In last night’s marathon debate on the Government’s Protection of Life During Pregnancy Bill 2013, Lucinda Creighton gave one of the most thoughtful and thorough speeches.
She provided an in depth analysis of the medical and legal flaws in the Bill.
Here is her speech in full:
Amendments Nos. 58 and 78 are in my name, although I am happy to support the spirit of a range of other amendments tabled by colleagues which deal with the suicide clause in this abortion legislation.
I want to start by saying I very much respect the Members on the Opposition benches who have been at least very honest in terms of what they aspire to achieve in an abortion regime in this country. It is clear that we do not agree, but I respect the frankness and the honesty with which they approach the debate. For me, it is the distortion of facts and, in some cases, revisionism which disturbs me most. I very much support the overall intention of the legislation which is supposed to be about protecting and saving the lives of women and babies, but I cannot support a clause which is essentially built on sand. This issue has already been addressed by Deputies Peadar Tóibín and Éamon Ó Cuív and I am sure others will speak about the litany of medical experts who have contacted us to express their concern about the complete inability to make this section work and their inability to make it work, as practitioners, as we heard repeatedly during the Oireachtas hearings.
I want to talk about the underlying argument which has been made and repeated as a mantra from all quarters, that we have to do this because of the X case. That is fundamental to all of the amendments. I have heard a lot of talk in recent days about people cowering behind the party Whip. People can only examine their own consciences and make up their own minds on the matter. However, what about those cowering behind the Supreme Court? This is a real question that we, as legislators, who function as an organ of the State, an organ which is distinct from the Supreme Court by virtue of the separation of powers, must address.
The first question we must ask ourselves is whether the Supreme Court ordered the Oireachtas to legislate and, of course, the answer is no. Under the Constitution, Bunreacht na hÉireann, the Supreme Court and all other courts have no capacity or authority to direct the Oireachtas to enact legislation. This is borne out in a litany of case law, including Holland v. Ireland, Cummings v. the Director of Public Prosecutions and a range of other cases. The Supreme Court held in these cases that it had no authority to direct the Legislature. Article 15.2.1° enshrines the right of the Oireachtas as the sole legislative authority. We need to understand the responsibility that lies on our shoulders, not on those of Supreme Court justices in making decisions on legislation in this House.
In the X case, while the Supreme Court bemoaned the fact that the Oireachtas had not legislated in this area, it never suggested that it could or should require or instruct the Oireachtas to legislate.
Mr. Justice Niall McCarthy described the failure to legislate for Article 40.3.3° as inexcusable, a comment which has been repeated many times. It is important to note, however, that this was a retrospective observation, albeit a legitimate one and one I share, relating to the absence of legislation. It was not, however, a direction from the Supreme Court to the Oireachtas on whether we should legislate or, much more importantly, how we should legislate, which is a matter for this House and the Upper House.
I will now address the question of obiter dictum. Under Irish law the binding elements of court decisions are known as ratio decidendi, which is the reason or logic behind the decision. This is a principle of law as applied to the facts of the given case and is something any first year law student will know all about. I hope Members of this House are familiar with it. All other statements of law within a judgment are called obiter dicta. These statements are not of direct relevance to the decision and are consequently not binding. They do not have a value in precedent.
In the X case a decision was reached based on certain facts which ultimately did not transpire. Miss X tragically had a miscarriage before an abortion was carried out. While this might appear to be some type of trivial distinction, the reality is that under the Irish legal system, whether or not it suits people’s agenda, this has a profound effect on whether a decision is binding in law or is merely persuasive. It has been bizarrely overlooked that one of the judges who made up the majority of the Supreme Court in the judgment in the X case, Mr. Justice O’Flaherty, made the following observation in recent days: “[W]hen it [the Supreme Court, of which he was a member] gives an opinion on a case, [and] that doesn’t work out as submitted to it, then it’s really an obiter dictum.” In other words, it is not binding. Mr. Justice O’Flaherty also said: “They’re all talking about the X case, but in effect the X case is moot because the girl didn’t have an abortion. She had a miscarriage. To say the X case is some giant talisman hanging over us is wrong.” On the question of whether the Government was obliged to legislate for the suicide clause, he said it was not necessarily the case “for the reason that the case wasn’t as binding as a different type of case would have been”.
Despite this clarification, the terms of the X case keep being dangled over us as justification – for some, particularly in my party, the only justification – for the inclusion of this flawed section in the legislation, which is not evidence-based and which the majority of the medical professionals in psychiatric care and indeed in general practice keep telling us is not workable. We, however, keep telling them we have to do it because of the X case. The Supreme Court did not hear any legal arguments on the issue of whether suicidal ideation could validly satisfy the real and substantial risk test. In fact, the Attorney General conceded the point and, therefore, all the medical, legal and public policy arguments that should have been considered were not considered. Under the doctrine of precedent that governs whether court decisions are binding, a court must rule on the question. If the point has been conceded, it is not a part of the decision of the court. Again, this is known by any law student. If
something is not argued before the court, the latter cannot make a decision on that particular point. The Supreme Court itself laid down this rule in the case of the Attorney General v. Ryan’s Car Hire Limited, in which Mr. Justice Kingsmill Moore expressly pointed out that where a point has been entirely overlooked or conceded without argument, the authority of the decision may be weakened to vanishing point. According to the Supreme Court’s own test, since the point on suicidal ideation was not argued in the X case, this point weakens to vanishing point and is therefore not binding either on the courts, on the Oireachtas or on the Government. There has been no discussion of this very basic legal point. We are being told that we must legislate for X when, in fact, that decision is weakened to vanishing point in the eyes of the Supreme Court.
I move now to the question of checks and balances. Our Constitution gives specific powers to the three branches of government, namely, the Legislature, the Executive and the Judiciary. Each is supposed to act as a check on the power of the others as a kind of corrective mechanism. No one arm can instruct the other. Just as when the Government or the Oireachtas errs as to its powers – which, believe it or not, they can do – the Judiciary steps in to correct it, as we have seen in the past, the reverse can also be the case. In the Oireachtas in recent months we have seen a perfect example of this process in action. The legislative branch, by means of the January Oireachtas committee hearings, has managed to identify the fundamental mistake in the legal logic and the medical science – one might say the complete absence of medical science – accepted by the Supreme Court in 1992. By gathering evidence at the hearings, the Oireachtas has fulfilled its constitutional role and now has a huge volume of testimony that the Supreme Court did not have which shows that the judgment in the X case was incorrect and that it ought to be corrected under the separation of powers principle and the system of checks and balances. That is our responsibility in this House. The Executive, however, has not only chosen to ignore this fact but is now seeking to entrench this decision, which is not binding, by forcing the Oireachtas to compound the error made by a Supreme Court which did not hear any medical evidence. I find that bizarre, to say the least. It sets a very grave precedent for the doctrine of the separation of powers. Not only is one branch of government ignoring its duty to act as a check on another branch, but it is actually seeking to legitimise, entrench and enshrine this error in the law of the land. I consider that to be deeply worrying and something I certainly cannot be part of.
My final point continues this very important underlying thread. We have all been repeatedly told that we must include the suicide clause, against all of the medical evidence, in order to satisfy the X case test. However, this legislation ignores a very recent Supreme Court case and indeed a range of developments in that court in recent times. I draw Members’ attention to the case of Cosma v. the Minister for Justice, Equality and Law Reform from 2006, in which a woman sought that her deportation order be quashed on the grounds that if she were to be deported she would commit suicide. She argued that an action by the State should not be allowed to occur because she felt suicidal. The finding in that case is now the binding test laid down by the Supreme Court and I ask Members to pay attention, please, as I outline it.
The court found, first, that the absence of a treatment plan for a psychiatric condition and the fact that the person was not undergoing therapy or counselling were relevant factors in determining how real and substantial was the risk to life. Several Members of this House have proposed precisely the same thing – a treatment plan – to enhance this legislation, but it has simply been dismissed out of hand by the Minister. Second, the court found that the fact that the woman had not even considered removing the risk to life by treatment or some other means was relevant to considering whether the risk could only be averted by the course of action she preferred. The third finding was that the Minister was entitled to take into consideration arguments of public policy, as he had argued very vigorously in submissions that he should be, making the point that “to permit the threat of suicide to act as a stop on the execution of administrative decisions such as deportation would be to open a Pandora’s box of potential abuse with possible effects of paralysing administrative activity in any given area of government”.
On the Cosma reading of the X case, section 9 would fail to meet the necessary standard because it does not require evidence of a treatment plan or consideration of other means of avoiding the risk to life of the mother, and does not take into account, as the then Minister for Justice, Equality and Law Reform insisted we should, the public policy arguments that are relevant in assessing claims of suicidality.
This is not to mention the medical evidence. If we value the X case so much, which I argue is an obiter dicta judgment, how can we ignore this very specific and refined test urged by the Minister in the case of Cosma v. Minister for Justice, Equality and Law Reform? It is an entirely contradictory position and a position of convenience to suggest that the threat of suicide of a person at risk of deportation, who may be an inconvenience to the State, is not entertained but in other circumstances it is. It is entirely inconsistent, contradictory and hypocritical. Selective constitutional interpretation is happening in the Department of Health.
I am deeply concerned about it and I appeal, as I have done a multitude of times, to the Minister for Health to listen to the evidence put forward by medical experts and the psychiatrists the Minister is asking to administer the flawed section. They say they cannot do it. Please let us listen to them and please let us not enshrine flawed logic and flawed legislation on our Statute Book. The legislation may be reversible but the consequences of the legislation are not reversible. They will change the culture in this country and they will change how we deal with vulnerable women. Why can the Minister not accept the proposal that we put in place a clinical care pathway for vulnerable women feeling suicidal thoughts or feeling at risk of suicide during pregnancy? Why can we not talk about improving services and standards and putting in place the kind of clinical care path accepted as best practice in the United Kingdom? Why must we be the poor relation in terms of the service we provide to vulnerable people?
Why are we insisting that abortion, which has no medical grounding, will be enshrined in our Statute Book as the only treatment for women who find themselves in that desperate place? I am lost for words because I cannot understand why this proposal is being insisted upon by the Minister and his Government.