Colm Burke (Fine Gael) | Oireachtas source

I welcome the Minister to the Seanad debate on the Protection of Life During Pregnancy Bill 2013 which has already been subject to considerable scrutiny in the Dáil and at the Select sub-Committee on Health. The discussions leading to this debate began over eight months ago with the publication of the expert group's report on the judgment in the A, B and C v. Ireland case. The Government took a decision that it would move forward by the introduction of legislation. The health committee arranged and held three days of public hearings in January, on foot of which the Minister for Health produced the heads of the Bill. A further three days of public hearing were held in May, at which over 50 experts gave evidence on how we should progress the matter.

Members here and in the other House have strong views on this issue and it is important that these are respected. However, we have a duty, as legislators, to deal with the issues which have arisen and, in particular, the failure to put in place legislation which should have followed on from the amendment of the Constitution in 1983. It was Mr. Justice McCarthy in the Supreme Court in the X Case who said on Article 40.3.3°:

I think it reasonable, however, to hold that the people when enacting the amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled.

He went on to criticise the Legislature for failing to put in place legislation. He stated:

Failure by the Legislature to enact the appropriate legislation is no longer just unfortunate, it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines, save what may be gleamed from the judgments in this case. What additional considerations are there? Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction.

That judgement was delivered over 20 years ago and it was followed by the judgment of the European Court of Human Rights in the A, B and C v. Ireland case. In this case the court confirmed that Article 40.3.3° was not inconsistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms. It found there had been no violation of the rights of Ms A and Ms B under the convention and dismissed their applications. It found, however, that there had been a violation of applicant C's right to family and private life contrary to Article 8 of the convention. It held that there was no accessible and effective procedure to enable her to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law.

There are some who believe no legislation should be put in place, leaving everything as is. The difficulty with that line of thinking is that we are giving a free hand to the courts to put their own interpretation of Article 40.3.3° in place. In Magee v. the Attorney General in 1974 Mr. Justice Walsh, when referring to the Constitution and the changes that could occur, stated:

According to the preamble, the people gave themselves the Constitution to promote the common good, with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.

In the State (Healy) v. Donoghue, Mr. Justice Higgins said:

In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity, which may gradually change or develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.

It is quite clear from these extracts and the judgment in the X case that it is open to the Supreme Court to give its interpretation of what was intended by the 1983 amendment of the Constitution. The legislation put forward by the Government and the Minister for Health, Deputy James Reilly, clearly sets out how this complex issue is to be dealt with into the future in a structured manner. It is not the role of the courts to take on the role of the legislator. This was very much underlined by Mr. Justice Geoghegan in the case of A and B v. Eastern Health Board in 1998. He stated:

Furthermore, I think it highly undesirable for the court to develop a jurisprudence under which questions of disputed rights to have termination of pregnancy can only be determined by plenary action in the High Court. The High Court undoubtedly has a function in granting Injunctions to prevent unlawful terminations taking place, and it may in certain circumstances properly entertain an action brought for declarations and consequential orders if somebody is being physically prevented without just cause from having a termination. But it would be wrong to turn the High Court into some kind of licensing authority for abortions, and indeed it was for this reason that I have rejected the suggestion made by counsel for C in this case that I should effectively convert the judicial review proceedings into an independent application invoking the inherent jurisdiction of the High Court and grant leave for such a termination to take place.

The Bill also repeals sections 58 and 59 of the Offences against the Person Act 1861 and puts in place new provisions which provide that it shall be an offence to intentionally destroy unborn human life. There is a view that if the 1861 Act were challenged, it would be held to be unconstitutional as it fails to recognise the implied rights of Article 40.3.3°. If this were to happen, there would be no criminal sanction for the termination of pregnancy in any situation. This is a further reason the Bill requires to be passed into law and the new provisions set out in section 22 should be put in place. By bringing forward the Bill, the Government and the Minister for Health, Deputy James Reilly, are putting in place a legislative framework which is in accordance with Article 40.3.3°. The Bill is putting in place a detailed structure with very strict criteria. Chapter 1 deals with the risk of loss of life of a pregnant woman under three separate headings. The Bill also provides for the establishment of a review panel if the pregnant woman is not happy with the decision taken. Sections 10 to 15, inclusive, set out the procedures which must be followed. This issue has been debated extensively in the past seven months. The Bill, as proposed, closes the vacuum that has been there since the passing of the amendment to the Constitution in 1983, over 30 years ago. It deals with all of the issues raised in both the X case and the A, B, and C v. Ireland case. It is important, therefore, that we now proceed to approve the Bill and bring it into force as soon as possible after it has been approved by both Houses of the Oireachtas and signed by the President into law. I commend it to the House.