brief account of a school gardener in Scotland who was sacked from his job when he was seen at a pride parade, and whose dismissal was found to be lawful when he took a legal challenge against it. Power had tabled a detailed amendment to Bacik’s bill to deal with the gaps she sees in it on this and other matters, and when the debate moved to her amendment, she pushed the minister on the point. He was visibly concerned at the events in other countries that Power and Norris reported, and agreed to look at the meaning of ‘conduct’, effectively accepting that it is a flaw to leave unspecified questions like when and where the conduct occurs and what it is. However, he warned that care would be needed in adding amendments to narrow the scope of the conduct a school or clinic can oppose in order to avoid the amendments getting caught up in the Attorney General’s office for so long that the Bill would not be completed before the next general election.
Power was less successful in arguing for the distinction between state-funded and private schools and medical institutions being removed, though she made the strong point that this is not a distinction we see anywhere else in employment law. This distinction is one that Power raised more than once yesterday, and I expect she will press this point with an amendment at report stage.
But it was on a third item that Power drew out some of the more interesting discussion on the underlying issue in this country. A point was made in passing — I can’t remember by whom, and the debate is not yet published so I cannot look it up — that a “genuine, legitimate and justified occupational requirement” — a term in Bacik’s bill — would obviously allow a school to insist that a religion teacher be of the religion of that school. Power disagreed with that assumption. She didn’t mention it, but she probably has case law on her side. In the 2010 case of McKeever v Knocktemple National School, a Roman Catholic school was found to have discriminated when it withdrew an offer of employment to a teacher who is a member of the Church of Ireland. It does not appear to be have been part of the basis for the ruling, but the Equality Tribunal’s full case report does record that Ms McKeever had told the school she was familiar with and willing to teach the Roman Catholic Alive-O religious programme.
Power said that all primary teachers in Ireland are required to be religion teachers, and therefore allowing the criteria that you must be of the religion of the school to be a religion teacher would amount to a requirement of religious affiliation in order to be a primary teacher of any subject. She also pointed out that at second level, many religion teachers are not simply teachers of religion, but have two subjects of which religion is one.
Power’s challenge to the assumption that a school should be allowed to insist that a religion teacher actually be of that faith appeared to prompt Ó Ríordáin to note that every country in Europe that he has looked at has a section 37(1). The implication that we are not different from the rest of Europe quickly drew the observation that, on the contrary, we are very different because, unlike other countries, the overwhelming majority of our schools are under church control. A section 37(1) in another country has the effect of protecting a minority of schools (those under religious control) and the religious rights of parents. Here, because we have so few schools not under religious patronage, it has the effect of putting the minority at a disadvantage. Bacik, possibly worried where this kind of talk might lead, said that this was a debate for another day.
And so to Tuesday next, when the Seanad will hold its debate on the report stage of Bacik’s bill and discuss and decide on the government’s amendments. The original “don’t ask, don’t tell” was a US policy introduced by Bill Clinton when, for political reasons, he was not able to simply lift the ban on lgb soliders serving in the US Army. The policy paved the way for the ban to be repealed 18 years later under President Obama (although a ban on trans soldiers still applies). We are in a different time and a different jurisdiction, and those two differences pull in opposite directions. Our different time is one in which we can no longer expect a person’s homosexuality to be confined to the private sphere. Six weeks ago, 1,201,607 people voted to change our Constitution to release homosexuality from the confines of the private and allow it into the registry office and the official records of the State on an equal footing with heterosexuality. Our different jurisdiction is that Articles 42 (education) and 44 (religion) of the Constitution prevent the complete removal of any restriction by legislation or regulations.
Furthermore, the lawyers and officials advising Ó Ríordáin do not have any legal precedents that they can look to for guidance on where the balance of rights falls in 2015: section 37(1) has never been invoked in a case by a school, hospital, or employee, and nor has the corresponding EU law been invoked before the Court of Justice. Even if those precedents were available, May 22 changed the context in ways we have yet to understand. On Tuesday, we will learn if the remaining injunctions on teachers, nurses, and doctors to not tell is clear and narrow, or if it is opaquely buried under abstract legalistic three-part tests that will, in years to come, need court cases, and therefore victims going to court, to clarify and limit in light of the new values we have written into our constitution.
Another set of findings on human rights in Ireland June 22, 2015Posted by Tomboktu in Human Rights.
Hot on the heels (in UN terms, anyway) of last year’s report on the situation in Ireland under one of the two key human rights treaties, the Covenant on Civil and Political Rights, today comes the belated third report on the situation in Ireland under the other core treaty, the International Covenant on Economic, Social and Cultural Rights, which was published today in what is technically and ‘advance, unedited version’. Ireland was last examined by the committee charged with assessing our legal compliance with the provisions of this treaty as long ago as 2002, so a lot of water has flowed under the bridge since.
Here are the concerns in the order presented in the conclusions.
- The signature by Ireland of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights [This allows individuals to take legal complaints about breaches of their rights in the treaty — the committee is being kind listing this as a positive because the government has not ratified it yet, so none of us will be lodging complaints in UN Office in Geneva for a while yet]
accession to the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure [This allows individuals or groups to make complaints under the Convention on the Rights of the Child]
atification of the ILO Domestic Workers Convention 2011 No. 189 and the ILO Maritime Labour Convention 2006 [No idea!]
ratification of the United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime
referendum that has approved equal marriage
establishment of the Low Payment Commission
adoption of the Employment Permits (Amendment) Act 2014
Adoption of the Irish Human Rights and Equality Act and the establishment of the Irish Human Rights and Equality Commission
adoption of the National Action Plan for Social Inclusion 2007-2016 (2007)
adoption of a national policy on mental health, “A Vision for Change”
But there are ‘subjects of concern’ as they are dubbed in UN human rights speak. Many more of them than positives.
- regret that the data provided by the government are outdated and not disaggregated and that the replies to the list of issues do not include sufficient data, which makes it difficult for the Committee to assess the actual and progressive realization of economic, social and cultural rights
regrets that, despite its previous recommendation, no steps have been taken to incorporate the Covenant in domestic law and that the State party does not intend to do so
concerned at the lack of training for judges, lawyers and public officials on economic, social and cultural rights
concerned at the lack of free legal aid services, which prevents especially disadvantaged and marginalized individuals and groups from claiming their rights and obtaining appropriate remedies, particularly in the areas of employment, housing and forced evictions, and social welfare benefits
concern at the limited scope of human rights provided in Section 29 of the Irish Human Rights and Equality Commission Act
concerned at the lack of meaningful consultation with civil society and relevant stakeholders in formulating and implementing policies and legislation, particularly relating to persons with disabilities, people living in poverty, Travellers and Roma
The response to the crisis has been disproportionately focused on instituting cuts to public expenditure in the areas of housing, social security, health care and education, without altering its tax regime [and it recommends that the government consider reviewing its tax regime, with a view to increasing its revenues to restore the pre-crisis levels of public services and social benefits, in a transparent and participatory manner]
Many austerity measures have been adopted during and after the crisis without proper assessments of their impact on economic, social and cultural rights
The austerity measures, which continue to be applied, have had significant adverse impact on the entire population, particularly on disadvantaged and marginalized individuals and groups, in enjoying their economic, social and cultural rights
No review has been carried out of such measures in a comprehensive and human rights based manner, since the State party’s exit from the bailout programme
concerned that the equality laws do not provide a full range of grounds of discrimination prohibited by the Covenant
concerned at the persistent institutionalization of persons with disabilities, at poor living conditions of residential centres for persons with disabilities and at the lack of regular inspections of such centres
concerned that the accessibility of persons with disabilities has been significantly restricted due to the cuts in social benefits
regrets that the International Protection Bill has not yet been adopted
concerned at the poor living conditions and the lengthy stay of asylum-seekers in Direct Provision centres, originally designed as a short-term arrangement and run by private actors, which have a negative impact on their right to family life, their mental health and their children’s best interests
concerned at the restrictions asylum-seekers face in accessing employment, social security benefits, healthcare services and education
regrets that article 41.2 of the Constitution on the role and status of women in Irish society remains unchanged
concerned at the pervasive gender inequality in the State party, in particular the under-representation of women in decision-making positions across all sectors in the society
concerned at the widening gender pay gap
concerned at the strong gender role stereotypes in the family and society
concerned at the disproportionately high rates of unemployment among Travellers, Roma, young people and persons with disabilities
concerned at the insufficient level of the minimum wage to ensure a decent living for workers and their families
concerned at the exemptions from the obligation to pay the statutory minimum wage even in cases of opposition from the majority of the workers, their representatives or the trade unions concerned
concerned at the inadequate working conditions of workers on zero-hour (or low-hour) contracts and their limited access to labour protection and social benefits as well as the lack of data on zero-hour contracts
concerned at the lack of guarantee of the compensatory rest for working on a Sunday in the Organisation of Working Time Act 1997
regrets the massive and systemic forced labour that occurred, with the patronage of the state, between 1922 and 1996 in Magdalene Laundries
while noting the State party’s apology to Magdalene survivors and the establishment of an ex-gratia restorative justice scheme in 2013, remains concerned that there has been no prompt, thorough and independent investigation into the allegations regarding the Magdalene Laundries and that the survivors have not been given adequate remedies
reiterates concern about the obstacles imposed by the State party with respect to the right to collective bargaining of trade unions, through the requirement on collective bargaining licences
concerned at the large numbers of social welfare appeals due to the lack of clear understanding, and consistent application, of the eligibility criteria
concerned that a considerable number of initial decisions on these appeals have been revoked
concerned at the discriminatory effect of the ‘habitual residence condition’ on women who are victims of domestic violence, the homeless, migrants, Travellers and Roma in accessing social security benefits
concerned at the lack of understanding of, and clear guidelines for, the relevant officials on the criteria applicable to decide on the ‘habitual residence condition’
concerned that domestic violence is pervasive in the State party
concerned at the legislative gaps in investigating and sanctioning the perpetrators as well as providing protection and assistance to victims of domestic violence and the lack of a systematic data collection as well as the insufficient support services for these victims due to funding cuts
concerned that not all women workers are covered by the maternity benefits scheme and that paternity leave is not statutory
concerned at the very high cost of childcare services provided by private actors and the lack of affordable public childcare services in the State party
concerned at the increase in the number of people living in consistent poverty or at-risk-of-poverty, particularly among children, single-parent families, older persons, persons with disabilities, migrants, Travellers and Roma
concerned at the lack of integration of economic, social and cultural rights into the poverty reduction policies as well as at the absence of concrete policies addressing the specific needs of the affected groups
concerned at the increase in food insecurity and malnutrition among disadvantaged families, including single-parent families and families with children and at the high cost of healthy food in the State party, which puts these families at risk of obesity
concerned at the overall difficult housing situation in the State party,
concerned at the continuing gaps between availability and demand for social housing, which result in a long waiting list for social housing
concerned at the increased costs of rental housing and reduced family incomes
concerned at the ineffective social support programmes, such as the Rent Supplements and the Housing Assistance Payment, which do not reflect rent increases
concerned at the increasing number of long-term mortgage arrears
concerned at the growing number of families and children that are, or at the risk of being, homeless, as a result of the lack of social housing and the inadequate levels of rent supplement
concerned at the lack of effective complaint mechanisms for local authority tenants on tenancy-related issues
concerned at the lack of culturally appropriate accommodation provided to Travellers and Roma and of adequate legal protection of Traveller families at risk of eviction
concerned at the overall deteriorating healthcare services, affected by significant budget cuts in public health in recent years, and at the negative impact on the access of disadvantaged and marginalized individuals and groups to adequate healthcare
concerned at the widening disparity between people with and those without private health insurance in accessing medical services
concerned at the delay in providing universal health services and community-based health services
concerned at the lack of oversight of healthcare services
concerned at the poor health state of Travellers and Roma, particularly their life expectancy and infant mortality which are respectively 15 years less and more than three times higher than the general population
concerned at the significant lack of funding and at the inadequate legal framework for mental health as well as at the delay in implementing a national mental health policy, ‘A Vision for Change
concerned at the admission of children with mental health difficulties to psychiatric facilities for adults
concerned at the State party’s highly restrictive legislation on abortion and strict interpretation thereof
particularly concerned at the criminalization of abortion, including in the cases of rape and incest and of risk to the health of a pregnant woman
particularly concerned at the lack of legal and procedural clarity on what constitutes a real substantive risk to the life, as opposed to the health, of the pregnant woman
particularly concerned at the discriminatory impact on women who cannot afford to get abortion abroad or access to the necessary information
concerned at the limited access to information on sexual and reproductive health
concerned at the discrimination faced by children with disabilities, migrant children, children belonging to a religious minority, Traveller and Roma children in schools
concerned at legal provisions, such as Section 7 of the Equal Status Acts 2000, which allow schools to give preference to admission of students based on religion
concerned at discriminatory criteria against children with special educational needs contained in many admissions policies and the lack of a regulatory framework
concerned at adverse effects of the austerity measures on the education sector, including the reduced number of teachers, rationalization of teacher/student support services, abolition of grants to schools, increase in transport charges and reduced allowance for clothing and footwear, which further restrict disadvantaged children from attending schools
concerned at the prevalence of Traveller children and children with disabilities in the Delivering Equality of Opportunity in Schools (DEIS)
concerned at their disproportionately low level of entry to high education
concerned at the high rate of Traveller children who leave school before the age of 15
concerned at the State party’s longstanding non-recognition of Travellers as an ethnic minority
concerned that Travellers are not included as an ethnic minority in anti-discrimination legislation
concerned that the people living in rural areas have limited access to broadband Internet
encourages Ireland to ensure that, before entering into any agreement with, or implementing any fiscal consolidation policy prescribed by international organizations, including international financial institutions such as the International Monetary Fund, such agreement or policy is in compliance with its obligations under the Covenant
encourages the State party, as a member of international organizations, including international financial institutions such as the International Monetary Fund, to ensure that the policies of these organizations are in conformity with the obligations of State parties under the Covenant
Remind me. Are we part of the developed world?
Marriage referendum: The kids will be fine May 6, 2015Posted by Tomboktu in Bunreacht na hÉireann, Human Rights, Inequality, Marriage equality.
[Update: in the comments, CMI1991 points out that I misread the 67 percent figure I cite — and badly. I apologise for that, though my underlying point remains valid.]
It looks like children will be key in the marriage referendum. The last Red C poll (PDF here) showed a combination of views that must cause some anxiety in both campaign HQs: support for the referendum was at 68 percent, but 67 percent agreed with the statement “It is inappropriate for children to be raised by gay couples”.
The standard Yes Equality response so far has been to point out that legally, the referendum is not about children, that legal issues concerning them have already been dealt with in the Children and Family Relationships Act which will still require that the best interest of the child is the primary criterion when it comes to applying the act to parenting, guardianship, adoption, and so on, whether the referendum passes or not.
At a meeting last week I watched an exchange between a representative of Yes Equality and a woman unhappy with same-sex couples becoming parents, in this case through surrogacy (though that was not her only concern). The Yes Equality representative thanked the woman for asking the question, and for doing so at a meeting where she was in a minority, and then he answered her question. He outlined the legal situation with surrogacy (unregulated, it happens), and that the government will be free to regulate surrogacy — including introducing a total ban if it chooses — whether the referendum is passed or not. He also that the reality is that in Ireland surrogacy is availed of mainly by different-sex couples, not same-sex couples.
If there were a textbook for this campaign, it would be a textbook Yes Equality answer: it was polite and respectful, and it provided accessible legal analysis and empirical evidence which showed that the woman’s concern was misplaced. But yet, but yet … I came away thinking it was missing something.
The May issue of Alive! has an article which highlights that missing element. The article — the Media Watch column — asks about the right of children ‘to be brought up, as far as possible, by a mother and father’. Actually, it’s not true that children have such a right. The previous week, Conor O’Mahony, a lecturer in child law and constitutional law at UCC, had tweeted that he had ‘Been searching legal databases all afternoon for a law that gives children a legal right to a mother and father. Results: zero‘. But even though it’s not true, it feels like it could be or ought to be. And that’s because it appeals to our emotions. There is a world of a difference between ‘a right to a mother and father’ and ‘a right to your mother and father’. For the fortunate majority of us, the latter concerns real people, and the feelings we have for our mother or our father — and for both in most cases — are a hugely important and positive part of our life. It is easy to slide from that positive felling most of us have about growing up with our mother and father, via a false claim about a non-existent universal right, to believing that both a mother and father are an essential part of a healthy, loving childhood. However, not only is not a human right: the empirical evidence shows that to grow up loved cared for and develop and mature does not require the presence of both a mother and father; and the empirical evidence also shows that growing up with same-sex parents does not affect a child’s well-being or development.
The no side — Mothers and Fathers Matter and the Irish Catholic Bishops in particular — have appealed to voters’ feelings (both positive and negative); on the question of children, Yes Equality has appealed to their reason, hoping that the legal analysis and empirical evidence will be enough to persuade voters who have concerns about children. A month before polling day, Red C found that 67 percent were not making that connection, and two and a half weeks before it, Senator Katherine Zappone said it is hard for people she is talking to to move beyond the traditional concept of family.
It is ironic that campaign formed by and led by lesbian and gay people should be struggling to get this message across. So many of us who are gay have deep personal experience of the conflict between feelings and reason in the period before we came out, and we had to let go of our deeply held fear. A challenge for our leaders in the next two weeks is to see if they can find a way to encourage and help enough of the 67 percent to make a similar step and let go of their irrational fears. The task is to ensure enough voters realise that the kids will be fine.
A month out, the campaign April 22, 2015Posted by Tomboktu in Equality, Human Rights, Marriage equality.
We now have a month to go to polling day in the Marriage Equality referendum, and in September I noted challenges that the Yes Equality campaign faces.
Referendum outcomes can be difficult to predict. Certainly, the 80 percent poll ratings were a boost to morale over the last few months, but as David Quinn of the Iona Institute has noted, support for a referendum often drops significantly once the campaign starts.
Although there is a long month left, it is clear that the Yes Equality side has organised an outstanding campaign, albeit not all of the challenges have been overcome.
Yes Equality has had a problem that although support was highest among the younger voters, these were least likely to vote and also most likely to not be registered. With the Union of Students in Ireland, Yes Equality ran a voter registration campaign in October and November that has been reported to have added 40,000 young people onto the register (20,000 through the USI campaign in colleges, and 20,000 by the main Yes Equality coalition outside the colleges). The last few weeks have seen a ‘booster’ campaign targeted at that group, this time asking them to pledge to vote, and thus encouraging a sense of ownership of the issue. And the registering of students has continued, with 1,500 added to the register last week.
But Yes Equality recognised the need to appeal as much as possible across all age groups and demographic groups. The ambassadors have been varied and include:
- Babs Keating, the Tipperary hurling manager;
- Mary McAleese, the thinking Catholic’s Catholic;
- Charlie Bird, the retired journalist;
- Eamon McGee, the Donegal footballer;
- Brighid and Paddy Whyte, the Co Louth Roman Catholic couple married for nearly fifty years;
- Jack O’Connor, the SIPTU General President (still not smiling);
- Gay Byrne, former Late Late Show host;
- Brian O’Driscoll, the rugby player.
Yes Equality and its allies has so far used many of the standard campaign tools: radio and television debates, letters to the editor, press events and statements, celebrity endorsements, public meetings, a rally on Dublin’s O’Connell Street (where Brighid and Paddy Whyte received a super-star roar of welcome when they came on stage), stands at events like the union conferences over the last few weeks, badges, car stickers, and street art. The Yes Equality posters have yet to be deployed, although Sinn Féin has started its postering. And Yes Equality plans to take a ‘battle bus’ around the country in the next month.
Organisations that have supported a ‘yes’ vote include IBEC and Congress, all Dáil parties, and Bohs, the Dublin football club.
They have also used tools that are not so familiar in Irish political campaigning: heavy and sustained use of Facebook, Twitter and the Web (including some very moving and inspiring online videos and, separately, a Yes Equality ‘twibbon’), online fundraising, and a ‘phone your granny’ drive. And this week, SIPTU’s LGBT group started operating a phone bank to call their union comrades in order to ask for their votes.
Seven months ago, Yes Equality had no local network, and none of the three organisations in the Yes Equality coalition — Marriage Equality, the Gay and Lesbian Equality Network, and the Irish Council for Civil Liberties — had any experience at grassroots organising. But now, Yes Equality has teams canvassing in every constituency (some more intensely than others). And it underpinned that local connection some months ago when the civil partnership data was published, providing local newspapers and radio stations with localised press releases on the take up of the ceremony in their county.
At this stage, Yes Equality has done everything it could to this time to secure a victory this day next month.
The support will be tested and challenged by the No side in the coming month. Probably the most significant difficulty Yes Equality faces is the use of incorrect and spurious arguments, particularly when they are used on a live radio or TV programme with a large listenership. For example, last Sunday on Marian Finucane’s programme on RTÉ Radio 1, it was claimed that passing the amendment would make it impossible for the Oireachtas to pass any laws regulating access to surrogacy or donor-assisted human reproduction in the future. It took two days before that claim could be legally assessed and responses by Amnesty International and by Conor O’Mahony of UCC Law School published, but it is unlikely that the responses can have the same effect as the original claim.
The next month will tell us if Yes Equality and its allies have effective campaign strategies to deal with the disinformation tactics of the No side.
Even by its words shall we know it April 20, 2015Posted by Tomboktu in Africa, European Union, Human Rights.
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Most of the attention has rightly been on the presence or absence of meaningful action, as against words, to prevent further drownings in the Mediterranean Sea. But the words of some of the institutions do reveal.
Thorbjørn Jagland, the Secretary General of the Council of Europe, had this to say on twitter:
Anne Brasseur, President of the Parliamentary Assembly of the Council of Europe, issued a press statement that was given a headline that expressed the horror of what happened:
At a global level, the UN High Commissioner for Refugees said the following:
New Mediterranean boat tragedy may be biggest ever, urgent action is needed now
Whatever power they have to force Europe’s institutions to act (damn all, in truth), those leaders recognised the awfulness of what has happened.
The EU has stronger powers to act. The words its leaders have used reveal that we need to be alarmed.
Martin Schulz, the President of the European Parliament, gave the first sign that the human response was second to a careful policy position. The headline on his statement said:
At least the first sentence of his statement recognised the nature of what happened:
“The renewed tragedy off the Libyan coast, in which possibly up to 700 people have lost their lives, leaves me speechless
But the European Commission’s statement is shocking for the way it hedged the central, awful fact of what had happened. Here is its headline
And even when it does get around to mentioning human lives, in the third sentence of the statement, it avoids the awfulness of what happened:
These are human lives at stake, and the European Union as a whole has a moral and humanitarian obligation to act.
By the time that statement was issued, 700 lives were no longer “at stake”: they had been lost.
When you’re wrong, admit it March 8, 2015Posted by Tomboktu in Choice, Democracy, Human Rights, Inequality, Irish Politics, LGBT.
Five years ago, the government of the day made an unusual decision: it withdrew an appeal to the Supreme Court, accepted that a new law needed to be introduced, and set in train a process to prepare that legislation. Since then, however, the actions of the various governments have been clumsy, poorly informed, and at times offensively insensitive to the people affected. The specific issue is legal gender recognition for trans people, but the history of how it has been dealt with illustrates a deeply embedded flaw in our governments — both current and previous, and both elected and permanent.
The bill to fill the gap in Irish law was dealt with by the Seanad in February, and last week the Dáil held its first debate on the bill.
Among the amendments in the Seanad were two from the government which only make sense when you realise that the government knows it is wrong but does not want to admit that. What is depressing is that, in the case of one those amendments, trans people will be humiliated and, in the case of the other, strung along for some years, and in both cases this is in order to spare the embarrassment that the policy makers — it is unclear in this case if that is the elected politicians or senior civil servants — would face by doing the right thing.
The purpose of this post is not is not to re-state the problems with the Gender Recognition Bill, but one of them is the subject of one of the government’s amendments. That amendment concerns the process for applying for a gender recognition certificate. Originally, the government intended that obtaining a gender recognition certificate — a legal document — would require a trans person to obtain from a psychiatrist or endocrinologist (but not their GP — that particular exclusion is the focus of another battle to amend the bill, with two professional medical bodies weighing into the debate) a certificate confirming that “based on a medical evaluation of the applicant” the psychiatrist or endocrinologist is satisfied that the applicant fully understands the consequences of his or her decision to live permanently in his or her preferred gender.
Activists object to the pathologisation of trans people and opposed this provision. Having been pushed on the issue during the committee stage debate in the Seanad, the government introduced an amendment at the final (report) stage to delete the phrase “based on a medical evaluation of the applicant” from the bill, while still requiring a psychiatrist or endocrinologist to provide the certificate. In doing that, it was grudgingly admitting that the administrative procedure of obtaining a gender recognition certificate is not a medical matter. But it left in the bill the humiliating, and unnecessary, obligation on trans people to get a medical professional to certify that they are who they say they are.
The second amendment that reveals the government’s incoherent position is a new clause to have the legislation reviewed two years after it comes into operation. The original proposal to do this was made by Senators Averil Power and Katherine Zappone, who recognised early that the government would not budge in any meaningful way on a range of problems with the bill. Their manoeuvre was designed to ensure that these problems with the bill would be revisited. However, the details of the government’s decision to accept a review clause raise questions about how this legislation is seen by the government. Power and Zappone proposed two reviews, the first within two years and a second within five years. Their original proposal was that the reviews would compare the new law against “international best practice in the field of gender recognition and [the bill’s] compliance with national, regional and international equality and human rights standards”. That standard has been stripped out by the government’s proposal, as has the second, medium-term, review.
Despite all that, one thing is clear: the principle that a review is to be undertaken is an odd one for the government to accept if it is so sure that the legislation is as good as it can be or ought to be.
The government’s behaviour on these amendments can probably be explained by problems within the group of those who are making the key decisions, though I do not know if those problems are the result of tensions between different ministers or between ministers and officials, or are the result of ministers not mastering their brief and being in control, and accepting substandard ‘compromise’ proposals from their officials. What is clear is that this problem arises because TENI, the organisation that has been leading the campaign to have the bill improved, has mounted one of the most effective lobbying campaigns, creating from nothing a strong body of support from opposition and backbench government politicians. And the support has come from sources that would have surprised many. A month ago, who would have predicted that Paschal Mooney would propose or that Labhrás Ó Murchú would vote for an amendment to give trans school students a legal right to wear a school uniform appropriate to their preferred gender? (It was defeated.)
The willingness of TDs and senators to speak on a bill that is never going to be a vote winner and the shortcomings of that bill can be traced to differences in a single factor: human contact. When the 2010 government decided to abandon its Supreme Court appeal and to legislate, it set up an advisory group to prepare proposals. The intention was worthy, but the content was fundamentally flawed. The advisory group consisted entirely of representatives of government departments. Not only did it not have the ultimate expert, a trans person or somebody nominated by trans people, it didn’t even have the a psychiatrist or endocrinologist, experts whose role the government sees as central to the operation of the legislation. The result was well-meaning but utterly inexpert officials blundering around preparing proposals on something they misunderstood. Instead of looking to best practice or human rights standards, they looked across the Irish Sea and took out-dated UK legislation as their model.* In contrast, senators and backbench TDs on all sides have said in the debates that they have had the benefit of meeting trans people and of hearing them explain their experiences and why the bill imposes indignities. And they listened.
The mess we now have shows the need for our policy making processes to be changed. Those who will be affected by legislation need to be brought to the table at the start, and to be at it throughout the process. It is unhealthy for our democracy that civil servants can draft proposals with limited understanding. In addition to that over-arching change, at this stage for this particular bill, they and their political masters need to be told to follow Ogden Nash’s advice to new husbands: “When you’re wrong, admit it; When you’re right, shut up.”
*It’s not the first time we have copied the British. In 1983, when the legislation to establish Telecom was being debated, the late John Kelly complained: “Naturally we have to dress it up in a little green jacket, with silver buttons, a dudean in his mouth and a caubean on his head and call it Bord Telecom Éireann.”
A thought on the “Yes Equality” campaign? February 19, 2015Posted by Tomboktu in Bunreacht na hÉireann, Human Rights, Inequality, LGBT.
Two of the principles that the ‘Yes Equality’ coalition — the Irish Council for Civil Liberties, the Gay and Lesbian Equality Network, and Marriage Equality — have decided they will follow in the campaign on the referendum on marriage equality are (a) they will run a positive campaign and (b) that the referendum is not about children, as the question of children is being dealt with by the Children and Family Relationships Bill (which is to be published today).
It will be a difficult task. Their opponents are using negative campaigning and have insisted that the Children and Family Relationships Bill is at key part of the issue.
And by negative campaigning, I don’t mean merely critiquing the case for marriage equality, but insinuating stereotypes about gay men.
Last weekend’s RTÉ Radio 1 programme Saturday with Claire Byrne dealt entirely with the Children and Family Relationships Bill. It is a long and complicated piece of legislation (the most recent draft that has been published before today is 123 pages long — PDF here) and it covers a myriad of possibilities in how a child might be conceived and raised. One of the participants in Saturday’s programme was Bishop Kevin Doran. During the programme, Claire Byrne asked him to identify the substantive problem he sees with the Bill.
The core of his argument, and the Roman Catholic church’s, is that, when the genetic mother and father are not in a position to raise the child, it is preferable for a child to be brought up by a man and a woman. He picked one — and only one — example to elucidate why he thinks this is important:
Let’s just put it very simply. Take a young woman of 14, 15, 16 years of age growing to maturity and her two parents are two men. They may be the most loving, caring people in the world, but how can they respond as two men to the human, personal and feminine needs of a young woman growing up?
When he finished, the host, Claire Byrne, responded: “OK. There are probably some men who feel quite offended by that if they are bringing up a child, say a female child, on their own”, before turning to another panelist.
His opponents on the programme were three TDs: Alan Shatter, Róisín Shortall and Sean Fleming. Bishop Doran and the other “anti” panelist on the programme, Ben Conroy of the Iona Institute, were vigorously challenged about a different claim that lone parents are less than ideal when it comes to adoption, in particular by Sean Fleming whose father died when he was in school and whose mother raised him and his siblings alone.
However, none of the TDs challenged the homophobia in the bishop’s comment, none of them challenged the bishop’s assertion that two gay men would unable to respond to their daughter’s ‘feminine needs’ when she reaches puberty. And it is a theme Bishop Doran has returned to this week when he delivered a speech to a meeting in Sligo on Tuesday evening:
Bishop Doran’s attacks are crying out for a “mini Panti moment”. The next time he is on radio or television, the bishop needs to be asked what exactly is it about two men, and two gay men in particular, in contrast to a widower, that is less than ideal when it comes to raising a daughter? How does he think widowed fathers deal with the onset of menstruation in their daughters? Does he think that two gay men raising daughters are shunned by their sisters, leaving their daughter without an aunt who can take her niece to get her first bra? Indeed, does he think heterosexual fathers with wives ought to ignore their daughter’s ‘feminine needs’?
I do not know if the Yes Equality coalition declined an invitation to take part in Saturday’s programme or were not invited, but they have been notably silent this week while the suitability of two gay men to be parents has been attacked in the debate about the Bill that will, among a myriad of other things, make that possible for the first time in Ireland. However, the explicit homophobia in the broader debate needs to be challenged, even if that means modifying a commitment to be positive and an intention to focus only on the referendum. However much GLEN, Marriage Equality and the ICCL may not like it, the question of children is now part of the debate. We saw on Saturday that we cannot depend on straight allies to expose the homophobia, but if it is left unchallenged, it will damage the Yes campaign.
Ireland breaches human rights laws on workers’ rights January 29, 2015Posted by Tomboktu in Collective Bargaining, Council of Europe, Employment Rights, Human Rights, Ireland, Labour relations, Trade Unions, Uncategorized, Workers Rights.
Ireland fails to meet nearly half of its legal obligations on workers’ rights under European human rights law.
Legal conclusions (45-page PDF here) by the European Committee of Social Rights concerning workers’ rights were published by the European Committee last week. The Committee assesses compliance with the Revised European Social Charter.
The findings show Ireland is not in conformity with the human rights requirements on workers’ rights in 10 out of the 22 provisions that Ireland has ratified. Ireland is in conformity with 11 of those provisions, and the government did not provide enough information for the legal situation on the remaining ratified provision on labour rights to be assessed.
The 22 individual provisions are spread across eight articles in the European Social Charter, which is the main sister instrument to the European Convention on Human Rights. The provisions that were examined govern standards in just conditions of work, fair remuneration, workers organising, collective bargaining, worker participation in determining and improving working conditions and working environment, dignity at work, protection of workers’ representatives in their workplaces, and information and consultation in collective redundancy procedures.
Ireland’s minimum wage rates were found to breach European human rights standards because people on the lower bands did not earn enough to have decent standard of living, which is defined as half of the average net wage in the State.
A further illegality was found because the Payment of Wages Act does not place an absolute limit on the total amount of deductions from wages by an employer and because the Government failed to show that the act is applied in practice in a way that preserves workers’ means of subsistence. “Situations in which the portion of wages remaining after deductions may not be adequate to ensure the subsistence of workers and their dependants may consequently still exist”, the Committee found.
The lack of domestic laws requiring overtime work is paid at a higher rate than basic pay was also found to be a breach of the Charter. The Committee was told by the Government that overtime rates are negotiated at the level at which basic pay and conditions of employment are normally settled — meaning in an individual firm or across an industry or sector. No evidence was produced to show how this works in practice, despite the Government being asked to provide the information following a previous assessment of the legal situation in 2007.
Curiously, although the European Committee did refer to the Haddington Road Agreement for the public and civil service in assessing other aspects of the Charter, it did not mention that Haddington Road breached European human rights law on overtime because it required certain categories of worker to provide the first hour of overtime not only without a higher rate of pay, but without any pay. That part of the Haddington Road Agreement expired in 2014.
The European Committee identified three ways in which Irish law on sacking workers breaches human rights requirements. The notice period in the Minimum Notice and Terms of Employment Act are inadequate. The Committee said that this illegality was identified as far back as 1973. It also said that the scope of the illegality on this point has been expanded since Ireland was last assessed because the law on minimum terms was extended to cover civil servants. A third breach was found concerning instant dismissal of a worker for misbehaviour. The European Committee found that the standard that is contained in Irish law is too weak, and that instant dismissal can be justified only in cases of “a serious offence” and not the lower threshold of “misconduct” set out in the Minimum Notice and Terms of Employment Act
In examining the situation here on working time, the European Committee warned the government that contracts where workers must be available for work but are later regarded as resting if they were not actually given work are illegal under human rights law. It asked the government to give the Committee information on the rules that apply to on-call service when Ireland next reports on the right to just conditions of work. However, the Committee did have enough information to find that Ireland’s laws do not conform to the human rights standard on hours of work because it allows workers in the merchant shipping sector to work 72-hour weeks.
A separate breach was identified by the European Committee because there are inadequate safeguards in Ireland to prevent people working for more than twelve consecutive days without a rest period.
A number of Irish rules on trade unions were found to be illegal under the Revised European Social Charter. Although some forms of closed shops have been unconstitutional since the 1960s, the European Committee found that the right to freedom of association was not fully protected because pre-entry closed shops and post-entry closed shops when they apply to newly recruited employees are not definitively illegal.
Irish laws on the licensing of trade unions breach human rights law in a number of ways. The Unfair Dismissals Act is inadequate because does not protect workers from being sacked for trade union activity if the union does not have a negotiating license. Another breach is that under Irish law a trade union that does not have a license — and the union’s officials and members — can be sued by an employer, and an employer can sack all employees in an unlicensed union for taking part in a strike.
The ban on the garda staff associations such as the AGSI and GRA from joining Congress was also found to be a breach of human rights law, re-iterating a finding in 2014 in a case take by the AGSI (42-page PDF here). A number of other specific breaches of human rights law for gardaí from the AGSI case were also found to be still relevant in the new conclusions, including the complete ban on any Garda ever striking.
Although the Safety, Health and Welfare at Work Act 2005 applies to all workers, Ireland does not conform to European legal standards because the government did not show that workers exposed to occupational health risks are entitled to appropriate compensation measures such as reduced working hours or additional holidays.
The conclusions were published last week, some time after the work on drafting them and equivalents for 40 other countries had been completed. In the intervening period, the legal findings of the European Committee for Social Rights were described as “non-binding” by the Minister for Defence in the Dáil. It will be interesting to see if they European Committee responds to that attack when it next publishes conclusions or a decision on a case from Ireland.
The Revised European Social Charter contains 31 articles and under the reporting procedure, the European Committee of Social Rights states’ compliance with approximately a quarter of the articles each year.
Although the 2014 conclusions on labour rights were published by the European Committee last week, the Irish Congress of Trade Unions has not publicly responded to the findings.
The minimum wage January 23, 2015Posted by Tomboktu in Human Rights.
Tags: Minimum wage
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Page 12 of this:
puts item 27 of this:
Or, in reverse order:
From the legislative programme for the Spring/Summer Oireachtas term:
27: Minimum Wage (Amendment) (Low PayCommission) BillTo put in place a body that will make recommendations to the Minister on the appropriate level of the minimum wage andrelated matters
“the situation in Ireland is not in conformity with Article 4§1 of the Charter on the ground that the reduced national minimum wage applicable to adult workers on their first employment or following a course of studies is not sufficient to ensure a decent standard of living.”
The EU Court blocks human rights December 20, 2014Posted by Tomboktu in European Union, Human Rights.
Two days ago, the EU’s Court of Justice delivered a ruling that blocks the EU from signing up to the European Convention on Human Rights.
Technically, the ruling concerns a draft agreement between the EU and the Council of Europe, rather than accession itself, but the commentary by European human rights lawyers in the last two days makes clear that the underlying problem is that the EU’s Court of Justice is not prepared to be subject to the human rights standards set by the European Court of Human Rights.
Two things occur to me.
(1) I haven’t seen anything about this in the Irish media. (They did report a ruling the same day on whether obesity can be a form of disability in certain circumstances, so it’s not that domestic issues took their eyes off the Luxembourg court on Thursday.)
(2) The EU’c court ruling is deeply undemocratic. Whatever your view of the merits of the Lisbon Treaty and the merits of the “vote again” referendum we held in Ireland, the fact is that it was adopted by democratic processes in each of the member states, and requires that the EU accede to the European Convention on Human Rights. It is not for the EU’s judges to create complicated arguments for overturning that decision.