Alex White (Dublin South, Labour) | Oireachtas source

I support what the Minister has said. In fairness to Deputy Seamus Healy and others, it is important that we address the issues arising from the D case. The Deputy mistakenly referred to the judgment in the case when it was the State’s submission he actually quoted. The State’s submission stated, "The actual decision in the X case graphically demonstrated the potential for judicial development in this area. The X case clearly holds out the possibility of the further development of the law". Dr. Gerard Hogan, an expert witness in the case, stated that at least “a tenable argument could be made to the effect that the foetus was not an unborn for the purposes of Article 40.3.30.” He asserted that the argument that the protection afforded to the unborn attached to a viable foetus was a matter which would have received serious consideration by an Irish court.

I come from the same perspective as Deputy Seamus Healy and many others on this issue in that it ought to be addressed. The word “sympathy” is not strong enough for such cases. However, the Government must have constitutional certainty about legislation it proposes to the Oireachtas. No Government can propose legislation to the Oireachtas in which there is a known risk to its constitutionality. I know this sounds harsh, but it is the true legal position.

In the quotes from the State’s submission to the European Court of Human Rights in the D case one can see they are tentative with terms such as “potential for judicial development”, “holds out the possibility of the further development of the law” and “a tenable argument”. While these descriptions might be encouraging in terms of what the Supreme Court might do, they are far from definitive. All Governments must present legislation which is constitutionally sound and cannot take a risk as to what the Supreme Court might decide.

I accept that Deputy Seamus Healy has raised a compelling argument through the submissions made by the State to the European Court of Human Rights. However, the distinction I have drawn is the one on which we must rely.