Ms Caroline Simons:

On Senator Bacik’s question on the obligation to legislate, I refer her to page 6 of my submission, in which I deal with the obligations on us under the European Convention on Human Rights and Irish constitutional law. I refer her in particular to the decision of Mr. Justice Murray in the case of McD v. L in 2010, in which he said that national law always takes precedence over international law. He continued by saying that the obligations undertaken by a Government that has ratified the convention arise under international law and not national law. Accordingly, those obligations reside at international level and in principle the State is not answerable before the national courts for a breach of conventions or obligations unless provision is duly made in national law for such liability. Thus, contracting states may in principle, in so far as the effect of the convention at national level is concerned, ignore the decisions of the court. Although I do not advocate that, I have pointed out in my submission that we are exemplary in our observation of decisions that are made in regard to us - much better, in fact, than Germany, Italy and other countries that I cited in the text.

On the question on head 4, which is where we find the idea that perhaps this Bill and the X case would allow termination of life rather than termination of pregnancy, if one looks at paragraphs 36 to 38 of Judge Finlay’s decision in the X case, one will see his consideration of the test that was proposed by the Attorney General, namely, that the life of the unborn could only be terminated if it were established that an inevitable and immediate risk existed. The judge said that the formula proposed by the Attorney General insufficiently vindicated the mother’s right to life. In a later case, in the matter of Article 26 of the Constitution and in the matter of the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill, 1995, Judge Hamilton said the case of Attorney General v. X established that, having regard to the true interpretation of the Eighth Amendment, termination of the life of the unborn is permissible if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of her pregnancy.

Where we are talking about a situation in which a woman who does not have a mental illness but who is suicidal because of a pregnancy requires treatment - namely, her suicidality is to be addressed - it will not be enough to deliver her so that she is not pregnant. It may be the continuing existence of the baby that is causing her suicidality. There is room to see in the judgments that she could look for a termination of the life of the unborn. It would be reasonable to think that most people who would avail of the procedure would wish that result. We do know that in 2005 in the UK 66 babies survived NHS abortions. That figure was published in 2008. Following that, the Royal College of Obstetricians and Gynaecologists introduced a guideline which required that once a woman who had elected for an abortion was 21 weeks and six days pregnant she was entitled to have a foeticide either before or during the termination. Those are the kinds of things the members will have to think about. As lawyers we have to tell the committee about the possibilities that are raised by the heads of the Bill, which must take cognisance of the decision in the X case, so there is room for manoeuvre.

In response to Senator Bacik and others who have inquired on the matter of the criminalisation of women in abortion law, it is still a crime in the UK and the 1861 Act still applies there. Members are probably aware that last autumn there was a successful prosecution of an abortionist in the UK and in recent times there was a prosecution of a woman who aborted her baby at 30 weeks' gestation. She was given eight years by UK courts. It is easy to say we do not want to criminalise women but there may be cases in which that is appropriate, and it would be unwise to remove the law.