Mr. Paul Brady:

The Chairman indicated I have five minutes and I will try to do justice to the questions in that time.

Briefly, in response to Senator van Turnhout's question regarding children, I would echo much of what Dr. Mills said. The issue of consent to medical treatment of various kinds and children in Irish law is really a neuralgic point in Irish law because of various conflicting provisions, particularly the conflict between the definition of child in the Mental Health Act and also the provisions in section 23 of the 1997 Act. Given what we have heard about how this Act might be applied and who may be using it, it seems to me that this is an issue that probably needs to be addressed in a determined and focused way by the Oireachtas, perhaps before this other issue of termination of pregnancy is addressed. It is a stand-alone problem in its own right - consent and medical treatment for children. It should not be dealt with as a kind of tag-on to this issue. It deserves full consideration. It would be very problematic indeed if this legislative machinery is set up while that issue is left parked and unclear. It is a recipe for many problems ahead and unnecessary anguish, and perhaps cases before the courts. That might give pause for thought.

That issue should be dealt with first and properly before the current Bill is pushed through.

As regards Deputy Ó Caoláin's and Deputy Kelleher's questions, I will take them together. To be clear, what I regard as inexcusable in my final line, and I am paraphrasing Mr. Justice McCarthy who used it in a different context - and I acknowledge that, of course - is that there is a perception that the Oireachtas is bound to legislate for threatened suicide as a grounds for termination of pregnancy on the basis of the X case decision. What I am trying to point out in my submissions is that that part of the decision was based on a concession made by the parties at the start. It was not argued and therefore it was not decided. That is not an esoteric point, it is a well-established point in constitutional law. I have given some quotations in my submissions. I cannot really do better than to quote that short extract from Mr. Justice Brian Walsh, whom Professor Joe Lee referred to as being one of the leading, outstanding legal reforming minds of his generation. He was a member of the European Court of Human Rights, the Irish Supreme Court and the Irish High Court. He was also chairman of the Law Reform Commission. In 1992, shortly after the X case decision, he said that Article 40.3.3° confers no immunity for taking life, and that its stated objective is the preservation of and respect for life.

It is perfectly consonant with the idea of safeguarding the woman's life without intentional and direct intervention to terminate the life of the foetus. The claim that it admits of direct termination has never been fully argued. In the X case it was conceded. There was nolegitimus contradictorto argue against such a construction and therefore the court's decision can only bind the particular case as it was based on a conceded and unargued construction. It is well established that neither a constitutional provision nor even a statutory provision can be construed on the basis of a concession if it were to be binding in rem.

It is unfortunate that in discussing this issue, and having had the benefit of so much expert opinion in January and over the last few days, legislators should feel under some strait-jacketed legal obligation to bind themselves to what was a concession in that decision. I am making that point purely as one of legal analysis. As lawyers, we should be allowing members of the committee as great a freedom as possible to do what they think is right as regards a good, evidence-based law, and not to feel that with a heavy heart they have to legislate for something they think is unwise, imprudent or not beneficial because they feel they are under some over-bearing constitutional obligation in that regard.

Of course, legislators are under a constitutional obligation to comply with the Supreme Court and to interpret the Constitution appropriately, but I would say they also have freedom to explore options in this regard. When it comes to the question of options, there has been a failure to explore creatively the great scope that is given to a contracting member in the Council of Europe in how we responded to the A, B and C case in Ireland. The expert group set out four possible options and dealt with them in a cursory way. In fact, all four of the options given - guidelines, regulations, legislation, or legislation and regulation - could have provided a route for what the European Court was seeking. The expert group defined guidelines as exclusively non-statutory, but guidelines would have some statutory basis and there are various mechanisms by which that could be done. The Government has made a decision that it wishes to go with legislation and regulation. As to what that encompasses, my point is that we should not feel under an artificial strait-jacket in that regard. Legislators should be able to do what they think is best on a substantive basis and not on some procedural basis.