Mr. Paul Brady:

I apologise to members if I am unable to answer their questions. It will not be possible to address all the valuable and important questions raised. I will group the questions together.

On the obligation to legislate for the X case, which was raised by Senator Healy Eames and Deputy Durkan, Mr. O'Connor put it very well when he said his personal view was that the Legislature should legislate. That is the only position a lawyer can take on this issue. If a judge points out a gap in the law it is important that we note it. In most cases it is absolutely something to be remedied. However, I do not think that creates a legal or constitutional duty on members to the effect that they do not have to consider whether they wish to legislate. I do not think anyone is suggesting that is the case. They are left with the duty of deciding what they think is best. We hope that in most cases our Supreme Court will make decisions with which all of us are happy. If it does not, the Legislature has various options, such as to propose a referendum, but it does not have to follow every judicial statement seeking further legislation. It is certainly not a legal obligation.

As regards whether one's own views can taint legal advice, it is fair to say that is a standing fear or problem on any issue and in any profession. All I can say is that if barristers are asked to provide legal opinion on a set of papers they will not get far if they insert their own personal opinions instead of what they consider the law to say. As lawyers we are trained to stand back from our own personal views to provide an opinion on the law. I hope that is taken at face value by everyone here.

Senator Bradford and Deputy Creed asked about changing the law. There are ways in which this is implementing the judgment on X and other ways in which it is changing the law. It is changing the law because it is repealing a statute and creating a new offence. Many of the reservations expressed about section 19 would not make sense unless changes were being proposed to the law. It is inaccurate to argue otherwise. Regarding the substantive issue, a statutory framework is being created, with tests, procedures and particular personnel identified, and this has not previously been the case. With respect to where the onus lies, this is clearly a debate which will go back and forth but the Supreme Court decision on X was based on a concession between the parties rather than an articulated point. If it had been argued, the court would have had to consider various implications regarding treating suicidality like any other medical condition but it did not decide on that basis. The onus has never been discharged in so far as it was decided on a concession.

Deputy Creed referred to the right of the unborn and asked whether it should be represented. A number of parallels have been drawn with the Mental Health Act 2001, including the suggestion that only a GP and a psychiatrist should be required under head 4 on the basis that such a combination was provided for under the Act. However, that overlooks the fact that four doctors are involved under the Act. One GP can recommend and one consultant can admit but an automatic review process takes place within 21 days under which a second opinion is sought from a consultant and a tribunal which includes in its membership another consultant. Up to four doctors may in fact be involved because the patient's constitutional right to liberty is at stake. The expert group recognised the logic of arguing that two constitutional rights are at issue in these decision making processes, one being the right to life of the unborn. Encapsulating that is a political decision but I do not think it is legally unfounded.

As regards a sunset clause, I agree with Mr. O'Connor that it is ultimately a political decision but against what is such a clause is to be benchmarked? We know from Dr. Rhona Mahony's estimate that between ten and 20 procedures may take place under head 2. As I do not know if any number has been suggested under head 4, what benchmarks will be used if there are two procedures per year or 50 procedures per year? Will such figures been seen as a success or a failure of the restrictions? The current lack of figures may feed into the question of whether the policy is viable.