Professor William Binchy:

I will respond first to Deputy Conway's concern in regard to the political character of what I said. That is important because it links very strongly into the legal dimension. The Irish people and politicians need to understand that it is not necessary under the A, B and C judgment to implement the Supreme Court decision. That is a crucially important legal point. Sadly, the terms of reference of the expert group, which were broad, were narrowed by the Minister. This is crucially impacting on the legal solutions that are now before the committee. I would definitely regard that as a legal issue.

Questions were asked about how we proceed in this area and how the Supreme Court decision is discredited. It was discredited by a number of commentators who wrote about it. I would be hard pressed to name one commentator who unambiguously welcomed its analysis and said that it was right in every respect. Commentators whose viewpoints would not be the same as mine but who would be neutral on the issue of the whole question of abortion or on pro-choice expressed a critique of the Supreme Court adjudication process at the time. To give substance to that, I am happy to name one or two of them if the committee so desires. It is true also to say that the facts are fairly obvious. The Supreme Court in the 1992 decision heard no evidence from any psychiatrist. In circumstances where it is proposed to introduce into our law a ground for abortion based on suicidal ideation, without having heard the evidence of any psychiatrist, it is not unfair to describe that decision as worthy of criticism.

As regards how we proceed, reference was made to the children's referendum. With the exception of the important value of treating everybody fairly and equally, which is a distinctive legal value, law has no values within its system. Hearing both sides of a case is also a distinct legal process value, which is important. Beyond that, law is a scaffolding around which one constructs a building. The building constructed by society is based on the values which it wishes to see incorporated in law. Law does not dictate to society what that building should look like. The values infused into law are the product of social choice rather than of the legal system. That is a crucially important point. In that context, the children's referendum, which was passed a couple of months ago, states that the State recognises the natural and imprescriptible rights of all children. I would like to raise a point, which would not necessarily succeed before the existing Supreme Court but which raises a question of constitutional interpretation. Who are "all" children? Does this include only children who have been born after 14 weeks of gestation or does the constitutional referendum embrace what the language on the face of it appears to do, namely, respect and acknowledge the inalienable, inherent and natural rights of all children.? The short answer that many lawyers will give is that the Supreme Court refers to the pro-life amendment which defines "children" in terms of the unborn rather than children. I recently reviewed the Supreme Court decision in the X case.

There are 40 references to unborn children in that decision. The Supreme Court had no difficulty referring to unborn children as children, even while interpreting the amendment in question. That raises a question for constitutional interpretation now. The most recent time the Irish people have spoken was in the children's referendum, in which they have given respect to all children. Do I suspect that this argument would be successful in convincing the Supreme Court that this impacts on unborn children? Frankly, I would not make that confident prediction. However, it is interesting from a legal point of view. One must look at text and interpret it. The Supreme Court has that task at all stages, and we have a new constitutional textual situation applying to all children at present.

It is fair to say that the Supreme Court has arrived at some surprising decisions, and not just the X decision. There is the manner of analysis that the Supreme Court came up with in the question dealing with a not entirely unrelated area, that is, embryos. That is not before the committee now and I will not bring the committee down that path in my remarks. However, it is important that the Supreme Court found that there was no constitutional protection whatsoever for embryos outside the womb. It is a surprising decision, and not necessarily consistent with the wider democratic views on this matter. When one is asked if one accepts the Supreme Court because it is the authoritative voice of interpretation, one of course accepts the legitimacy of the Supreme Court to interpret the Constitution. Mrs. Justice McGuinness was on the Supreme Court and my personal view of her is that she contributed wonderfully to Irish jurisprudence. However, I give her that compliment not just because she was a Supreme Court judge, but because of the quality of her analyses and judgments. We are perfectly free to respond to a Supreme Court decision and, in certain cases, to say that the Supreme Court got it wrong. That can lead, and in many cases does lead, to a constitutional change. There is nothing unusual about that. It is part of what a democracy is.