Professor William Binchy:

I am very grateful and honoured to have been invited to appear before this very important committee. It is doing excellent work for Ireland, for the good of Ireland and for the people who live in Ireland. I have prepared an opening statement but I will not inflict it upon the committee. I thought it might be useful, in light of the good, long, two-hour discussion the committee had with the members of the Irish Human Rights and Equality Commission earlier this afternoon, to telegraph the debate a little in discussion. I wish to make three substantive points to the committee in my opening remarks.

Before doing so, I will state my value position, which is one that is at the core of human rights philosophy. We are not simply talking about rules and regulations here; what we are talking about is an insight, a value judgment, as to the human condition. What human rights philosophy is about is a very simple value. One may accept it or reject it - some people do reject it - but the value is the equal, inherent worth of every human being - his or her equal value. That is it. Whether rich or poor, old or young, early developmental stage or late developmental stage, no matter his or her mental capacity - you name it - it does not matter. That value says all human beings, by virtue of their humanity, are entitled to protection and respect. They have inherent dignity. It is not given to them by human rights committees, by members of this committee, as legislators, or by courts; neither is it taken away from them by courts or by legislators. It is their inherent value by virtue of being human beings. Can I prove that statement to the committee? Can anyone who subscribes to this essential core philosophy of human rights prove that statement to the committee? Absolutely not. It is not provable empirically, but one either accepts or rejects it. If one accepts the principle of equal human rights, it has implications in the area the committee is dealing with, namely, the protection of unborn human beings. We can describe them scientifically as blastocysts, foetuses and embryos and then, when we get to the post-birth stage, we can describe that little entity, which is utterly limited in its relational capacity and absolutely dependent on other human beings, as a neonate but, frankly, that is not very human language. Young little babies who have recently been born are human beings and small unborn children are human beings. My essential argument presented to the committee is this: let us stay real, let us keep our eyes open and let us recognise the genuine humanity and equal worth of every human being. That is the premise on which my remarks are based. That is my value position.

As I said, I wish to talk about three matters: the Citizens' Assembly's recommendations to the committee, which are totally familiar and which form the subject matter of the committee's establishment; human rights treaties and monitoring bodies; and the recommendations of the Irish Human Rights and Equality Commission. I will speak briefly; I do not believe I will speak for longer than the ten minutes allocated.

The committee is so familiar with the first matter, the recommendations of the Citizens' Assembly, that we can shorten that discussion. I think members will agree that it is notable that the Citizens' Assembly recommends, among a range of other measures, that abortion should be available for no stated reason, on request, and on grounds of disability. The recommendations do not use the word "disability", but that is how it translates in any meaningful sense if we stay real. When one talks about foetal anomaly, one is talking about disability. Let us think about both of these grounds. The first is abortion in wide-ranging circumstances, without control.

We have the discussion about the expression, "abortion on demand". I do not particularly want to use it necessarily to stigmatise the phenomenon but merely to describe it. Let us take another expression which is used by those who are enthusiastic for legalised abortion, which is "abortion based on the right to choose". I have always been struck, and perhaps the committee has too, that nobody ever finishes the sentence, "the right to choose". If the sentence is finished, it becomes not so self-evidently obvious but highly disturbing to any person of humane sensibility: "the right to choose to take the life of another person". As a general proposition in our understanding of ethical relationships between human beings, do we accept that anyone has the right to choose to hurt another person or take the life of another person? It is a proposition which is absolutely contentious, yet in the context of abortion, the half sentence, "the right to choose", is articulated as though it were a self-evident, obvious good.

It is worth probing this a little and examining precisely what this means. I say that because the Citizens' Assembly's clearly is a right to choose proposal, the right to choose to have abortion on request. If one goes back to the basic premise of the humanity of every human being and the equal right to life of every human being, I would respectfully say this is an unacceptable proposition. The assembly also recommended abortion for disability. If one is in favour of the right to choose, why would one be against abortion for disability? What are the moral, justice and human rights objections to it if one embraces the principle that one can have abortion for any reason unstated and not even mention the reason? Clearly, an unmentioned reason might in some circumstances be abortion for disability. Regarding those who say they are against abortion for disability but are in favour of the right to choose, frankly, further reflection has to be given in this area. If the committee thinks about the right to abortion based on disability, I was a member of the UN Human Rights Commission for 11 years and I was in New York deputising for Professor Gerard Quinn, who is the Irish world expert in the area of the rights of human beings with disability. It was interesting to listen to the discussion on the formulation of the UN Convention of the Rights of Persons with Disabilities and especially the area of the right to life of persons with disabilities. Article 10 of the convention says essentially that state parties recognise the right to life of every human being and guarantee to protect that right without discrimination on the basis of disability. If the committee is going to address the question of human rights, it is important for it to address that consideration of recognising the rights of every human being without discrimination and specifically without discrimination on the basis of disability. Manifestly, the Citizens' Assembly violates that human rights protection.

I refer to international human rights treaties and their monitoring bodies. States can agree or not agree to ratify a convention. They are perfectly free not to. They are involved in the UN in the formulation of treaty negotiations in this area. As chief commissioner Logan correctly said, most of those treaties, if not all, when it comes to the area of the right to life and dealing with areas which could impact on the area of protection of unborn children or abortion, have been discreet in the sense of banning abortion because to do so would mean many countries would not, and could not, ratify the convention. They leave it open, as she said, in order that each state can make its own mind up to ratify the convention on the basis of its interpretation of what that particular provision means. Let us assume Ireland is against the idea of abortion. Ireland can ratify all those various conventions and covenants and has done so. Another state with wide-ranging abortion can equally do so on the basis that its interpretation will not ultimately yield an outcome which says that what it is doing is contrary to the convention in question. Its support and ratification is solicited specifically on that basis. Ireland ratified many of these conventions and covenants before and after 1983. This is a consistent State policy of Ireland at all stages, and nobody has suggested, nor could they suggest, for a second that Ireland, in doing so, was agreeing to undertake to change its Constitution to introduce abortion. That is clearly contrary to the good faith basis on which its support and ratification was sought. None of those treaties provides for a right to abortion. I outline that proposition with full certainty.

We then move to the monitoring committees. Each of the treaties has a monitoring committee to police and support its implementation in individual countries, and they do excellent work as a general proposition in encouraging states to adhere to their human rights obligations, which they have undertaken by ratifying the treaties in question, but let us stay real. I implore committee members that if they stay real, they will have to accept the value system, in the past decade or so especially, of the monitoring body members, some of whom are judges and lawyers and very many of whom are enthusiastic proponents of what might be called a right to choose philosophy. That is their value system, they are perfectly entitled to it, they hold it conscientiously and those are their views. The monitoring bodies do not articulate law, judgments or obligations that are based on the treaty, which incorporate a treaty obligation. The relationship between states in international law and the relationship between international law and domestic law is a subtle system, but given the manner in which it is structured, the treaty is the obligation. The monitoring committees have certain functions with certain implications, but it does not matter what they say. Ireland is not required to act in a manner which is contrary to the obligations it took on when it ratified the relevant treaties in question. If one stays real, one will say, if one is speaking as a legal analyst and not a partisan, the manner in which the monitoring committees have simply wiped off the stage any consideration of the right to life or, indeed, any rights of the unborn child is striking. If members read the various decisions they have taken and recommendations they have made, the unborn child just is not there. That is a striking critique that can be made. One Irish commentator has suggested that the manner in which the committees have operated is so manifestly at variance with what is sound international law that their findings in this area should be regarded as ultra vires. That is the situation about the monitoring committees. I greatly respect Ms Zampas. I have had an opportunity to chat with her and I like her very much. We disagree on this particular issue. She has articulated in her very coherent paper many findings of monitoring committees. These findings represent the values of those committees, do not penetrate domestic law, and are inconsistent with the values which Ireland understood it was importing when it ratified the conventions in question.

I refer to the Irish Human Rights and Equality Commission, IHREC, recommendations. The committee has had a long discussion about those recommendations, but if it was contemplating adhering to the commission's proposals, I will spell out in more real terms what they mean. They mean a right to choose philosophy or abortion on demand. It does not matter how it is described, it means essentially abortion without any meaningful restrictions. Abortion based on the test of well-being, which is proposed by the commission, would not be a ground that would constitute a limited ground, and I think the committee would agree. Abortion based on socio-economic or familial status or circumstance equally would not constitute a limiting ground. The commission says that the scrutinising process whereby these grounds would be implemented should be as minimalist as possible. The committee and the commission had some discussion about late term abortions and there is some discussion about that in the commission's submission, but there is no indication whatsoever on the part of the commission that it had any concern with late term abortions from a human rights perspective.

From a human rights perspective, the commission did not think it appropriate to mention any human rights concerns about an unborn child in the seventh month of a pregnancy. It talked about the issue but it did not talk about it from a value perspective in regard to the protection of the unborn child. If one goes through the text of the paper, as with so many of those decisions and recommendations by the monitoring committee of the various treaties and covenants, one will be searching almost in vain for a reference to the unborn child, foetus, blastocyst or embryo - let us not worry about the terminology. One will search in vain for a reference to that flesh and blood human being who constitutes a human being whose life is worthy of protection. I think the committee has caught my drift and I hope I have not overstated it.

If the committee believes, which it may not, that every human being has an inherent worth and dignity and is worthy of respect, the idea it would contemplate the Citizens' Assembly recommendations to the effect there should be wide-ranging abortion or that it should contemplate implementing the proposals by the Irish Human Rights and Equality Commission, which are effectively wide-ranging abortion, then I strongly recommend it not to take that course of action.

I will say one last thing, which might seem to be a slight tangent but which nonetheless might be important for future discussion, about the European Convention on Human Rights, which is a regional convention as opposed to global ones from the UN, and the European Court of Human Rights. My invitation to the committee is to get real and stay real. The European Court of Human Rights has a problem - I think the committee will agree - and always had a problem with the right to life provision in Article 2 of the European Convention, which recognises the right to life. How will it, as a political body that has to maintain the support of countries throughout Europe, deal with the right to life? It is one thing to create a treaty such as the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights and let each state ratify it with its own interpretation of rights' holders and the right to life. It is another thing when there is a European convention that actually has teeth, real sanctions and practical political implications.

What the European Court of Human Rights has done will come as no surprise. It is not a criticism of it but a comment and I defy anybody to say otherwise. Over the past 30 years, the court has adopted a political interpretation of Article 2 and a strategy of margin of appreciation by not saying Article 2 has any particular meaning. Each state has the entitlement to interpret it as it wishes in terms of how it understands rights' holders under Article 2. That is just about okay from a political-pragmatic point of view. When one then throws in a consensus doctrine, which is the idea that when a number of states move in a particular direction, the court follows them once they have reached a certain critical mass, then human rights have been moved into the area of majoritarian head-counting. That is the way the court operates. It has not done so yet in the context of abortion but there are apprehensions and concerns that it might do so in the medium future. If a human right depends on whether 30 or 40 countries have adopted a particular strategy, I think the committee will agree it is a form of positivist law. We have moved well away from the value that there is respect attributable to a human being by virtue of their very humanity.

The European Court of Human Rights is a political animal. It operates in a political context and will behave in a manner which it sees as politically pragmatically appropriate. In the medium term, that presents challenges to Ireland. What the committee and Ireland should not do is simply roll over and wait for the consensus doctrine to apply in Europe or simply say we will go along with the "Right to choose" philosophy of the individual members of so many of the monitoring committees. If Ireland believes the unborn child is worthy of protection, it should absolutely assert that right. When we do get a referendum, as we most likely will next year, that will be the issue. It will be whether we recognise that unborn children are entitled to respect for their dignity and worth or not. It is a stark issue.

Having promised to finish, I will now finish and say I think it was clear from the discussion that lasted two hours with the Irish Human Rights and Equality Commission that it is a stark choice. Those so called half-way house grounds are not in practice or intended to be limiting grounds; rather they are grounds that open the door to wide-ranging access to abortion. They are intended by those who propose them to be so. That is not in any sense to make a bad faith accusation - they are actually intended to be wide-ranging grounds. The choice is a stark one however it is described in language. It is a choice on one side between protection of unborn children based on their equality, equal respect for their mother, the right to life of the mother and absolute assurance in those circumstances that the mother's life is not imperilled in any way and, on the other side, wide-ranging abortion. I do not believe there is a half-way house in practice, if we stay real.