Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here

While debates over the status of the foetus are central to ethical and philosophical discussions of abortion, the freedom of women to choose to have abortions is crucial to political debates on this subject. Dr. Joan McCarthy presented a defence of this freedom, taking as her starting point “the body and the life of the woman or girl who is pregnant”, considered as a moral agent, i.e., as making ethical choices in concrete situations.[1] In assessing the choices such women face, McCarthy draws on two principles: autonomy and justice. Continue reading “Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy”

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the second of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here.

Debates about abortion can often be traced back to disagreements about the status of the foetus, e.g., whether it is a being with any independent moral significance. All parties to this disagreement share two assumptions: that ethical debates over abortion are primarily a matter of the moral importance of the foetus, and that the nature of the foetus is what determines its moral status. Hence many opponents of abortion will appeal to the fact that the foetus is a human being, e.g. it has a soul or has the potential to become a rational being; many proponents of liberal abortion laws will counter that the foetus, at least early in its development, lacks certain capacities which are crucial to having moral status.[1] The arguments here are often complex and involve subtle points of metaphysics which are not easy to resolve. More generally, regardless of what one thinks about these issues, it might seem that such esoteric matters are not appropriate as a basis for legislation.

In her submission to the Citizen’s Assembly, Prof. Bobbie Farsides outlines an alternative approach: a way of justifying a pro-choice regime which seeks to avoid disputes about the nature or moral status of the foetus.[2] Continue reading “Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides”

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

imagesThe length of time that asylum seekers reside within direct provision accommodation, continues to cause significant concern, as it has done so for almost seventeen years.  The practical impact of the implementation of the limited recommendations contained within the  McMahon Report still remains to be fully seen. The Minister for Justice and Equality has stated that 80% of all recommendations made by the McMahon Report are implemented or are being implemented. However, this claim has not to date been backed up with comprehensive assessment from the Department of Justice.  The commencement of the International Protection Act 2015 on 31 December 2016, will hopefully ensure that persons in the protection system receive a fair, procedurally proper and clear decisions on whether they qualify for protection in a timely manner. However, as noted by David Costello, Chief International Protection Officer at a seminar last week, there are 4,000 cases to hand in the International Protection Office (IPO) due to the commencement of the International Protection Act. [With thanks to Fiona Finn, CEO of NASC for making me aware of this]. Oldest cases will be decided first. Those already with a negative determination of refugee status by the now abolished Office of the Refugee Applications Commissioner under the old law, will return to the IPO for determination of their subsidiary protection claim. If subsidiary protection is rejected by the IPO decision maker, then both refugee and subsidiary protection appeals will be considered by the International Protection Appeals Tribunal. Whether this impacts slightly or majorly on timely and fair delivery of protection decisions remains to be seen. A case decided last week may have significant impacts on the right to a timely decision on a protection claim. Continue reading “Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times”

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

A boon for parliament? An initial response to the decision in Kerins v McGuinness

We are pleased to welcome this post by Dr. Tom Hickey, School of Law and Government, Dublin City University.

Sometimes constitutional law has an ironic effect and one that perhaps goes against the intuitions of lawyers, and of people generally. It prevents one arm of government from doing justice in order to allow another arm of government to do its job well. In today’s High Court judgment in Kerins v McGuinness, we see something like that at play, although it is probably better to say that in this instance constitutional law prevented one institution (the courts) from considering whether to offer a remedy for alleged injustices done unto Angela Kerins in order to allow another institution (parliament) to freely carry out its functions.

Continue reading “A boon for parliament? An initial response to the decision in Kerins v McGuinness”

A boon for parliament? An initial response to the decision in Kerins v McGuinness

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the first of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

Regardless of what one thinks about the need for a Citizen’s Assembly, its deliberations have already thrown up a number of interesting approaches to thinking about ethical issues, particularly concerning abortion. What follows is a series of articles on the presentations by ethicists to the assembly, examining the arguments that they offer and their potential implications for a possible referendum to repeal the 8th Amendment.

Dr. Helen Watt presented an argument against abortion which was of interest, particularly in the context of Irish debates about abortion, in not relying (at least not explicitly) on religious doctrine. Indeed, Watt’s arguments rest on certain assumptions which are difficult or impossible to reconcile with the beliefs of many religions, for instance the belief in an immortal soul. But as with more familiar religiously-motivated discussions, Watt’s argument appeals to the nature of the foetus to justify its having a certain moral status. By the ‘nature’ of the foetus I mean not just its physical or biological features but those features which might be thought to give it moral significance in and of itself, regardless of what anyone thinks about it. This kind of moral significance is what is usually meant when ethicists speak of the ‘moral status’ of the foetus. Continue reading “Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt”

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

This post is authored by Dr Darren O’Donovan, Senior Lecturer in International Law, Administrative Law and Human Rights, in  LaTrobe Law School, Melbourne. 

A lot of Irish media discussion in the preclearance debate has begun to feature rhetoric such as Ireland can’t “let the United States operate preclearance given the new executive order”, or that “Ireland should make a statement and close preclearance”. Opponents (they would call themselves realists) would argue that as a small country with a small economy this is far too dramatic a foreign policy step. To debate the legality of preclearance fully however, we need to emphasise that United States obliged, under international law, to operate its preclearance in line with the bilateral agreement between Ireland and the United States signed in 2008.

In this post I want to therefore frame questions for the United States government, and for use by United State citizens. The big one is of course simply: Is the United States in breach of its international legal agreements with Ireland by applying the executive order in Irish airports? The key provision of the 2008 Agreement Article II (1) which states that:

“Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland and, where applicable, the United States.”

As we have discussed in an earlier blogpost there are a range of potential, to be explored, arguments as to why the application of the executive order within Ireland’s jurisdiction may be unlawful under Irish law. What is significant however, is that we in Ireland cannot simply say that US law is a matter for US authorities. US law in fact sets the scope of their international legal obligations towards us, and it may even require us to give redress to some individuals (see question 4 below). We need to fold the United States’ bilateral obligations into the debates about preclearance.

Questions for the US Embassy/State Department:

  • As under the Article II of the 2008 Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under Irish law, what steps have you taken to ensure that the application of the executive order does not exceed the terms of the 2008 Agreement?
  • As under Article II of the Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under United States law, can you confirms what steps you have taken to confirm that the provisions of the executive order are compliant with United States law?
  • In the event you determine the executive order is not compliant with Irish law, are you willing to commit to not applying the executive order in preclearance areas at Dublin and Shannon Airport?
  • Given the close and abiding bilateral ties between the United States and Ireland, is it appropriate for the executive order to be applied in Irish airports while it is currently before the United States courts? We refer you in particular to Article IV(2) which appears to require Ireland to provide a system of redress in event of the “unlawful exercise of powers associated with the administration of preclearance“. This Article is not limited in its express terms to the unlawful administration of Irish law . Can you provide your view of the extent to which the Government of Ireland may be liable to provide redress for the actions of US government officials under this Article?

Ireland: The Supporters of the Preclearance System

What this post attempts to show is that being a supporter of preclearance means actually enforcing the agreement we made in 2008, and exploring potential United States’ breaches of it. It is difficult to imagine Irish parliamentarians not supporting the principle that preclearance only extends to the scope of the 2008 Agreement. Any Irish legislation which implements this principle does not ground any United States entitlement to immediately modify or withdraw from the 2008 Agreement. It would enjoy only its usual right to withdraw after one year. It should, however, be noted that in the event the United States is in material breach of the treaty, Ireland enjoys the right to suspend or withdraw from the 2008 Agreement after a brief period of consultation (as per Article 60 of the Vienna Convention on the Law of Treaties).

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

The Right to Legal Advice in the Garda Station: DPP v Doyle

The Supreme Court yesterday ruled (6 agreeing, though for different reasons, and 1 dissenting) that the constitutional right to reasonable access to a lawyer does not extend to a right to have a solicitor present during Garda interviews. In May 2014 the DPP had instructed gardaí to permit solicitors to attend interviews where requested, stemming from the fact that Irish and European jurisprudence and regulation was moving in that direction. There had not, at that point, been a ruling that there was such a right under the Irish Constitution, and Ireland has not opted into the EU Directive on Right of Access to a Lawyer in Criminal Proceedings. However, it had been strongly indicated in obiter statements in the case of DPP v Gormley and White that this was possible. The decision in Doyle indicates that Irish constitutional law has not reached that point, not yet at least. Continue reading “The Right to Legal Advice in the Garda Station: DPP v Doyle”

The Right to Legal Advice in the Garda Station: DPP v Doyle

Amanda Jane Mellet v. Ireland – The Key Points

As readers will know by now, the UN Human Rights Committee today held that Ireland’s abortion law violated Amanda Mellet’s human rights under the ICCPR. The foetus she was carrying was diagnosed with a fatal foetal abnormality. Irish law criminalises abortion except as a last resort to save the pregnant woman’s life, and  thus compelled her to travel to Liverpool for an abortion. This is the first time that any international court or human rights body has found that the criminalisation of abortion is in itself a violation of women’s human rights. The Committee held that the Irish law:

  • Violated her right to freedom from inhuman and degrading treatment because it exacerbated the anguish associated with a pregnancy affected by fatal foetal abnormality. By compelling her to travel, the law deprived her of material and emotional support and appropriate care during and after her abortion. Criminalisation, in particular, compounded the shame and stigma associated with abortion in Ireland. The chilling effects of the Abortion Information Act, which meant that she could not obtain adequate information about terminating the pregnancy abroad,  were a source of further distress during the decision-making process. The process of travel also disrupted her recovery and worsened the grieving process: the Committee focused on her experience of receiving the foetus’ remains by courier, after she had returned to Ireland. The Committee here is providing us with resources to upset that prevailing public discourse which suggests that a pregnancy affected by fatal foetal abnormality is a tragedy; a trial which good mothers must bear with serene nobility. Committee Member Sarah Cleveland described this as “a stereotypical idea that a pregnant woman should let nature run its course, regardless of the suffering involved for her.” The Committee says that, even though the state did not directly inflict harm on Amanda Mellet, its neglect and abandonment of women in this situation  – who are left “isolated and defenceless” – moves situations like hers out of the realm of guiltless tragedy, and into that of state responsibility.
  • Violated her rights to privacy and bodily integrity. The Committee held that the Irish abortion law amounted to an unjustifiable interference with Amanda Mellet’s decision-making around her pregnancy. The State had argued, following the Irish constitutional test, that the interference was proportionate to its aim of balancing the rights of the pregnant woman against those of the foetus. The legality of the interference under domestic law is not important in this context. In addition, the Committee notes that because the law violates the right to be free from inhuman and degrading treatment, the restrictions it places on the right to privacy and bodily integrity could not be considered compatible with international law. Irish law, in its zeal to protect the foetus, has gone too far. In particular, the Committee emphasises that the treatment of Amanda Mellet under law was especially unreasonable because her pregnancy was not viable. Sarah Cleveland wrote: “Requiring the author to carry a fatally impaired pregnancy to term only underscores the extent to which the State party has prioritized (whether intentionally or unintentionally) the reproductive role of women as mothers, and exposes its claimed justification in this context as a reductio ad absurdum.”
  • Violated her right to freedom from discrimination. Amanda Mellet pointed out that women who choose to continue their pregnancies after a diagnosis of fatal foetal abnormality, and deliver a stillborn baby in Ireland receive state-funded care, while those who choose to travel for termination must bear the expense of doing so by themselves. Similarly-situated women are treated differently, with real financial and medical consequences. The Committee accepted that this difference in treatment amounted to discrimination in two ways.
    • First, the law discriminates against women as women. The State had made the facile argument that gender discrimination is confined to circumstances where men and women are similarly situated but men are better treated: by definition, they maintained, it cannot occur in respect of pregnancy because only women can become pregnant. Sarah Cleveland emphasises that the criminalisation of abortion is gender discrimination, because it affects a health service that only women need, and places no equivalent burden on men. In addition, the Committee reminds the state that gender stereotyping of women is in itself a form of gender discrimination.  In this respect, an interesting point from a feminist perspective is the Committee’s observation that the difference in treatment between those women who carry to term, and those who terminate the pregnancy is rooted in stereotypes of women as ‘reproductive instruments’. This point has been canvassed in Irish feminist scholarship for decades. Yad Ben Achour elaborated: “The prohibition of abortion in Ireland, owing to its binding effect, which is indirectly punitive and stigmatizing, targets women because they are women and puts them in a specific situation of vulnerability, which is discriminatory in relation to men. Under this legislation, the author has in effect been the victim of the sexist stereotype, whereby women’s pregnancy must, except where the life of the mother is at risk, continue, irrespective of the circumstances, as they are limited exclusively to their reproductive role as mothers. Reducing the author to a reproductive instrument constitutes discrimination and infringes her rights both to self-determination and to gender equality.”
    • Second the law failed to take into account the socio-economic effects of this differential treatment; in particular the costs of travel and seeking treatment abroad. Several Committee members maintained that the discrimination was not only between women who carried their pregnancies to term and those who travelled, but between those who could more easily afford to travel abroad for abortions and those who like Amanda Mellet, struggled to pay for the travel and the procedure. Sarah Cleveland noted that Article 26 ICCPR “prohibits the unequal access to reproductive health care for low-income and vulnerable populations that results from Ireland’s legal restrictions on reproductive health services.”
  • Violated her right to seek and receive information. Three Committee members held that the Abortion Information Act encourages medical personnel to withhold clear and timely information that women like Amanda Mellet could use to make decisions about their pregnancy and health, and that this in itself is a violation of rights under the ICCPR.

The Committee’s emphasis  on the woman’s entitlement to expect a certain level of compassion, care and attention from the state is very welcome. Amanda Mellet, Termination for Medical Reasons Ireland, their legal advisors and the Center for Reproductive Rights must be commended for their work in bringing this case to the Committee.The government is required to respond to the Committee’s decision within 180 days, outlining the concrete steps which it will take to remedy the identified human rights abuses, and to prevent future similar harm to other women. The ruling will contribute significantly to the existing moral pressure on the government to hold a referendum on the Eighth Amendment (see further discussion by Fiona de Londras here). The Health Minister, Simon Harris, has indicated that he wants to see law reform in this area. However, the government of which he is a member has continued to drag its heels on the issue of abortion law reform.

This post is by Mairead Enright of Kent Law School – m.enright@kent.ac.uk

Amanda Jane Mellet v. Ireland – The Key Points

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.

The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:

The State party asserts that article 40.3.3 of the Constitution represents the profound moral choices of the Irish people. Yet, at the same time, the Irish people have acknowledged the entitlement of citizens to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy. The legislative framework guarantees the citizens’ entitlement to information in relation to abortion services provided abroad. Thus, the constitutional and legislative framework reflects the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the foetus should be protected and balanced against the rights of the woman.

Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here—and the Committee made this quite clear—is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.

Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.

This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.

In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.

Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.

It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this—the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.

But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.

This post is by Professor Fiona de Londras, University of Birmingham School of Law. She can be contacted by email at f.delondras[at]bham.ac.uk 

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

Minority Government, Human Rights, and the Opportunity for Constitutional Dialogue

Dail eireann

Dr Alan Greene

The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to be enacted. Similarly, it can no longer expect to be able to veto opposition legislation or opposition tabled amendments to Government bills. This has a potential to reinvigorate the Oireachtas, enhancing constitutional dialogue, not just between the legislature and the executive, but also between the legislature and the courts in instances where there may be doubts as to the constitutionality of a proposed bill.

 

Constitutional Debate and the Oireachtas

To date, the Oireachtas has essentially treated the Irish courts as having a monopoly on constitutional interpretation. Certainly, there is an arguable case to be made that this is a result of the strong form judicial review seen in the Irish constitutional structure which potentially stymies political debate. The Oireachtas has relied heavily on the expert legal opinion of the Attorney General with in the questionable constitutionality of a bill often used as a reason for the Government to vote it down at an early stage. Despite the clear importance that this evidence has in the overall outcome of the debate, the opinion of the Attorney General is never published.

 

A textbook example of this can be seen in the manner in which the last government voted down Clare Daly’s Bill to allow for the termination of a pregnancy in the case of a fatal foetal abnormality. During the Dáil debate on the Protection of Life during Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, Taoiseach Enda Kenny argued that the bill was quite clearly unconstitutional. Moreover, he refused to publish the advice of the Attorney General on the matter as, ‘It has been a long-standing situation in this country, where the advice given by the Attorney General of the day has never been published.

 

Constitutional Dialogue

In light of this, judicial supremacy as seen in Ireland has been criticised by political constitutionalists who argue that it takes decisions about human rights away from the legislature. Human rights, according to this conception, are ‘the statement of a political conflict masking as the resolution of it’.[1] Instead, human rights should beconceptualised as political contestations that people invariably agree over. The resolution of such disputes should, as a result, be done by the representatives of the people in the democratic branches of government.

 

Even notable bastions of political constitutionalism have, however, come around to the idea of some degree of judicial protection of human rights. The UK’s Human Rights Act 1998 (HRA) is seen as conceptualising a ‘third way’ between judicial supremacy on the one hand and parliamentary supremacy on the other.[2] Moving away from this adversarial conceptualisation of the legislature and judiciary, instead, it seeks to foster a dialogue on rights between courts and the British Parliament with the final say resting with Parliament. It does this through requiring courts to interpret legislation compatibility with the European Convention on Human Rights (ECHR) so far as it is possible to do so, and also gives courts the discretionary power issue a declaration of incompatibility when it believes it cannot reconcile the statutory provision in question with the ECHR. The resolution of this incompatibility therefore resides with Parliament. Dialogue is also created through the work of the Joint Committee on Human Rights (JCHR) and the requirement under s19 of the HRA for government ministers to issue a declaratory statement before Parliament that a bill is compatible with the Convention.

 

Such attempts at constitutional dialogue are not alien to Ireland. Ireland’s equivalent to the HRA – the European Convention on Human Rights Act 2003 – mirrors closely the interpretive obligation and the declaration of incompatibility provisions of the HRA, thus leaving the resolution of such incompatible provisions in the hands of the Oireachtas.

 

Indeed, a referral of a bill to the Supreme Court for a pre-emptive test as to its constitutionality under Article 26 of the Constitution is also a possibility for dialogue to take place between the legislature and the judiciary in Ireland as to the scope of constitutional rights. This potential for dialogue has, however, been significantly weakened by the Second Amendment of the Constitution Act 1941 which amended Article 34 to prevent bills deemed constitutional under an Article 26 reference from ever having their constitutionality challenged again. As a result, consecutive presidents – themselves constituent parts of the legislature – have been reluctant to make use of this power. This is particularly so in light of the fact that Article 26 cases are based on hypothetical legal argument, thus lacking the force or urgency of concrete facts to illuminate the actual impact of the legislation in question. The Second Amendment of the Constitution Act 1941 was not enacted by referendum but was instead done through a simple legislative procedure in accordance with the transitory provisions of the Constitution.

 

Moreover, judicial supremacy is not inimical to dialogue on rights. With regards to ordinary challenges to the constitutionality of legislation, while the courts under the Constitution have the final say in an individual case as to the scope of constitutional rights; this does not mean that the courts should or do have the only say along the way. Procedural aspects to constitutional challenges – the presumption of constitutionality, reaching constitutional issues last, and the double construction rule– are all mechanisms by which courts show respect to the Oireachtas’ democratic mandate. In addition, saying that once a judgment of the Supreme Court is issued does the debate stop is problematic. A statement as to the content of a constitutional, convention or other rights provision is rarely, if ever, the final statement as to the condition of law for all time. Human rights do not work like that; law does not work like that. The constitution is a living and breathing document and constitutional dialogue is important for it to evolve.

 

Judicial Supremacy or Executive Supremacy?

Constitutional dialogue, however, has been stymied in Ireland but this is not the fault of judicial supremacy; rather, this argument overlooks the exceptionally strong hold the executive branch in Ireland has had over the legislature. Strong governments have instead used legal opinion as a justification to avoid contentious issues, halting legislation at an early stage before the Oireachtas has gotten a chance to scrutinise the legislation in earnest.

 

Returning to the earlier example of Claire Daly’s private members bill on fatal foetal abnormalities, the constitutionality of this bill was not as clear cut as the Taoiseach suggested. There is, at present, ambiguity in Article 40.3.3° of the Constitution as to whether ‘unborn’ extends to foetuses that have no chance of surviving outside the womb. This very point was raised by the Irish Government before the European Court of Human Rights in D v Ireland. In that case the applicant was pregnant with twins and was informed by her doctor that one foetus has stopped developing after 8 weeks’ gestation and that the other foetus tested positive for Edward’s Syndrome, the median age of survival of which is 6 days. The applicant, ‘unable to tolerate the physical and mental toll of a further five months of pregnancy with one foetus dead and with the other dying’ travelled to the UK for an abortion. She did not consider any legal proceedings in Ireland as her various doctors indicated to her that they ‘appreciated that she was not eligible for an abortion in Ireland’ when she informed them of her decision to terminate the pregnancy.

 

D’s case under Article 3,[3] 8,[4] 10[5], and 14[6] was, however, dismissed as inadmissible by the Fourth Section of the Court on the grounds that she had not exhausted all domestic remedies. The Court upheld the Irish Government’s submission that:

 

It was an open question as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland in the applicant’s circumstances…[A]lthough it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb.[7]

 

Minority Government and Constitutional Dialogue

In actuality, it is not judicial activism or judicial innovation in Ireland that is stymieing debates on rights and constitutionality in Ireland; rather, it is an overly strong executive that has a stranglehold on both houses of the Oireachtas. Legal advice is used as a convenient excuse to kick apparently contentious issues such as reproductive rights to touch.

 

Indeed, inaction can sometimes be louder than action. The UK Government’s failure to enfranchise prisoners despite a declaration of incompatibility under the HRA and a finding of a breach of the Convention from the Grand Chamber of the ECtHR is a concrete example of this. Similarly, the failure for over 20 years of successive Irish governments to legislate for the X-Case could be interpreted as these governments disagreeing with the Supreme Court’s judgment that abortions are lawful in Ireland where there is a real and substantial risk to the life of the mother arising from suicide. Two separate attempts to over-turn this judgment (the proposed 12th and 25th amendments respectively) via a constitutional amendment would also corroborate this; however, it also reveals the importance of an additional voice to the dialogue on rights in Ireland: the direct voice of the people through a referendum.

 

A reinvigorated Dáil therefore has an opportunity to break free from the domination of the executive branch and increase its scrutiny of legislation. No longer can an opinion of the Attorney General act as a de facto legislative veto. Indeed, it may be the case that such evidence may have to be published where it is suitable in order for the Oireachtas to scrutinise its substantive content. Merely claiming that the Attorney General advises that a proposed bill is unconstitutional may convince those subject to the minority government’s whip; however, the opposition benches may require a stronger justification than an appeal to authority. In this way, the Oireachtas can contribute more forcefully to the debate regarding the scope of constitutional rights protection in Ireland.

 

Ultimately, if the Oireachtas disagrees with a judgment of the Courts, it can submit a constitutional amendment to the people for ratification. This process can act as a safety valve, relieving political pressure that may build up in the face of a particularly contentious decision of the Supreme Court. In this way, the temptation to pack the court with ideological counterparts that may be seen in the United States is avoided as there are simpler, quicker, and more reliable ways to over-turn such a judgment.

 

Conclusions

The value of political constitutionalism or republican conceptualisations of human rights lies in processes. It requires legislative processes to be fora for disagreement rather than a mere rubber-stamp government decision-making. The prospect of a minority government is perhaps the best opportunity Ireland has had for such a culture of justification to embed itself in parliamentary processes. Time will tell whether this newly invigorated Dáil with grasp this opportunity.

 

Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. He tweets @DrAlanGreene.

Image credit: https://flic.kr/p/eRVtiA

 

[1] JAG Griffith, ‘The Political Constitution’ (1979)42(1) Modern Law Review 1,14.

[2] Francesca Klug, ‘The Human Rights Act – a “third way” or “third wave” Bill of Rights’ [2001] EHRLR 361.

[3] Prohibition on torture or inhuman and degrading treatment

[4] Right to respect for privacy and family life

[5] Freedom of expression

[6] Prohibition on discrimination

[7] D v Ireland, para 69.

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