Giving legistative effect to the Supreme Court decision in the X Case

The Bill before the House is a genuine attempt to give legislative effect to the Supreme Court decision in the X case. Deputy Daly’s interest and commitment on this issue is clear, and it is a commitment that is shared by many in this House and outside. It is a pity to have to acknowledge that this whole debate essentially has been forced upon us by a judgment of the European Court of Human Rights in the A, B and C case. In any event, we are now having the debate, at last, and we are progressing towards a resolution.

As I said last week during the Private Members’ debate on the Sinn Féin motion, the expert group and indeed the programme for Government referred to how, not whether, the European Court of Human Rights judgment should be implemented. Of course, implementing that judgment, as we must, means implementing in turn the X case decision. It is vital to recognise that, as the expert group points out and Deputy McDonald correctly said, there is in existence already a constitutional right arising from Article 40.3.3°, as interpreted by the Supreme Court in the X case. The expert group is correct in observing that “implementing the judgment could not be considered to involve significant detriment to the Irish public, since it would amount to rendering effective a right already accorded, after referendum, by Article 40.3.3° of the Constitution.”

The case against addressing the X case appears to me to be reducible to one argument, namely, that the Supreme Court was wrong in its interpretation of Article 40.3.3°. This perhaps was what motivated people in 1992, and again in 2002, in the attempt essentially to reverse the X case. The people declined to do so on two occasions. Almost 30 years ago the people passed an amendment to their Constitution. Much of what transpired later was in fact foreshadowed by the wording of that amendment, given that it stated: “The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

This is not a debate for “I told you so” arguments. However, the case was made in 1983, as I remember well, that the very wording being proposed would lead to the outcome that in fact transpired. In any event, that debate occurred in 1983 and the decision was made by the people to put that clause into the Constitution. We respect and accept fully the will of the people as set out in their Constitution.

The Supreme Court was then called upon in 1992 to interpret the true meaning of the clause that was put by the people into the Constitution. That interpretation by the Supreme Court in the X case in 1992 stands, and it is the law of this State on this question.

We have a Supreme Court which the people, in my experience, hold in very high regard. It is a court, like all courts in our system, that is wholly independent of the Government. It gave its judgment in 1992 and we cannot proceed, in a democratic state, on the basis that the court was wrong, or that “we do not like its decision so let us ignore it”, as some would urge us to do. We cannot cherry-pick decisions of the Supreme Court in this way.

That court did its duty under our Constitution. In contrast, the Oireachtas has failed to do its duty. While it was suggested by some in the Fianna Fáil Party that legislation was brought forward, no legislation was brought forward to seek to implement the X case, apart from the two proposals brought into the Houses to amend the Constitution and reverse the X case, which were defeated by the people. This has been a lamentable failure on the part of the Oireachtas and of the six Governments that have held office since 1992.

In the A, B and C case, the successful applicant, C, had to go to the European Court of Human Rights to enforce the implementation in this country of this country’s own laws - that is the truth of it. We have had that judgment for a considerable period and it is time to act on it. There is no question as to the binding effect of the judgment on Ireland, and the expert group sets this out very clearly in the course of the report. There is clearly a legal obligation on us, if for no other reason than that we still have the 1861 Act, with its serious criminal sanctions. It was the absence of clarity that led C to bring her case to the European Court of Human Rights. It seems beyond argument that an Irish citizen, an Irish woman, should be entitled as an absolute minimum to know where she stands as to what is lawful and what is not and, in regard to what is lawful, that there should be access to such treatment in her own country.

Many of us, perhaps not a majority but very many people, believe as I do that our laws are unduly restrictive on women and that the Constitution should be revisited on this issue at some stage in the future. I note and share the view expressed last night by the Minister for Justice and Equality, Deputy Alan Shatter, that foetal abnormalities such that the baby simply cannot survive ought, in all humanity, be grounds for the availability of a termination. As Deputy McDonald rightly said, however, that is not an issue that is before us in this debate. Any change to the Constitution on this difficult question would be in the hands of the people. That was the intention of the amendment in 1983 and that is its effect. However, it is critical to bear in mind that implementing the X case, as we are now required to do, does not have the effect of changing our law in any respect - I emphasise that. If and when we implement this and bring forward legislation, it will do no more than confirm and codify in our law arguably the most restrictive laws in the developed world on the termination of pregnancy.

As to how we should proceed now, we are greatly assisted by the expert group report. Each of the various options is carefully considered there, and the implications, merits and demerits have been explored and explained. There is a legitimate question as to the appropriate detail or scope of the legislation or other measures that will be put in place. Most people agree there must always remain a high level of professional discretion on the part of medical staff, and there is no legislation or set of rules that will ever be able to contemplate every given scenario. Doctors need to know, in the exercise of their discretion within the law, that they have the protection of the law. This is what we need to provide:  the protection of the law for the exercise within the law of a doctor’s professional judgment in collaboration, of course, with the woman involved, who should always be at the centre of this discussion and debate.

The report is very clear on the question of guidelines. We had the beginnings of this debate last week in regard to guidelines versus legislation and I hope we will have a full debate in the course of the coming weeks. The report is absolutely clear in essentially disposing of the suggestion that we can deal with this simply by way of guidelines. It makes the point at pages 44 and 45 that a guidance document would be required in any scheme that would be brought forward, and it goes on to state:

“an argument can be made that guidelines in isolation do not fulfil all the requirements set by the European Court of Human Rights judgment for a number of reasons. Guidelines are, by their nature, non binding and do not have force of law [I emphasise this point]. The Courts, both domestic and international, have made it clear that in a democracy, measures which affect rights must have a secure legal basis.”

We give those measures a secure legal basis in this Chamber. This is the Parliament of the people and this is where we should make these decisions. I have no doubt this is what will occur.

It does not seem at all conceivable to me that we could achieve legal clarity through such guidelines. We will need legislation. I agree strongly with the Minister, Deputy Shatter, when he said in the House last night: “I believe it is absolutely clear that the only appropriate action to take is to repeal and replace the 1861 Act, using modern language which does not criminalise the termination of a pregnancy where its continuation poses a real and substantial risk to the life of the mother.” That is the course on which we should set ourselves, and that is the clear view I have as to how we should go.

It is a debate we ought to have in these Houses and let us have that debate on a foundation of respect. If it is about flushing out the Labour Party, flushing out people who are alleged not to care about the issue or flushing out people in some way to gain some political advantage we will not achieve the outcome we want. I hear it already over there. We can actually work this issue through in this Parliament in a mature way if we listen to one another, and if we do not always assume bad faith of the opposite side of the argument. The default position is constantly that the people on the other side are delaying, dragging feet and so on.

There is no one in this House who does not have an absolute commitment and sense of purpose for this issue to be resolved in the interests of the Irish people and in particular in the interests of Irish women. That is what we are all dedicated to do. Let us listen to one another for once on an issue that does not have to divide the House. I commend Deputy Clare Daly on her introduction of the Bill and on the work she has done, but I join with others in asking her and all of the parties, in the spirit of trying to resolve the issue, to put aside the attacks and allegations and spend time debating the issue.

Let us assume that Second Stage of the Bill were to be passed tonight. Deputy McDonald made the rhetorical point that we must do it now because we need to address the issue quickly. However, the passing of Second Stage does not equate to the enactment of the Bill. The Bill would in any event require close consideration and scrutiny and a lot more work. I do not believe Deputy Daly’s Bill is in a form that would allow it to be amended to reach the outcome that we want to achieve. We will need a new Bill. Much of the work she has done will be helpful. I appeal to people of all parties and none to now join in the debate about the best way forward.