This post is written with patient tutoring from our resident ECHR expert Fiona de Londras, whose articles in today’s Guardian and over on IntLawGrrls are essential reading on A, B & C v. Ireland. But all errors omissions, and traces of cynicism about international law are mine.
Update: I made most of these points in Outline on this morning’s Morning Ireland ( here – from Minute 13)
The question on everyone’s lips this morning is ‘Is the decision of the European Court of Human Rights in A, B & C v. Ireland ‘binding’? Yesterday, David Quinn of the Iona Institute tweeted that the judgment was little more than a minor propaganda victory for the pro-choice lobby. In this blog post we attempt to discern whether he is right.
Does A, B & C require Ireland to provide for abortion on demand?
No. The Court has not asked Ireland to change its constitutional provision on abortion. Article 40.3.3, as interpreted by the Supreme Court in the X case, provides that an abortion is available in Ireland only if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, including a risk of self harm, which can only be avoided by a termination of the pregnancy. That was the law in Ireland before A, B and C and that is the law in Ireland after A, B and C. The majority of the Grand Chamber confirmed that this regime, as it stands, is compatible with Article 8 when expansive deference is given to the fundamental moral beliefs upon which our abortion law is claimed to be based (the powerful dissenting judgment is worth a read, but does not bind Ireland as does the majority decision. It may have persuasive effect in later ECHR jurisprudence and scholarship.). The Catholic Primate of All Ireland is quite correct, therefore, to say that the judgment does not require Ireland to legislate to introduce abortion on wider terms than are already set out in the constitution.
So what is Ireland doing wrong?
The Court was unanimous in holding that the Irish authorities were in breach of their positive obligation under Article 8 ECHR to secure to Ms C. effective respect for her private life. This was because there is in Ireland no implementing legislative or regulatory regime providing an accessible and effective procedure by which a woman like Ms. C, who was potentially entitled to an abortion under Article 40.3.3 of the Constitution, could have established that entitlement. This judgment is about the ‘striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation’. Ireland has only opened the door to abortion a chink. It is not required to open it any further, but it must make sure that women who are entitled to enter can do so.
The constitutional jurisprudence talks about the risk to the life of the mother as the hinge upon which the opportunity to avail of a legal abortion in Ireland swings, but there is no legislation or case law which tells us how that risk is to be determined. Doctors, therefore, cannot assess such risk with any certainty and medical bodies cannot issue appropriate guidelines. In addition, in the event that a doctor refuses to perform an abortion on a woman who believes that she is entitled to, there is no structure by which she might appeal. The resulting uncertainty, when coupled with doctors’ fear of disciplinary action and doctors’ and womens’ fear of potential criminal sanction, render medical consultation an inadequate route to vindication of the Article 8 rights of women such as Ms C. The government had argued that judicial proceedings constituted a workable alternative to effective and accessible procedures, but the Court firmly disagreed (as have the Irish courts) that the courts were an appropriate forum within which the task of evaluating the risk posed by pregnancy to the lives on individual mothers on a case by case basis.
So does the Court require Ireland to pass legislation regulating the availability of abortions in Ireland to women whose lives are at risk because of their pregnancy?
Not as such. The Court has found a violation of Ms C’s right to private life under Article 8. Ireland is now required to take general measures to prevent new, similar violations of Article 8 occurring in the future. Although the court noted in its judgment that legislation might be one means by which Ireland might achieve this aim, it stressed that ‘it is not for this Court to indicate the most appropriate means for the State to comply with its positive obligations’. So, the Irish Times is wrong to suggest that the judgment necessarily ‘means’ legislation or the creation of abortion tribunals and Cardinal Brady was correct when he said that the judgment ‘leaves future policy in Ireland on protecting the lives of unborn children in the hands of the Irish people and does not oblige Ireland to introduce legislation authorising abortion’.
As Fiona points out in her piece in the Guardian, the state now has two main options. First we could hold a constitutional referendum ‘to ask the people to either close off the exception [where the life of the mother is threatened] or to extend the availability of abortion’. Such a referendum would have to be accompanied by implementing legislation, lest we end up back at Square 1. The second option is to leave the constitution as is, and pass implementing legislation to fill the gap identified by the Court yesterday.
Neither option would be easy. So can we just avoid both?
The state could ignore the ruling in A, B & C, much as it has ignored the exhortations of the judiciary, public bodies and national and international NGOs on this matter for years. Yesterday’s judgment does not form part of domestic law – that much is very clear from, for example, the judgment of the Supreme Court in McD v. L (discussing Article 29.6 of the constitution and the status of international agreements at Irish law). The European Convention on Human Rights Act 2003 does not give the Convention direct effect at Irish law.
When we say that Ireland is ‘required’ to take general measures to avoid future violations of Article 8 we refer to obligations under international law. Under Article 46 § 1 of the Convention Ireland has undertaken to abide by the final judgment of the Court in any case to which it is a party. Where a state is found by the European Court of Human Rights to be in breach of one of its Convention obligations, as Ireland was yesterday, the Committee of Ministers of the Council of Europe supervises the execution of the judgment, which should take place without ‘unjustifiable delay’. Final judgments of the Court are transmitted to the Committee, which then invites the breaching state to inform it of the steps taken to prevent future breach. In practice, the Committee, in co-operation with the Directorate General of Human Rights would aim to work with Ireland to enable the state to respond appropriately to yesterday’s judgment. The Committee works as a forum for constructive dialogue, occasionally exerting political and democratic pressure, adopting public resolutions or issuing formal warnings (see further Philip Leach here). Under Protocol 14, which came into force recently, the Committee could also refer the question of Ireland’s non-compliance back to the Court, and take appropriate measures if the Court confirmed that Ireland was in persistent breach of Article 46. The Committee on Human Rights and Legal Affairs of the Parliamentary Assembly of the Council of Europe also compiles reports in support of the enforcement of judgments of the ECtHR. That said,
Ireland might still ignore yesterday’s judgment completely. In that event, the Committee of Ministers may not force it to comply. The highest possible sanction for persistent disobedience would be suspension or expulsion from the Council of Europe. Expulsion has only happened once – to Greece, during the Regime of the Colonels.
Yet even though this may not seem like a nuclear option, Ireland is less likely to take it than are some other states. We have a good track record in responding positively – if often very slowly – to decisions of the ECtHR. See for example, the state’s response to the decisions in Norris (decriminalisation of homosexuality) Johnston (‘illegitimate’ children) and Airey (civil legal aid). After all, Ireland was one of the first signatories to the Convention in 1950 – it is a longstanding feature in our legal landscape. Moreover, since the Convention is considered a bedrock of the European political order, a deliberate decision to flout one of its key provisions could severely damage Ireland’s reputation within the Council of Europe. And so, I expect that we must brace ourselves for that thing called ‘the democratic process’. The Government is inclined to legislate but has yet to receive legal advice. We wait and see.
Speaking of which, is Youth Defence right to call this judgment “intrusive, unwelcome and an attempt to violate Ireland’s pro-life laws“?
Absolutely not. The Court starts with Article 40.3.3 of the Irish Constitution, inserted into the Constitution by an amendment passed by the majority of the Irish people in a referendum, and interpreted by the Irish Supreme Court in AG v. X. It simply points out – with the concurrence of the Irish judge on the bench, Mrs. Justice Finlay-Geoghegan – that the government has failed to give effect to that Article of the constitution and links that failure to Article 8 of the European Convention. If anything, the Court is merely reinforcing via the mechanism of the Convention a position already taken by groups such as the Constitution Review Group and by the Irish judiciary (see for instance McCarthy J.’s statement in AG v. X to the effect that the failure of successive judgments to legislate for the implementation of Article 40.3.3 was ‘inexcusable’). The Court says, correctly, that it is simply pointing up the state’s duty to render ‘effective a right already accorded, after referendum, by Article 40.3.3 of the Constitution.’