Mr. Paul Brady:

I thank the Chairman and the committee for inviting me to attend. I echo the sentiments of my colleague, Dr. Mills, in commending the Chairman and the committee for the manner in which these hearings have been organised and conducted, both this month and earlier in the year.

I provided short written submissions that deal with two specific issues. As was noted, it was hard to be comprehensive in the time provided for preparation so I thought it best to focus on two issues. Before I speak on those, I wish to introduce myself briefly because I have not been before the committee up to now. I am a practising barrister and a co-author of the second edition of a book, Psychiatry and the Law. In addition to my primary degree in philosophy, I have postgraduate degrees in legal theory, or law, from University College London, Harvard Law School and the King's Inns, and am currently completing a doctorate in the philosophy of law at Oxford. My areas of interest are constitutional law, mental health law and medical legal ethics. My publications include a piece on Irish constitutional law and statutory interpretation in the light of the European Convention on Human Rights. My current area of research is the role of moral argument in judicial reasoning. It does not take much imagination, therefore, to see how abortion law might feature is such research. I am not here to argue for any particular moral or policy position on the question of abortion, however, nor, of course, am I here to give expert medical opinion. Rather, I believe the role of the lawyer in the legislative process is at least a twofold one although my colleagues may have other insights in this regard.

First, I believe professional legal opinion can assist legislators in better understanding the legal meaning and legal effects of different draft proposals. Supporters of a proposal may have a particular goal in mind but the draft may not accurately give effect to that goal. Perhaps the examination requirement is a good example of that. Second, professional legal opinion can assist legislators in better understanding the legal constraints within which they must operate. The most obvious and perhaps the overarching legal constraint is the requirement under Article 15 not to enact any law that is repugnant to the Constitution, including the Constitution as it is interpreted by the courts pursuant to Article 34. The converse of this is that legal advice should help critically to scrutinise claims that political decision making and legislative freedom are in some way restricted by certain legal requirements. To my mind, a very noticeable feature of the political debate on the draft heads of the Bill, especially on head 4, has been the extent to which its political proponents fall back on arguments of legal necessity, which emphasise the Government's lack of freedom of choice, rather than offering stand-alone or policy-based arguments to justify the drafting choices that have been made.

In sum, I believe the two functions of the legal input today are to help to clarify two issues, first, what is the legal effect of what is actually being proposed and, second, why it is being proposed. My submission speaks of these two points as they relate to head 4 of the Bill. I do not intend to summarise here those observations in detail but will be happy to take any questions members may have. I will make a few brief points, however. Many have called this Bill restrictive but that only begs the question - restrictive compared to what? Obviously, any regulated abortion law will be restrictive compared to a wholly deregulated approach. The absence of any estimates as to the level of need which head 4 is designed to address - an absence that is based in some cases on a lack of information, studies and so on - is problematic. What will be the benchmark against which the operation of this Bill will be measured in order to confirm whether it is, in fact, as restrictive as its sponsors intend?

Rather than talk of restrictive or non-restrictive, I prefer to examine what is permissible and possible under head 4 - I stress the words permissible and possible. This does not mean "probably". Probability is not the only consideration. One of the functions of legal advice with respect to the drafting of any legal instrument, be it a will, a business agreement or a Bill, is to help to anticipate and avoid possible unforeseen or undesired consequences of a particular wording. I stress that this is a professional responsibility of lawyers and legislators alike. It is not about casting aspersions on anybody, no more than, for example, various default clauses in a contract imply ill will or distrust of the person with whom one is dealing. For lawyers and legislators not to ask difficult questions about the possibly unintended legal effects of a proposed wording would be irresponsible.

With respect to head 4, and in that light, I note in my submissions a number of legal effects which I believe, on its face, the Bill contains. First, it is clear that head 4 marks a change in the law. It is not accurate to say otherwise. It creates, for the first time, a statutory basis in Irish law for what may be a direct and intentional termination of an unborn child's life. In the January hearings Dr. Rhona Mahony articulated extremely well what she stated was the current practice in this area.

She stated:

In my hospital last year we had three cases in which we had to intervene prior to foetal viability because of our concern that a woman would die. We never kill a foetus. That is not our aim. Occasionally it is required that we deliver a pregnancy before the baby is viable or capable of surviving in our neonatal intensive care unit. When there is any possibility at all that we can preserve the life of the baby we will do so.

She continues:

In other cases we are required to terminate a pregnancy as part of a treatment of a medical condition because we feel a woman will die. That is not killing the baby. That is simply delivering the baby before it is viable. There is a difference. It is always our wish to preserve life.

That is a statement of how the practice proceeds currently.

Under head 4 it will be provided for statutorily that the aim of the procedure can be to bring about the death of the unborn child and that will be desired aim of the procedure and not some other form of treatment, relocation or therapy to the mother which has that consequence. Having that as the goal of the procedure is new, and it is a question of being honest about that. It is clear that head 4 permits such procedures at any stage in pregnancy. It has been stated by many that it will never be legal for an intentional termination to take place after viability but that does not reflect what is in the draft Bill. I can say more about that point if people so wish. I also note that head 4 does not require that the procedure be offered as a treatment for a recognised medical condition in the way in which Dr. Mahony stated those current treatments take place. I believe the committee heard from psychiatrists yesterday that they do not perceive it as a treatment in that sense either.

Head 4 does not require that the abortion be an option of last or ultimate resort, and I believe the committee has also heard this from psychiatric evidence. It may be the case that a psychiatrist's job is simply to certify that it is permissible but not a question of ensuring that it is the last or ultimate option. Following from the definition of "unborn" referred to by Dr. Mills, it is important to point out that the Bill seems to provide for the possibility of a termination occurring at any stage until the baby has been completely delivered. That may be unintentional. The definition of "unborn" includes an unborn child or a child in the process of delivery. Although it may not be likely in practice, we should be careful about how we word the issue, as that may allow for a procedure to take place even upon a partially delivered child.

The requirements for certification by three doctors may seem very restrictive on the face of it but in practice there are reasons to believe the process may operate otherwise. I would be happy to take questions in that regard.