Dr. Tom Hickey:

I thank the Cathaoirleach and members of the committee very much. It is an honour to be invited to address them this morning. I only have one fundamental point to make, which is that the Constitution does not bar or block the Legislature from legislating as it sees fit in the public interest on this matter. That is to say that if the Oireachtas, as a body of legislators, forms the view that it is in the public interest to retain the blanket ban on assisted suicide, that is something that it is absolutely constitutionally entitled to do. Equally, and for the same constitutional reasons – which I will comment on later – if the Oireachtas, as a body of legislators, forms the view that it is in the public interest to loosen the ban to allow for assisted suicide in certain limited circumstances, that is something it is perfectly entitled to do, constitutionally speaking.

Whichever course of action the Oireachtas takes, if there is a challenge in five or ten years where somebody goes to the High Court seeking a declaration of unconstitutionality, regardless of whether the Oireachtas goes conservative or liberal, let us say, it is very unlikely that litigant would win. This is so for a few reasons I will get to, but basically it is because of this concept we in the constitutional law trade call deference or sometimes comity. That is to say, the courts recognise the Constitution establishes a system in the form of the great organs of State, namely the Legislature, Executive and courts, vests certain functions in each, as members know, and envisages a set of institutional relationships between them. On foot of that, in Article 5, Article 6, Article 15, Article 34 and so on of the Constitution, over the decades the courts have developed certain doctrines, the most fundamental of which is the presumption of constitutionality. We can go back to the very first occasion, which is in 1939. The Constitution came in 1937 and in 1939 there is a case called Pigs Marketing Board v.Donnelly which gets cited every time there is a challenge to legislation. Mr. Justice Hanna identified this doctrine and said

When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established ...

The emphasis there, if we like, is on the word "clearly". I show it to my students every year. There are five or six paragraphs around it I am not sharing with the committee because it is too detailed, in which Mr. Justice Hanna elaborated. I am sure members know the reason. Hanna says the Oireachtas has democratic authority; it has electoral credentials, and the Judiciary does not. The Oireachtas is made up of Members who represent the different moral views, perspectives, and so on and has the competence to consider those, whereas the court has only got the two litigants.

The Oireachtas also has the capacity to call in experts. Constitutional law experts are not the people the committee really needs to talk to. It should call in medical experts, statisticians, psychologists, etc. to try figure out as best it can, and make a judgment call as best it can. When that gets challenged down the tracks the courts will say those guys have made their call and they have the authority under the Constitution to make that call. It does not mean the courts will never strike down but it does mean the presumption is it is constitutional. More particularly - I stress this - over the decades since 1939 the courts have repeatedly made the point, including for example former Chief Justice Susan Denham in Fleming v. Ireland and Others, as well as in plenty of other cases, that the presumption is stronger where the question is especially morally contested. The more morally contested it is, the stronger the presumption is. That also applies the more empirically difficult the question is. I do not know what stage the committee is at, but over the next months or whatever, it will call in these experts and they will talk about what could happen and talk about particular circumstances in Oregon, the Netherlands and so on. The question is contested and empirically difficult. How long do we need? What kinds of safeguards do we need? People have different perspectives. Nobody really knows for sure. In those cases, the presumption is stronger, the point being ultimately that the Oireachtas as the elected representatives of the people has the authority to make its call as it sees fit.

A final point, which Dr. Casey pointed out and members all know, is Marie Fleming famously took a case a decade ago. She lost in the High Court and lost 7-nil on appeal in the Supreme Court. Chief Justice Denham handed down the judgment on behalf of a unanimous seven-judge court that included one former Chief Justice, John Murray, and two future ones, namely, Frank Clarke and the incumbent, Donal O'Donnell. It is true the comment is obiter, as they say, in the sense it is not binding and authoritative. However, speaking as a constitutional lawyer rather than a moral philosopher, medical expert or voter, the most important line in that judgment, for our purposes, even though, as Dr. Casey points out, it is obiter, is at the back-end of that judgment.

It states that there is a constitutional obligation, under Article 40.3.2°, to vindicate the life of every person. There is such an obligation. Equally, in Article 40 and elsewhere, there are, as the committee knows, constitutional norms around dignity, freedom of the individual, moral autonomy, freedom of conscience and so on. Those are all competing constitutional norms. What did former Chief Justice Susan Denham state in a judgment that was backed up by these other judges? She stated:

There can be no doubt but that Article 40.3.2 imposes a positive obligation on the State to protect life ... The precise extent of the State's obligation in any given circumstance is, however, a matter which may require careful analysis and, at least in some cases, require a careful balancing of other constitutional considerations.

It may well be, therefore, that as part of its obligation to vindicate life, the State is required to seek to discourage suicide generally and to adopt measures designed to that end. It does not, however, necessarily follow that the State has an obligation to use all of the means at its disposal to seek to prevent persons in a position such as that of [Marie Fleming] from bringing her own life to an end ... The State is left, therefore, with difficult questions of policy, involving complex issues, both of principle and practicality.

Then follows the key line of the judgment:

Nothing in this judgment should be taken as necessarily implying that it would not be open to the State, in the event that the Oireachtas were satisfied that measures with appropriate safeguards could be introduced, to legislate to deal with a case such as that of the appellant [Marie Fleming].

It is obiter, but it is crystal clear. For the record, I do not have a strong view on this issue, not that my views would matter anyway. It is difficult. However, as a constitutional lawyer, I am saying to the committee members that they are the legislators, they are the Oireachtas, they get to make the call on what is in the public interest. That is my point.