Dr. David Kenny:

I would be slow to parse the intent of the Citizens' Assembly in detail, but I will give my general sense of what it intended. It seems to have been a dual intent, basing it on the transcript of the questions asked and the responses given. It first wanted to take this issue out of the Constitution and then separately recommend particular legislative outcomes. In the exchange I referred to earlier, the citizens were told that the Oireachtas when making decisions may be guided by the recommendations they subsequently make, but they would be giving it the power to decide for itself. Obviously, there is the hope and anticipation the Oireachtas will follow the citizens' recommendations, but they did not make this choice in the expectation that the Oireachtas would absolutely be bound by them. That is my reading of the assembly, but obviously it is open to interpretation.

On the politics or wisdom of immunisation to challenge, I will leave it to the members of the committee. It is obviously a balance. On the one hand the cost of exclusion is that it rules out a challenge by a concerned citizen affected in some way. The benefits are that there is potentially less doubt, and less of a chill on the Oireachtas in that sense. There would also be less risk in terms of a final settlement of the issue.

I agree with Ms O'Toole that it might be extremely helpful to have a published Act, as a kind of way of settling the intention with the people. However, it is important to stress that it would not be absolutely definitive because the Act will not actually be part of the referendum. It would be a promise or a pledge that might influence voters. We cannot say that is what all voters intended or that it would be necessarily absolutely part of the decision. By the same token, should the courts decide that that Act was relevant in informing the intent of people, it could end up limiting the power that was given by the referendum as well. If it was taken that this was the intention of the people, it might form a limitation on future Oireachtas action itself.

I feel that we are just lawyers sitting here saying things are uncertain which, to a certain extent, is true but unfortunately that is the refrain I will continue to come back to. There is an element of uncertainty here.