Dr. Alan D. P. Brady:

On behalf of the Irish Council for Civil Liberties, I thank the joint committee for the opportunity to address it today. The Irish Council for Civil Liberties is Ireland's independent human rights watchdog. We have been monitoring, educating and campaigning for the protection of human rights in Ireland for 35 years.

I am a member of the executive of the Irish Council for Civil Liberties Association and hold that role in a voluntary capacity. In my professional life I am both a practising barrister and an adjunct lecturer in law at Trinity College, Dublin, where my research focus is on constitutional rights and human rights. I am accompanied today by my colleague from the ICCL, Mr. Stephen O'Hare.

I wish to address two core points that are outlined in the submission from the ICCL to the committee. The first concerns matters that are settled law, matters that are really beyond dispute with regard to constitutional rights and rights under the European Convention on Human Rights. The second matter I would like to address before the committee today is the opportunity that this legislative process presents for this committee and for the Oireachtas to improve Ireland's human rights position actively, particularly with regard to lethal foetal abnormality.

As regards the first point on matters that are settled law under the Constitution, it is important to state that abortion is legal in Ireland. It is legal under the limited test within the X case, but it is legal. This committee and the Oireachtas are not engaged in an analysis of whether abortion should be legalised. That has already happened. It happened in the X case and arguably it happened at the point at which the eighth amendment to the Constitution was introduced. Certainly, the very well publicised advice of the Attorney General at the time made it clear that the constitutional settlement countenanced the possibility of abortion in circumstances where there was a threat to the life of the mother. That legalisation of abortion is limited to the test set out by the Supreme Court in the X case. It is where there is a real and substantial risk to the life of the mother and where that risk can only be avoided by termination of pregnancy. Within that test, however, a woman whose life is at risk - a woman who meets that test - has a constitutional right to have an abortion in this jurisdiction. That is settled law. It is not a matter that is up for discussion. In relation to that test, and something that has been controversial in relation to that test, the Supreme Court was also extremely clear that that threat to life included a risk of suicide. The Irish people have had two opportunities to remove that. They have chosen not to do so on both occasions. That is settled law. The constitutional position is very clear.

With regard to the European Convention on Human Rights, the upshot of the A, B and C v.Ireland decision is that Ireland has been found to be in violation of Article 8 of the European Convention by the European Court of Human Rights because there is a gulf between that theoretical constitutional right and its practical implementation. The fact that there is no effective, accessible procedure in Ireland has been found to be a violation of article 8. Therefore that is the clear position concerning the European Convention on Human Rights.

We have had sight of the expert group report, which has been circulated widely. The ICCL would strongly endorse that analysis and certainly welcomes it. There are aspects of it that are of particular note. One is that the analysis makes it clear that the only way for Ireland to comply with its European Convention on Human Rights obligations is to legislate for X, and to do so with all due haste. As regards certain aspects in that report, we would particularly endorse chapter 5 which sets out four principles which should guide the legislative process. We strongly endorse those. There is also an analysis of how the decision-making process should be structured, and also concerning a review process. We also endorse the analysis of the expert group on that. There are some aspects within that report that involved an either-or choice. Rather than going through them one by one and taking up the time for my submission, I would be happy to deal with subsequent questions on them.

As regards the constitutional rights of pregnant women whose lives are at risk, the constitutional right to have a termination in this jurisdiction is clear. It is settled law. As regards the European Convention on Human Rights, the obligation to provide an effective and accessible procedure for finding out whether one meets that test is a requirement under Article 8. That is also settled law. Therefore, it is clear that legislation must be forthcoming and must meet both of those standards. The ICCL wants to be extremely clear about that.

The second point I want to address is the opportunity that this presents for improving Ireland's human rights position, particularly with regard to the European Convention. In the past, Ireland has been found to be in violation of the European Convention and has had to respond to that. We would certainly not be here today if there had not been a finding of a breach of Article 8 in the A, B and C v.Ireland decision. Therefore, rather than Ireland waiting to be brought to the European Court of Human Rights and told that it is in violation, this legislative process presents an opportunity for Ireland to get out in front of our human rights commitments and to seek to ensure better protection under the European Convention in Ireland than is currently provided. It can be done during this legislative process. I mention that specifically in relation to fatal or lethal foetal abnormality.

Unfortunately, in a rare number of cases women are faced with the very difficult and troubling news that the foetus they are carrying is not going to survive. It is not going to be born. In those circumstances, therefore, they face a choice. Do they continue with the pregnancy or not? Some women, no doubt, continue with the pregnancy and find it very fulfilling, while others cannot face it. At the moment, the decision on whether to do that in Ireland is made for them. They do not make that decision themselves. Not only is it made for them, it is made for them by a 19th century criminal law. That is the position in Ireland concerning fatal or lethal foetal abnormality.

There is, therefore, a concern that this may give rise to a violation under Article 3 of the European Convention on Human Rights, which protects against inhuman or degrading treatment. Recent decisions from the ECHR in relation to Article 3 and abortion indicate that where a vulnerable woman is seeking access to abortion and is suffering pain and anguish as a result of delays, there has been found to be a violation of Article 3. I can refer specifically to those cases if required to do so.

The ICCL is concerned that while the ECHR has not yet made a finding that Ireland is in violation of Article 3 in relation to our stance on lethal foetal abnormality, it is strongly arguable that we are in breach. Rather than waiting to be brought to the ECHR and told we are in violation of these women's rights, we strongly urge this committee to recommend making provision for allowing a termination in the case of a fatal foetal abnormality so that Ireland can actively improve our protection of human rights.

This does give rise to a concern, and I know this is something that was addressed this morning, about Article 40.3.3^oand whether that would permit a termination in the case of a lethal foetal abnormality, because obviously it provides for the right to life of the unborn, which is to be vindicated in so far as is practicable. It is at least arguable that it would allow a termination in the case of a fatal foetal abnormality. Whether the right is engaged at all is an open question. Certainly, whether "vindicating it in so far as is practicable" requires a woman to go full term for a pregnancy that will not result in birth is also an open question.

I am not the first person to have made this argument. This precise argument was made by the Irish Government in the D v.Ireland case before the European Court of Human Rights. It was an admissibility decision. Ms D had gone to Europe without seeking redress in the Irish courts and it was argued by the Irish State that she should have sought redress in the Irish courts and had therefore failed to exhaust her domestic remedies. The argument made by the Irish State was that, had she gone to the High Court, it was at least tenable that she would have successfully obtained a mandatory injunction requiring her to be permitted to have an abortion. Therefore, if that argument is being made by the Irish State and being accepted as a feasible argument by the European Court of Human Rights, if legislation is passed by these Houses providing for lethal foetal abnormality, then it is at least arguable that it is constitutional. We would say there is a strong argument that it is required under Article 3.

As regards any residual concerns around constitutionality, we suggest that ultimately it is open to the President, in consultation with the Council of State, to refer any Bill from the Oireachtas to the Supreme Court under Article 26 of the Constitution. It certainly seems plausible that it might happen. Even if it does not, however, it is our view and the view of many lawyers that, ultimately, whatever legislation is passed here, it is going to find itself in the Supreme Court one way or the other. I hope that is not in any way a disrespectful comment. I do not mean it in a disrespectful manner. I think the history of this issue is that litigation has been the order of the day a great deal of the time. The House can embrace that, however. It can say: "Look, our legislation is ultimately going to be approved, or examined, by the Supreme Court and so there is no need necessarily to run away from that."

On those two core points, the ICCL takes the view that, as regards the X test and the need for legislation, that is a matter of settled law. As regards lethal foetal abnormality, there is a strong argument that Article 3 requires access to an abortion in those circumstances, although the issue has not yet been addressed by the European Court. We would argue that Article 40.3.3^owould permit it.

In closing, I will make one brief comment in relation to the ICCL as an organisation. As I have indicated, we are an organisation engaged in monitoring, education and campaigning. We are here today particularly because we have expertise in human rights law and we are hoping to make that available to the committee. We are also a campaigning organisation. As regards our stance on abortion, we are of the view that in cases of incest, rape and a threat to health, we support access to abortion in those circumstances. That is not a matter for this committee today. Any of those three things would most probably require a constitutional amendment but I have mentioned them because I want to be transparent about our position concerning this. I do not want it to be said at any point that we were seeking to hide our position on that. We have both expertise and a campaigning angle. We are here today in relation to expertise but I want to be transparent as regards the campaigning.

I am very grateful to the committee for its attention and I am happy to answer any questions members may have.