Oireachtas Joint and Select Committees
Wednesday, 20 September 2017
Joint Oireachtas Committee on the Eighth Amendment of the Constitution
Eighth Amendment of the Constitution: Engagement with Ms Justice Mary Laffoy, Citizens' Assembly
I welcome members and the viewers who may be watching the proceedings on Oireachtas TV. This is the first public session of the Joint Oireachtas Committee on the Eighth Amendment of the Constitution. Under its terms of reference, the joint committee is obliged to report to the Dáil and the Seanad within three months of its first public meeting, which is today. At the request of the broadcasting and recording services, members and visitors in the Public Gallery are requested to ensure that for the duration of the meeting their mobile phones are turned off completely or, depending on the device used, switched to airplane, safe or flight mode.
On behalf of the committee I extend a warm welcome to Ms Justice Mary Laffoy, the current chair of the Citizens' Assembly. I also welcome Ms Sharon Finegan, secretary, and Ms Gráinne Hynes, deputy secretary of the Citizens' Assembly, both of whom will assist Ms Justice Laffoy in the question and answer session with members. The witnesses are very welcome and I thank them for attending.
Before we commence proceedings I must begin with some formalities and advise our witnesses on the matter of privilege, which no doubt they are aware of, but I am required to do it. By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give to the joint committee. If, however, they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable.
Members are reminded of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
The Citizens' Assembly was a good exercise in getting ordinary citizens together to highlight the changes that they, as a representative sample of the people, see as necessary in this most difficult and divisive area. I commend Ms Justice Laffoy and the assembly on the work they have done on behalf of the people. It is now over to the political system to analyse the recommendations and to see whether these should translate into changes to the Constitution, which would then underpin new legislation. In doing that, we as a committee will have to look at issues such as creating long-term legal certainty in this area, which will be a huge challenge.
I call Ms Justice Laffoy to address the committee, and I thank her for attending.
Ms Justice Mary Laffoy:
Good afternoon to everyone. I begin by expressing my gratitude to the Chairman of the committee, Senator Catherine Noone, and the members of the Oireachtas Joint Committee on the Eighth Amendment of the Constitution for the invitation to speak here today at the committee’s first public session. I also thank the clerk to the committee, Mr. Ted McEnery, for his assistance in making the necessary preparations for today’s meeting. I am very grateful to him.
I am joined this afternoon, as the Chairman has indicated, by the secretary to the Citizens' Assembly, Ms Sharon Finegan and the deputy secretary, Ms Gráinne Hynes. I assume they will be in a position to assist me as we go along.
The Citizens’ Assembly received its mandate from the Houses of the Oireachtas and it is, therefore, appropriate that I appear before it to discuss the assembly’s deliberation on the eighth amendment of the Constitution. In these introductory remarks I aim to provide the members of the committee with a clear account of the processes underpinning the work of the assembly and how we approached the task and structured our work programme that led to the formulation of recommendations contained in the report, which was submitted to the Houses of the Oireachtas on 29 June 2017. In appearing before the committee today, I am anxious to provide members with any further assistance required as the committee commences its role.
I shall now tell the committee something about how the assembly was set up. I was appointed chair of the assembly on 29 July 2016 and work began on setting up the assembly in August 2016. Following public tendering processes, suppliers were selected to provide the necessary services required to carry out the logistical arrangements required for an exercise such as the assembly. The Oireachtas resolution, which approved the establishment of the assembly and which was the starting point, stipulated that the assembly would be made up of 99 members of the public chosen at random to represent the views of the people and be broadly representative of society as reflected in the census, including age, gender, social class and regional spread.
Red C Research and Marketing Limited was contracted to provide this representative sample of 99 members and substitute members. A representative sample frame was developed by Red C. Detailed demographic quotas were set to ensure the sample was representative of all adults based on census 2011 and the quarterly national household survey population estimates. This is the standard methodology used for establishing a geographical spread in a national sample. Full details about the recruitment of the members of the assembly are contained in chapter 2B of the report. I invite members of the committee to consider that. This process yielded a varied cohort of citizens young and old, who travelled from all corners of the country to attend each meeting. I am satisfied that the method used delivered a representative sample of modern society, within the confines of what is possible with a sample size of 99 as stipulated by the Oireachtas resolution.
I shall now outline the work programme we undertook. Across five weekends between November 2016 and April 2017 the assembly met to consider the first topic set out in the resolution, the eighth amendment of the Constitution. Full details of the work which was undertaken are provided in the report. This topic is one of the most divisive and difficult subjects in public life in Ireland, as the Chairman said earlier. The importance of structuring a discussion which was balanced, fair and above all informative and - I stress - evidence-based was the guiding principle with which I undertook all our work at the assembly. I want to make clear to the committee members here today that our work was at all times undertaken in good faith with these guiding principles. I was assisted in devising the work programme by the secretariat and the expert advisory group, which was established pursuant to the Oireachtas resolution. The expert advisory group had an integral role in advising me on the formation of a work programme and the selection of potential speakers.
I had initially hoped that the assembly would be able to conclude its work on the eighth amendment over four weekends. However, in January 2017 it became clear to me that given the complexity of the topic, in particular in relation to the law, it would be necessary to dedicate a further weekend solely to the preparation of recommendations. As chairperson, I wanted to be satisfied that the members would have all the required information to allow them to make fully informed decisions on the core issue for their recommendations to the Oireachtas. The Oireachtas resolution provides that our recommendations must be “determined by a majority of the votes of members present and voting”. I also wanted to be satisfied that enough time would be dedicated to exploring a ballot paper and incorporating members' input in the ballot paper. I wanted to ensure the voting process was not rushed in a single half-day session. For those reasons I decided to dedicate a fifth and final weekend to the issue.
We began our consideration of this topic by looking at the current position with regard to the eighth amendment, tracking the history of the development of the law in Ireland, considering the current legal situation arising from Article 40.3.3° and the Protection of Life During Pregnancy Act 2013, and how this is implemented by the medical profession and by the HSE crisis pregnancy counselling service.
In the second and third weekends, we responded to requests for information from members and provided this information to them. I emphasise that this was done based on facts and expert testimony. Specifically, members were given expert testimony on fatal foetal abnormalities, rape, international abortion trends and the experience in the United Kingdom, including the experience of Irish women who travelled to the UK. The members also received a number of presentations on how laws are made and changed.
At the beginning of the fourth weekend, before we heard directly from women affected by the eighth amendment and advocacy groups, members were also given information on the legal implications of the eighth amendment in medical and parental decision-making beyond the termination of pregnancy and any rights of the unborn beyond the right to life. The final expert presentation addressed the legal consequences of the various options in respect of the eighth amendment, namely, retention, repeal or amendment.
Subject to an exception in one area, each speaker was chosen on the basis of his or her expertise and my view of his or her ability to give impartial and relevant fact-based information to members. The exception relates to the ethical perspectives, in respect of which it was considered appropriate that pro-life and pro-choice perspectives be presented to members after they had been presented with an overview of ethical reasoning. Members heard ethical arguments relating to the moral status of the foetus and reproductive autonomy.
The factual grounding provided to members was given without commentary as to the perceived advantages or disadvantages of the eighth amendment. By approaching the work programme in this way and by hearing from neutral expert witnesses, members were able to listen to the content presented and were not burdened with having to consider if the information they were hearing was driven by subjectivity or personal views.
Each speaker was chosen because of his or her expertise and impartiality on the topic. The quality of the material put before the assembly is self-evident and all of it is available in appendix E of the report and on the assembly website. I have brought a copy of appendix E, a very heavy document consisting of two volumes and running to almost 1,000 pages. It would be worthwhile if the committee were to consider the papers members of the assembly heard at the four weekends during which this topic was discussed. Having reconsidered these papers over the weekend, I believe them to be very useful. While I accept the committee has a big task, I urge members to remember that this material is available.
I believe the consideration given by members of the assembly is unique on this topic in an Irish context. The assembly was an exercise in deliberative democracy, meaning that I, as chairperson, listened to the requests of my fellow members when devising our work programme. Throughout the weekends, we had open feedback sessions when we heard from members about what they wanted to hear to allow them to make informed decisions about the eighth amendment of the Constitution. What a citizens' assembly format allowed us to do was respond to the needs of the members, a representative sample of ordinary members of society, about what questions they wanted to have answered and from whom they wanted to hear.
I wish to say something about the role of advocacy groups and personal stories. As I mentioned, the remainder of the fourth weekend was dedicated to hearing testimony and opinions brought to the assembly via the submissions process. We began by hearing the personal stories of six women directly affected by the eighth amendment. In listening to their testimony the assembly had the benefit of hearing real lived experiences across a spectrum of circumstances. The women were first selected from women who wrote directly to the assembly. To ensure a broad range of circumstances was presented, a representative group was contacted in respect of one situation to assist with the identification of women who might be willing to tell their stories. The selection of the voices to be included in this session was done with the assistance of professional guidance. Full details of this process are included in chapter 3 of the report. Transcripts of each of the recordings are also included in appendix E of the report and are available on the website.
The final day of the fourth weekend was dedicated to hearing from advocacy and other representative groups which had made submissions to the assembly. We extended the proceedings on that day to allow the members to hear from as broad a range of groups as possible. However, in spite of this extension, the large number of groups which sought to participate made it inevitable - and I regret this - that some groups would be disappointed when I made the selection about whom to invite. In making the decision on selection I took into account the views of members and was further informed by the following factors, namely, the extent to which the submissions provided by a group addressed the eighth amendment of the Constitution; the extent to which the submissions covered new material not previously considered by the assembly; and the need to ensure balance on either side of the debate, on the day, over the course of the weekend and across the work programme of the assembly in its entirety.
In total, 17 groups were invited and accepted an invitation to address the assembly. Each group was invited to prepare a five-page paper, make a presentation to the assembly and make itself available for a questions and answers session with the members. Individuals representing the groups were permitted to have an additional representative join them on the podium for the questions and answers session if they so wished.
I wish to say something briefly about submissions. Another important aspect of our work programme was the submissions process. We witnessed an unprecedented level of public engagement, receiving in excess of 13,000 submissions both online and by post. We took a number of steps to assist members to meaningfully engage with the submissions, including publishing all of the submissions received on the assembly’s website; prioritising the publication of the submissions received by advocacy groups, representative groups and academics; preparing a random sample of all of the submissions received and setting aside dedicated time on the agenda to consider these; and highlighting for members all of the personal stories received to allow them to have access to first-hand perspectives on the eighth amendment.
The submissions played an important role in contributing to the work programme of the assembly. We had a session dedicated to their discussion and much of the fourth weekend was based on them. I am satisfied that every effort was made to facilitate access to the submissions and the feedback from members, which we received every weekend, was very positive in this regard.
The voted recommendations were, of course, what the whole process was about. I will focus on the recommendations of the assembly, as contained in the assembly report submitted to the Houses of the Oireachtas on 29 June 2017. It is important to note, as is obvious from the report, that the issues which the members voted on were framed by reference to Article 40.3.3°, rather than the terminology used in the resolution of the Oireachtas, which referred to the eighth amendment of the Constitution.
Due to the inextricable link that the 13th and 14th amendments have with the eighth amendment, which relate to the right to travel and the right to information, respectively, it was felt that it was more accurate to discuss Article 40.3.3o rather than the eighth amendment. I am still of that view.
The assembly's recommendations were determined through four distinct ballot papers that were sequential in nature, meaning that later ballots were dependent on the outcome of earlier ballots. Depending on the votes on earlier ballots, not all the later ballots were going to be reached.
In summary, the Citizens' Assembly made the following recommendations by a majority vote: Article 40.3.3o should not be retained in full, the majority being 87%; Article 40.3.3o should be replaced or amended, the majority being 56%; and Article 40.3.3o should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any right of the unborn and any right of the pregnant woman, the majority in that case being 57%. Put simply, the members voted that they wanted to remove Article 40.3.3o from the Constitution and, for the avoidance of doubt, replace it with a provision in the Constitution that would make it clear that termination of pregnancy, any right of the unborn and any right of the pregnant woman were matters for the Oireachtas. It would be solely a matter for the Oireachtas to decide how to legislate on these issues.
The assembly made further recommendations about what should be included in the legislation. Specifically, the reasons, if any, for which termination of pregnancy should be lawful in Ireland, as well as any gestational limits that should apply, were addressed. I will preface my next remarks by saying that there were 13 reasons. I will discuss No. 13 first before dealing with the others. The committee will have seen the framework in the report.
Regarding reason No. 13, 64% of members recommended that the termination of pregnancy without restriction should be lawful, with that voting also detailing the gestational limits, if any, that should apply, as set out on page 36 of the report. In addition, a majority of members recommended 12 reasons for which termination of pregnancy should be lawful in Ireland and recommended the gestational limits, if any, in respect of each of those reasons. Those reasons and the details of the majorities that supported them are: real and substantial physical risk to the life of the woman, 99%; real and substantial risk to the life of the woman by suicide, 95%; serious risk to the physical health of the woman, 93%; serious risk to the mental health of the woman, 90%; serious risk to the health of the woman, 91%; risk to the physical health of the woman, 79%; risk to the mental health of the woman, 78%; risk to the health of the woman, 78%; pregnancy as result of rape, 89%; the unborn child has a foetal abnormality that is likely to result in death before or shortly after birth, 89%; the unborn child has a significant foetal abnormality that is not likely to result in death before or shortly after birth, 80%; and socioeconomic reasons, 72%. In an additional question on the ballot paper, 72% of members recommended that a distinction should not be drawn between the physical and mental health of the woman.
It is essential that the Oireachtas understands the backdrop to these decisions and the context in which the recommendations were made in this complex area of law and, in particular, the ultimate formation of the ballot papers. I have provided a full and detailed explanation of this in chapter 1 of the report. In addition, transcripts of the weekend's proceedings - I am referring to the fifth weekend when the voting took place - are provided in an effort to be transparent and open about the manner in which we went about our business. If committee members read the transcript, they will see exactly what happened that weekend regarding the formulation of the ballot paper and the voting.
I will briefly say something about ancillary recommendations. I am aware that the committee has decided to dedicate one module of its work to consideration of these recommendations. In feedback over a number of meetings, the assembly's members made clear that they wanted to see wider policy issues, as distinct from just legal ones, reflected in the recommendations of the assembly. On the final weekend of the assembly's consideration of the eighth amendment, members were invited to write down their comments and suggestions on further recommendations. They were informed that these would be included and reflected as recommendations in the final report. In the interests of transparency, the report provides the full verbatim text of these comments in appendix B. The five ancillary recommendations of the assembly based on member feedback are provided on pages 37 and 38, and I would be happy to discuss these further with the committee later.
The legitimacy of the assembly's recommendations is built upon the robust process applied to our consideration of the topic. I am aware that the results caused surprise across some sections of society, but I truly believe they were reached not by chance or accident, but following a thorough and rational thought process that each member undertook as he or she stepped up to the ballot box. Each vote was underpinned by expert evidence received from 25 professionals across 80 hours of active assembly participation. This in turn was supplemented by hours of preparatory work on behalf of the members in reading papers, submissions and such like.
Members heard arguments from advocates representing 17 groups on both sides of the debate. They also heard first-hand personal stories of women who had been impacted by the eighth amendment. The six women's crisis pregnancies resulted in different outcomes, but each felt that the eighth amendment impacted on her decision-making.
All this material contributed to the recommendations before the committee today. I encourage each member of the committee, the wider Oireachtas membership and the public with an interest in this topic to review the footage of the questions and answers and feedback sessions at the April weekend when the recommendations were made. That footage illustrates the participation and engagement of the members in the process. It is evidence of the diligence with which they approached the task and the thoughtful and thought-provoking questions they asked of our experts, advocacy groups and secretariat. They took to their role with the utmost seriousness and dedication and carried it out with exceptional maturity, compassion and respect, which is not always present in this debate. In the circumstances, I urge Oireachtas Members to view the assembly members' recommendations with respect and due consideration.
Before I conclude, I wish to emphasise a point. The assembly is an exercise in deliberative democracy, which places ordinary citizens into consideration of the important legal and policy issues facing society today. However, the recommendations that the assembly has made are just that - recommendations.
The assembly does not, cannot and should not usurp the role of elected Members of Dáil and Seanad Éireann. As chair of the assembly I do not underestimate the difficulty of the task facing committee members as politicians in considering this topic further.
One of the most fundamental aspects of the eighth amendment is that it was introduced by the people in a referendum, which is the only way in which our Constitution, Bunreacht na Éireann, can be changed. The Constitution is the foundation of our legal system. Under the Constitution, the people are sovereign. The people are the ultimate decision-makers in terms of what provisions are inserted in or removed from our Constitution and what changes are made to it.
I wish the committee well with its work - I genuinely mean that - and both I and the secretariat are at members' disposal if we can be of any assistance as they continue their work. I formally express my gratitude to the members of the assembly who willingly gave up a Saturday in October and a further five weekends of their busy lives from November to April to participate in the assembly’s consideration of this topic. I look forward to engaging with the committee during this session on the work carried out by the assembly on the eighth amendment.
I thank Ms Justice Laffoy for her presentation and for her hard work as chair of the assembly. I want to raise a few matters of housekeeping in advance of the questioning. Due to the number of members we have, we have a system whereby four speakers will have ten minutes in total, which will include the witness's answers. I have to be very strict because of the number of people. I know that it is tedious. I propose to members who have ten minutes that I will indicate to them when five minutes have passed in order that they are aware that they have to allow time to allow Ms Justice Laffoy to come back in, and I will indicate again when we are a minute from the end. Likewise, for those two minutes of questions, I will indicate when they are halfway through and then again 30 seconds from the end. I hope that is okay. It may seem tedious but that is what we have to do to get everyone in.
I welcome Ms Justice Laffoy and thank her for her work in chairing the Citizens' Assembly. I also thank our 99 fellow citizens who took part in this particular exercise. In trying to address this issue and the roadmap that has been laid out by the Citizens' Assembly, one could argue that it is a roadmap, or equally a map of many roads. It does not give us any clearly defined pathway. There are many recommendations in the Citizens' Assembly. In that context, how did the assembly reach these decisions? Were fatal foetal abnormality, incest, rape, and the various options that were highlighted towards the end of the report outlined at the start of the process? When were they framed in the mind of the assembly? Was it at the outset or did they arise in the course of the discussions with the various witnesses and testimonies that were presented at the Citizens' Assembly? There was surprise in some quarters that 64% of the members of the Citizens' Assembly recommended that termination of a pregnancy without restriction would be lawful. That was a surprise to some people and certainly created much discussion. On the broader issue of the 13 recommendations that are outlined, where did they come from in terms of being printed and voted upon? I would appreciate if the witness could elaborate on that.
The witness said in her opening statement, "I had initially hoped that the assembly would be able to conclude its work ... over four weekends", but that it became clear that because of the complexities, in particular in relation to law, it would be necessary to have another weekend. Does the witness mean the law as it is or the law that would have to exist if there were to be a change to the Constitution? Is the witness referring to the complexities of the present legal structures?
When the witness was discussing the substantive issues, was there a change in the mood of the Citizens' Assembly over a period of weeks or at the start of the particular deliberations? Does the witness think that views and opinions and people's minds were changed during that process when witnesses were making deliberations, or is it possible to ascertain that? There was no vote at the start to compare with the vote at the end. Was there a change in the attitudes of the citizens to the testimonies, the witness statements of the medical, legal and ethical experts, and the personal stories people relayed of the impact the eighth amendment has had on them? I assume there were advocacy groups from both sides who relayed personal stories of the eighth amendment to the Citizens' Assembly.
On the issue of fatal foetal abnormalities, we have had numerous debates in the Dáil Chamber, and indeed across broader society. Fatal foetal abnormality, incest and rape are very often seen as areas where there may be a certain amount of common ground. There may be people on the pro-choice side and the pro-life side who have a very strong view, but there also seems to be a group in the middle. Is that reflected? Is that an area where there was a feeling or a vibe from the assembly around these particular issues, or was it just very blunt votes at the end of the process that gave us the varying views of the committee itself?
The witness is a judge who has sat and listened to these debates. She has observed them both as a judge and citizen over many years. Did the assembly take any legal advice, other than the testimony that was presented by witnesses who were called, or did the witness or secretariat or the Citizens' Assembly seek any independent legal advice for themselves with which to frame the discussion. If such advice was taken, was it published or made available?
The witness said in her speech-----
I will finish soon. The witness referred to the eighth amendment retention, repeal or amendment. As the witness knows, when we have referenda in this country, the substance of the issue is not the issue that is brought to the fore during the referendum. If we were to have a referendum, does the witness believe it is possible to distil into coherent arguments all the information that was presented to the Citizens' Assembly and adjudicated on by citizens, or is it so complex that it would almost require an educational programme in advance of a referendum to address some of the complexities of thee particular issues around the recommendations of the Citizens' Assembly?
Ms Justice Mary Laffoy:
The first question referred to the recommendations and where the basis of the recommendations came from. That is my understanding of what the Deputy wanted to know. As I said in the opening address, we started establishing the framework from the start. We had our first meeting, and the Deputy will see from the report that we explained the law to the members, gave explanations about medical issues and all that. As we went along, we invited feedback from the members. We asked them what they wanted to know, what information they would like us to give them and what speakers they would like to hear. I know that I am not directly answering the question that was asked about where the recommendations came from, but as we were framing the work programme we were trying to identify what issues would arise at the end of the day - not necessarily the recommendations, but the issues that we should address.
If the Deputy looks at the work programme, he will see that the matters that came up in the recommendations were covered as we went along. The Deputy has concentrated on the reasons but the recommendations started with whether there should be a change in the law, the strong feeling being that there should be. The next issue was how the change was to be effected and the final recommendation was for a provision in the Constitution that the Oireachtas should have full autonomy to legislate in this area. Over and above the 13 recommendations, consideration was given to the reasons abortion could be lawful in this jurisdiction. The chair, the secretariat and the expert advisory group formed a draft ballot for consideration by the members and this had only eight reasons. Those eight reasons reflected what happened as we went along through the work programme. I do not know if that answers the Deputy's question. The issues which came up were those which come up in most jurisdictions in regard to this area. The work programme guidance, which we gave members as we went along, reflected that.
Two questions were asked relating to the same thing, namely, whether we noticed a change in mood or a different vibe. I sat through every session, all day, and all the round-table discussions. I sat at the top, looked down and observed everything that was going on and I can truthfully say that I did not notice a change in mood over the course of the process. I did not notice any vibe in respect of any particular topic but Ms Finegan may have a different view.
Ms Sharon Finegan:
I do not. One of the mechanisms we could have used to establish that would have been to ask the citizens in advance but we did not do that, for obvious reasons. Ms Justice Laffoy and I consciously did not engage with the citizens on this topic. We had ongoing discussions with them about the administration, the set-up and so on but we saw what anybody watching from the outside would have seen.
Ms Justice Mary Laffoy:
That is very much the case. I, personally, did not engage at all with the members of the assembly on the topics we were discussing. The Deputy raised the question of fatal foetal abnormalities and incest and rape. I cannot say I perceived any particular attachment to or connection with those reasons. The committee will have to assess the voting themselves on this matter.
Ms Justice Mary Laffoy:
We dedicated a lot of time - practically a whole day - to them. We had four speakers on fatal foetal abnormalities in respect of both the legal and medical situations, and on rape we heard from Maeve Eogan from SATU and Noeline Blackwell from the Rape Crisis Centre. We had a very good talk from Tom O'Malley of NUIG on the legal position. It would be in members' interests to read that paper as it is very helpful. Otherwise, I did not perceive any particular focus on those two items, though they were raised at the very beginning.
Ms Justice Mary Laffoy:
We did not get any particular advice and we did not retain a lawyer for that purpose. However, we had the expert advisory group, as provided for in the Oireachtas resolution. There were two very good lawyers on that group, Professor Oran Doyle and Professor Rachael Walsh from Trinity College Dublin. They are experts in constitutional law and gave us great assistance but we took no legal advice.
I thank Ms Justice Laffoy and her team for being here with us. I also express my thanks to the members of the Citizens' Assembly because they gave of their time willingly and what they did was not easy. There has been a fair amount of discussion in the media about the process and, as is the case with a lot of things, when somebody does not like the outcome they criticise the process rather than engage with it. Can Ms Justice Laffoy elaborate on the 13,000 submissions? I followed the proceedings online and I read some of the submissions. There was a huge amount of duplication and a lot of cutting and pasting. Ms Justice Laffoy said the feedback from the members of the assembly was positive but could she elaborate on it? Can she put our minds at rest and say that the people on the Citizens' Assembly were satisfied with the outcome and that they had an opportunity to engage with all the evidence and the information they felt they needed before coming to their conclusion? There has been a lot of discussion about the process and it would be of benefit to the committee to hear that. Ms Justice Laffoy also said the legitimacy of the recommendations was built on the robust process. Perhaps she could also elaborate on that.
Everybody acknowledges that the work of this committee is going to be hard. Having chaired the assembly, Ms Justice Laffoy now has a huge amount of experience in the subject. Is there a particular group or individual that she feels may be able to assist us in any way, shape or form, and who might benefit this committee by appearing before it? Given that there was no vote, is Ms Justice Laffoy satisfied that the ancillary recommendations constitute a majority view of the members of the Citizens' Assembly? As I have said, when there is disquiet and people do not like the outcome of something they tend to attack the process and we do not want to have to keep going back over the process. We want to take it as given that the work was conducted in a robust manner.
Ms Justice Mary Laffoy:
There was some element of duplication in the 13,000 submissions but not an awful lot.
We put 12,000 submissions, which were accessible by the members and the public, on the website. In a sense, I would have liked if there had been more time to make more use of the submissions but I am happy that we did make use of them and that we engaged the members of the assembly with them as best we could. All of the submissions were up by March this year but, not only that, at the start we prioritised those of the advocacy groups and put them up first. Then, as I said in my opening address, we had one session on submissions. For that we prepared a random sample - a booklet - that was probably this big. It had 300 randomly selected submissions. We had a session on that. I hope I am not taking up too much time but Ms Finegan may briefly explain how the random selection was made. Given the various engagements we had with the citizens on the submissions, I think they got benefit from them. I am happy enough about that. I am conscious of the fact that many people went to the trouble of making submissions - some very good submissions - and I hope they are not disappointed that we did not make more use of them. However, we made as much use of them as we could within the period available to us.
Ms Sharon Finegan:
I do not really have anything further to say other than that we developed the methodology that we used for that random sample with the CSO to be sure that it was truly representative and that it was a robust methodology. We selected the number of 300 using advice from political scientists as to what was an accurate sample size. We did get duplication but, as the chair has stated, people went to the trouble of making those submissions and we got many written submissions through the post. There were up to 5,000 through the post. Someone had taken the trouble to get an envelope and put a stamp on it. Therefore, we treated each one individually, even if they were duplicates, because of the trouble that person had taken. The various mechanisms that the chair has outlined show that we did use them as much as we possibly could.
Ms Justice Mary Laffoy:
Deputy Louise O'Reilly's second question related to the legitimacy of the recommendations. She pointed out that I am relying on what I contend is the robust nature of the process that we went through. That is what I am relying on. It is the robust nature of the process we went through. We worked very hard to ensure that the members were informed and that they understood all of the aspects of the topics that we were concerned with - the legal aspects, the medical aspects and the ethical aspects - and what issues were important. The whole objective was to inform them so that they would be in a position to make the proper decision. That was what I saw as my task as and I hope I fulfilled that task. We worked very hard to do so. If it looks at the amount of material that we have produced, the committee will see how hard we worked. We got some of the best advisers available on that.
Deputy Louise O'Reilly asked also about the ancillary recommendations. The members wanted to give us ancillary recommendations. They wanted to deal with wider policy matters. We encouraged them to do so but we made it absolutely clear to them that those recommendations, not having been voted on, were in a totally different situation to the voted-on recommendations. The committee will see that we picked five. We analysed the transcript, if I may put it that way, and we picked five. I doubt if there is anything controversial about the five. There may be. I do not know. I certainly think that those five - what we decided as ancillary recommendations - reflect what the members wanted the committee to know. It is true to say that they were not voted on and I cannot say that the majority would have voted for each of those ancillary recommendations. However, I can say, and the committee can do the exercise itself, they represent the ancillary recommendations which most frequently appear in the 74 responses we got.
Was there another point that I have missed?
Ms Justice Laffoy did say that she was limited in terms of time. Are there any groups which she feels that we might particularly benefit from hearing from that perhaps the assembly did not get an opportunity to hear from?
Ms Justice Mary Laffoy:
One thing that I think we did not cover sufficiently because the circumstances are changing is abortion pills. I was slightly concerned after the final hearing and after we had prepared our report that the HSE crisis pregnancy agency put online up-to-date statistics. What emerges from that is that the number of women going to the United Kingdom and The Netherlands for terminations has reduced. The committee is probably aware of that. However, on the HSE website on 13 May it stated - I can barely read it - "Recent research shows that increasing numbers of women from the island of Ireland are making contact with online abortion pill providers". That is a factor that the committee should examine. We got great assistance from the crisis pregnancy agency at the HSE. I think the committee would benefit from getting assistance from it. That is something that concerns me.
I will interject briefly to say that we intend to hear from Professor Abigail Aiken of the University of Texas, who I believe will speak about that, and from representatives of general practitioners. If, after the meeting, there is anyone that Ms Justice Laffoy thinks we would be well advised to hear from in particular, that would be good.
Like my colleagues, I thank Ms Justice Laffoy, Ms Finegan and Ms Hynes for their work and also the members of the Citizens' Assembly for the work they did on behalf of the men and women of Ireland.
First off, I have a couple of questions. They lend themselves pretty much to "Yes" or "No" answers. In Ms Justice Laffoy's view, given that the assembly members were required not to have taken a public position on the subject of abortion such as having a history of participating in public actions, would it be fair to say that the assembly mainly comprised people without very strong views on either side of the spectrum? That is my first question.
It has been suggested by some people that the citizens of the assembly were somehow misled into voting as liberally as they did. What would Ms Justice Laffoy say to that accusation?
Deputy Kelleher has asked what would have been my third question, so I will not repeat it. Therefore, my third question is as follows. This is the first time in Ireland that we have been speaking about having free access to abortion. In Ms Justice Laffoy's view, is that because the conversation on abortion has so far been lacking? Does she think that Government has a responsibility to educate the public to the same level that the citizens of the Citizens' Assembly were educated?
Do we have a duty as a Government to educate? Somebody brought up an education programme earlier. What are Ms Justice Laffoy's views on something like that?
Is it her view that the citizens in the assembly thought the Protection of Life During Pregnancy Act was a good basis to work off? What were their views on that? Did the Act lead to distrust among the citizens about letting politicians legislate for abortion? What in Ms Justice Laffoy's view persuaded the two thirds majority to vote in favour of access to abortion without restriction as to reasons in early pregnancy? How do we come to a point where the majority favoured unrestricted access in the first trimester? Why did a high proportion of the Citizens' Assembly vote for access to abortion on socio-economic grounds? In inviting groups to present before the assembly, like the Guttmacher Institute and BPAS, Ms Justice Laffoy and the secretariat were accused of bias. She dealt with this ably in her remarks. What lessons does she have for the committee from that experience, as we are likely to be hearing from groups like that? Does she have any advice to us about accusations that might be made against us?
Ms Justice Mary Laffoy:
Deputy O'Connell has asked me to speculate on a lot of things and I am probably not going to go very far down the speculation route. On the first question, my understanding of it is that the citizens chosen were in the middle. Am I right in interpreting the question like that? I do not know. I must say that honestly because, as we said in relation to another question, neither the secretary nor I engaged in debate with the members on the topic on a personal level. However, the answer to the Deputy's question is that we adopted a process to choose the members of the assembly by engaging RED C which was in accordance with the resolution of the Oireachtas. On that basis, and as we went that route, one has to assume we ended up with 99 citizens who reflected the general public. I cannot put it any further than that.
Ms Sharon Finegan:
On a point of clarity, it is worth noting that the only people who were excluded in the recruitment process were those who had been members of advocacy groups. Having a strong opinion either way did not preclude one from taking part. It was only if one had had an active role in an advocacy group that one was excluded. That is an important distinction between those two things.
Ms Justice Mary Laffoy:
Deputy O'Connell's second question was whether the process misled the members into voting on a liberal basis. Genuinely, I do not believe that is the case. The committee has all of the material. There has been a great element of transparency about that. All of the speakers' papers went up on the website and they are all in the report. The process was streamlined and nothing was hidden. Anyone can make his or her own assessment on that. My assessment of the process is that it was fair, balanced and impartial and did not mislead the citizens. It was not responsible for a liberal approach. Can Deputy O'Connell summarise her next question?
This is the first time we have talked about free access to abortion. My question is whether Ms Justice Laffoy feels the Government has a duty or responsibility to educate the public and the rest of the Oireachtas.
Ms Justice Mary Laffoy:
My answer to that is fairly predictable. I am not going to tell the Government what to do. I was given a particular job. I was asked to chair this assembly and did so. I endeavoured to do it on the most balanced basis possible. Obviously, when we come to a referendum, there are a number of requirements as a matter of law to ensure that the public knows what they are voting on. However, I would not think of telling the Government what to do. That may relate to some of the Deputy's other questions also.
The Deputy asked why the assembly went for the socio-economic reason. The sense I got from the feedback and what happened at the various sessions was that they felt the reality of the situation was that only people who had money could afford to travel to the United Kingdom, the Netherlands or wherever. I think that was what motivated that. Does Ms Finegan agreed?
Ms Sharon Finegan:
One point to note is that in the preparation of a draft ballot paper, there were, as the chair has alluded previously, only eight reasons provided. "Socio-economic" was not one of them. "Socio-economic" was one which came through in the discussion of the draft ballot paper again and again from the tables around the room. There was a vote to see that included on the ballot paper and it was carried by a majority in the room. In discussing that, the advice the citizens got from the expert advisory group was that some of the reasons for which they sought "socio-economic" were covered in what became reason No. 13 but which was reason No. 8 on our initial ballot, namely "without restriction as to reason". Nevertheless, the citizens voted to put it on. As the chair has said, that has some connection with the perceived difficulty for socio-economic groups. They heard some material about that throughout the course of their deliberations.
Ms Justice Mary Laffoy:
We suggested to them that it came within "no restriction" but they were still adamant that they wanted that. I think that was the motivation, but I may be wrong. That is just my reading of the scenario.
Deputy O'Connell raised in particular the position of BPAS and Guttmacher and I think I should deal with it. Gilda Sedgh from the Guttmacher Institute spoke to us. She had been the author of an article which had been published in The Lanceta few months previously and which had been promoted by the World Health Organization. In fact, we got her name from the World Health Organization. I am quite happy that she gave us a balanced paper. It is in the book and one can read it. BPAS arose because the members, and they made this very clear, indicated at an early stage that they wanted to hear about the abortion process in the United Kingdom and how Irish women were treated there. Patricia Lohr, the medical director of BPAS, gave us a talk. We asked her. It is in the book. When I was reading the papers again over the weekend, I thought it was a very interesting and helpful submission. Quite frankly, I do not think any criticism of our choice of either Gilda Sedgh or Patricia Lohr is justified. They helped the process and informed the members. I think that is all of the points.
I thank the Chair. I have the stopwatch on as well. I thank Ms Justice Laffoy for her report and for appearing before the joint committee today. I echo her remarks expressing gratitude to the citizens who gave up their time over many weekends. An earlier speaker said that no clear pathway was delineated by the Citizens' Assembly.
I would like to hear Ms Justice Laffoy's response to that. I do not think it is as difficult as some people are making it out to be. I suggest that quite a clear pathway has been signposted by the Citizens' Assembly. Ms Justice Laffoy said in her presentation that the members of the assembly carried out their role "with exceptional maturity, compassion and respect". She mentioned that they listened to 17 groups over 80 hours of active participation and heard directly from six women who have experienced crisis pregnancies. She referred to them as "a varied cohort of citizens" who are "representative... of modern Irish society". Would it be fair to say that they listened to the reality of why most women have abortions in this country and came up with a set of proposals that deal with the reality of why most people have abortions? Before the assembly met, we heard a lot of talk about the hard cases that involve risk to life, fatal foetal abnormality or rape. The assembly heard about the reasons ten pregnant people leave the country every single day. As Ms Justice Laffoy has said, importantly, each day three women have abortions in their own bedrooms with safe medical abortion pills.
Ms Justice Laffoy made the point in her concluding remarks that the results of the Citizens' Assembly "caused surprise across some sections of society". She said she truly believes those results "were reached not by chance or accident". An attempt has been made very quickly to cast aspersions or undermine the assembly. When RTE was reporting on the conclusion of the assembly the following day, it was suggested that the task of the committee that is sitting now "is essentially to water down these proposals [so that they are] not politically toxic". Is it not the case that the Citizens' Assembly showed us that members of the public are pushing for further advancement in the more liberal provision of abortion? For example, the use of the word "socio-economic" was insisted on by the members of the assembly, having heard direct evidence about those who have money, etc. They were made aware that 15% of Irish people who go for abortions have passed the 12-week timescale because of the difficulty of saving money and making bookings, etc.
The citizens removed the qualifier of "serious" so that the previous reference to "serious risk to health" now refers merely to "risk to health". It is far from the case that the politicians have to educate the public. It looks like the public is educating the politicians on issues like abortion. Would Ms Justice Laffoy agree that we now have an opportunity, arising from the Citizens' Assembly's recommendations that we should have abortion on request up to 12 weeks without a reason having to be given by the woman, which is the basis for most abortion laws around the world, and that abortion on other grounds should be possible after 12 weeks? It is now a question of whether the parties will take a strong and courageous stand to vindicate what the Citizens' Assembly has recommended, or will continue with an Irish solution to an Irish problem.
I would like to ask some specific questions. The first issue to be considered was whether the eighth amendment should be repealed or replaced. Obviously, this has been the subject of some discussion. I want to ask about the intent of the Citizens' Assembly in narrowly deciding to replace rather than repeal. Would Ms Justice Laffoy accept that this decision was made from a position of cutting out any legal uncertainty? A significant portion of the presentation they were given - I think it was six pages - referred to the legal uncertainty that might arise if a replacement for the eighth amendment was not included in the Constitution. Would Ms Justice Laffoy accept that more time is needed to discuss the dangers of replacing the eighth amendment with particular wordings? Maybe more time should have been given to that.
I want to clarify what Ms Justice Laffoy thinks the assembly meant in its second ballot. According to her report, "Put simply, most of the members voted that they wanted to remove Article 40.3.3° from the Constitution and for the avoidance of doubt to replace it with a provision in the Constitution, which would make it clear that termination of pregnancy, any rights of the unborn, and any rights of the pregnant woman are matters for the Oireachtas". In other words, there would not be anything in the Constitution about the rights of the unborn. According to the Citizens' Assembly, it should be a matter for the Oireachtas to legislate for. I think there is confusion on that. I believe the assembly recommended that the rights of the pregnant woman or the unborn should be dealt with separately from the Constitution and, therefore, the Constitution should not have any reference to those rights. Is it not clear that this is what the members of the assembly meant, given that they recommended the following day that abortion should be available on request up to 12 weeks?
Has Ms Justice Laffoy been a bit surprised with the reaction of certain people, including some journalists and political people, to the report of the Citizens' Assembly? Many people are talking about the Taoiseach's comments at the weekend that he is not sure whether the recommendations of the Citizens' Assembly would be passed by the people. Does Ms Justice Laffoy think that if the same type of reasoned debate were to take place in communities and various forums, we could get the same result - the acceptance of the assembly's recommendations - from the popular vote?
Ms Justice Mary Laffoy:
-----dragged into the area of speculation. Maybe I can rely on the clock as an excuse for not responding. Seriously, I do not think I should speculate on what might or might not happen. I had a particular job and I did my best to do it. I think it would be inappropriate to speculate.
The Deputy asked me to clarify what the citizens voted for when they recommended how the Constitution should be dealt with. I think the matter is quite clear. The citizens were advised that there might be uncertainties regarding the implications of repeal simpliciter. They took that on board. I think that is what happened. They voted the way they did on that. When the members of this committee are thinking about the recommendations made by the assembly, perhaps they should separate ballots 1, 2 and 3 in their own minds from ballot 4. Ballot 4 was about what they thought should be included in legislation. I think it is slightly different. The committee might take a different view on that. I think the members of the assembly were quite clear. On the basis of what they had heard, they wanted the matter of termination of pregnancy to be dealt with by way of legislation and not in the Constitution. That is the outcome, regardless of whether everyone agrees with it. As they say in Irish, sin scéal eile.
I would answer the Deputy's final question by saying that everybody is entitled to his or her own view on this topic. We have to respect everybody's view. I would not dream of criticising reporters, academics or politicians. In the position I am in, I have to respect everybody's view. My colleague, Ms Finegan, might tell me if there is anything I have not covered.
Thank you very much, Ms Justice Laffoy. I will now move on to those who have indicated.
It is quite clear that if members go over half of the time they are given in total I will have to put our witness under pressure, which I find embarrassing. I hate having to tell the witness to sum up. I call Deputy Lisa Chambers.
I welcome Ms Justice Laffoy, Ms Finegan and Ms Hynes and ask them to excuse the brevity of my questions. I am under pressure of time as well. There were allegations that the Citizens' Assembly was not representative of our country and of Irish society, for many reasons. In particular, there was a view that it was not representative because there was no representative from each county in the country. How does Ms Justice Laffoy reply to that allegation? Is she satisfied that the debate was balanced and that all sides were represented in terms of presenting with witnesses and evidence to the assembly?
The Citizens' Assembly met over a period of four weeks and during a fifth to vote. How transformative was that process in Ms Justice Laffoy's view? She was asked if people's minds were changed but did it allow people to get to a stage where they could make a decision and vote? Was that a transformative process where, perhaps, when they started they were not in a position to say what they believed or what they wanted?
My final question is perhaps speculative and Ms Justice Laffoy might not be able to answer it. Some 64% of members recommended termination of pregnancy without restriction. It has been suggested that this happened because when they focused on the issues of rape and incest it became apparent that it was almost impossible to legislate for those. Was it on the basis of allowing for such instances that they felt there had to be a period of unrestricted access?
Ms Sharon Finegan:
As the Chairman mentioned in her opening remarks and subsequently, we hired a polling company, Red C Research & Marketing Limited, to select the members of the assembly. The company was to select a representative sample based on various demographics such as age, gender, socioeconomic background and geographical spread. There is a detailed methodology document on the assembly's website as to how the company went about it. The methodology used by Red C Research & Marketing Limited shows that rather than splitting the country into 26 counties, it stratified by region across 15 broad regions and the members were selected out of those regions. It is done by urban-rural split within the four major regions of Dublin, rest of Leinster, Munster and Connacht. Using this stratification it did a random sample within that. That is quite standard in polling when one is trying to get a nationally representative sample.
Ordinarily, what would happen from a polling perspective is one would have a group of 1,000 and that would then throw up more people across the 15 stratifications, so one might in those instances get to the 26. However, for the purposes of our assembly we used the well-worn, usually adopted methodology and it transpired that we had the representation in that way. It was representative of the other cohorts. When we had replacements, for example, we were careful to replace so that it continued to be representative. On our website the Deputy will see quotas as to the numbers we had to fill across each of those broad areas and in re-recruiting, we continued to ensure that each of those quotas was filled. It is quite a technical answer but we made enormous efforts to make sure it was as representative as possible. I hope that answers the Deputy's question.
Ms Justice Mary Laffoy:
The information on how it was done is on the website.
Obviously, I believe the debate was valid. The Deputy mentioned the first four weeks and then going into the fifth week. It is important to emphasise that what the members of the assembly got from the first four weeks, which they were able to utilise in the fifth week, was an informed position. They were brought to an informed position about the law, the medical position and ethics. The objective was to get them to an informed position. I cannot assess how well they were informed or why they came to the outcome they reached but I believe every effort was made to inform them of the issues they were going to have to address in the ballot.
There is an element of speculation in the Deputy's last question. It is not something I have thought about previously. The Deputy asked if the majority went for reason No. 13, no restriction, because they thought the rape or incest reason was too difficult. I do not know if that is the answer but there is no doubt that we provided the information to the citizens. Again, I refer the Deputy to Tom O'Malley's paper, which is very interesting. There are two and a half pages at the end in which he highlights the difficulties relating to rape and incest. The Deputy can draw her inference from that.
We are in the two-minute slot so it is incredibly difficult for us to ask questions. Before we ask them, I thank Ms Justice Laffoy and the citizens for an outstanding piece of work. It has been great for the Irish public. Ms Justice Laffoy made the point that she was dealing with a topic which she described as one of the most divisive and difficult. However, is it not the case that her work has shown the opposite, that when one creates a space where people can discuss this topic rationally with expert medical and legal opinion, an overwhelming majority of people - two thirds - adopts a view akin to that of most of our European peers, which is access to abortion without restrictions? On the idea of reasons being selected randomly as favoured ones, Ms Justice Laffoy said in answer to Deputy Kelleher that there were no particular reasons. It was an understanding, perhaps, that a reasons based approach is not something that works in other jurisdictions and that the best way forward is to trust women and medical practitioners. Does Ms Justice Laffoy think there is an expectation among the citizens that their views and recommendations will be implemented in full?
I have two further brief questions. Having voted to repeal and take this out of the Constitution, the idea of replace and putting something in instead is a little confusing for people. Ms Justice Laffoy has made it clear to the committee, as well as in her written documents, and the 74 submissions from the citizens have also made it clear that the reason they did that is not that they wanted it in the Constitution but that they wanted to make sure that the Legislature would not be restricted in legislating. In her judicial experience, can Ms Justice Laffoy think of any other example where we would provide in the Constitution, "the Oireachtas must legislate for this"? Normally, we trust the Judiciary to interpret the Constitution and we allow the Oireachtas to do it. Is there any other area where we say, in essence, "let the Oireachtas legislate" and more or less dilute the role of the Judiciary? Are we not better off leaving it the way it is, that the Oireachtas legislates and the Judiciary interprets that?
On the ancillary recommendations, why was decriminalisation not recommended? If one looks at all the responses from people, that appeared to be a clear demand and it tallies with the World Health Organization and other organisations.
Ms Justice Mary Laffoy:
I do not wish to get drawn too much into the legal issues. If the Deputy wishes to understand it better she can read the legal papers we have. However, she should bear in mind that an issue that arose was whether there were other implied rights of the unborn, as distinct from the right to life. I am reading the citizens' minds now but, having heard all of the information, I believe that was a factor in them deciding that there should be an express provision in the Constitution permitting the Legislature to legislate in this area.
I have read all the documents and I did not see that legal uncertainty coming from anywhere except one view, which was perhaps slightly exaggerated. I am asking if there is a precedent for that anywhere else.
I do not see any uncertainty. Normally, the Oireachtas legislates if it is not in the Constitution. It seemed to be taking things a bit far.
Ms Justice Mary Laffoy:
If I could make just one observation, it is that I would be very keen that at the end of this whole process we have certainty. I would be very keen on that. It is important to get advice, as we got advice, on the implications of repeal simpliciter or just replacing or amending or whatever, but the committee should get its own advice on that. I would strongly recommend that. There are question marks that have to be addressed and as I say, my hope would be that when this process is all over that there will be certainty. There cannot be absolute certainty. We would put the legal profession out of business if there was absolute certainty.
Ms Sharon Finegan:
It was a numbers issue in so far as the five that were selected to be ancillary recommendations were the five that appeared most frequently, and we referred to the other two, which were, the one Ms Justice Laffoy has just referenced - the decriminalisation - and there is another one, because they were the two that appeared the next most frequently and we felt it was important to reference them, but they did not appear at the same frequency as the others so it was purely a numbers issue.
Ms Justice Mary Laffoy:
No matter how one looks at this, decriminalisation will be a consequence or not a consequence of what happens so I do not really think it is very important. It would be something that the Legislature would have to think of, but it depends on what the legislation provides, in the same way as the 2013 Act repealed sections 58 and 59 of the 1861 Act and put in a new offence, but I think that is a consequential matter rather than a fundamental matter.
I thank Ms Justice Laffoy, her team and the citizens who have taken part in this very important work over the past few months. It is very much appreciated and I hope we can mirror the maturity and respect she spoke about in relation to the process so far. Many of my questions have been touched on by Deputies Coppinger and Clare Daly but I might hone in a little more on the uncertainty piece around Brian Murray's legal advice and ask whether when Ms Justice Laffoy outlined to the assembly that there were three possible consequences of a straight repeal, it would be fair to describe the assembly's intentions as being to copper-fasten option 1, which would be to give the Oireachtas absolute authority to legislate for abortion access and to prevent any pre-eighth amendment constitutional right? Although there were three options and areas of uncertainty they would make sure that they would rule out the other two so that it could not be used or construed in any other way in terms of the uncertainty he raised.
Why was the assembly not given the option of voting to insert an express positive right to abortion access or to bodily autonomy in pregnancy? On a point of clarification I note that Ms Justice Laffoy described in the report that the assembly's intention was to give full control and exclusive authority to make law in this area. I suppose that ties in a little with what Deputy Clare Daly was saying in relation to the Judiciary and its role. That is very strong language. Could Ms Justice Laffoy clarify whether it was the intention of the assembly to recommend that any abortion legislation passed by the Oireachtas would be immune from challenge in the courts? I felt that the reference to "exclusive authority" and "full control" was very strong language and I ask Ms Justice Laffoy to clarify that for me please.
Ms Justice Mary Laffoy:
On the first question, I think I would agree with the Senator that what the citizens were thinking of was copper-fastening the position and not leaving any uncertainty there. I think that is why they took the line they took. Incidentally, and this is just by the way, after that session we had a question and answer session and Brian Murray answered questions, and we subsequently prepared a transcript of that. It is available if it is of any assistance. It may give some insight into the minds of the people who were asking the questions, but I agree that that was their objective; to copper-fasten.
I suppose one has to awfully careful about the terminology one uses in this context. When we talk about certainty and there not being any challenges open and all of that, what I have been thinking of is a constitutional challenge, in other words, that I would prefer and hope the Oireachtas would not produce legislation which within a few weeks would be subject to proceedings in the High Court which claimed a declaration that section whatever it is of the Act is invalid having regard to the provisions of the Constitution. So it is to avoid a challenge of invalidity having regard to the terms of the Constitution that I am concerned with. Of course, the courts must keep an eye on the Legislature and ensure that the Legislature is acting in accordance with law. One does not suggest cutting that out, but I think if the Oireachtas is going down the road to amend the Constitution, and to do so by way of legislation it should strive to ensure that the legislation will not be the subject of a constitutional challenge. I should add that is very much a personal view.
Ms Sharon Finegan:
As a point of clarity - Deputy Clare Daly asked about this earlier - decriminalisation was one issue and the second was the recognition and protection of the female reproductive rights and autonomy, so it did come through in that ancillary exercise that we got the citizens to do but did not come through expressly when we were discussing the ballot paper.
Ms Justice Mary Laffoy:
Yes. In other words, to be absolutely clear about that, on the very last day, 23 April, the citizens were given a document and invited to fill it out and indicate what additional ancillary recommendations they would like the Oireachtas to consider. The two that are mentioned there are decriminalisation and-----
I thank Ms Justice Laffoy for her work, the work of her team and that of the assembly as well as for all the reading material she gave us to absorb over the summer. It was very helpful. Some questions have been asked already and answered satisfactorily so I will try to confine myself to just one or two.
In her opening statement, Ms Justice Laffoy said that, in an additional question on the ballot paper, 72% of members recommended that a distinction should not be drawn between the physical and mental health of the woman. When the questions were framed, a significant number of them were on health. They are about risk to life, physical health, mental health and health. The majority of the questions have a reference to health in them. Would it be fair to say that, while examining the issue of health and the legal framework around this issue, the focus of the Citizens' Assembly was centred predominantly on health?
Ms Justice Mary Laffoy:
There were many questions on health. I think it was eight. When we came to dealing with the ballot paper on health, two issues were raised by the members. One was whether "risk" should be qualified by "serious". That was one issue. The second issue was whether there should be a distinction between physical health and mental health. In order to do the job properly, we ended up with all of those questions. There was a focus on health but there was some diversion of opinion as to whether the reason should be limited to "serious risk" as distinct from risk simpliciter. The committee will see the reasons on ballot 4B on page 31. We started off with reasons 1 and 2, which were "Real and substantial physical risk to the life of the woman" and "Real and substantial risk to the life of the woman by suicide". They are the X case reasons, which are set out now in the 2013 Act. Then we got down to dealing with risk to health as distinct from risk to life. There we have questions 3, 4, 5, 6, 7, and 8. The distinction is that some of them relate to risk simpliciterand others to serious risk and some of them do not have a distinction between physical and mental health. Those questions arose because some of the members felt it was inappropriate to distinguish between physical health and mental health. Have I made that clear?
Ms Sharon Finegan:
If I may, as the chair has said, there are six questions that refer to "health" as opposed to "life". Part of the reason there were so many questions is there was a very robust discussion with the citizens as to drawing those distinctions between physical health and mental health and whether to use the qualifying word "serious". The committee may ask, if in the heel of the reel the assembly voted by a majority for all of those, why we included all of them. However, we wanted to ensure that we were not disenfranchising some members who may have felt there was a distinction to be drawn between serious risk and not serious risk or between physical health and mental health. We added the extra question to the end of the ballot paper asking explicitly if there should be a difference between physical health and mental health because so many members expressed the view that they wanted to be able to express that on the ballot paper to make it clear that they did not see that distinction. It was quite a detailed way of exploring that issue but it was done in a way so as not to disenfranchise those who did see those distinctions.
I thank Justice Laffoy for coming before us today. She may have already answered my question but, for the sake of clarification, I will ask it again. On page 3 of the report, she states:
Put simply, the Members voted that they wanted to remove Article 40.3.3° from the Constitution, and for the avoidance of doubt, to replace it with a provision in the Constitution, which would make it clear that termination of pregnancy, any rights of the unborn, and any rights of the pregnant woman are matters for the Oireachtas. In other words, it would be solely a matter for the Oireachtas to decide how to legislate on these issues.
My question comes back to the term "solely a matter for the Oireachtas". Perhaps we are over-thinking it, but is it implicit in that that it is not a matter for the courts? Could Ms Justice Laffoy expand on that?
Ms Justice Mary Laffoy:
No, it is not. Maybe that was not the best way in the world to phrase it. Once again, to make it absolutely clear, and I hope all members of the committee take this on board, what I was trying to get across was that, at the end of the day, if the Constitution was amended to provide that it would be for the Legislature to legislate for those matters, it would not be open to constitutional challenge. In other words, there would be clarity.
Ms Justice Mary Laffoy:
-----would state that. I am sure the parliamentary draftsman's office and the Office of the Attorney General would come up with much better wording than that. However, that is the objective, which is to have legislation that could not be constitutionally challenged, that is, that the position would be certain and the legislation could not be constitutionally challenged in the courts.
I thank the Chairman and I thank Ms Justice Laffoy for her contribution to the Citizens' Assembly and note her legal career. I had the honour of appearing before her as junior counsel on one or two occasions and she was very patient with me at the time.
I refer to the recommendation of the Citizens' Assembly that Article 40.3.3° would be replaced, authorising the Oireachtas to legislate. I am somewhat taking off from where Deputy Hildegarde Naughton finished. In the event that the Legislature was free to legislate, some concern has been expressed that, given the nature of how our Governments are put together, which is by coalition, it could be that a particular party, be it small or large, might have the balance of power and that we could have large swings in the legislation depending on the power the party or individual would have. This leads into the theme around certainty. Was there any discussion on that and the possibility of a super majority of 55%, for example, or that Deputies would have a conscience clause inserted so that no Whip would be applied? This is about ideas around allaying those fears. For example, we had three elections in 1981 and 1982. We could possibly have three changes in legislation coming one after the other. It may be a little out of left field but I would like to tease the issue out.
Ms Justice Mary Laffoy:
We did not give any consideration to that. How the Oireachtas operates and the underlying politics at a particular time is really outside this question. I can see why there might be a concern. In the heel of the reel, the issue is whether this topic should be dealt with in the Constitution or by legislation. It was envisaged, I think, in the 2002 referendum that the legislation which would replace the constitutional amendment would only be amended following a referendum.
I believe I am correct in that. It is another possibility and something the Deputy might bear in mind. The members of the assembly did not look at what was likely to happen in the Oireachtas or what the political situation would be at a particular time. We did not consider that.
I commend Ms Justice Laffoy, the members of the Citizens' Assembly and the secretariat on what was, as Ms Justice Laffoy said, a very robust exercise in deliberative democracy. It falls to us now to ensure that we also deal with the issue in a comprehensive, inclusive and respectful way. I just wanted to make that point. I note that the exercise was evidence-based. We need to inform ourselves in the same way that the Citizens' Assembly did.
I specifically want to follow on from Ms Justice Laffoy's response to Deputy Clare Daly on the issue of decriminalisation. I believe she said that the recommendations imply that it would not be a criminal matter. Is she of the view that this issue should dealt with by way of health regulation rather than criminal justice law? I refer to issues such as gestational periods, for example. I am not sure if Ms Justice Laffoy has a reply to that.
I have a very simple second question. Ms Justice Laffoy gave us some advice on perhaps getting more information on abortion pills. Is there any other specific advice she would give to us that we have not heard already?
Ms Justice Mary Laffoy:
On the decriminalisation issue, that really turns on what the legislation provides. If we look at the 2013 Act, for instance, which gave effect to the X case following the decision in Strasbourg, we see that one section provides that "It shall be lawful to" carry out such an act. In fact, two sections, sections 7 and 9, make that provision. Then, towards the end, section 22 says "It shall be an offence to" carry out another act. The issue of decriminalisation really turns on what is legislated for and how the Oireachtas decides that a certain procedure will be lawful. This cannot be dealt with without taking a broad view of what might happen. If one looks at the 2013 Act, it gives one an idea of what might happen. I do not know. Thought will have to be given to what will be made lawful. If something is not made lawful then it will be an offence to do it. To be honest I have not given this any thought. It might be something on which the committee should obtain advice. I have not given any thought to whether this could be taken out of the criminal sphere altogether. The reason for that is that it really depends on what is contained in the body of the legislation. I do not know. That probably does not answer the Deputy's question very well but-----
Ms Justice Mary Laffoy:
There may be some activity that is not rendered lawful. In that case, an offence would probably be created. For example, section 22 of the 2013 Act states that is an offence to intentionally destroy human life in circumstances that have not been made lawful under the Act. It is a very tricky issue and, whatever comes out of it, the advisers - the Attorney General's office and the Office of the Parliamentary Counsel - will have a very difficult job in a very difficult area.
No particular point springs to mind other than that relating to abortion pills. There are probably many in there, but they are not coming out at the moment.
I welcome Ms Justice Laffoy, Ms Finegan and Ms Hynes. Ms Justice Laffoy stressed that, in her view, this was a thorough process and she used the term "neutral expert witnesses". I do not understand, however, why the assembly did not set out to consider how the eighth amendment had contributed to abortion rates in Ireland being significantly lower than most countries or the very obvious reality that thousands of lives have been saved as a result of this amendment and the way it has impacted on our legal system. It did not consider that argument. I did not see that in the work of the assembly and I found it disturbing from the beginning.
In respect of the neutrality of expert witnesses, there was no significant analysis of how the legalisation of abortion in other jurisdictions - particularly Britain, our nearest neighbour - has led to the, often unforeseen, widening of availability of abortion. One thinks of what Lord Steel would have put on the record. He was instrumental, as Ms Justice Laffoy will know, in the 1967 legislation in Britain. Would Ms Justice Laffoy reconsider bringing in an abortion provider like the British Pregnancy Advisory Service, BPAS, or an abortion-supporting foundation like the Guttmacher Institute instead of getting a neutral scholar to research the issue? Would she agree that those people might be experts but that they are not neutral? Was it not inevitable that they would sanitise matters, either through their coverage of the issue or through their omissions, in some way? For example, there was no detailed analysis of what happens to an unborn baby in the course of a late-term abortion or, indeed, of the dramatic incidents of incomplete late-term abortions, such as have happened in Britain over the years, where children were simply left to die. I did not find that in the thorough process which Ms Justice Laffoy argues took place. I wonder whether there is a real question about how thorough the assembly was and whether the choice of non-neutral experts, such as an abortion provider and an abortion-supporting foundation, contributed to a certain sanitisation of the issues.
Finally, I found it disturbing to watch members of the assembly asking the most basic of questions at pretty much the last moment - questions in respect of how a late-term abortion is carried out, for example - before then going on to vote for far-reaching recommendations. Surely such a sad and tragic spectacle did not escape Ms Justice Laffoy's notice. Supplementary to that, is she aware of any lobbying, or any attempts within the group, to encourage other members to take a particular view of the facts? I would be grateful for anything she has to report to us on that. I thank her very much for her time here this afternoon.
Ms Sharon Finegan:
I believe the question is referring to the question a member asked during the preparation for voting on ballot 4B. A member of the assembly asked about the mechanism or procedure used for the termination of pregnancy after 22 weeks. A member of our expert advisory group, Dr. Elizabeth Dunn, gave details about the need for potassium chloride to be injected, after which a delivery would happen, in the event of a termination which included delivery as opposed to surgical dilation and curettage. The contention has been made that the citizens had not received that information previously, whereas they actually had. I refer the Senator to the papers from Dr. Patricia Lohr and Dr. Peter Thompson from Birmingham Women's Hospital, both of whom provided that detail previously.
They had had it in the papers they had previously received. It was not the first time they had received that information. It is important to clarify that.
Ms Justice Mary Laffoy:
That is the case because I checked up on that since the weekend. In both of those papers it was addressed. That is just a small point.
What we were trying to do was to give facts as to what happens on the ground in the ordinary case. We could not have attempted to give the whole story about termination of pregnancy since the 1967 Act was implemented in the United Kingdom. We were trying to give the members the factual position of what happened on the ground in the ordinary situation where a woman sought a termination. That is what we did. It is fair to say that that information was presented on a neutral basis. I accept what Senator Mullen says that we did not give the information he has suggested might have been given. We did not do that and a view may be formed on that, but I think we did give the members of the assembly what we believed to be the relevant information of what happened on the ground in the ordinary case. We gave them that information on a neutral, factual basis.
Ms Sharon Finegan:
Let me add that in the request we made of every speaker, we asked them to prepare their material without commentary about the perceived advantages or disadvantages of the current regime. To the points the Senator has raised, we did not ask any of our speakers to give that two-sided. We asked for the factual position. It was not the perceived advantages or disadvantages, just purely the facts that they present in terms of the implementation of the law.
Ms Justice Mary Laffoy:
There was only one event at which that arose. The Senator has the transcript and can read it himself. That was in the afternoon of Saturday, 22 April when we had started the voting. In the afternoon an issue arose about the voting on ballot 2 and there was a suggestion of lobbying. I did not observe it and it was the only occasion on which I heard that used. I can truthfully say I did not observe lobbying, but I cannot truthfully say that it did not happen. Of course, what I am talking about in relation to what happened on the afternoon of Saturday, 22 April was lobbying within the membership. It was not lobbying from outside. Of course, we simply do not know what happened, if anything, from outside. From what we observed, would Ms Finegan agree with that?
Ms Sharon Finegan:
As the assembly chair has said, the transcript has the full detail of what happened. It comes down to this question that a number of Deputies have raised on ballot 2 and ballot 3 and what the legal understanding is for repeal and what the effect of that is. Much of the discussion on that was on the understanding of the legal impact of repeal simpliciter, as the chair said, versus an amendment. That is what that whole discussion was about - the outcome of ballot 2. It all happened in open court and was very clear. The transcript provides what happened.
I welcome Ms Justice Laffoy, Ms Finegan and Ms Hynes. I thank the 99 members of the Citizen's Assembly who gave up five weekends between 16 November and 17 April.
Ms Justice Laffoy said that each speaker was chosen because of their expertise and impartiality on the topic. In total, 17 groups were invited and accepted. Does she think that both sides were well represented? What I mean is pro-life and pro-choice. I was personally shocked that 64% of the members recommended that termination of pregnancy without restriction should be lawful. She also stated that members made it clear they wanted to see wider policy issues as distinct from legal issues.
Some 90% of babies diagnosed with Down's syndrome in Britain are aborted. Denmark has set a goal of being Down's syndrome free by 2030. Some 98% of abortions in the UK were performed for social reasons. Some 100,000 people in Ireland would not be alive today without the eighth amendment. I ask Ms Justice Laffoy to tell me the difference between policy issues and legal issues.
Ms Justice Mary Laffoy:
In response to the Deputy's first question, in terms of the expert advice - the expert speakers - I do not know whether the pro-choice or pro-life were represented. The objective was to get people who were going to make an objective presentation. That was the objective. I do not know what their own personal views were. However, I know that they had not taken a stance in public. We did a fair bit of investigation and we were satisfied that the speakers we chose had not taken a stance in public on either side. I ask Ms Finegan to confirm if that is correct.
Ms Justice Mary Laffoy:
It was made absolutely clear that they were pro-life or pro-choice. They were making presentations as advocates. They were advocates and were advocating a particular point of view. However, the other speakers were setting out the factual position. We wanted that done on an impartial basis and I think that was achieved. The advocacy groups were in a different scenario.
Of course, when one gets to the nitty-gritty of this, there are legal issues and policy issues. I suppose in a way the members of the assembly ultimately made recommendations on policy for the future. They were told what the law is and they made recommendations about how the law might be changed. I think, strictly speaking, that is probably policy. Would Ms Finegan agree?
Ms Sharon Finegan:
The other place where policy came up was in the ancillary recommendations in the report, of which five related to improvements in sexual health and relationship education, access to reproductive health care, the same standard of obstetrical care, including scanning and testing, counselling and support services, and consideration about the funding of who should carry out termination of pregnancy in Ireland if it is decided.
They were the policy issues that emerged from that part of the process as distinct from the legal ones the Chairman has been discussing.
I thank Ms Justice Laffoy and her colleagues for the work they have done and for their continuing perseverance and endurance.
With regard to rape and incest, presumably rape is reported on the day or the day after and there is particular treatment fairly readily available. Was the discussion held against the background of the availability of such treatment such as the morning after pill or whatever the case may be?
The follow on from that would be the online sale of various pills to be taken some time after the morning after. Was the full medical implications of those products also considered and, if so, to what extent?
Five women who had abortions had some issues to raise. Were any women interviewed who in their view would have benefited if they had had an abortion but did not have one? Does Ms Justice Laffoy know what I am getting at? I refer to the woman who subsequently gave birth to a child. I am not saying I would have come down on one side or the other on this argument. It is just a question as to whether, in the aftermath of the birth of their child, they felt they should have had an abortion or they were right to have had their child.
Ms Sharon Finegan:
There were more. There were six women, three who had continued with their pregnancy and three who had not. All six believed that the eighth amendment had an added impact on their decision-making. For example, there was a woman who had a crisis pregnancy, continued with her pregnancy and told her story to the assembly about the positive impact her child had had on her life and how she was thankful to the law in Ireland for that reason. There were other examples among those women who presented, so the answer is "Yes".
Ms Justice Mary Laffoy:
I was very keen to have the transcripts in the report and we did that. I would recommend that members read the transcripts of the account of women who told us about their personal experiences. They are worth reading.
To get back to the Deputy's earlier question, the information the members of the assembly were given on rape was very thorough. We had Dr. Maeve Eogan from the sexual assault treatment unit, SATU, in the Rotunda Hospital, Noeline Blackwell from the Rape Crisis Centre, and Tom O'Malley, and it is worth reading all of that material.
On the Deputy's particular concern about the legal position, the last two and a half pages of Tom O'Malley's paper are well worth reading; I re-read them at the weekend. We covered all of that material fully and if it comes to implementing a reason on the ground of rape or incest, there is no doubt the law will have to be given a great deal of consideration, but that is a different point.
First, I commend Ms Justice Laffoy and Ms Finegan on their presentations and thank them for their endurance. In one response from a member of the assembly, the issue of clarity regarding repealing versus amending arose. If there was confusion or uncertain in the assembly, dare I say it that would still apply to the wider population, given that the assembly is reflective of society? How can we ensure there is a clear understanding in regard to the repealing versus amending issue?
Second, on the issue of certainty, I am still unsure as to what Ms Justice Laffoy meant by the constitutional challenge in terms of the courts and avoiding judicial proceedings. Surely if an amendment is made to the Constitution, it is open to questioning in the courts. How do we bring certainty to the issue? I refer to what Deputy Browne alluded to and I have read Dr. David Kenny's paper, which I will have to read again. What happens if a referendum to repeal is passed and the Oireachtas decides to make no change?
What is the implication if we look at the context of Article 40.3.30 rather than just the eighth amendment?
Senator Mullen referenced lobbying. I recall at the Constitutional Convention, of which I was a member, an accusation of lobbying being made and it was put to the person who made the accusation that there was no foundation to the accusation. Lobbying is part of our democracy and rather than blaming the process, can we just allow the assembly to do its work and commend the members rather than try to blame the process? The process has taken place. We must now ensure that we act upon it.
If members of the committee read the commentary of the members of the assembly, and I accept the point that they are just recommendations, they will see there is an overwhelming desire on the part of the members of the assembly to see some type of action being taken and it behoves us to tease that out. I again thank Ms Justice Laffoy and also the assembly members for their work.
Ms Justice Mary Laffoy:
I am quite sure this committee will be getting legal advice. So many questions have been raised about the question of repeal simpliciter, amendment and so forth that I believe the committee should get its own legal advice. My own view is that if there was repeal simpliciter, the 2013 Act, of which I know the members had some input into, would still be in place but, say, the Oireachtas repealed the 2013 Act and there was no regulation at all, which I am quite sure nobody would want, in that situation the pre-1983 scenario would be revived and there has to be an element of uncertainty about the effect of that. There may be different views on this but the clearest approach is to repeal Article 40.3.30and give the Oireachtas power to legislate. I may be wrong, but I believe that would bring the most certainty. I would strongly recommend that the committee gets legal advice on that topic in particular.
We do not propose to hear from advocacy groups but for two in the area of foetal abnormality. As Chairman, I am very keen to oversee a process that is informative, thorough and fair.
Obviously, due to time constraints, with which Ms Justice Laffoy will be familiar from our own process, and not least as illustrated today, it is quite difficult to manage the amount of time we have and also the number of people we have on the committee. In regard to not inviting advocacy groups before the committee, does she feel that, in her work, there is sufficient information in her report and in the accompanying documentation to satisfy the necessity, in the context of me, as Chair, wanting to oversee a process that is sufficiently informative for members?
Ms Justice Mary Laffoy:
That was a time circumstance. Obviously, I regretted that we could not do it. In the report, we have given the committee a list of the advocacy groups that made submissions to us. All of the submissions are online. Some of them are very good and the committee might want to refer to them. The committee knows the advocacy groups that we heard from. I think the committee will be able to make a judgment itself. We have been totally transparent and we have given all the information. I would hope we covered everything, except for accidental omissions. With regard to AIMS, we did our best to get balance on that.
On a brief note in advance of next week's meeting, many of the issues which were touched upon today can be covered in more depth once the legal experts are before us. As a suggestion, it might be a good idea for me and perhaps others to review Brian Murray's paper in advance of that meeting because there are a lot of nuances in that paper that might be worth exploring. Others may have read it recently but it is a few weeks since I have read it, and it might be a good exercise to re-familiarise ourselves with his paper in advance of next week's meeting.
I again thank Ms Justice Laffoy, Ms Finegan and Ms Hynes for attending today and for their careful answering of all of our questions. We appreciate their attendance.