Category: Irish constitutional law

Forthcoming paper: Mellet v Ireland & abortion law reform

I have a new paper forthcoming (either later this year or early next year) in the Medical Law Review: “Fatal Foetal Abnormality, Irish Constitutional Law, and Mellet v Ireland”.

The paper, which is really an extended case commentary, considers the UN Human Rights Committee’s decision in Amanda Jane Mellet v Ireland, handed down earlier this summer. The decision was ostensibly about the human rights implications of criminalising abortion in situations of ‘fatal foetal abnormality’, however in this paper I question whether the reasoning in the case is limited to that circumstance, and argue that the underpinning harms identified as constituting violations of the ICCPR (including inhuman and degrading treatment) actually arise across the spectrum of abortion criminalisation in Ireland. Read this way, Mellet illustrates the rights-based need for comprehensive abortion law reform, and not only for reform in respect of FFAs. Continue reading “Forthcoming paper: Mellet v Ireland & abortion law reform”

Mellet v Ireland and the need to comply

In yesterday’s Irish Times a group of 61 lawyers and others (including me) co-authored a letter outlining six reasons why Ireland should comply with Mellet v Ireland, the UNHRC’s recent decision. We put these reasons thus:

1) In 1989, Ireland voluntarily ratified the ICCPR. Under international law, it must now comply with the treaty in good faith. It cannot invoke its Constitution, or any other domestic law as rationale for failure to comply (Articles 26 and 27 of the Vienna Convention on the Law of Treaties).

2. Although the UN Human Rights Committee does not have the status of an international court, Ireland has accepted its competence to hear individual complaints and to give authoritative interpretations of the ICCPR. Its members are impartial and independent. Ireland recognised the committee’s competence to issue determinative interpretations of the convention when it ratified the ICCPR and its optional protocol.

3) When Ireland subjected Ms Mellet to cruel, inhuman or degrading treatment, it committed an internationally wrongful act. International law, including the ICCPR, requires it to remedy this wrongful act, provide reparations and guarantee non-repetition. Ireland cannot invoke provisions of its domestic law as rationale for a failure to do so (Article 2 of the International Covenant on Civil and Political Rights; Articles 1, 3, 30-32 of the Principles on Responsibility of States for Internationally Wrongful Acts).

4. It is immaterial to Ireland’s responsibility under international law that the relevant treaties have not been incorporated into domestic law or that as such the decisions of the committee are not necessarily enforceable in Irish courts. Under international law a lack of enforcement options under domestic law, or the fact that under domestic law the committee’s decision is not binding, can never be used as justification for non-compliance.

5) If Ireland does not remedy the harm suffered by Ms Mellet and guarantee non-repetition it will place Irish medical professionals in profoundly difficult ethical situations and place them at risk of complicity in cruel, inhuman or degrading treatment.

6) If Ireland does not remedy the harm suffered and guarantee non-repetition it will leave itself open to repeated future litigation against the State before the UN committee or other international bodies, including the European Court of Human Rights.

In response Rev. Patrick G Burke–a prolific letter writer to the Irish Times—argues today:

However, as the signatories note, the UN committee is not a court of law. Its function is to assess Ireland’s compliance with the covenant as it is written, not to interpret the covenant in such as way as to apply a particular article of it to a situation for which it was not intended. When it attempts to do so it acts outside its authority and its findings are not and can not be binding.

This is the opinion of our Taoiseach, based on the legal advice taken from those whose primary concern is the best interests of this nation rather than advancing some particular agenda or another. These legal experts, I would suggest, should see the bigger picture here – the importance of asserting Ireland’s sovereignty and our right as a people to make our own decisions democratically.

In his response Rev Burke both misses the point of our argument (i.e. that the question of ‘bindingness’ is not determinative of the question of whether Ireland ought to comply) and the ‘point’ of being part of international legal institutions, i.e. that sovereignty is not all that matters. Rather, sovereignty can result in rights violations and, where that happens, international institutions can helpfully step in and illustrate the rights-related damage that our “sovereignty” has done, as was the case for Amanda Mellet. If what is needed to respond effectively to the rights violations that result from the Irish abortion law regime is a referendum (and it is), and if a referendum is the expression of sovereign will (which in Irish constitutional doctrine it is construed to be), then what is the problem, in any case, with holding another referendum?

Rev. Burke also suggests that the Committee has applied the ICCPR to a situation to which it was never intended to apply. One wonders how he reaches such a conclusion. The rights protected in the ICCPR apply to all situations. We cannot carve out exclusionary zones in which the Covenant somehow does not apply (there are no relevant reservations or derogations in place here). Rev. Burke may not like the Committee’s findings, but it is in no way illegitimate for the Committee to apply the standards of the ICCPR to a situation such as that of Ms. Mellet. Under international human rights law, after all, she is a rights-bearer when pregnant, just as she is when she is not.

Some thoughts on the Citizens Assembly on the 8th Amendment

This afternoon Newstalk (an Irish radio station) asked me to write a short piece on the proposed Citizens Assembly, which the Taoiseach has announced will be convened next week to consider the 8th Amendment. My full column is available here, but in short I argue:

Little will be gained if the Citizens Assembly turns into a microcosm of the broader debate on abortion per se; if it is to be useful, rather than a mere stalling exercise, it seems clear that it should have a purpose that is oriented towards discussing in broad terms the options for reform.

The details of the proposed reform might then be discussed in an Oireachtas Committee, informed by the views of the Citizens Assembly, but in the design of the Citizens Assembly it seems important to remember this: It is the people, not the Assembly or the Oireachtas, that determines the content of the Irish Constitution.

Whatever option is put before the People should give voters a real choice between the current legal regime and one that is more permissive in a meaningful way. If it can figure out how to do this, the Citizens Assembly will be a useful forum indeed.

HRC Decision on Irish Abortion Law

Cross posted from Human Rights in Ireland; reprinted in the Irish Times

In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.

The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:

The State party asserts that article 40.3.3 of the Constitution represents the profound moral choices of the Irish people. Yet, at the same time, the Irish people have acknowledged the entitlement of citizens to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy. The legislative framework guarantees the citizens’ entitlement to information in relation to abortion services provided abroad. Thus, the constitutional and legislative framework reflects the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the foetus should be protected and balanced against the rights of the woman.

Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here—and the Committee made this quite clear—is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.

Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.

This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.

In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.

Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.

It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this—the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.

But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.