Professor Fiona de Londras:

I have been asked specifically to address the question of legal certainty. While it is quite appropriate for this committee to be concerned with legal certainty, we must accept that absolute legal certainty is not achievable. Rather the aim might be to create a reasonable level of legal certainty. This is one that makes clear the scope of the legislative power of the Oireachtas, although it may still require the exercise of judgment in determining whether a proposed legal enactment is within that power. It may also be subject to a finding by a court that this judgment was inaccurate, resulting in some or all of a piece of law being struck down. In my view, both simple repeal and repeal and replace allow for a reasonable level of legal certainty, although in the case of replace, much depends on the wording that is proposed.

Furthermore, legal certainty is only one interest to be pursued in respect of the reform of Article 40.3.3o.

Any change proposed should be such as to ensure that it does not tie the hands of the Oireachtas completely. Constitutions should enable the organs of state to govern effectively, that is, to respond to the real governance needs in society which shift and change over time, within constitutionally articulated limitations. They should also enable a state to meet its international human rights law obligations of which it is currently in breach. In other words, constitutions should stand the test of time. They should enable government to meet the needs of those it governs and, arguably, that is not currently the case..

Article 15.2.1^oof the Constitution provides that the Oireachtas has the power to legislate for all matters and Article 15.4 requires the Oireachtas to legislate in a manner consistent with the Constitution. Thus there is no uncertainty about the power to legislate for abortion as a general matter. At present, the scope of the power of the Oireachtas to legislate is also clear as it is outlined in Article 40.3.3^o. This limits the power to such an extent that the Oireachtas cannot legislate for reforms as proposed by the Citizens' Assembly without constitutional change. In my view the assembly’s proposal as to constitutional law reform should be read in its context and as per its intended effect, which I read to be as a proposal designed to make explicit the power to legislate for abortion to the extent recommended in the legislative proposals made by the assembly. The question of legal uncertainty really relates to how to ensure that the Oireachtas has the power to legislate to the extent recommended by the assembly, although whether it would pass a law of that kind would be a matter for the Oireachtas itself. In this respect, the constitutional and legislative questions should be considered separately. The constitutional question relates to how to ensure the Oireachtas has sufficient power, while the legislative question relates to the exercise of that power. I am dealing here with the former.

In its session last week, this committee expressed concern about how to ensure the constitutionality of legislation that might follow a referendum. I take this as being related to uncertainty about what rights either the foetus or the pregnant woman would have following simple repeal. There are three potential outcomes. First, repeal would remove the express right to life of the foetus. Women’s right to access abortion care would most likely be seen as part of already protected rights such as to bodily integrity and privacy. These rights are qualified and may be limited, provided the limitation is proportionate. If this is the outcome, then the Oireachtas could legislate for abortion according to the same rules and principles as it does in all other areas of governance that have implications for rights. A second potential outcome is that repeal would remove the express right to life of the foetus but other un-enumerated or implicit constitutional rights of the foetus would be unaffected. The extent of those rights is currently unknown. This might substantially constrain the scope for the Oireachtas to legislate to make abortion care more widely available than is currently the case. The third potential outcome is that repeal would remove the express right to life of the foetus and mean that women had a right to access abortion care in Ireland, which right might be unlimited. That might substantially constrain the scope for the Oireachtas to legislate for limitations to abortion care.

While all three outcomes are possible, my view is that the first option is the most likely. Under that approach, the constitutional rights of pregnant persons which are undisturbed by repeal of Article 40.3.3^o, that is, all ordinary constitutional rights that women would have on a day-to-day basis anyway, would continue to apply, as would the obligation only to legislate in conformity with the Constitution. Repeal would most likely be interpreted as empowering the Oireachtas to legislate for abortion unconstrained by foetal constitutional rights but it would be open to the Oireachtas to pursue the legitimate aim of preserving foetal life by imposing time limits or limiting access to certain grounds. In doing so, however, only proportionate limitations on the rights of pregnant persons could be imposed. While the courts would ultimately determine the meaning of the Constitution, in the first instance the Oireachtas would be advised as to its likely meaning by the Attorney General and would legislate accordingly. In other words, the Oireachtas would need to approach making law about abortion in the same way as it approaches the rest of its law-making functions.

As to the options for reform, the first option is a simple repeal of Article 40.3.3^o. The power of the Oireachtas to legislate would continue to be guaranteed under Article 15 but the scope of the power might not be fully clear. This is because the foetus may have some continuing constitutional rights and of course, the pregnant person would have her full constitutional rights. She may also have a constitutional right to choose. The exact scope of these rights may need to be determined, probably by a court. It is reasonable to expect that courts would take into account the assumed intentions of the electorate in voting to repeal. Legislation for abortion introduced after repeal would need to ensure that any limitations on the rights of pregnant people are proportionate. A court could strike the legislation down if it were an unconstitutional interference with rights. A simple repeal would thus produce a reasonable level of certainty similar to that within which the Oireachtas ordinarily operates.

A second option is to remove Article 40.3.3^oand replace it with a provision that permits abortion in limited circumstances, for example, rape, incest, risk to life or fatal foetal abnormality. Such a provision would produce some legal certainty as it would make it clear that legislation for abortion is permitted in respect of the specified grounds, subject to those grounds being defined with sufficient specificity to allow for legislative action. A change of this kind would greatly limit the power of the Oireachtas to legislate and would not address the most prevalent reasons for women in Ireland accessing abortion care. It would produce an unduly complex and detailed constitutional provision. It would constrain the power of the Oireachtas to react to medical, scientific or political developments in the future. It would be cumbersome and impractical, unlikely to stand the test of time and it would be inconsistent with the recommendations of the Citizens’ Assembly.

A third option is to repeal Article 40.3.3^oand replace it with a negative provision, such as "Nothing in this Constitution shall prohibit abortion as regulated by law". This would make explicit the power to legislate and allow future change through the legislative process. It would likely be interpreted as resolving uncertainties about the impact on the power to legislate of any residual and un-enumerated rights of the foetus. It would also leave open the potential for the Protection of Life During Pregnancy Act 2013 to remain in place, although it would be vulnerable to constitutional challenge. It would leave the extent of a pregnant person’s rights in respect of reproductive autonomy to be determined. It would be open to the Oireachtas to pursue the legitimate aim of preserving foetal life by imposing proportionate limitations on the rights of pregnant persons. It would enable the Oireachtas to legislate to meet the needs of the electorate and would produce a reasonable level of certainty similar to that within which the Oireachtas operates in other contexts.

A fourth option is to remove Article 40.3.3^oand replace it with express rights to bodily integrity and self-determination in medical decision making. This would not tie the hands of the Oireachtas, although it would effectively compel legislation on abortion as the Protection of Life During Pregnancy A 2013 would almost certainly violate such an explicitly guaranteed right. It would address in a broad sense the need for autonomy in reproductive life and thus go beyond abortion. It may have further unanticipated or undesired impacts around, for example, end-of-life decision making, although limiting it to bodily integrity during pregnancy might address that concern. It should be noted that the latter point is not made in the written submission to the committee. The courts would determine the exact parameters of the right.

A fifth option is to remove Article 40.3.3^obut to regulate abortion through legislation prepared and published in advance of the referendum and entrenched in the Constitution. This would echo the approach proposed in 2002. Inasmuch as it would create legal certainty it would do so by calcifying abortion law and making it immune from the normal processes of politics, law and governance. The meaning and operation of the legislation would be subject to judicial determination, potentially making it highly complex and difficult to use. The legislation could never be amended without a further referendum, even for minor technical changes. It would not be changeable without referendum, even if it resulted in violations of international human rights law and would thus likely fail to stand the test of time.

Of the options I have outlined above, the first - simple repeal - and the third - repeal and replace with a negative provision - seem most fully to ensure a reasonable level of legal certainty, the ability to govern effectively and stand the test of time and the ability to ensure compliance with international legal obligations.

I am happy to take questions from the committee.