A two page summary of the advice the Attorney General has given the Government to replace the Eighth amendment, rather than simply repeal it, has been published. The replacement text would affirm “that laws may be enacted by the Oireachtas providing for the regulation of termination of pregnancy”. In the document, the AG says there would be “no absolute certainty” of the legal situation after a simple deletion of article 40.3.3 because there might still be an implied, unenumerated right to life of the unborn, a possibility that had been alluded to by the courts prior to 1983. If such a right did exist, it might curtail the constitutional freedom to legislate for abortion. Hence, to mitigate the uncertainty, he has proposed inserting a text “that expressly affirms the right of the Oireachtas to legislate for the regulation of termination of pregnancy.” While the Oireachtas already has the right to legislate, generally speaking, this text would make that “clear” by expressly stating it could do so “in the same way as it legislates in every other area of policy”.
The summary then claims that this provision “would bring greater constitutional certainty to the primary authority of the Oireachtas to make laws in this area” and that it would be “primarily a legislative function for the Oireachtas to determine how best to guarantee and balance proportionately the rights, interests and values that are engaged”.
Nonetheless, the document claims that this affirmation of the power to legislate would not infringe on the separation of powers, or impair judicial review of legislation, or restrict the rights of the courts.
“While no approach can be completely free from the risk of legal challenge, the Attorney General advises that the approach recommended above is likely to be a legally safer option than a simple repeal.”
In adopting this approach, the Government seem to be rejecting both the Citizens’ Assembly’s approach and the recommendation of the Oireachtas Committee on the Eighth Amendment. The former argued that for the sake of maximising certainty, an “immunising” provision should be inserted to exclude the possibility of the judicial review of legislation, whereas the Oireachtas committee recommended a deletion of article 40.3.3 for the sake of simplicity and clarity. The Government’s approach is an attempt to square a circle by aiming for greater certainty even while preserving judicial review.
Speaking on RTE’s Drivetime yesterday, the Head of the School of Law in Trinity College Dublin and member of the Expert Advisory Group to the Citizens’ Assembly, Prof. Oran Doyle, said “the Government has made it clear that it doesn’t want to immunise any legislation from possible constitutional challenge. So they are trying to do quite a difficult thing of making it more difficult for anyone to challenge legislation after an amendment is passed, but they don’t want to make it impossible to challenge legislation after the amendment is passed”.
He said that a simple deletion of article 40.3.3 could result in the Courts giving two very different kinds of judicial review: one that inhibited abortion legislation on the basis of an implied right to life of the unborn, and another that struck down limitations to abortion on the basis of an implied right to privacy and autonomy. The AG’s solution is an attempt to make the first possibility “less likely to happen” without excluding it completely. He continued: “part of what this advice is saying is that they want to let those possibilities play out, but they don’t want to take the step of immunising legislation from constitutional challenge—the politicians have spoken about the importance of the separation of powers and allowing some kind of judicial check on any legislation that might ultimately be passed.”