Dr. Conor Casey:

I respect my two colleagues immensely but I strongly disagree that this is a simple declaration by the court that the Oireachtas has competence in this question. Courts do not like to address enormously difficult and enormously sensitive questions in the abstract without full argument on the merit of that question. Here, we are talking about the interaction between Oireachtas Article 15 power and the solemn commitment, the structurally explicit commitment, to protect life. The intersection between them and what kind of give the Oireachtas might have is an extremely sensitive question, and the court never resolves sensitive questions in the abstract without hearing full argument. I think this puts too much strain on paragraph 108 to read it as doing that in this particular context. At best, it is ambiguous. I also point out that on the current Supreme Court bench, there is only one judge who sat in the Fleming case, namely, Mr. Justice O’Donnell, who is now Chief Justice O’Donnell. That court will now have to look at it afresh. The full impact of what that obiter comment means will have to be looked at by basically a new court.