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Some reflections on the practical implications of Miller (the Brexit case)

Like many others, I have been thinking about and discussing Miller (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768) with colleagues today. This is the decision from the High Court that the Government cannot trigger Article 50 in order to begin the process of withdrawal from the EU without getting Parliamentary authorisation first.

Put very shortly (and without wanting to get too far into the details of the reasoning per se), this is because the Court found that, as a constitutional statute and one that created domestic rights and anchored EU rights, the European Communities Act 1972 could not be turned to naught by the Executive. The prerogative power had been constrained by this Act, and it was not within the royal prerogative to make even international treaty decisions (such as withdrawing from the EU) that would disturb this domestic statute. In other words, parliamentary authorisation is required before Article 50 is triggered and the formal process of leaving the EU can begin.

There are already, and will in the coming days, be lots of analyses on the reasoning per se from a constitutional law perspective (see, for example, the reflections of Paul Daly, Kenneth Armstrong and Aileen McHarg). My purpose here is to offer a few reflections more broadly on the implications of the judgment, especially for those more interested in its practical meaning for Brexit than in its (unquestioned) broad constitutional significance per se. Continue reading “Some reflections on the practical implications of Miller (the Brexit case)”

The Legal Impact of Repealing the 8th Amendment

I have a letter in today’s Irish Times on the potential constitutional impacts of a ‘simple’ repeal of the 8th Amendment. It is a response to Gerry Whyte’s (TCD) opinion editorial in the same paper yesterday, in which he presents what I think a highly unlikely scenario as a near certainty. My letter goes as follows:

Sir, – Prof Gerry Whyte argues that removing the Eighth Amendment from the Constitution may well be interpreted as being intended to remove all constitutional protection from the foetus so that any limitations on abortion in future law would be unconstitutional.

There is another possible outcome from a “simple” repeal – that the foetus might be said to have some constitutional rights that existed before, and go beyond, the right to life inserted in Article 40.3.3 so that these are not disturbed by removal of the Eighth Amendment. However, while both outcomes are possible, realistically speaking neither seems especially probable. One is an extreme interpretation of the removal of Article 40.3.3 and the other would seem to fly in the face of the sovereign will of the people expressed in a vote to remove it.

Furthermore, neither would be consistent with comparative and international best practice. Even in countries where there is no constitutional protection of the foetus, the law recognises a state interest in the preservation of foetal life that allows for regulation of abortion provided any limits that are implemented (such as time limits or “grounds”) do not unduly or disproportionately interfere with the rights of pregnant women. That is consistent with a rights-based approach to the regulation of healthcare in general, and the availability of abortion in particular.

It so happens that it is also consistent with the model abortion law that was drafted and published by a group of 10 feminist lawyers (including me) in 2015 and in respect of which, among other things, we recommended that it might be wise to include a positively worded right in the Constitution to bodily integrity and the right to self-determination in medical matters, making clear that nothing in the Constitution would preclude access to abortion as regulated by law.

That model law and an accompanying short explanation are available for all to read online (“Abortion Law Reform in Ireland: A Model for Change”).

What Prof Whyte’s article, our 2015 proposal, and this response really illustrate is that the question of how we go about reforming the Constitution on the matter of abortion is a complicated one.

What seems vital is that we do not let political expediency override the need for care and attention to be paid to the constitutional text. We did that in 1983, and we all know where that got us. – Yours, etc,

Prof FIONA de LONDRAS,

Birmingham Law School,

University of Birmingham

Edgbaston, Birmingham.

I have written about a potential replacement provision both in the piece linked in the letter and with Mairead Enright in this piece here which was published as Máiréad Enright & Fiona de Londras, “‘Empty Without and Empty Within’: The Unworkability of the Eighth Amendment after Savita Halappanavar and Miss Y” (2014) 20(2) Medico-Legal Journal of Ireland 85

Hong Kong and Comparative Public Law

As already noted, I have spent this week in Hong Kong, visiting at HKU Law’s brilliant and vibrant Centre for Comparative and Public Law. It is a fascinating time to be in Hong Kong. Elections for the Legislative Council take place today (Sunday 4th September), and the political arena is alive with calls for everything from Hong Kong independence (although they are not in the majority) to a return of Hong Kong to the UK (definitely not the majority!). My dominant sense, though, from the week spent contributing to a roundtable on the HK Basic Law’s Article 23 (this is a useful primer), speaking to PhD students, speaking with practicing lawyers and lawyers in training is that people are deeply concerned with maintaining not only the Hong Kong way of life but also—and fundamentally connected therewith—the Rule of Law. Continue reading “Hong Kong and Comparative Public 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”