should compo be paid when no law is broken?

recedite

Two cases described here where the going rate seems to be established as €30,000.
This is for getting a FFA abortion in England, which is still illegal in Ireland.
I am sympathetic towards the women involved. Just wondering about the legality of the state paying compensation to citizens for doing something that is illegal in the state. Any thoughts?

Mr. Incognito

The X Case granted a right to travel abroad for an abortion

It was a tragic case confined to its facts

However, because of a succession of spineless politicians and the ECHR cases it has become a very very very very stupid law.

I'm glad for one that the state will have to start paying compo for women travelling as it might bring about an adult approach and change in the law.

recedite

Mr. Incognito wrote: »

I'm glad for one that the state will have to start paying compo for women travelling as it might bring about an adult approach and change in the law.

I don't think it has to pay the money. Maybe its paying for compassionate reasons, or political reasons, or because its less hassle to pay.
Can it really be called "compensation" then?

lifeandtimes

recedite wrote: »

I don't think it has to pay the money. Maybe its paying for compassionate reasons, or political reasons, or because its less hassle to pay.
Can it really be called "compensation" then?

Her human rights were denied, she was told to let her baby carry to term even though it will likely die in her womb. That on top of the fact she wasn't given any help on what to do means she suffered mental anguish and the state now have to pay for the cost of her mental health restoration.

The United nations take the right to abortion serious and the courts here take mental issues caused by people serious. A child got 15k when a bike fell of a shelf in a toy shop in front of her. Didn't hit her but fell in front of her and she suffered ptsb so I'm not surprised this woman was compensated for the trauma she had to suffered,bearing in mind it was just the denial of abortion but what was said to her(carry to term,attend antenatal classes) and the little assistance she was granted.

Put yourself in her shoes,you know your unborn baby is going to die and you have to carry the child to term without any assistance while attending antenatal classes etc.

It's pretty messed up and would mess with anyone's head

recedite

lifeandtimes wrote: »

The United nations take the right to abortion serious and the courts here take mental issues caused by people serious.

Abortion is not "a right" in Ireland, and the UN Human Rights Committee is not the supreme law of the land here.

Everyone has sympathy for the people involved, but I was hoping to keep this focused on the legal discussion.
For the purposes of this thread, imagine you are neither pro-life nor pro-choice.

Compare to say, the poor guy who travels to Amsterdam to smoke his cannabis legally. Should he get compensation for the cost and inconvenience?

Mutant z

This is why the 8th needs to be repealed to stop this sort of crap happening.

lifeandtimes

recedite wrote: »

Compare to say, the poor guy who travels to Amsterdam to smoke his cannabis legally. Should he get compensation for the cost and inconvenience?

No because that is not the same. Cannabis is not a life or death situation, carrying a baby who dies/will die in your womb,carry on as if everything is normal and then give birth is a traumatic life event is. Not only that but the lack of support she received was a failure on the hse's part as well. She wasn't provided with information to help her and had to travel to resolve her situation.

All of the above made her suffer mentally and people who suffer from ptsd are compensated.

Yes this matter is based on abortion and is a pro choice/pro life issue,more so the former obviously and even though no law was broken here in ireland she still suffered mentally and was denied her human rights

recedite

lifeandtimes wrote: »

Not only that but the lack of support she received was a failure on the hse's part as well. She wasn't provided with information to help her and had to travel to resolve her situation.

Two different things there;
1. Lack of support within the Irish system. Did this actually occur? Bearing in mind the limits of what they are legally allowed to do.
2.No provision of abortion info or funding for the trip to England. Is that really a requirement for the Irish HSE, bearing in mind the procedure is actually illegal here?

lifeandtimes wrote: »

All of the above made her suffer mentally and people who suffer from ptsd are compensated.

Yes, but by whoever is responsible, ie by their employers, or by whoever caused the PTSD.

lifeandtimes

recedite wrote: »

Two different things there;
1. Lack of support within the Irish system. Did this actually occur? Bearing in mind the limits of what they are legally allowed to do.

Well not being there personally I can only take the article at face value so it says there wasn't. She wasn't provided information and how to have a termination elsewhere and there no laws stopping medical professionals providing this information as this information is also available through family planning/women well centres

recedite wrote: »

2.No provision of abortion info or funding for the trip to England. Is that really a requirement for the Irish HSE, bearing in mind the procedure is actually illegal here?

No one says they need to find her trip but as the UN said she shouldn't have to have gone in the first place. This isn't a run of the mill kind of abortion the pro life campaigners try to spin, her child was going to die anyway and to force her to carry the child to term is where her rights were violated and why her mental health deteriorated.

recedite wrote: »

Yes, but by whoever is responsible, ie by their employers, or by whoever caused the PTSD.

In this case the HSE by not providing this woman what she needed even though it is illegal, she still should have had access to it through them or by information on how she can get one.

So yes I agree with the UN on this and the traumatic stress she had to endure and then had to travel out of her own country to have the procedure is wrong

recedite

lifeandtimes wrote: »

In this case the HSE by not providing this woman what she needed even though it is illegal, she still should have had access to it through them..

This is the crux of the matter. Is it a form of negligence when the HSE "neglects" to provide something that is illegal?

They could provide the travel info, but they would not be obliged to, and they are not a travel agency.

.......

This post has been deleted.

lifeandtimes

recedite wrote: »

This is the crux of the matter. Is it a form of negligence when the HSE "neglects" to provide something that is illegal?

They could provide the travel info, but they would not be obliged to, and they are not a travel agency.

Under peoples human rights they do have an obligation which is why the UN sided with the woman. By providing the information on where and how to at least they arent doing anything illegal.

I can tell people how to go to America and purchase a handgun, it's illegal here but not illegal there and certainly isn't illegal for me to tell them how

Look at the vera tomey who had to take her child to Spain to get her thc oil to stop her seizures happening, she has mived their permanently to help her child ,I feel a similar case may be brought before the courts soon

gctest50

recedite wrote: »

This is the crux of the matter. Is it a form of negligence when the HSE "neglects" to provide something that is illegal?

They could provide the travel info, but they would not be obliged to, and they are not a travel agency.

This sort of "neglects" i pasted in elsewhere ? :

Aisling J encountered several obstacles in accessing diagnostic tests throughout the early part of her pregnancy, and therefore discovered relatively late that the fetus she was carrying had spina bifida[81] and hydrocephalus and could not survive.

She explained the problems she had met with:

I had the first scan after a long waiting time, so had the scan at about 16 weeks.... They said everything was fine. I saw the consultant at this visit.... He was a male doctor, extremely quick and dismissive. I was aware of the diagnostic tests I could request.... The doctor was extremely discouraging when I asked for information.

He was very defensive ... why these tests?
Did I know they could lead to an abortion?
Did I know they could be wrong and so I could abort a healthy child?”



Aisling paid for the tests herself and also requested a second scan, to be conducted at twenty weeks, “I called the Ultra Sound Department and was categorically told no.... I was not referred to anyone else either.” She eventually made arrangements to have the scan done while on vacation in a European country, where she received the devastating news that the fetus would not survive. She elected to terminate the pregnancy.

https://www.hrw.org/report/2010/01/28/state-isolation/access-abortion-women-ireland

lifeandtimes

recedite wrote: »

This is the crux of the matter. Is it a form of negligence when the HSE "neglects" to provide something that is illegal?

They could provide the travel info, but they would not be obliged to, and they are not a travel agency.

Also if it was a private insurance company would it make news?

Robbo

recedite wrote: »

This is the crux of the matter. Is it a form of negligence when the HSE "neglects" to provide something that is illegal?

They could provide the travel info, but they would not be obliged to, and they are not a travel agency.

It's not a matter of negligence, it's a matter of fundamental rights. There's a whole different set of legal principles at work.

recedite

lifeandtimes wrote: »

I can tell people how to go to America and purchase a handgun, it's illegal here but not illegal there and certainly isn't illegal for me to tell them how.

True, but equally if you decide not to get involved, you won't be liable to pay compensation to them because they had to do it on their own.

recedite

lifeandtimes wrote: »

Also if it was a private insurance company would it make news?

Interesting question. I suspect the insurance company would refuse to pay out for something that was illegal in this jurisdiction. But I don't know. Can you get abortion health insurance in this country?

Mr. Incognito

A lot of people really dont get the legal framework here.

Let me spell it out.

The X case was a 12 year old traveller who was raped by her uncle. The family reported it to the Guards and told the Guards they were off to the UK for a termination.

The DPP told them to come back. They did so. The matter came before the Courts and the Girl was assessed as suicidial unless she had a termination. The Court said that she did not have a right to a termination in Ireland but had a right to travel. The Court also stressed this was confined to its facts and should not be relied upon.

As such the position remained in law that you had a RIGHT to travel, recognised by the Courts but not a right to procure a termination here. There the law remained for a long period of time until a number of women brought cases to the ECHR and won saying that their human rights had been breached by the inherent contradiction that they were free to go get an abortion but just not in Ireland. Compensation has now ensued for this breach of rights.

Ireland then had to legislate.

In the absence of any referendum they brought in a law which was consistent with the X Case. You could have a termination if you were suicidial.

Of course that's a ridiculous law. Utterly unworkable.

People seem to miss the point when they say they are being compensated for an illegal act. They are being compensated because Ireland has recognised their right to an abortion, so long as they travel for it.

We need to cop the **** on as a society and stop being held to ransom by idiots. If you dont agree with abortion, fine. Dont have one. But dont foist your belief on people to the detriment of their mental and physical health.

Abortion exists. Its not going away. We need to deal with it in a mature fashion.

recedite

Mr. Incognito wrote: »

As such the position remained in law that you had a RIGHT to travel, recognised by the Courts but not a right to procure a termination here. There the law remained for a long period of time until a number of women brought cases to the ECHR and won saying that their human rights had been breached by the inherent contradiction that they were free to go get an abortion but just not in Ireland. Compensation has now ensued for this breach of rights.

I agree up to the point where you portray the ECHR decision as a condemnation of the breach of the "right to abortion" in Ireland. In fact the abortion issue is not an EU competency and the ECHR will not rule on it. Instead they said that greater legal clarity for women in this situation was was needed. Clear legislation was then enacted by this state as the remedy.

Mr. Incognito wrote: »

People seem to miss the point when they say they are being compensated for an illegal act. They are being compensated because Ireland has recognised their right to an abortion, so long as they travel for it.

No, Ireland still maintains abortion is illegal in those circumstances. While also recognising the right of people to travel to other jurisdictions where things are done differently.

Anyway the stakes are (allegedly) rising now that the govt has let the compo genie out of its box....

Ireland is at risk of having to pay costly compensation to thousands of women forced to travel abroad to receive an abortion unless the law is immediately changed to make the procedure legal and easily accessible, the Oireachtas Eighth Amendment committee heard today.

One curious aspect to all this is that nobody is going to appeal against the compo decisions, or try to defend the taxpayer in this.
Given that FFA is a heartbreaking situation that everyone has sympathy for, it would be extremely bad PR for the pro-life campaign to get involved. Ditto for any politicians.

So we are left with this strange paradox situation of paying out compo to people for being unable to access something that we have made illegal.

hullaballoo

Compensations is only ever available where someone commits a legal wrong. That's what's happening here.

The women forced to travel are being wronged by the State and compensation therefore arises.

As for "defend the taxpayer" - it's a complete non sequitur. You have no interest/standing in relation to what the government does with exchequer funds. If the state continues to commit wrongs against individuals and those wrongs give rise to compensation, some of the exchequer funds will always have to be used to compensate the wronged individuals.

When the state stops committing wrongs against individuals, exchequer funds will no longer be directed towards compensating wronged individuals.

Mr. Incognito

I agree up to the point where you portray the ECHR decision as a condemnation of the breach of the "right to abortion" in Ireland. In fact the abortion issue is not an EU competency and the ECHR will not rule on it. Instead they said that greater legal clarity for women in this situation was was needed. Clear legislation was then enacted by this state as the remedy.

The legislation is all but unclear and unworkable.

It should never have been legislated for. It was bad case law. The judges knew it and expressed it should not be followed.

That bad case law became bad legislation. A right to travel for an abortion is a right to an abortion abroad. I understand the blinkers here but the fact remains that they state has condoned travel for abortion. You dont have a right to travel to take drugs, or to commit any other unlawful act but you do have a right to travel for a termination.

That is condoning the act or undermining Article 8.

lifeandtimes

Mr. Incognito wrote: »

The legislation is all but unclear and unworkable.

It should never have been legislated for. It was bad case law. The judges knew it and expressed it should not be followed.

That bad case law became bad legislation. A right to travel for an abortion is a right to an abortion abroad. I understand the blinkers here but the fact remains that they state has condoned travel for abortion. You dont have a right to travel to take drugs, or to commit any other unlawful act but you do have a right to travel for a termination.

That is condoning the act or undermining Article 8.

Such a messy f**k up to try and get your head around

recedite

Mr. Incognito wrote: »

The legislation is all but unclear and unworkable.

It should never have been legislated for. It was bad case law.

That's a double negative, which makes your point unclear
The legislation however is very clear, and completely in line with the x-case constitutional position. Whereas the pre-2013 legislation was at odds with the constitutional position. Hence the ECHR criticism.

Mr. Incognito wrote: »

I understand the blinkers here but the fact remains that they state has condoned travel for abortion. You don't have a right to travel to take drugs, or to commit any other unlawful act but you do have a right to travel for a termination.

There's no blinkers, except your own.
Generally people do have a right to travel, unless the travel is specifically declared unlawful. So yes, you do have a right to travel to Amsterdam to smoke cannabis there.
On the other hand, you don't have the right to take a girl abroad for the purposes of female genital mutilation, because that is specifically prohibited.
The people of Ireland, being the sovereign authority, decided in a previous referendum that traveling for an abortion would not be prohibited. But they also decided to maintain the general ban on abortion here (except in a life threatening situation).
The committees acting out of the UN and the USA which are talking about the "right to abortion" have no legal authority and no sovereignty here.

Peregrinus

recedite wrote: »

I agree up to the point where you portray the ECHR decision as a condemnation of the breach of the "right to abortion" in Ireland. In fact the abortion issue is not an EU competency and the ECHR will not rule on it. Instead they said that greater legal clarity for women in this situation was was needed. Clear legislation was then enacted by this state as the remedy . . .

Bzzt! Nothing to do with the EU, or with EU law. The European Court of Human Rights is established by the European Convention on Human Rights, also nothing to do with the EU or the EU Treaties (except that the EU has signed up to the Convention, and therefore must respect it). The Convention was adopted through the Council of Europe, which has 47 member states (of which Ireland is one, since 1949).

The Convention establishes the Court, and gives individuals who believe their rights have not been respected by a member State (of the Council of Europe), and who have not been able to enforce their rights through domestic proceedings, the right to to bring a case in the Court against the member State. The Court has power not merely to declare what the rights of the individual are but, if it finds that there has been a breach of rights and that domestic law does not afford adequate reparation for that breach, to "afford just satisfaction to the injured party" - which usually means an award of damages in favour of the injured individual against the State.

So, there's no question about the legality of the award of compensation. Ireland has signed and ratified the treaty which creates the Court and gives it a power to award compensation to individuals, and under the terms of the treaty we have agreed to abide by the judgments of the court, and to give effect to them.

This does mean that the Irish state can be ordered to pay compensation for doing something which, under Irish law, it was either legally permitted or legally required to do. But that's a feature, not a bug. Bear in mind that the Convention was drawn up in the years immediately after the Second World War, with the objective of tackling the kinds of human rights abuse that were perpetrated by the Nazi government under and in accordance with German law (at the time). The whole point of the Convention is that a State should not be able to rely on its own domestic laws as a defence for breaching human rights, or as an excuse for making proper reparation when they do.

recedite

Peregrinus wrote: »

So, there's no question about the legality of the award of compensation. Ireland has signed and ratified the treaty which creates the Court and gives it a power to award compensation to individuals, and under the terms of the treaty we have agreed to abide by the judgments of the court, and to give effect to them.

My understanding is that the Irish govt. decided to pay the €30,000, but also that the UN HR committee had "recommended" that some compensation be paid. So in this situation, who "awards" the compo? Presumably Ireland awards it, not the UN HR committee.
If Ireland, had not awarded compo, would it have been an actual breach of a binding treaty? Or just Ireland deciding to ignore an optional recommendation of the UN HR committee which is repugnant to Ireland's constitution?

Peregrinus wrote: »

This does mean that the Irish state can be ordered to pay compensation for doing something which, under Irish law, it was either legally permitted or legally required to do. But that's a feature, not a bug. Bear in mind that the Convention was drawn up in the years immediately after the Second World War, with the objective of tackling the kinds of human rights abuse that were perpetrated by the Nazi government under and in accordance with German law (at the time). The whole point of the Convention is that a State should not be able to rely on its own domestic laws as a defence for breaching human rights, or as an excuse for making proper reparation when they do.

Its a bit strange that we are now comparing ourselves to nazi Germany. But lets go with that analogy. I think the idea of the reparations in that situation is that the compensation would be payable after the fall of the regime, and the subsequent regime would not be able to dodge paying the compensation by claiming that the (now agreed) human rights abuses had been lawful at the time.

But here we have the paradoxical situation of a "guilty" regime that pays compensation while still in power. So it would be equivalent to the nazis robbing and killing jews, and then paying full compensation into the estates of the deceased.

Peregrinus

recedite wrote: »

My understanding is that the Irish govt. decided to pay the €30,000, but also that the ECHR had "recommended" that some compensation be paid. So in this situation, who "awards" the compo? Presumably Ireland awards it, not the ECHR.
If Ireland, had not awarded compo, would it have been an actual breach of the convention? Or just Ireland deciding to ignore an optional recommendation of the ECHR which is repugnant to Ireland's constitution?

Ah, OK, the Whelan case.

Still nothing to do with the EU, but also nothing to do - at least, directly - with the European Convention on Human Rights, or the European Court of Human Rights.

Whelan took her complaint to the UN Human Rights Committee, which adjudicates on complaints by individuals against states about alleged breaches of the International Covenant on Civil and Political Rights, a treaty which Ireland ratified in 1989. Similar setup to the European Convention; states agree to be bound by the Covenant, and submit themselves to the jurisdiction of the Committee to arbitrate complaints against them by individuals who have no remedy under domestic law. However, unlike the setup with the ECHR, the Committee has no power to to order remedies; it merely communicates its views about whether there has been a breach of the Convention and, if so, what ought to be done to remedy the breach. The Committee can and does recommend the payment of compensation to victims as a remedy for breaches.

States are bound by the terms of the Covenant to provide remedies to individuals whose rights have been breached. They aren't explicitly bound to do by implementing the recommendations of the Committee, but of course the only reason they are before the Committee at all is because the individual was unable to obtain remedies under domestic law or through domestic procedures. And they are bound to report back to the Commitee what they have done in response to its recommendations. There's a loss of credibility as a state which takes human rights seriously in refusing to observe the Committee's recommendations as reagards remedies, and certainly in pleading their own domestic law as a reason for refusal. The whole point of human rights is that they transcend domestic law.

Plus, for any state which is also party to the ECHR (like Ireland) there's the awareness that, if they don't compensate, the complainant's next step is to follow the ECHR process, which can result in an award of compensation and, in the circumstances, is very likely to.

recedite wrote: »

Its a bit strange that we are now comparing ourselves to nazi Germany. But lets go with that analogy. I think the idea of the reparations in that situation is that the compensation would be payable after the fall of the regime, and the subsequent regime would not be able to dodge paying the compensation by claiming that the (now agreed) human rights abuses had been lawful at the time.

But here we have the paradoxical situation of a "guilty" regime that pays compensation while still in power. So it would be equivalent to the nazis robbing and killing jews, and then paying full compensation into the estates of the deceased.

Why should it be strange that international human rights mechanisms should be designed in reaction to what happened in Nazi Germany? Surely it would be stranger if they were not designed in response to that?

And your suggestion that nobody should have a right to compensation until after the fall of the regime is an odd one. What possible reason could there be for such a rule? It gives a free ride to regimes which abuse human rights. It also presumes that the purpose of human rights enforcement mechanism is regime change, but this is wrong. The purpose of human rights enforcement mechanisms is the enforcement of human rights, and the notion that we should defer enforcing them until after a change of government in the country concerned makes no sense.

Back in 1978, the ECHR awarded damages against the UK to 14 persons who had been subjected to inhuman and degrading treatment at a secret interrogation centre in Ballykelly. Are you suggesting that that award should not be enforceable against the UK until there has been regime change in the UK analogous to that which happened in Germany in 1945? If so, why?

recedite

OK, well firstly to clarify that some confusion has crept into this discussion, and I have edited my last post accordingly. It was the UN Committee that decided human rights were being breached, and that compensation should be paid. Not the European Court of HR, whose rulings we are bound to obey, being EU members.

The ECHR only came into this discussion because somebody mentioned the X-case and subsequent legislation. The ECHR did not rule that Ireland must provide abortion, but it ruled that Ireland must clarify its laws on abortion. Which Ireland did in 2013 with the POLP legislation.
Whatever people may think about that legislation, it cleared up a legal anomaly whereby the SC decision in the X-case had made abortion legal under some limited circumstances, but the existing legislation still made it illegal under all circumstances. Once the legislation was amended and the situation clarified, the ECHR would appear to have no quibble with us. EU institutions do not get involved in abortion, preferring to leave it as a competency for individual states.

Peregrinus wrote: »

the Committee has no power to to order remedies; it merely communicates its views about whether there has been a breach of the Convention and, if so, what ought to be done to remedy the breach. The Committee can and does recommend the payment of compensation to victims as a remedy for breaches.

I agree with this. The UN HR committee has no power to make Ireland pay compensation, it can merely "communicate its views" and "put pressure" on Ireland.
It is then up to the Irish govt. to decide what they want to do.

We have seen previously regarding the issue of religious discrimination against children in school admission policies, a UN committee attempted to put similar pressure on Ireland, but they were largely ignored. And certainly no compensation has ever been paid to any child who was refused a place in their nearest school on the grounds that they were the wrong religion.

Peregrinus wrote: »

And your suggestion that nobody should have a right to compensation until after the fall of the regime is an odd one. What possible reason could there be for such a rule? It gives a free ride to regimes which abuse human rights. It also presumes that the purpose of human rights enforcement mechanism is regime change, but this is wrong.

That wasn't quite my suggestion. I was saying that the concept of having an international body like the UN ruling on human rights issues is to reprimand regimes who disregard human rights, but at the same time don't admit that they are doing anything wrong.
It does not make sense for a regime to agree with the reprimand, pay up the compensation, and then continue with the same "wrongful" behaviour (ie failing to provide the abortion services).

What the govt. have done here is to create a new legal anomaly, which in turn could lead to the ECHR getting involved again on the grounds that there is no longer any legal clarity in the specific situation of abortion for cases of fatal foetal abnormality. That is a serious mistake by the govt.

IMO the only way out of this dilemma now is to have an immediate referendum on amending the constitution to allow abortion in cases of FFA. If the people approve, the legislation can be enacted quickly. Then the women will not have to travel, and the state will not have to pay them compo for not beng able to access something that is currently illegal.

If the people do not approve, then the UN committee will have to be told that we disagree with them, and the compo payments would have to stop.

Any immediate referendum on this issue would have to be completely separate to any "repeal the 8th" referendum which may or may not happen next year, and may or may not involve other abortion scenarios.

Peregrinus wrote: »

Back in 1978, the ECHR awarded damages against the UK to 14 persons who had been subjected to inhuman and degrading treatment at a secret interrogation centre in Ballykelly. Are you suggesting that that award should not be enforceable against the UK until there has been regime change in the UK analogous to that which happened in Germany in 1945? If so, why?

Again, that was the ECHR, not the UN Committee.
After Brexit, the UK will no longer be bound by such decisions, which is all part of the "taking back control/taking back sovereignty" argument as promoted by Brexiteers.

GM228

recedite wrote: »

Not the European Court of HR, whose rulings we are bound to obey, being EU members.

<SNIP>

Again, that was the ECHR, not the UN Committee.
After Brexit, the UK will no longer be bound by such decisions, which is all part of the "taking back control/taking back sovereignty" argument as promoted by Brexiteers.

I think you are getting mixed up with the ECHR and it's relationship to the European Union, the ECHR is not an EU institution, it's an institution of the Council of Europe, being a member (or not) of the EU has nothing to do with the ECHR, the UK are not divorcing their commitments under the European Convention on Human Rights via Brexit. Also to note strictly speaking we are not bound by ECHR decisions, however they should be judicially noted.

recedite

GM228 wrote: »

.. the ECHR is not an EU institution, it's an institution of the Council of Europe, being a member (or not) of the EU has nothing to do with the ECHR, the UK are not divorcing their commitments under the European Convention on Human Rights via Brexit. Also to note strictly speaking we are not bound by ECHR decisions, however they should be judicially noted.

Correct, yes. The European Court of Justice is the one that all EU members are bound by. But in practice, the Court of Justice "weaves the Convention principles throughout its reasoning". So if a member state dodged one of the ECHR rulings, the injured party would inevitably haul the member state up before the ECJ, which would almost certainly deliver the same verdict, but in a more binding way.

Anyway the subject of this thread is a determination by a UN committee, which has less standing than either of the above.

recedite

If the govt. accepts the UN committee view that human rights are being breached and compo should be paid, then it is saying that the Irish Constitution itself is repugnant to the human rights of Irish citizens.
It's an untenable position for any Irish govt. to hold.

Peregrinus

recedite wrote: »

I agree with this. The UN HR committee has no power to make Ireland pay compensation, it can merely "communicate its views" and "put pressure" on Ireland.
It is then up to the Irish govt. to decide what they want to do.

We have seen previously regarding the issue of religious discrimination against children in school admission policies, a UN committee attempted to put similar pressure on Ireland, but they were largely ignored. And certainly no compensation has ever been paid to any child who was refused a place in their nearest school on the grounds that they were the wrong religion.

No, there’s a difference.

The second case was the UN Committee on the Rights of the Child commenting, in one of its periodic reports, on Ireland’s school patronage arrangements. ThAT Committee was sent up by the Convention on the Rights of the Child, a treaty to which Ireland is a party, and the Convention gives it the function of examining and commenting on the implementation of the Convention in the states which are party to it, through a regular series of reports.

It has no role in considering individual complaints, or in recommending remedies.

By contrast, the Human Rights Committee does have such a role, but only in relation to those states which specifically sign up to the arrangement - it’s a kind of “optional extra” under the International Covenant on Civil and Political Rights. Of 169 states which have ratified the Covenant, 116 (including Ireland) Jhave signed up to give the Committee this additional function of investigating individual complaints and recommending remedies.

And, while those states aren't bound to provide the remedies suggested by the Committee, they are bound to remedy breaches which occur. They can provide different remedies if they wish, but its rare for them not to provide the recommended remedies, except by agreement with the complainants in the case concerned.

recedite wrote: »

That wasn't quite my suggestion. I was saying that the concept of having an international body like the UN ruling on human rights issues is to reprimand regimes who disregard human rights, but at the same time don't admit that they are doing anything wrong.

No, it isn’t. It’s to investigate individual complaints of breaches of Covenant rights, make findings and recommend remedies.

recedite wrote: »

It does not make sense for a regime to agree with the reprimand, pay up the compensation, and then continue with the same "wrongful" behaviour (ie failing to provide the abortion services).

It makes even less sense for a regime both to pay no remedy and to continue with the same behaviour, and for the whole issue to be parked until there is regime change.

recedite wrote: »

What the govt. have done here is to create a new legal anomaly, which in turn could lead to the ECHR getting involved again on the grounds that there is no longer any legal clarity in the specific situation of abortion for cases of fatal foetal abnormality. That is a serious mistake by the govt.

The legal anomaly doesn’t arise from the payment of compensation, but from the mismatch between the provisions of domestic law and/or government policy on the one hand, and the international obligations which Ireland has undertaken by ratifying the Convention on Civil and Political Rights. That problem doesn’t go away if Ireland refused to provide recommended remedies to those whose Convestion rights have been breached. You may be correct to say that action is required to resolve the mismatch, but refusal to provide remedies is definitely not that action.

recedite wrote: »

Correct, yes. The European Court of Justice is the one that all EU members are bound by. But in practice, the Court of Justice "weaves the Convention principles throughout its reasoning". So if a member state dodged one of the ECHR rulings, the injured party would inevitably haul the member state up before the ECJ, which would almost certainly deliver the same verdict, but in a more binding way.

The EU is a party to the European Convention on Human Rights, and as you correctly note the EU courts do give effect to Convention rights in their decisions.

But that doesn’t mean that you can take any breach of the Convention to the ECJ. If you have a case arising under EU law, you can go to the ECJ (if you need to), and if the facts of that case happen to give rise to issues to which the Convention is relevant, then the Convention will be applied.

But you don’t have to go to the ECJ, or try and frame your complaint so that it gives rise to issues of EU law, to enforce your Convention rights. Whether or not any aspect of EU law is involved, if you feel your Convention rights have been breached and you have not been able to vindicate them in the domestic courts, then you can go straight to the ECHR.

(Except, of course, that to go to the ECHR you have to first of all exhaust your domestic remedies. So if you start off in the national courts with a case that does in fact raise an issue of EU law that the national court feels it can't resolve, and the national court sends your case off to the ECJ, you have to follow that process through to its conclusion before the ECHR will hear you.)

Brexit will not change this in the UK (although there has been a fairly widespread misconception or assumption that it will).

(In fact, direct recourse to the ECHR shouldn’t often be necessary for people with complaints in the UK, since the UK has incorporated the Convention into its domestic law, and it's directly enforceable in the UK courts. (And, again, Brexit won’t change this.) This didn’t used to be the case; at one time the UK had a terrible record of being hauled before the ECHR and losing because, unlike most other parties to the Convention, it had no domestic human rights enforcement mechanisms that citizens could invoke, which mean that the only place you could find a remedy was in the ECHR. If I recall correctly, there were more adverse findings against the UK than against all other Council of Europe states put together. This wasn’t because the UK had an appalling record of breaching human rights; it was because it had an appalling record of providing remedies for breaches when the occurred. But that all changed with the Human Rights Act in the UK.)