Neoliberalism, Feminist Resistance and Litigation in Ireland

This blog is adapted from my shorter response to Gerry Whyte’s keynote at the recent excellent conference on Public Interest Litigation and Access to Justice at the University of Galway. Preparing to participate in that conference, I was surprised to find that legal academics have written very little about neoliberalism and legal culture in the Republic of Ireland. (Notable exceptions include Fionn Toland, Joe Spooner and Lara MacLachlan). A theoretically-informed neoliberal framing adds some clarity to Irish feminist analyses of the limits of litigation in producing social change. I am not suggesting that neoliberalism is the only relevant lens through which we might examine these questions. In discussing Irish feminist campaigns, for instance, scholars in all disciplines (and I include myself here) usually reach for theoretical frameworks which emphasise nationalism, religious conservatism and patriarchy. However, as is well set out in critical and feminist work on neoliberalism – see for instance, the work of Lisa Duggan, Melinda Cooper or Quinn Slobodian – neoliberal ideas materialise in ways which are adapted to their local context. This means that they may be broadly compatible (albeit with some productive contradictions) with conservative anti-feminist and heteronormative arrangements of power.

Discussions of neoliberalism and the law typically begin by describing a system in which market values are dominant, so that democratic functions, including access to justice, are subordinated to financial reason. If there is any doubt about whether the cap fits the Irish state, we can look to the State Claims Agency, a section of the National Treasury Management Agency, which handles most ‘mass’ private law claims taken against state authorities. Examples of interest to feminists include cases involving thalidomide, symphysiotomy, dimensions of historical child removal and the CervicalCheck crisis. Although it claims to act “fairly, ethically and sensitively”, the State Claims Agency’s key statutory role, in dealing with such claims, is to manage them “in such manner as to ensure that the liability of the State authorities is contained at the lowest achievable level.” The Agency advocates for this position in a range of policy fora; for example, the recent Mahony report on health-related litigation.

In tandem with this emphasis on cost, legal neoliberalism encourages litigants to privatise dispute resolution, removing controversial claims from the courts. In practice, this looks like settling individual claims as often as the Agency can manage to, and encouraging mediation wherever possible. It is also common for the Irish state to establish bespoke  ‘alternative’ dispute resolution mechanisms  – such as the various redress schemes for survivors of various forms of institutional abuse – for controlled quasi-contractual settlement of mass claims within clear financial boundaries. These schemes typically require beneficiaries to sign waivers preventing them from taking further legal action against the state. Representatives of the Agency have been involved in designing these schemes, and have administered some, including the much-criticised redress scheme for survivors of child sexual abuse in primary schools. Within these privatised spaces, and in keeping with a neoliberal approach, citizens are expected to behave as individual responsible, rational market actors. I stress individual here. As recent debates over funding of civil legal aid have demonstrated, the state has a blind spot where community-centred approaches to litigation are concerned. Individual rational market actors are expected to make economically efficient choices. The economically efficient choice is to give up on the prospect of taking the state to court, and settle for a financial package which may fall far short of one’s material needs. If individuals refuse that opportunity, then they are expected to show significant resilience. For instance, although the Attorney General has committed the state (and the large law firms it instructs) to behave as a ‘model litigant’, he has also emphasised that where a litigant ‘elects’ to sue the state, the state is entitled to adopt an adversarial position as necessary, in order to defend its economic policy.  This includes taking a muscular approach to settlement; for example, by using the threat of costs to induce litigants to drop their claims. This policy has impacts beyond the individual litigant. Settlement has important depoliticising effects. It may inhibit transparent articulation of legal principle by allowing a dispute to be terminated without fully articulating the legal basis on which the litigant has persuaded the state to settle. For instance, the state has settled multiple abortion-related claims (see e.g. here, here and here) with women and their families, without once stating the legal basis for the bargain. This has an obvious chilling effect on related legal discourse.

Mirroring Alison Diduck’s analysis of family law in the UK, while the Irish state shows some awareness that this choice-based model of autonomy is unsuitable for many individuals affected by mass state harm, vulnerability is ultimately a pathologized condition. For example, as Maeve O’Rourke has shown, the Irish state often justifies its decision to funnel historical institutional abuse survivors into limited bureaucratic redress schemes on the basis that they are too vulnerable to pursue cases in the courts. However, since the redress schemes are ex gratia so that payments are made without any admission of liability, survivors’ vulnerability is effectively used to buy impunity for state agencies.

Now, there are good common sense reasons to spare people who have suffered mass injustice the many burdens of participation in litigation against the state. These involve cost, stress, sacrifices of time and privacy, and risks of re-traumatisation (on which more from James Gallen and colleagues here and Suzanne McCarthy and colleagues here). However, privatisation of justice processes may also be accompanied by authoritarianism. As Ntina Tzouvala writes, some authoritarianism is apparent in neoliberal state efforts to consolidate power in the hands of its executive and its associated bureaucracy. Delia Ferri and Charles OSullivan’s work charts how the Irish executive rapidly consolidated power under cover of austerity following the 2008 financial crisis. State litigation policy must be understood against that background. The specific Irish practice of funnelling ‘mass’ abuse claims into bespoke redress bureaucracies may not appear authoritarian in itself. However, the state has compounded that practice by attacking resistance efforts rooted in collective struggle. Recall the state redress scheme’s repeated demonisation of elderly women affected by symphysiotomy, at first for collectively resisting participation in an inadequate redress scheme, and later, for collectively organising to support women’s applications to the scheme. Witness the state’s approach to settlement with the midwife Philomena Canning, an individual litigant working on behalf of a wider birth rights movement, who had to beg the state to settle her case, bargaining with her opponents from her deathbed. These are especially confronting examples, but it is also possible to find more everyday accounts of neoliberal bureaucratic legality; for instance, in the hostile operation of redress schemes which excluded eligible individuals on the basis of arbitrary or formalistic interpretations of their established legal rights. Authoritarian tactics have obvious effects on the individual litigant, but they inevitably have wider chilling effects on collectives who might organise around an individual case or cases, as part of a social justice campaign.

What might a useful feminist litigation strategy look like, in the face of determined Irish neoliberal authoritarianism? Litigation is not, of course, a guaranteed route to radical social transformation. There is another discussion to be had on the Irish courts and neoliberal nomocracy, but it is not controversial to argue that the Irish judiciary (with some notable outliers) are committed to a thin depoliticised and depoliticising account of the rule of law, marked by a diluted account of the separation of powers, a firm suspicion of social rights, and a reluctance to be associated with any but the most cautious and incremental legal change.  As the recent, blessedly failed, referendum on carers’ constitutional position clearly demonstrated, this government is not planning to empower a more radical judicial approach by vindicating any public support for justiciable social rights. In addition, the current government is actively briefing against “legal enthusiasts” who seek to challenge state  authorities’ decisions using judicial review. Bracketing those issues for now, I want to suggest that litigation can still have clear uses in cultivating what the critical theorist of transitional justice Paul Gready might call ‘transformative dynamics’; in other words, it may contribute to transformative political empowerment, the effects of which are felt both inside and beyond the courtroom.

Often, effective Irish reform-oriented human rights litigation has required going outside the jurisdiction, to international courts and bodies. Irish feminists have written a great deal about the abortion rights movement’s engagement with the European Court of Human Rights and the UN Human Rights Committee (see e.g. here, here and here). Strategic litigation allowed movement actors to proactively develop rights-based arguments for reform, which were effectively impossible to advance within the Irish constitutional system. This is, of course, a limited success story; Irish abortion law still falls short of human rights standards in many respects.  Feminist rights-based arguments do not always succeed before international courts. And, as Louise O’Keeffe’s experience clearly demonstrates, the state may outright ignore decisions of international courts which do not suit its wider agenda.  In what remains, I want to think about some feminist litigation strategies which have been pursued within domestic law, and which have unsettled some of the neoliberal legalist strategies outlined so far.

The 221+ group was formed in the context of the CervicalCheck scandal, and the wider Irish feminist politicisation of reproductive medicine which bubbled up around the Repeal movement. Theirs is an important example, because it reminds us that, in Ireland, recent politically significant cases often begin as negligence litigation (even if, as in Louise O’Keeffe’s case, it is later reframed in human rights terms). Here, I want to highlight just four relevant aspects of the 221+ group’s collective engagement with state litigation strategy.

First, women involved in these cases have successfully politicised the state’s settlement culture. Vicky Phelan’s 2018 refusal to sign a non-disclosure agreement in the course of settlement negotiations with the HSE and Quest Laboratories, effectively publicised the key ingredients of the scandal; outsourcing of essential cancer screening services, and paternalism which undermined women’s right to access their own healthcare information. At the same time, Phelan actively publicised the state’s authoritarian settlement practice; appearing before the Public Accounts Committee herself, and inspiring the Committee’s plaintiff-focused interrogation of the State Claims Agency across 2018 and 2019.  Other women and their families have followed Phelan’s example in using settlements as opportunities to publicly criticise state policy, and to keep related justice issues in the public eye.

Second, although litigation, such as Ruth Morrissey’s ground-breaking case, has been essential in clarifying standards for accountability within the healthcare system, the 221+ group have also moved beyond the space of private law, organising to advocate for substantive legislative and policy reform  (particularly around open disclosure, as discussed by Roisin Cunningham here). Some members and allies have also taken on challenging roles as patient advocates within the healthcare system. In other words, the group have adopted a varied legal strategy, which extends their reach and impact beyond any individual dispute. Although it is commonly argued that successful litigants deprive healthcare providers of much needed resources which could otherwise be used to improve services, the activism of organisations like the 221+ group demonstrates that litigation can also galvanise much-needed change.

Third, the 221+ group have radically challenged the state’s approach to vulnerability, by unexpectedly mobilising terminal illness, death and grief as sites of difficult feminist resistance.  Undoubtedly, the state can use an individual’s terminal illness to reach a preferred ‘humane’ resolution. However, individuals  have actively refused this tactic, instead using interviews, public statements and, in Emma Mhic Mathúna’s case, her own funeral cortege to dramatise the human costs of state violence, and to ensure that the government could not easily neutralise public critique with performances of belated sympathy. Refusal to inhabit vulnerability on the state’s terms is a risky strategy. It is important to recall how aggressively the 221+ group’s activism for financial redress was criticised, not least by some healthcare leaders, who painted women affected by the CervicalCheck scandal as irrational, greedy, holding doctors to impossible standards, and (because they were ‘scaremongering’ around a cancer screening programme) a danger to other women. The 221+ group were not behaving as good neoliberal subjects ought to. Here, Emma MhicMathúna also provides an instructive example of resistance. On the day her case was settled, she appeared on the steps of the High Court in a striking red dress. The choice was defiant – perhaps at risk of being read as a celebration of financial success – but also chastening. She wore it because her young children had chosen it for her, and it was a reminder of their innocence, and their pride in the mother they were about to lose.

Finally, the 221+ group have challenged the state’s established practice of creating parallel dispute resolution mechanisms for cohorts deemed too vulnerable for litigation. The 221+ group actively campaigned for a non-adversarial dispute resolution mechanism, and were dissatisfied with the state’s eventual solution; the CervicalCheck Tribunal. Since 2023, several women have engaged with a related, confidential, ‘restoration of trust’ process (following the 221+ group’s eventual inclusion in its design). Others have availed of the ex gratia redress scheme for harms associated with non-disclosure of screening audit results. These two examples suggest that the state succeeded in privatising aspects of redress for CervicalCheck. However, during its short life, the  Tribunal itself only played a limited role in determining, or even settling, negligence claims. The majority of affected people simply did not rely on it to address their claims. The core question of liability for negligent cancer screening was never defused as the state would have wished.

No litigation strategy is perfect. In neoliberal contexts, we must be always be alive to the possibilities of co-option; even the most vigorous social movement can become compromised. What the 221+ group demonstrates, however, is that a collective, and pluralist approach to feminist legal organising can gain, or at least hold, some ground against the signature tactics of authoritarian neoliberal legalism by refusing depoliticization, privatisation and strategic vulnerabilisation.

Máiréad Enright is a Professor of Law at Loughborough University who works on issues including reproductive justice, law reform and grassroots organising, illegality in social movements, responses to historical injustice and the law on obstetric violence.