Dr. Alan D. P. Brady:

I will go through those questions in order. Senator Bacik asked about the decision-making process. We would endorse the expert group's proposal requiring two doctors at the specialist level. I am conscious that medical evidence was given by doctors stating that in reaching their diagnosis they often require consultation with others. I do not believe we want to impede that, but having regard to the ECHR case law on this, the key criterion is "timely". I suspect a requirement of more than two doctors in legislation may cause a risk of delay, which would fall foul of Article 8 of the ECHR. However, inevitably doctors will consult with their colleagues and we would certainly make no effort to impede that.

Regarding whether Ireland might face a challenge over denying abortions in cases of fatal foetal abnormality, we believe it is very likely that such an action would succeed and in those circumstances I would absolutely endorse the position set out by Senator Bacik that rather than waiting until that happens we should be actively seeking to improve our Article 3 compliance by providing for abortion in cases of fatal foetal abnormality now.

In response to Senator Bradford, I should first clarify that while we are very clear that we are a campaigning organisation with a position on this, we have come here today as a body that also has very substantial expertise on human rights law. That is the capacity in which we are appearing today.

I hope the analysis I have given to date has been very heavily focused on the constitutional rights law and human rights law of the ECHR rather than coming from a separate political campaign organisation. I thank members for their comments in that regard.

With regard to the requirement under Article 8, Ireland is under a positive obligation to provide an effective and accessible procedure. At the moment, there is legislation from 1861 which states it is a criminal offence to perform an abortion. The difficulty is that if that legislation was not there, perhaps it could be done by guidelines or by statutory instrument. The fact there is extant legislation which makes this a criminal offence means the only thing that can remove that sword of Damocles, as it was recently described by a senior doctor, is legislation to repeal and replace that. We would also be strongly in favour of the idea that effective and accessible mechanisms should be at the statutory level to ensure consistency. We would endorse the view of a statute plus a statutory instrument plus regulations because obstetric medicine is developing all the time. At the moment, our legislation is 152 years old and obstetric medicine in 1861 was entirely unrecognisable from what it is now, so provision for flexibility would be something worth endorsing.

Senator Walsh mentioned the C case - the cancer case. I made reference to the C case but I was making reference to an Irish High Court decision which is also rather unhelpfully referred to as the C case, which involved a 13 year old rape victim. In connection with that, the concern there was not what was medical practice in Ireland or about doctors making decisions; the concern was that the woman had a constitutional right and she needed to find out whether or not that constitutional right arose. The difficulty is not with the medical practice. The difficulty is with accessing the right. Again, people do not have to justify accessing rights - that is why they call them rights. The constitutional right was very clear there. The difficulty was she had no means by which to access that.

In regard to your concern around the diagnosis of-----