Dr. Alan D. P. Brady:

On Senator MacSharry's concern with Article 3, there have been two recent cases involving Poland. Both involved women who under Polish law were entitled to an abortion. One was a 14 year old who had been raped and the other was a woman facing a very severe foetal abnormality. I am not sure whether the abnormality was fatal although Polish law provides for abortion in circumstances of severe foetal abnormality as opposed to the bare fatality. In both instances there were very substantial delays and much procrastination by doctors. In the case of the 14 year old, her details were made public. The European Court of Human Rights was very critical of the way the case was handled. The upshot was that the court took the view that Article 3, the protection against inhuman and degrading treatment, was engaged. Accordingly, if one looks at the specific person one is facing as opposed to some generic person, if the specific vulnerable woman is in circumstances whereby her treatment reaches the threshold required for Article 3, then an Article 3 violation is possible. There are very few members of the Council of Europe who do not provide for abortion in cases of lethal foetal abnormality. Ireland is one of the few that might be taken but we would suggest there is a strong argument that an Article 3 violation might be found.

On Article 40.3.3°, and to some extent this moves on to the point Deputy Ó Caoláin raised, in the Roche case the Supreme Court found that the right to life of the unborn requires the capacity to be born. In circumstances where there is clear medical evidence that the foetus will not be born, then, based on that assessment of the Supreme Court, it is strongly arguable that Article 40.3.3° does not arise. Even if it were to arise, the obligation on the State is to vindicate in so far as is practicable. A court might take the view it arises, but in circumstances where the foetus cannot survive outside the womb, it may be asked what can the State be expected to do to vindicate that right to life, given that to some extent it is a cipher.

The council would absolutely endorse the view Deputy Ó Caoláin expressed on the need for clarity. In the D v. Ireland case, recognition was given that sometimes novel interpretations of constitutional rights are required. This is not something that is somehow aberrant but is inherent to constitutional rights. They are, by definition, broad norms of very general application and we entrust our courts to work out the precise details of them.

The European Court of Human Rights recognised that the suicide criterion in the X case was something that could not necessarily have been anticipated in advance, and certainly, were the High Court and, on appeal, the Supreme Court to address the question of fatal foetal abnormality, there is a very strong chance that they would take the view that it is permissible under Article 40.3.3°. Again, I cannot tell the committee that with any great degree of certainty because, ultimately, it is something that would have to be determined. Certainly, as a practising lawyer, when one is asked questions in relation to matters such as this, often the advice one is giving is the best guess that one can come up with and, ultimately, it is determined by a court. However, a distinction can be drawn between the circumstance in the case of D v. Ireland, where what was being said to the woman was, "Well, you should have gone to the High Court in circumstances where there is no legislation and asked the High Court to grant you an injunction", and a circumstance where the Oireachtas has passed legislation allowing for a termination in those circumstances. The history of the relationship between the courts and the Oireachtas is that there is strong deference paid to decisions taken by the democratically elected Legislature of the State and if the State had passed legislation in that regard, it is certainly arguable that some degree of deference might be paid to it by the courts if the question were to come before them.

In relation to question raised by Deputy Seamus Healy on the amendments, the Constitution has been amended 31 times since it was introduced in 1937. On five occasions, roughly the same question has been put to the people twice. Those five occasions are: introducing first past the post; divorce; the Lisbon treaty, the Nice treaty; and removing the suicide criterion from the X case. Of those five, in three of them the answer changed as between the two referenda. In the other two, first past the post and removing the suicide criterion, the answer was the same on both occasions. The idea that we need a further referendum on this is to some extent, with the greatest of respect to those who are making the argument, something of a red herring. On questions, such as the Lisbon and Nice treaties, where people are being faced with a very detailed slate of issues - the Lisbon and Nice treaties are very lengthy and involve many different and divergent matters - the idea that parsing the reasons people voted a certain way perhaps has some merit in that circumstance, but I do not see that it has merit in circumstances where a fairly simple and straightforward question is put. Both the 1992 proposal and the 2002 proposal involved removing this criterion of suicide and both of them failed. One can say there are different pressure groups and different campaigning organisations took different views, and if they had said different things, different things would have happened, and that is to do a disservice to the electorate. The Irish people understood the questions they were being asked and gave the same answer on both occasions. To some extent, bringing that out again is a little bit of a red herring.

Finally, on Deputy Naughten's question in relation to ECHR decisions, there is a positive obligation under Article 8, and that is what has been found to be breached in the A, B and C v. Ireland case. However, I would also mention - the citation is in my submission - the decision in Tysiąc v. Poland of 2007 in which the European Court of Human rights looked at situations where there was a disagreement between a woman and her doctors on whether she qualified. The court stated that there were a number of matters that would have to be provided for: there had to be an objective mechanism for resolving that disagreement; the woman had to be heard, possibly through an oral hearing; and it had to be dealt with in a timely fashion. I do not wish to second-guess medical evidence that was given yesterday. The expert report has recommended two doctors at specialist level, and certainly that is what the Irish Council for Civil Liberties would recommend. It may be an obstetrician and a psychiatrist, maybe two obstetricians, etc. If a doctor felt he or she needed additional opinion - I note there was lengthy evidence on this yesterday - we would not be seeking to second-guess that. However, the criterion made very clear in the decision in Tysiąc v. Poland is that it must be timely. That is a particular concern. Where we are in a situation where somebody is seeking to have an abortion and there is a threat to her life, the clock is ticking, and whatever mechanism is put together by these Houses, it has to be capable of quick resolution. The concern is that if four, five or six different doctors have to give opinions, for example, particularly if one was away from one of the main maternity hospitals in Dublin, it may take some time. That would be the particular concern the ICCL would have about that system, and the decision in Tysiąc v. Poland is quite clear on that.