Alex White (Dublin South, Labour) | Oireachtas source

The amendments we are now discussing deal with what are clearly the most contentious aspects of the Bill, namely, the provisions under section 9. I listened closely to Deputy Walsh's contribution. He made a point with which I fully agree. In addressing his own amendments, he said that had we omitted suicide from the Bill we would not be acting in accordance with the Constitution. That is true and, in fairness to the Deputy, his amendments attempt to do other things without attempting to fully remove section 9. As he rightly acknowledges, we cannot do that. If we are to be true to the Constitution as interpreted by the Supreme Court in the X case, we cannot omit the threat of loss of life arising from suicide. We cannot pick and choose parts of the Supreme Court's interpretation of the Constitution. The opinion has been expressed that the judgment on the X case was flawed and somebody - I cannot remember whom - made the gratuitous suggestion that the judgment was manufactured by the Supreme Court. People may hold such a view but that is the law. The judgment has not been disturbed, varied or reversed by the Supreme Court in the 20 years since it was made.

A considerable number of questions have been raised in the course of the debate and some of them have been answered, although others were asked rhetorically. I have an opportunity now to ask one or two questions of my own. Are people seriously suggesting that we ignore the parts of the judgment they do not like? They say they have no problem with sections 7 and 8 but have a problem with section 9. That requires them to pick the parts of the judgment with which they are happy and ignore or exclude those with which they disagree, despite the uncertainty associated with such a course of action. At the minimum, a legal vacuum would obtain for doctors. Most important, women would be deprived of a right they unquestionably possess under the Constitution. Even if we were to leave this right out of the legislation they would still have it. It simply would not be legislated for. A procedure would not be established to determine the circumstances in which the right would be exercised but the right would still exist. Although the Oireachtas has many powers, it does not have the right to set aside or jettison a decision of the Supreme Court on the meaning of an article of the Constitution. That is not our job. We cannot rewrite the X case according to how we would like it to have been decided. We cannot decide the case again. We are not an appeal mechanism from the Supreme Court. We can go to the people to invite them to reconsider a matter if there is some doubt as to their true intentions. We did that twice and on neither occasion did they decide to change the relevant clause in their Constitution.

If we omit suicide we will not be acting in according with the Constitution as interpreted by the Supreme Court. That is why, for example, amendment No. 57 is unstatable. All of the amendments that propose to extract suicide from the provisions of the Bill are manifestly unstatable as a matter of law and would render what we are doing unconstitutional. There is no doubt about that.

There has been considerable debate about the nature of our role. It was suggested that we are in danger of cowering behind the Supreme Court and that it is wrong to say we are obliged to legislate. We have debated whether we are under some sort of cosh. Of course we are not subject to some sort of edict such that we are ordered to do something by the Supreme Court. That cannot occur and it is not what we are doing. The position is very clear. The people enacted the Constitution and they amend it as they see fit, as they did in 1983. Where doubts arise about the meaning of a provision of the Constitution, the Supreme Court decides the point in question. That is clearly set out in Article 34 of the Constitution. The problem in this and many other areas is that we cannot require the courts to adjudicate on issues of policy. Arguably, we ought never to look to the courts to address such issues but we have done so too often in this and many other cases. The other organs of the State, namely, the Government and, most particularly, the Oireachtas, have the responsibility for policy.

Deputy Creighton quoted Article 15.2.1^oof the Constitution, which provides that the Oireachtas has the sole and exclusive power of making laws for the State. That is true and there is no doubt about it. The problem occurs when we fail to do. That is the difficulty here; we have failed to do it. If the Oireachtas declines or fails to legislate, as it has, there is no question or suggestion that it will be sanctioned or punished in some way. We are not saying that. That is nonsensical. There is no question of there being a punishment or sanction against the Oireachtas or its Members for not legislating.

The question should not be whether we can get away with not legislating. We know we can get away with not legislating, because we have got away with not legislating for 20 years. The question should be whether it is right to allow the legal position to be and remain so uncertain as to lead to a state of affairs, as is the case here, where a woman has a constitutional right but cannot avail of it. There is, at the least, a serious doubt as to how she can avail of it and in what circumstances.

When we legislate, as we are doing here, we are prohibited by Article 15.4 from enacting any law which is any respect repugnant to the Constitution or any provision thereof. We are subject to the Constitution in that important sense. However, we have responsibilities and duties. It is not that somebody is standing somewhere ready to sanction us in the absurd way that has been suggested. That is not the position. When we think about our role here as legislators, we have responsibilities and duties. We are sent here and are given important duties to carry out. The courts have their duties, which are different. The people have their duties also, which they exercise in the enactment of a Constitution and in decisions to amend it or not.

We must understand our duties in this situation. The suggestion that when we say we are obliged to legislation this connotes some sort of compulsion misrepresents the point being made here. We are talking about duties and responsibilities and about the Parliament living up to its responsibilities, which it has failed to do to date. I find it hard to understand how this Parliament doing its duty to legislate within the context of the Constitution, as interpreted by the Supreme Court, undermines or risks undermining the separation of powers. The opposite is the case. Far from undermining the separation of powers, acting and legislating now upholds the principle of the separation of powers and makes it very clear where the duty lies to legislate, which is here.

An additional dimension is the broader question of the decision of the European Court of Human Rights. This brings us back to whether we have been pressured or told we must do something we do not need to do. I accept the decision in A, B and C v. Ireland does not enjoin the Oireachtas to legislate in a particular way. Nobody ever said it did. What we are required to do as a consequence of the European Court of Human Rights decision is to ensure there is legal clarity, whatever the law is. We decide on what the law is, not Europe or the European Court of Human Rights. Nobody ever said we were bringing forward legislation under some sort of diktat from the European Court of Human Rights. That is not the case.

What we did say was that the European Court of Human Rights decision in A, B and C v. Ireland, particularly with regard to Miss C, was that there should be legal clarity. It was up to us to decide what the law should be, but there should be a law. In deciding what that law should be, we must have regard to our Constitution and the interpretation of it by the Supreme Court. It is not a question of compulsion or of being ordered to do things. It is a question of clear, delineated roles, duties and responsibilities. We must face up to them and carry them out.

The Minister for Justice and Equality, Deputy Shatter, has addressed a number of the issues. It is late now and with all the discussion about extending the debate to 5 a.m. it hopefully will not come as a surprise to the public that we are capable of exercising our brains after midnight and can continue to debate this issue as we are required to do. I would like to touch on the reference to the point made by retired Mr. Justice O'Flaherty. Like the Minister, I found it somewhat bizarre and quite inexplicable that it could be suggested that because Miss X did not ultimately have a termination, this somehow cast doubt on whether she had engaged the right she had been found in the Supreme Court to have. I found it very difficult to understand as a matter of law that her failure to have a termination somehow cast doubt on whether she had engaged the right she had been found to have. I find it very difficult to understand as a matter of law that if a court determines somebody has a right, but the person does not avail of that right, this means the person did not have the right. This needs to be explained. It is not clear to me how that could be so.

The Minister, Deputy Shatter, has also dealt with the question of what constitutes the ratioof a case and what constitutes the core of the X case. With genuine respect, the suggestion that the finding of an entitlement to a termination in the X case was obiter is an unstateable and unsustainable argument. Mention was made of first year law students, but anybody who takes even a cursory look, let alone goes into the sort of detail one would expect, will see this. Chief Justice Finlay went through all the argument on that occasion, cited the decision of the High Court and other decisions relevant to the finding and then came to the conclusion:

I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no contested, and on the findings which he has made, that the defendants/appellants have satisfied the test which I have laid down as being appropriate and have 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 termination of her pregnancy.

I cannot see how this could conceivably be regarded as obiter. Nobody could suggest credibly that this was beside the point or was not relevant to the decision. Manifestly, it is the decision.

There has been significant reference to Miss X and to the case and its circumstances. Therefore, I would like to read into the record of this debate what Chief Justice Finlay went on to say in this case, because it relates to the facts. He sets down the test that must be passed, applied and satisfied and then asks this question:

Has the appellant by evidence satisfied this test?

With regard to this issue, the findings of fact made by the learned trial judge in the High Court are as follows:When the defendant learned that she was pregnant she naturally was greatly distraught and upset. Later she confided in her mother that when she learned she was pregnant she had wanted to kill herself by throwing herself downstairs. On the journey back from London she told her mother that she had wanted to throw herself under a train when she was in London, that as she had put her parents through so much trouble she would rather be dead than continue as she was. On 31 January, in the course of a long discussion with a member of the Garda Síochána, she said: "I wish it were all over; sometimes I feel like throwing myself downstairs." And in the presence of another member of the Garda Síochána, when her father commented that the "situation was worse than a death in the family" she commented: "Not if it was me". On the day of her return from London the defendant's parents brought her to a very experienced clinical psychologist. He explained in his report that he had been asked to assess her emotional state; that whilst she was co-operative she was emotionally withdrawn, that he had concluded that she was in a state of shock and that she had lost touch with her feelings. She told him that she had been crying on her own but had hidden her feelings from her parents to protect them. His opinion was that her vacant expressionless manner indicated that she was coping with the appalling crisis she faced by a denial of her emotions. She did not seem depressed but he said that she "coldly expressed a desire to solve matters by ending her life." In his opinion, in her withdrawn state "she was capable of such an act, not so much because she is depressed but because she could calculatingly reach the conclusion that death is the best solution." He considered that the psychological damage to her of carrying a child would be considerable and that the damage to her mental health would be devastating. His report was supplemented by oral testimony. He explained that in the course of his consultation with the defendant she had said to him: "It is hard at fourteen to go through the nine months," and that she said: "It's better to end it now than in nine months' time." The psychologist understood this to mean that by ending her life she would end the problems through which she was putting her parents, with whom she has a very strong and loving relationship.

The psychologist who gave oral evidence as well as submitting a report, (which was admitted by agreement in evidence before the learned trial judge) stated that when he had interviewed this young girl and was anxious to have a continuing discussion with her parents who accompanied her and not having anyone available to remain with the young girl in the waiting room, his view of the risk of her committing suicide was so real, on his past experience in this field of medicine, that notwithstanding its obvious inappropriateness, he requested her to remain in the room while he discussed the problem with her parents.

It then goes back to the judge:

I am satisfied that the only risk put forward in this case to the life of the mother is the risk of self-destruction. I agree with the conclusion reached by the learned trial judge in the High Court that that was a risk which, as would be appropriate in any other form of risk to the life of the mother, must be taken into account in reconciling the right of the unborn to life and the rights of the mother to life. Such a risk to the life of a young mother, in particular, has it seems to me, a particular characteristic which is relevant to the question of whether the evidence in this case justifies a conclusion that it constitutes a real and substantial risk to life.

If a physical condition emanating from a pregnancy occurs in a mother, it may be that a decision to terminate the pregnancy in order to save her life can be postponed for a significant period in order to monitor the progress of the physical condition, and that there are diagnostic warning signs which can readily be relied upon during such postponement [in a physical case].

In my view, it is common sense that a threat of self-destruction such as is outlined in the evidence in this 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 in which this defendant is if she were to decide to carry out her threat of suicide.

I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and on the findings which he has made, that the defendants have satisfied the test which I have laid down as being appropriate and have 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 termination of her pregnancy.

That is why the defendants were entitled to succeed in the appeal from the High Court to the Supreme Court.

Whatever anybody may think about the X case judgment, no one can suggest that it was decided without regard both to the humanity of the circumstances that were presented to the court or to the terms of the Constitution and the requirement to have in mind the right to life of the unborn as well as due regard to the equal right to life of the mother. That is not a passage from a decision of a court that would appear to any reasonable person to have been lightly decided or lightly arrived at. That is why I object to the suggestion made in this Chamber that the judgment was in some way manufactured. That is an unfair way of characterising this judgment, and I put that at its mildest. It is far from being a judgment where either the legal issues or the factual issues were taken lightly.

The Cosma case was dealt with by my colleague. With regard to the Attorney General v. Ryan's Car Hire Limited, I touch on this because I want to refer to a point made by Dr. Maria Cahill during the health committee hearings and which was quoted by the Minister of State, Deputy Creighton, earlier. Since it occurs to me, I want to make the small point that the constant suggestion that because the Minister for Health and the Ministers of State were not sitting through all of the hearings of the committee, therefore, we did not know what occurred there and we did not take the time to look at what happened there or to read the transcripts, or at least when we were available to observe it on the screen, is unacceptable. I know, from having discussed this issue with both my colleague Ministers in the Department of Health, that there was a full awareness of what was said at the committee. I myself went through the transcripts as best I could and informed myself as to what was said at the committee. I know Dr. Cahill raised these issues about Cosma v. the Minister for Justice, Equality and Law Reform and the Attorney General v. Ryan's Car Hire Limited because I looked at the transcript. I am not looking for any particular congratulations on that. It is just the job that we do. However, Members should not suggest we are not informed because we were not there. There are a good few Members present but we know there are colleagues who are able to watch and observe this debate without necessarily being in the Chamber, and the same is true of the committee.

The point about the Attorney General v. Ryan's Car Hire Limited is that it was suggested to the committee by Dr. Cahill that, because of the well-known decision of Mr. Justice Kingsmill Moore in that case, given no legal submissions were heard on whether suicidal ideation could validly satisfy the test in the X case, we could not rely on the judgment. The point was of course conceded by the Attorney General in the X case that suicidal ideation could validly satisfy the test in the X case or, in other words, suicidal ideation could constitute a risk of loss of life. That is all it is. It is not that it did in that case, but that it could. How could it not be conceded by the Attorney General and can anyone explain to me how it could not be the case that a risk of suicide is a risk of loss of life? Is a risk of suicide a risk of loss of life? It manifestly is, so of course it was conceded by the Attorney General. Why would arguments need to be made to any court-----

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