Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

Some of the decisions the courts deliver make Governments uncomfortable. Litigants litigate. Citizens litigate against the State and win. Are we to say in this Parliament or in government, "Oh well, they got it wrong, we will ignore it"? That is not the way the separation of powers works. The separation of powers works on the basis that we respect the decisions delivered by the courts. It works on the basis that this Legislature, when enacting legislation, does so within the parameters prescribed by the Constitution and as interpreted by the courts, particularly the Supreme Court. The Government, when bringing forward legislation, has a constitutional obligation to bring before this House legislation that is constitutional. If there is any doubt about the constitutionality of legislation, it is open to the President to refer it to the Supreme Court. This legislation is circumscribed by the constraints of Article 40.3.3^o and the manner in which the Supreme Court has interpreted it. It is no more, no less.

Some Deputies who initially welcomed this legislation went out on the plinth this evening to oppose it because it does not do a variety of things that cannot be done within the current constitutional parameters. I find this surprising. This legislation cannot address some of the issues Deputy Róisín Shortall mentioned, or that Deputies Mick Wallace, Clare Daly, Richard Boyd Barrett and others have announced it should address and they are now, apparently, not voting for it. If this legislation attempted to address the issues these Deputies are calling for it to address, it would be unconstitutional. First, the Government could not constitutionally have published legislation which covered these issues. Second, if it covered them, it would certainly be referred to the Supreme Court by the President under Article 26 and third, for certain, based on the precedent of the Supreme Court in the X case and having regard to Article 40.3.3^o, it would be struck down as being unconstitutional. The effect of this would be that instead of finally putting in place a legal architecture to provide clarity for the medical profession and women whose lives are at risk as to what are the procedures to bring about a termination to save one's life, we would be back where we started, in a big black hole with no legislation, simply with court principles. These court principles do not provide and prescribe adequate procedures, which is another reason to have this legislation.

I was interested in listening to those opposing the Bill. I cannot recall hearing during the day - I am sure I am open to correction, but perhaps I missed it at some point - a reference by those opposing this legislation and dealing with this issue that the amendments address to the European Court of Human Rights in the A, B and C case which has stated we have violated the rights of citizens of the State as delineated in Article 40.3.3^o of the Constitution because there is supposed to be a legal architecture that ensures that where a woman's life is at risk, she knows how to go about dealing with the medical profession and seeking the help that she requires. That is about protecting citizens. Article 40.3.3^o was given birth to or conceived in group-think. I was in the House during its gestation period. It was proposed by individuals who, inspired by some from America, said the Supreme Court was one day going to legislate for abortion on demand and that, therefore, we needed Article 40.3.3^o which would ensure there would never ever be a termination anywhere in the State. They saw it as genuflecting in the direction of the safety of woman, but it did not have much in reality to do with women. The disappointment for its originators has been that it has provided some protection for the rights of women, but they do not like this and say the Supreme Court is mistaken. The description of the Supreme Court being mistaken is not new to this debate. It has floated through the ether with much repetition since 1992. I have very strong views on this issue and they are not new. They are on the record of the Dáil, over decades, but they are of no relevance to this legislation. This legislation provides an architecture that no Government has previously had the courage to provide to ensure we will know how this issue should be dealt with.

Various Deputies have made various comments. Deputy Róisín Shortall refers to the gestation issue and full-term terminations. I have seen the posters which suggest this legislation concerns terminations in the 39th week of pregnancy. If a woman's life is at risk in an advanced pregnancy and some medical intervention is required, that is early delivery. It is not murdering the unborn child. It is about doing what one can to save the child and the mother. All of us in this House have friends, relatives or neighbours who had an early delivery because of substantial medical complications and in the vast majority of cases mother and child came through.

There was a great deal of excitement outside the House and I noticed in some of the reporting from this House the suggestion there was some very important decision delivered by the High Court that the Government had ignored, of which my colleagues, the Minister for Health, Deputy James Reilly and the Minister of State at the Department of Health, Deputy Alex White, had no knowledge and that perhaps the Attorney General did not know anything at all about it. Reference was made to a judgment delivered in the High Court on 15 February 2006 in the case of Lidia Cosma v. the Minister for Justice, Equality and Law Reform, a case taken nominally against one of my predecessors. The suggestion is there is something terribly profound in this judgment which indicates that the Government has got it entirely wrong and that we should not be addressing the issue of the suicidal mother who is pregnant. I am afraid it is a little like the interpretation of the X case, it is an à la carte interpretation of what the High Court stated. What is curious is that this judgment confirms that the Government has got it right and effectively confirms that there are circumstances in which suicide can pose a real and substantial risk to the life of a woman or a mother. In the judgment Mr. Justice Hanna quotes expressly an extract from the X case as a guiding principle in the decision he had to make. A Romanian national who had arrived in the State on 5 September 1999 applied to be allowed to stay here. She applied for asylum alleging she was suffering religious oppression. She went through the various applications that could be made through the Refugee Applications Commissioner, the Refugee Appeals Tribunal and the conclusion was that there was no basis on which she should be granted asylum. She then changed her lawyer and it was alleged that if she was deported - a deportation order had been made - she would commit suicide.

The submission of Mr. Justice George Birmingham, then a senior counsel acting on behalf of the Minister at the time, was effectively accepted by the court. In it he said:

In reality there was no evidence of any real and substantial risk of suicide upon which the Minister could or should act. The threat of self-harm and the circumstances giving rise to it were not raised until well into the year 2003. [This was after all the decisions had been made.] The applicant had originally sought refugee status on the grounds of religious persecution and no reference was made by her to the circumstances which allegedly gave rise to a suicide threat, namely the tragic death of her sister's child in her original application. Thirdly, it was argued that the documents compiled by Dr. McCaffrey, who is a psychiatrist, and submitted by the applicant's solicitors did not amount to psychiatric reports to which any great weight should be attached. They were inadequate and offered no sufficient diagnosis or prognosis. They comprise no more than a handwritten record of a narrative account given by the applicant to the doctor as a result of one meeting with her and subsequent observations of an unsatisfactory and inconclusive nature.

The issue in this case was to determine if this individual was truly at risk of committing suicide. Was there evidence before the court that could be relied upon? Was there evidence that she was suicidal before the then Minister made the final decision on the individual's deportation? The conclusion of the court was:

I am not satisfied that the applicant has established that there was a real and substantial risk that she would kill herself. There was undoubtedly a threat to do so. The background circumstances of this threat were investigated and analysed in detail. During the course of this confirmation in my view more weight was attached to the medical reports by Ms Keane [an official in the Department] than I would consider appropriate ... In the first instance they do not evidence whether or not the doctor ever treated or had intention of treating the applicant. By any yardstick, the reports fall well short of what one would expect in terms of actual analysis of the applicant's condition, an objective diagnosis. There was no attempt to address the issue of treatment even in the event going ahead.

This was not a case about saying an individual was suicidal and that we should provide treatment. This was a case about saying there was no real basis for determining she was suicidal at all. What was particularly interesting was the judge referred to a matter which is directly relevant to what we are discussing tonight, namely, the X case. He stated:

This case dealt with the issue of whether the right to life of the mother prevailed over that of the unborn where there was a real risk of suicide. The Chief Justice in that case stated:In my view it is common sense that a threat of self-destruction such as is outlined in the evidence in the case which the psychologist clearly believes to be a very real threat cannot be monitored in that sense and that it is almost impossible to prevent self-destruction in a young girl in the situation which this defendant is if she were to decide to carry out a threat of suicide.I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and the findings which he has made that the defendant has satisfied the test I have laid down as being appropriate and established as a matter of probability that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by the termination of her pregnancy.

The difference between the X case and the Cosma case is that in the X case there was direct evidence given by a psychologist which was not contradicted. There was no counterevidence claiming the woman was not suicidal. There was evidence of a professional psychologist that she was and the evidence was accepted by the Supreme Court and the High Court and laid the foundation for the decision. In the Cosma case it was determined that there was a single meeting between a psychiatrist and the woman who simply wrote out the narrative. There was no analysis, diagnosis or confirmation that the woman was truly suicidal. The judge went on to say:

A crucial issue when the Minister made the decision was the Minister's knowledge of whether there was a real and substantial threat to the applicant's life by suicide as a direct consequence of his decision.

Any suggestion the Cosma case undermines the legal analysis on which this Bill is based is entirely, completely and utterly inaccurate, no matter how beguiling that argument may be in its presentation. What is interesting is that the emphasis in the X case was that there was uncontroverted evidence that someone was suicidal. Since the enactment of the article in 1983, there has been no legal architecture for those decisions being made. Section 9 is an architecture which will involve an assessment undertaken by two psychiatrists.

I have heard it said the obstetrician should have no role. Obviously, the psychiatrists will be the primary individuals determining whether someone is truly suicidal. The obstetrician is important in the context of the safety of the mother, as he or she will undertake whatever medical procedure is required, as well as in the context of the safety of the unborn child, if it is a circumstance in which the life of that child can also be saved. To suggest the obstetrician has no role is not accurate.

This legislation has been produced by the Government on the basis of the best advice of the Attorney General, the State's law officer who advises the Government. She has an onerous and particular duty which she carries out in good faith. She is an independent constitutional officer. We in this House are entitled to be guided by the advice she gives and show respect for it. This legislation is not simply a product of the Minister for Health or his Department. It is a comprehensive Bill, designed to address an issue that every Government in the past 30 years has failed to address and is based on the best legal advice available to us.

I am disappointed that some who have called for this legislation will now vote against it. I am disappointed that some who want other issues to be addressed refuse to recognise or for political position will not recognise the limitations of where we are. It will be no surprise to any Member for me to repeat for the 30th time in the past 20 years that I believe it is a great cruelty that a woman, where there is a fatal foetal abnormality, cannot have her pregnancy terminated, as it cannot be done without a referendum.

The people would have to agree in a referendum. I do not know what the outcome of that referendum would be, should it ever happen in the future. In the context of the Government-----

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