Alex White (Dublin South, Labour) | Oireachtas source

The first point is in regard to constitutionality. This is a human business. Politicians, members of Government, judges and doctors are all human beings. There is very little absolute certainty in any of this. There are very few things we can say with absolute certainty. Unless we have an opportunity in our laws to ask the court in advance whether it is of the view that something is consistent with the Constitution, we must do the very best we can, as a Government and as an Oireachtas, to ensure the legislation we enact is consistent with the Constitution. We cannot be absolutely certain until, or unless, it is challenged or otherwise comes before the court and the court makes that final decision.

The Senator said in support of his argument that perhaps we should take a more radical approach and that there might be other aspects of the Bill which are unconstitutional. Given that fact, he asked whether we should go a little further on this. Every effort has been made in respect of every syllable of this Bill to ensure as best we can in the Department of Health, in the Government and in the context of the advice of the Attorney General and outside, that everything in it is consistent with the Constitution. There is no use in thinking the Government's approach is to take a chance with something or to say this might or might not pass muster. That has not been our approach. Nobody can be absolutely certain, but our very best efforts have been employed to ensure every single word, line and syllable is consistent with the Constitution.

That takes me on to the more substantive point Senator Mac Conghail made in regard to the D case. The Government made certain submissions to the court in Strasbourg in the context of the D case. Sometimes lawyers make these distinctions and people think it is just more legal talk, but it is important to remember that in the D case there was a discussion about whether the applicant had exhausted all of her domestic remedies. The submission the Government made in support of its argument was that she had not exercised all her domestic remedies and that there was an arguable case that she might succeed - it was at least tenable or possible. If one reads through the submission, one sees it is replete with words such as "arguable" and "possible". The Government cannot come to the Oireachtas and say it thinks there is a real possibility that this may or may not be constitutional.

We must provide legislation which comes as close to certainty as possible, while accepting that absolute certainty is impossible. Doing the very best we can, the preponderance of the legal advice, including that of the Attorney General, is that there would be a question mark over the constitutional soundness of the legislation if we were to adopt the course advocated, notwithstanding that many of us have enormous sympathy with its substance. We must fall back on the position that obtains. It is a conservative argument. The law is often conservative. We must rely on what we believe to be the current legal position in accordance with the best advice we have.

Senators have approached the definition issue very carefully and responsibly. The definition often used is "incompatibility with life outside the womb". Senator fidelma Healy Eames raised the issue also. The Attorney General has advised, correctly, if I might state my view, that if there is a possibility of survival outside the womb, Article 40.3.3o is engaged. The Senator used the word "scintilla" and I understood him to mean the scintilla of a possibility. That is the issue. The advice on which I must rely is that the protection of Article 40.3.3o will be engaged for the unborn. Can it ever be said there is no possibility of survival outside the womb? If the life of the unborn has come to an end before birth, Article 40.3.3o would not be engaged. In that case, it would not be unborn for the purposes of Article 40.3.3o. It would no longer be "beo gan breith", alive without having been born. "Beo gan breith" is the Irish for "unborn". It would not have the protection. If there is the possibility that the foetus can survive independently for however short a time, that is awfully difficult and one of the most troubling aspects of the legislation for everyone. I must provide our advice for the Seanad. It is compelling advice. For these reasons, it is not possible for the Government to accept the amendments.