The Round-Up: Constitutional Commotions, Council Housing and Article 8, and the A6 Compatibility of ASBO Legislation

27 May 2018 by Eleanor Leydon

Image Credit: The Guardian

In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8^th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.

Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8^th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.

In the twenty-five years between then and now, Ireland has seen four further abortion referendums and a 2010 ECHR ruling finding the state in violation of human rights. Most importantly, the told and untold suffering of women – and even loss of life – has proved to be the true cost of these narrow exceptions to the criminalisation of abortion. The Independent has a run-down of the road to reform here.

Now, Prime Minister Leo Varadkar said the vote had given his government a ‘clear mandate’ to bring in a law legalising abortion up to 12 weeks into pregnancy, thus introducing it to the national health service.

In the wake of yesterday’s success, eyes now turn to Northern Ireland, the only part of the UK where abortion remains banned in almost all circumstances. Women’s groups are seeking to secure pledges from MPs to #trustallwomen and push for reform of abortion laws. Meanwhile, judgment is pending on an application to the Supreme Court heard in October which sought to determine whether Northern Irish abortion law is in contravention of the ECHR.

Also in the News…

• More constitutional clashes on the other side of the Atlantic as a federal court for the first time found Donald Trump in violation of citizens’ first amendment rights…for blocking people on Twitter. In a novel application of the issue to the social media accounts of elected officials, a New York judge ruled that the President’s account was a public forum: specifically, the space where other Twitter users can reply to Trump’s tweets and each other’s replies. In this case, the plaintiffs were ‘indisputably blocked as a result of viewpoint discrimination’, viewed as a highly serious violation of the first amendment.
• Finally, the right to see parole board decisions, introduced after outcry at the now-overturned decision to release John Worboys, will come into effect on Tuesday. Victims, media and members of the public in England and Wales will now be able to request a summary for any case considered by the board. The chief executive of the Parole Board welcomed the push for transparency and stated that protection of the public was their primary concern.

In the Courts…

McDonagh, R (On the Application Of) v London Borough of Enfield: Enfield Council were in breach of their Housing Act obligations to provide interim accommodation for, and determine the application of, a single mother of three including a wheelchair-reliant child with cerebral palsy. However, this breach did not amount to interference with the claimant’s article 8 rights, and her claim for damages was unsuccessful.

It was accepted that Article 8 can create positive obligations on public authorities, drawing on R (Bernard) v Enfield LBC. It was also accepted that lack of access to a toilet or washing facilities, as was the case for the Claimant’s son, could interfere with a person’s Art.8 rights to integrity over a prolonged period, and could potentially interfere where the person’s private and family life is grossly undermined by having to look after a family member due to lack of access [68].

However, distinguishing Bernard, no interference was found on six grounds: the breach was not a ‘flagrant’ one, as the Council had made efforts from a certain point to find suitable accommodation. Further, it was not obvious that the measures sought would have contributed positively to the development of Ms McDonagh’s private life to a substantially greater extent [69]. As a subsidiary point, it was relevant that the family were not divided.

Fourthly, it was recognised that a balance should be struck between individual and general interests, and that there was a recognised margin of appreciation in decisions about resource allocation. Fifthly, authority held that it was hard to conceive of a situation where a claimant’s Art. 8 rights mandated a positive obligation for the provision of welfare support, if the situation was not sufficiently severe to engage Art. 3.

Perhaps most crucially, the claim was brought solely by Ms McDonagh and therefore it is her right to privacy or family life that was considered [11, 72]. This was distinguished from Bernard where both husband and wheelchair-bound wife were claimants. As Mrs. Bernard in suitable accommodation could have assisted with caring for their children, and would not have been dependent on care herself, Mr. Bernard’s own Article 8 rights were affected. In this case:

 I do not wish to underestimate the burdens on Ms McDonagh, but the fact is that Thomas would have been dependent to an extent on her in any event. She would have had to look after the two other children in the same way, absent the breaches of duty. She estimates that she has spent an additional three hours a day caring for Thomas as a result of the unsuitable accommodation. If that is right it is a substantial additional burden which no-one would wish to bear, but it does not, in my judgment, amount to a denial of her own Article 8 right to physical and psychological integrity or development or her right to family life [72].

Jones v Birmingham City Council: this appeal concerned the compatibility of provisions in a series of statutes designed to tackle gang crime and violence with Art.6 of the ECHR.

Under the Policing and Crime Act 2009, the Serious Crime Act 2015 and the Anti-social Behaviour, Crime and Policing Act 2014, the county and High Court were empowered to grant injunctions for the purpose of preventing gang-related violence or drug-dealing activity. The claimant, Jerome Jones, was the subject of an interim injunction made pursuant to the acts [12].

Sir Brian Leveson rejected both the submission that the legislation triggered the bringing of a criminal charge for Article 6 purposes, and that the legislation’s prescription of a ‘balance of probabilities’ standard of proof constituted a breach of Article 6. In dismissing the appeal, Sir Brian Leveson concluded that ‘Parliament was entitled to address the very real social harm which gangs and other anti-social behaviour have been inflicting on society in the way in which this legislation seeks to do. Built in to each legislative scheme are safeguards intended to address the impact on individuals.’