Unconstitutional Deference



Attorney General Máire Whelan

Last year, Clare Daly’s bill on fatal fetal abnormalities was vetoed by Fine Gael and Labour TDs, many of them pro choice, acting on unpublished advice from the Attorney General Maire Whelan,

On Thursday, another, blll sponsored by Mick Wallace, in similar terms will go before the Dáil.

Once again, the Government has stated that it should not be voted for, in view of the AG’s previous advices.

We asked Legal Coffee Drinker, what gives.

Broadsheet: “Legal Coffeee Drinker, what gives?”

Legal Coffee Drinker: “I’m not sure what you mean but what matters is whether or not these advices are correct. The courts’ view of the scope of the right to life of the unborn does not appear to be  the same as the Attorney General’s.
P (P) v Health Service Executive [2014], in which it was held that the withdrawal of life support from a woman, who was brain dead, and whose foetus had no viable prospect of survival outside the womb, was not in breach of the State’s obligation to vindicate the right to life of the foetus where there was no reasonable prospect that it would be born alive.
A legislative provision like the proposed Bill, which only provides for termination in circumstances where there is no possibility of the unborn being born alive, would not therefore be unconstitutional.”

Broadsheet: “So you feel that it is wrong to oppose the bill on the basis of the AG’s advice?”

Legal Coffee Drinker: “On the basis of this advice as communicated to the public, yes. All we have is a bald assertion by the AG that the Bill is unconstitutional, based on the wording of the Constitution. No copy of the AG’s advices have been published and it’s not clear whether or not these advices took into account the P case, which would appear to make it quite possible – if not highly likely – that the Bill is constitutional.
There’s also the separate question of whether or not over-reliance on the A-G’s opinion in this matters could potentially breach the separation of powers provisions in our Constitution.
The Constitution provides for a clear division of power between the Goverment, the Oireachtas and the Courts, and also provides that the Courts – and not the Government, of which the AG is part – are the arbiters of unconstitutionality. In view of this, the Constitution even provides, in Article 26, for a special mechanism whereby a Bill may be referred to the Supreme Court, prior to being signed, to have its constitutionality ascertained.”

Broadsheet: “So over-reliance on the A-G’s opinion as to unconstitutionality may itself be unconstitutional?”

Legal Coffee Drinker: “Precisely. If bills don’t go ahead because there is too much deference to the AG’s opinion, then the constitutionality of the bill never gets to be decided on by the Supreme Court. Treating the AG’s opinion as final and conclusive – in circumstances where there is High Court authority to the contrary – is itself a breach of the separation of powers.
At the very least – given that there is authority which appears to be in direct conflict with her advices – more detail about the AG’s advices should be published to TDs before they can reasonably be expected to rely on those advices.
And attempts to discipline party or government members, who vote for a Bill opposed by the Government solely on the basis of the AG’s advice as to its constitutionality – could also be challenged on the grounds that a TD. should never be punished for seeking to uphold the principle that the courts be the sole arbiters of the Constitution…”

Broadsheet: “Thanks Legal Coffee Drinker. It’s been a while. May readers have been asking for you. Welcome back.

Legal Coffee Drinker: *click*

Previously: Unequivocal But Wrong


26 thoughts on “Unconstitutional Deference

  1. Donger

    I was just saying to herself yesterday as we listened to the news on de radio-the news in Ireland is pretty much the same every day.
    Yesterday: abortion laws, disgraceful draconian bla bla countered by some iona save the babies but followed by stories of the homeless crisis/housing shortage.
    All serious issues but nothing ever, ever gets done. The can gets kicked down the road and an expert gives their 2 cents worth. It’s fairly mind numbing

    1. Sheik Yahbouti

      And so it has been, as long as I can remember. Very depressing indeed. I notice that there is no rush by the AG to comment on the constitutionality, or otherwise, of proposals by this Government and Mr. Joe O’Toole – the ‘impartial’ chair of this new water commission, for us to become the first European country to have utility bills levied by force out of our wages and pensions. Strange, that :-(

  2. Guy Bague

    Why was Maire Whelan re-appointed as AG? She has form in giving advice that jarred badly with others.

  3. Michael

    Here’s the relevant section from Simon Harris’ speech which points out that it is the combination of SC ruling that unborn means capable of being born even if that life is only momentary, and lack of medical assurance that any foetus can be be described of being incapable in that respect which makes the bill unonstitutional

    Returning to the Bill before us, the Supreme Court reviewed the meaning of the term “unborn” in Article 40.3.3 of the Constitution in Roche v Roche case in 2010. On that occasion, Judge Denham, the now Chief Justice, stated, with regard to the wording of the Eighth Amendment, that:
    “…both language versions refer to birth or being born. Thus the fact of being born or birth is a factor in both versions. The beginning of “life” is not the protected term, it is the unborn, the life capable of being born, which is protected. The capacity to be born, or birth, defines the right protected.”
    Therefore in the case of a foetus with a condition that is incompatible with life, but which is capable of being born alive, and survive even for a very short period, such a foetus is protected by Article 40.3.3 of the Constitution.
    Deputy Wallace’s Bill does not define what is meant by “incompatible with life outside the womb”. From examining the Bill before us, two possible interpretations appear possible.
    The first interpretation is that the ‘unborn’ has a condition which is incompatible with life outside the womb, but which is capable of being born alive. It is clear that an unborn child who has a capacity to be born alive for a period no matter how short is protected by Article 40.3.3.
    The second interpretation is that the unborn has a condition which is incompatible with life outside the womb and has no capacity or capability of being born alive.
    I am informed by the Chief Medical Officer that the circumstances in which such a situation would arise do not exist in medical practice. It can never be said that a foetus with a fatal foetal abnormality will not be born to live for a short time, even if that is only to be minutes, to draw a breath and to have a detectable heartbeat. If a foetus has the capacity to be born, it has the protection of the constitution. Any Bill that provides for termination in these circumstances, as this Bill does, would not be constitutional and would also not be medically practicable.
    Therefore, to introduce the provisions as Deputy Wallace may intend them, a referendum would be required to amend the Constitution.
    – See more at: http://www.merrionstreet.ie/en/News-Room/Speeches/Speech_by_Simon_Harris_T_D_Minister_for_Health_-

    1. Anne

      The beginning of “life” is not the protected term, it is the unborn, the life capable of being born, which is protected. The capacity to be born, or birth, defines the right protected.”

      The life capable of being born.. ‘that life’ won’t happen though in the case of fatal foetal abnormality.

      It’s inhumane to force a woman to carry a pregnancy where there is FFA, as the ‘right to be born’ is protected..

      1. Michael

        Issue is not whether its inhumane. It’s whether its constitutional. And with 8th in place it looks like it is.
        Time for it to go.

        1. Anne

          Well that’s Judge Denham’s interpretation..(her name rings a bell- the George Gibney case isn’t it) but ‘born’ means, you exist, as a result of birth… When the exist bit aint gonna happen, what’s the purpose of protecting the right to be born?
          I’m sure the 8th meant the right of the unborn life be protected.. they aint gonna be a life, so the 8th doesn’t apply it seems to me.

          1. Michael

            Denham is the Chief Justice so perhaps her view might carry more weight than the rest of us? Again it’s not what you or I think is fair or reasonable but how the SC will interpret the article. And they have already done so, and that indicates the bill is unconstitutional.

          2. Anne

            Denham is the Chief Justice so perhaps her view might carry more weight than the rest of us?

            Appeal to authority is very common fallacious thinking. The CJ can be wrong, and you’ll find another article on here indicating a case where it’s argued she was in reproach of the law. George Gibney. Look it up, if you’re not already familiar with it.

            Regardless of the Supreme court case in 2010, in the P (P) v Health Service Executive [2014] case, the withdrawal of life support from a woman who was brain dead and whose foetus had no viable prospect of survival outside the womb was held to be not in breach of the State’s obligation to vindicate the right to life of the foetus, as there was no reasonable prospect that it would be born alive.

            Also, as said by the legal fella, I don’t think TDs should be punished for voting on a bill regardless of an opinion and that courts be the sole arbiters of the Constitution, not the government and not the AG.

            Clare Daly put it well here –

            There are many cases of fatal foetal abnormality. We know there are enough for a Liverpool hospital to make special provision for Irish women in these circumstances. How backward we must seem to them..

            The case of D v Ireland highlighted the inappropriate nature of Irish abortion laws. D was pregnant with twins one of which had stopped developing after eight weeks the other had a severe chromosomal abnormality which meant the child would not survive.

            There is no need to repeal the 8th Amendment. The Irish governments own argument in D v Ireland at the European Court of Human Rights 2006 bear this out, where the court found:

            “There was ‘at least a tenable’ argument which would be seriously considered by the domestic courts to the effect that the foetus was not an ‘unborn’ for the purposes of Article 40.3.3 or that, even if it was an ‘unborn’, its right to life was not actually engaged as it had no prospect of life outside the womb.”

            It was on these grounds, argued by the Irish government – that an Irish court might rule that a woman should not be denied the right to abortion in D’s circumstances – that the European Court of Human Rights dismissed Deirdre Conroy’s case: she had not exhausted all domestic avenues.

          3. Michael

            The appeal to authority fallacy is in this case is irrelevant as SC are the authority and have already ruled on issue of what constitutes unborn. The 2014 case you cite just reinforced that as it says termination allowable as fetus had no chance of being born alive.

  4. Anne

    Welcome back Legal Coffee Drinker.. I thought you had abandoned us plebs forever.

    What we have from the useless shower of muppets (I think that’s the legal definition for the gov) is an appeal to authority..

    Carl Sagan on arguments from authority:

    “One of the great commandments of science is, ‘Mistrust arguments from authority.’…Too many such arguments have proved too painfully wrong. Authorities must prove their contentions like everybody else.”

  5. Junkface

    Nothing will change here until the FF/ FG generation of voters die off. It will be another 10 years of blah de blah blah probably

  6. Swag

    Don’t buy the over-reliance upon the AG being unconstitutional. The Oireachtas and Govt are entitled to rely upon or ignore the AG as they wish. Her’s is simply an opinion and there is no justiciable standard to which the AG’s, Oireachtas’s or Govt’s actions could be held in circumstances like this.

  7. louislefronde

    Very good piece Legal Coffee Drinker as ever. Seriously, parliamentarians here need to grow some balls. The Irish executive branch needs to be cut down to size (now is the best opportunity to do it) and just because the government’s lawyer tells you something, doesn’t mean its correct. Few lawyers ever agree on the same thing, that’s why we have a Supreme court as the final arbiter of principles of law.

    Personally speaking, I wish they’d get on with repealing the 8th amendment, so that it is finally off the agenda, so that we can focus on more interesting things like cutting taxes, legalising weed, and sending a few charity bosses to jail for embezzling some of the €4 Billion of our money they’re given annually by those tossers in the executive?

    Btw Happy 4th July Broadsheet, and may Gary Johnson get on the ballot so that he can kick the crooked Clinton and Trump where it hurts!

  8. some old queen

    A group goes fishing in deeper waters. One catches something which yanks him overboard. Fins appear and circle. He shouts and they dissipate. Afterwards he said that he shouted he was a solicitor. Professional courtesy so.

    I have watched families tear themselves apart while solicitors egg on @ €50-60 a letter. All legal advice should be taken with a pinch of common sense salt. This is no different.

    Grow some balls Kenny.

  9. Shayna

    My mom (RIP) was a community midwife in the North (of Ireland), really rural bit, in the 70s/80s . She would talk about teenage pregnancies that she had attended, some mothers were as young as 13. This was my “Birds and the Bees Talk”, around the dinner table.. I somehow think that my mom won’t mind me referencing her on this subject. When I was growing up, just before RTE 9 O’Clock News, all 7 of us, my dad included were on our knees saying the Rosary – she was Order of Malta – going to the Vatican kinda Catholic woman. My mom was aware of foetal fatal abnormalities back in those days and supported the decision of the unfortunates to travel to the UK to terminate. She treated these girls who’d returned from England medically and privately, and compassionately. I don’t see how the Constitution should interfere with best medical practice?

    1. Harry Molloy

      ah now, by and large we are very nice to each other in this country, it’s what makes it a great place to live. there’s still a few things we disagree with but that’s natural.

      1. some old queen

        Yes we all agree that the Irish political system both north and south needs a good laxative.

      2. Shayna

        I like the cut of your jib, Harry Molloy (I know that’s a sailor term) Anyhoos, despite this being, in your opinion, a great place to live – I agree, but the issue is, and always will be, Abortion – it’s not legal here, both North and South of the border – It’s not for either state to decide the outcome of either a welcome or unwelcome pregnacy. It’s ultimately the woman’s choice.

  10. ALisonT

    Legal Coffee Drinker seems to be letting his or her personal views blur their interpretation. There are practically no legal experts who consider this constitutional and on top of that the proposed legislation is generally accepted by the legal and medical profession as badly written and unworkable even if passed the supreme court.
    This is all about certain parties using unfortunate parents as a ram to break up the government.

  11. stephen

    There is part of me that would hope this bill would pass because it is the right thing to do, however there is also part of me that wonders if it passed would that result in the issue of repealing the 8th going away as the government would say oh we’ve dealt with that issue kick the can down the road some more. Where as if it doesn’t pass there is more pressure to repeal the 8th.

  12. ahjayzis

    Is that a uniform or did she get up this morning and decide ‘super-villain’ was to be her look du jour?

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