Water Protests and The Office of the President

 

Dr Seán Ó Conaill

The current debates and ongoing controversies surrounding Irish Water have clearly led to a certain degree of panic in Government circles with new policies and proposals emerging in an ad hoc manner as the crisis continues which have certainly fed the ongoing protests. The right to protest against a Government is a crucial part of any modern democracy and is a well recognised manifestation of the rights of freedom of expression and assembly. More unusually however, are protests which target the President of the Ireland such as those seen in the last few days. There have been suggestions that protesters are disappointed that the President signed the bill to bring about Irish Water and as a result has been targeted.

My colleague at NUIG, Dr Eoin Daly has argued that we over constitutionalise our politics far too often in Ireland and I would tend to agree. The Office of the President is often seen as being “above politics” however, as my colleague at UCD John O’Dowd notes that does not absolve the President of any and all criticism.

There is however a generally accepted convention that the Government in particular should not be seen to criticise the President (although in practice this seems tCearbhall_Ó_Dálaigho broadly apply to all elected officials). The most famous example of the operation of this convention arose in 1976. President Ó Dálaigh referred a piece of anti-terrorism legislation to the Supreme Court using the powers under Article 26 and subsequently the then Minister for Justice Paddy Donegan criticised this decision. Although Minister Donegan offered his resignation to the Taoiseach for the perceived flouting of the convention the resignation was not accepted and President Ó Dálaigh himself resigned when it was clear that Minister Donegan was to carry on in office. In the years since successive Governments have tended to avoid criticising the President openly even in circumstances where is was widely known that there were very significant strained relationships between various Presidents and the Governments of the the day.

 

For their part successive Presidents have respected the limits of their constitutionally defined roles albeit with some of the more recent occupants willing to push those same limits. When it comes to the day to day running of the State the President’s role is very much confined and the Office lacks any role in formulating national policy.

There was however a potential interesting avenue which was mooted but not explored during the debates over Irish Water concerning a power vested in the Seanad and the President by Article 27 of the Constitution.  Article 27 allows for the a majority of Senators in conjunction with 1/3 of the Dáil to petition the President to refer a bill, such as some (but not all) of the proposed bills in connection with Irish Water, to the Irish people. The President would then have to decide if such a bill should be referred to the Irish people after consulting with his Council of State. If he were to decide to do so then the people would ultimately get a say in whether the bill would become law. In the event that the people were to reject the bill the President Irish Waterwould then decline to sign the bill.

If this happened the rejected bill would have either needed to be completely reconsidered and redrafted or approved at a later date by the Irish people or a newly convened Dáil with a fresh democratic mandate. Essentially if the people rejected such a bill it would be dead in the water. It is important to note that the Article 27 procedure is not open to every single bill in a straight forward manner (typically what are known as money bills are excluded).

While the current political make-up of the Dáil and the Seanad it is entirely within the realms of possibility that sufficient votes could be mustered to force such a situation and could ultimately represent a vindication of the people’s decision to keep the Seanad the passing of and signing into law of the parent bill  however would seem to diminish the likelihood of any Article 27 procedure being invoked.

There were a number of calls made for the President to refuse to sign the bill however in the absence of any Article 27 procedure there would be no authority for him to refuse to do so. Clearly in the President’s mind there was a lack of any sufficient doubts as to the constitutionality of the bill to assemble the Council of State and invoke the Article 26 referral procedure. When this happens the President, after consulting with the Council of State, can decide to refer a bill to the Supreme Court who adjudicate on the constitutionality of the referred legislation. It is difficult to see any particular element of the Irish Water legislation which could have given rise to concern from a constitutional point of view. The President was left with no option but to sign the bill which had been passed by both Houses.

If there is to be any constitutional role in the Irish Water saga now it’ll have emerge from challenges to the legislation and its operation rather than a prescribed constitutional process. It is worth noting that if the President had chosen to refer the bill to the Supreme Court and if the Court had upheld the constitutionality of the bill it would have been immune from any further challenge.

 

Dr Seán Ó Conaill is a lecturer in Constitutional Law at  University College Cork.

Twitter: @soconaill 

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The Constitutionality of the Children and Family Relationships Bill

Dr Conor O’Mahony

With the publication of the wording of a constitutional amendment on marriage equality last week, the battle lines are being well and truly drawn for May’s referendum. It is clear that the No campaign is being based entirely around issues relating to the parenting of children by same-sex couples. In response, the Yes campaign argues that this issue will not form part of the referendum, as it will have been addressed by the Children and Family Relationships Bill, due to be enacted in March.

The No Campaign shows no sign of being deflected from its main strategy by the pending enactment of a Bill that will allow for same-sex couples to adopt (as couples – individuals within same-sex couples can and do already adopt), or for a non-biological parent in a same-sex couple to be appointed as a guardian. As a fall-back position, prominent No campaigner Breda O’Brien, in her Irish Times column last Saturday, raised question marks over the constitutionality of the Bill. This in turn generated a debate on the Irish Times letters page. Is there any substance to the claim?

Ms. O’Brien did not provide any detail on how exactly the Bill would violate the current provisions of the Constitution, and in the absence of clarification, we can only speculate. The tenor of her article suggests that she sees the Bill as an attack on the institution of marriage and the marital family, which enjoy the protection of Article 41. In particular, Article 41.3 states: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.” The Irish courts have dealt with numerous cases over the years where legislation has been alleged to constitute an attack on the institution of marriage, and have developed two tests for assessing whether laws fall foul of Article 41.3.

The first test is whether the law in question penalises the married state. If, by virtue of a piece of legislation, a married couple find themselves in a worse position that they would be in were they not married, the law is unconstitutional. Murphy v Attorney General [1982] IR 241 is the classic case on point; income tax legislation was struck down on the basis that it required married couples to pay more tax than if they were merely cohabiting.

The penalty test would not seem applicable to the Child and Family Relationships Bill 2014. Put simply, no opposite-sex married couple will find themselves any worse off by virtue of the fact that same-sex couples will be entitled to have their relationships with children that they care for legally recognised, or that they will be eligible to apply to adopt as a couple rather than merely as individuals. The law will not impact on opposite-sex married couples in any way.

While the penalty test assesses the impact of the law on married couples, the other test – the inducement test – assesses the impact of the law on couples who are not yet married. If a law might have the effect of inducing couples not to marry where otherwise they might marry, then it could be considered an attack on the institution of marriage and therefore be unconstitutional under Article 41.3. Again, however, the fact that same-sex couples will be entitled to have their relationships with children that they care for legally recognised, or will be eligible to apply to adopt as a couple rather than merely as individuals, cannot reasonably be construed as an inducement to opposite-sex couples not to marry.

If anything in the Bill raises eyebrows, it might be the fact that it does not confine eligibility to apply to adopt to married couples or civil partners. Under Heads 78-82, cohabitants of at least three years’ standing will also be eligible to apply. In the context of same-sex couples, the fact that marriage would not be a pre-requisite to eligibility to apply cannot currently be seen as an inducement not to marry, since they cannot marry at present. However, what about in the aftermath of a Yes vote in the referendum? And what about opposite-sex couples – might their new-found eligibility to apply to adopt as a cohabiting couple be seen as an inducement not to marry?

In the case law on point, an inducement not to marry is seen as treating someone more favourably when unmarried than they would be if married (see, for example MhicMathúna v Ireland [1995] 1 IR 484 at 494-495). This description cannot be applied to the Children and Family Relationships Bill. The Bill does not propose to treat unmarried couples more favourably than married couples; it merely proposes to equalise their position, in that unmarried couples would now be eligible to apply to be assessed as potential adopters as a couple, in the same way that married couples can.

Mere equalisation is not sufficient to render a law unconstitutional by reference to Article 41. Certainly, Article 41.3 permits legislation which is more favourable to marital than to extra-marital families, and protect such discrimination from being struck down under the constitutional guarantee of equal treatment before the law contained in Article 40.1. For example, in O’B v S [1984] IR 316, succession legislation which restricted intestate succession to marital children was upheld on this basis. And, as already outlined, Article 41.3 precludes legislation which treats marital families less favourably than extra-marital families

However, the case law does not establish that Article 41.3 requires all legislation to discriminate in favour of the marital family or precludes any legislation which treats marital and extra-marital families similarly; indeed, any such requirement would be impossibly overbroad and unworkable, and there are examples of statutes that treat the two identically. For example, Part 6 of the Social Welfare Consolidation Act 2005, in providing for a family income supplement for low income families, makes identical provision for cohabiting but unmarried parents as for married parents.

How will any of this impact on the referendum? The first point to note is that the enactment of the Bill is not a legal pre-requisite to the referendum. Were the Bill not to be enacted, the referendum could proceed regardless. The link is a political one rather than a legal one. The strategy being pursued by the Government is to address all issues relating to same-sex parents in advance of the referendum, so that the issue being voted on is marriage alone and not anything to do with children. If the Bill were not enacted, then the referendum would become a de facto referendum on both marriage and adoption by same-sex couples, since section 20 of the Adoption Act 2010 currently allows all married couples to apply to adopt, and does not contain any language that could be construed as excluding same-sex married couples. Without the Children and Family Relationships Bill, approval of the marriage equality referendum would automatically render same-sex couples eligible to apply to adopt. Therefore, the timing of the Bill is clearly designed to separate these issues for campaigning purposes – but it is not legally necessary, and the referendum can proceed either way.

Assuming that the Government will make a point of enacting the Bill in advance of the referendum, the only other way that the Bill might not be enacted would be if it were found to be unconstitutional. As outlined above, this seems unlikely – but in the event that this assessment is inaccurate, how might such a decision arise? It seems highly unlikely that it could result from a challenge brought to the Bill post-enactment. Any would-be challenger would first have to demonstrate that they have the requisite standing to bring a challenge, and this would not be straightforward. Even if this hurdle was cleared, the timeframe involved in a court date being scheduled, arguments heard, judgments drafted and delivered (and an inevitable appeal to the Supreme Court), are such that it would be impossible to dispose of the challenge in the period of approximately six to eight weeks between the enactment of the Bill and the referendum.

The only other possibility is if the President chooses to refer the Bill to the Supreme Court under Article 26 before signing it into law. The Court would have sixty days to give its decision. In theory, this might run until after the referendum, but it would seem reasonable to assume that the Court would endeavour to dispose of the case before polling day. If the Bill were upheld, it would become law and be immune from any further challenge. If any part of the Bill were found to be unconstitutional, none of the Bill would become law and the Oireachtas would have to seek to enact a revised Bill. Whether the President would choose to do this in the absence of any clear constitutional concern over the Bill is an open question.

Even in this event, the referendum could proceed. However, a declaration of unconstitutionality would have potential for political damage.  Although it would be a different scenario to the misuse of public funds to influence a Yes vote that was at issue in the McKenna and McCrystal decisions, it would be difficult for the public to distinguish between the two; it would be perceived as a case of the Government acting unconstitutionally as part of its preparations for a referendum. However, for all of the reasons set out above, it seems highly unlikely that the Children and Family Relationships Bill is unconstitutional to begin with, and thus the odds of the courts being asked to pronounce on it and choosing to strike it down in advance of the referendum seem very slim indeed.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw

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Terminology and the Marriage Referendum  

Dr Seán Ó Conaill

With the proposed wording of the forthcoming referendum having been announced the next question is what exactly the referendum will officially be called. The official naming and broadcasting title of a referendum is not only a politically sensitive matter but it also carries with it certain legal consequences.Gay-Love-Equal-Love

Many media outlets seem to have adopted the marriage equality referendum as the title they are prepared to use. More interesting perhaps is the fact that the Government also appears to have adopted the same title and such a choice could potentially be legally problematic.

At the very heart of the Irish Constitution is the notion of popular sovereignty whereby only the people can ultimately decide to amend their own Constitution. This concept is absolutely key to protecting the core freedoms and democratic principles enshrined in the Bunreacht. The lack of a clear requirement for the People to have their say on every amendment was one of the great failures of the 1922 Constitution and indeed a very similar flaw in the Constitution of the Weimar Republic was aggressively exploited by the Nazi party in their rise to power.

Given the importance of the People’s right to decide whether or yesnot to amend their own Constitution it is vital that the Government, which derives its authority to govern from the People, does not interfere in the process in any way. Sadly however the Irish Government has an exceptionally poor record when it comes to illegal interference in the Referendum process. The famous McKenna decision first established the principle that it was illegal for the Government to spend taxpayers’ money in an effort to sway a vote one way or another although the Courts stopped short of overturning the result of the Divorce Referendum, in spite of the illegal Government spend, in the Hanafin decision noting that to do so would be “an awesome undertaking”.

Subsequently the Coughlan decision held that broadcast media must present both sides of a referendum debate in an equally balanced manner. It should be noted however there is no similar requirement for print or online media outlets to do likewise.

These developments ultimately led to the establishment of the Referendum Commission which gives independent and impartial information to the People concerning the various referendums.  Although the information from the Referendum Commission can seem somewhat bland at times it is important that as a body funded from public monies that a charge of bias cannot be levied against it and it is submitted that generally speaking the Referendum Commission has served the Irish People well.

For reasons only known to the Government, they decided a number of years ago to run  parallel information campaigns to the Referendum Commission’s in the recent referendums. All such Government information campaigns were still subject toref pic the principles established in McKenna. The Children’s Referendum Government information campaign in particular lead to criticism  that the campaign was neither impartial nor legal. The Supreme Court upheld this view in the McCrystal case when the constitutionality of the Government information campaign was successfully challenged. The Supreme Court restated the McKenna principles but also placed a great deal of importance upon the use and presentation of terminology, imagery and implied value judgements during the Government information campaign even going so far as to deem the manner in which the Facebook page of the campaign was presented was unconstitutional.

With the McCrystal judgment in particular in mind the terminology of the Marriage Referendum could prove to be quite problematic for the Government. The term “equality” in particular is one which the Irish Courts have long struggled with in the constitutional context. The classic Aristotelian definition of equality which has been accepted by the Irish Courts on many occasions focuses not on treating everyone the same but treating equals equally and unequals unequally. Those on the No side have argued that calling the referendum “The Marriage Equality Referendum” contains an implied value judgement about the nature of equality and suggests that those voting No are opposed to equality. Many on the No side have argued that they are not opposed to equality in any sense but rather see the issue as one which they oppose on first principles. Those on the Yes side counter that the use of some of the other terminology has the same effect. It is worth noting that other terms are equally problematic eg the expressions “gay marriage” and “same sex marriage”, aside from being somewhat nonsensical, in of themselves have an inherent value judgement on the nature of any such marriage and a strong sense of “othering” and is it is submitted that they are particularly unwelcome and unfit phrases.

Although terming the referendum the Marriage Referendum might appear bland it would perhaps be the legally and constitutionally safest option for both the Government who are obliged to comply with the McKenna and McCrystal principles and for the broadcast media who are bound by the Coughlan judgment.

 

Dr Seán Ó Conaill is a lecturer in Constitutional Law at  University College Cork.

Twitter: @soconaill 

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How Marriage Equality Made it to the US Supreme Court: The Active Use of the Passive Virtues

Dr Conor O’Mahony

prop8supremecourtOn Friday, the US Supreme Court agreed to hear a case concerning the constitutionality of laws prohibiting same-sex couples from marrying. This will not be the first marriage equality case to be heard by the US Supreme Court – judgment was delivered in two previous cases in June 2013 – but this time, it looks likely that the decision will settle the issue on a nationwide basis, at least for the time being.

The 2013 cases did not do so because neither judgment directly addressed the question of whether State laws prohibiting same-sex couples from marrying violated the federal US Constitution. United States v Windsor concerned the federal Defense of Marriage Act, under which federal law restricted recognition of marriages to opposite-sex couples for taxation and other purposes (the law was found to violate the Fourteenth Amendment and was struck down).

However, access to marriage is regulated as a matter of State law, and thus Windsor
merely allowed same-sex couples who had married in a State with full marriage equality to have that marriage recognised at federal level. On the other hand, Hollingsworth v Perry was directly concerned with the constitutionality of such a State law – namely, California’s Proposition 8, which provided that only a marriage between a man and a woman was valid or recognised in California. The US District Court and the Court of Appeals for the Ninth Circuit had found Proposition 8 to violate the Fourteenth Amendment.

The Supreme Court granted certiorari and agreed to hear Hollingsworth, but having done so, the Court held that the petitioners (proponents of Prop 8) lacked standing to defend its constitutionality (the California executive had declined to do so). Thus, the Court did not proceed to address the merits of the case, and the decision of the Ninth Circuit was preserved. While this meant that marriage equality would become a reality in California, the decision had no immediate implications for the majority of US States. The US is divided into 13 Circuits (Federal, DC and First to Eleventh), and the rulings of each Circuit Court are binding only on the States subject to its jurisdiction. The Ninth Circuit has jurisdiction over nine States; the remaining 41 were not bound by its decision and were thus free to continue to restrict access to marriage to opposite-sex couples.

bickelWhy did the Supreme Court approach Hollingsworth in this way? Unlike the Circuit Courts, decisions of the US Supreme Court are binding nationwide. In cases where the text of the US Constitution is open to competing interpretations, and the views of the nation are in flux, the Supreme Court is often reluctant to address an issue head-on until such time as a consensus begins to emerge across a majority of States in the US. At this point, it can make a ruling that reflects that consensus and bring the minority states into line. In the intervening period, the Court can avoid entering the fray by utilising what Alexander Bickel, in his classic book The Least Dangerous Branch, famously called “the passive virtues” – devices like denying certiorari or standing that allow the Court to avoid pronouncing on the merits. In this way, Bickel argued that the Supreme Court should seek to control the timing and circumstances of a ruling, so that when it finally does rule, its decision will be one which is likely to gain widespread public acceptance either immediately or in the near future.

The Court in Hollingsworth did not expressly mention Bickel or the number of States that prohibited same sex couples from marrying (which, for the record, was 38 out of 50 at that time); but nevertheless, as I argued in my article in the 2014 Harvard Human Rights Journal, the decision to rule on standing and avoid proceeding to the merits was all about timing. It would not be unreasonable to speculate that the initial decision to grant certiorari was similarly motivated.

Supreme_Court_US_2010Only four justices out of nine need vote to grant certiorari, but five are needed for a majority judgment. In recent years, the US Supreme Court has invariably split 5-4 in controversial cases, with a clear conservative-liberal divide and Justice Kennedy usually (though not always) providing the swing vote. The conservative justices may have voted to grant certiorari in the view that Hollingsworth represented one of the last opportunities for the Court to rule against marriage equality before the balance of public opinion shifted beyond dispute in its favour. The liberal justices, on the other hand, seeing that same-sex couples were still prohibited from marrying in a clear majority of states, may have felt that the time was not yet right for a nationwide decision in favour of marriage equality. This is one plausible explanation for what otherwise seems like a curious process of agreeing to hear the case and then deciding not to decide.

Hollingsworth was less than two years ago, so what has changed since? Quite a lot, actually; on the issue of marriage equality, the picture at State level is unrecognisable from May of 2013. Whereas 38 States out of 50 prohibited same-sex couples from marrying then, 35 States out of 50 currently allow them to marry on an equal basis to opposite-sex couples. This represents nothing less than a landslide, with the balance of states that allow or prohibit marriage equality being inverted from three-quarters that prohibit to three-quarters that allow.

The US Supreme Court has a history of basing its rulings on controversial moral issues on what it terms “objective indicia of consensus” – i.e. State laws – particularly where the direction of change is clear and consistent. Notable examples include Lawrence v Texas 539 U.S. 558 (2003) (striking down laws criminalising sodomy), Atkins v Virginia 536 U.S. 304 (2002) (striking down the death penalty for the intellectually disabled) and Roper v Simmons 543 U.S. 551 (2005) (striking down the death penalty for minors). By comparison with these cases, the shift in consensus on marriage equality has been numerically more decisive, which might suggest that the decision will be straightforward.

Of course, there are alternative views, under which things are a little more complicated – at least in the eyes of constitutional lawyers. One point of interest among US scholars has been the way in which the Supreme Court phrased the question to be considered (see Adam Liptak’s excellent piece in the New York Times). The Court will consider two separate questions: one regarding the constitutionality of State laws prohibiting same-sex couples from marrying, and another regarding the constitutionality of State laws prohibiting the recognition of the marriage of a same-sex couple who legally married elsewhere. If the Court wanted to avoid potential backlash, it is possible that it might uphold the former and strike down the latter, thereby moving the issue forward a little while avoiding being seen to legislate from the bench on the main controversy.

A further complicating factor, receiving less attention, is the manner in which the pro-marriage equality landslide in State laws has come about. The reason the Supreme Court looks to State laws as objective indicia of consensus is that they are enacted or repealed by elected representatives of the people. However, although the number of States with full marriage equality has increased from 12 to 35 since Hollingsworth, 23 State legislatures have not voted in favour of marriage equality in the interim. In fact, only five have (Connecticut, Hawaii, Illinois, Maryland and Washington, with a referendum confirming the decision in the latter two). In Maine, marriage equality was introduced on foot of a popular initiative (i.e. a vote of the people initiated by way of a ballot petition signed by a set number of voters).

In the sizeable remainder (17 States out of 23), marriage equality became legal due to a court ruling. While State laws passed by legislatures or in referendums might be considered “objective indicia of consensus”, it is difficult to argue that court decisions should be viewed in the same light. This is particularly the case when the law that was struck down was, in many instances, introduced on foot of a referendum vote amending the State constitution just a decade (or less) earlier. In several of the States (Utah being an example that immediately springs to mind), it could be seriously questioned whether marriage equality could have been introduced by the legislative and/or referendum route in the short term.

There is more. Friday’s decision was not the first time that the Supreme Court has been asked to hear a marriage equality case since Hollingsworth. It was previously asked in October 2014, when it denied cert in seven petitions involving five different States. I mentioned earlier that denying standing or cert are two examples of Bickel’s passive virtues. However, in this instance, the denial of cert may not have been entirely passive, in that the effect was not exactly to preserve the status quo. On the contrary: the denial of cert in October not only preserved court rulings in favour of marriage equality in five States, but triggered a domino effect, since identical litigation was underway in almost all of the other States in the three Circuits involved. The denial of cert meant that the rulings in question became the controlling precedents for those Circuits, thus making it inevitable that the litigation underway would succeed at the latest at Circuit Court level. At a stroke, the Supreme Court’s denial of cert in October paved the way for the introduction of marriage equality in the five States directly involved, and another 12 States indirectly affected, over the following weeks.

Bickel illustrated the passive virtues in action though the litigation surrounding State laws prohibiting interracial marriage. Even though such laws seemed clearly contrary to its ruling in Brown v Board of Education 347 U.S. 483 (1954), the Supreme Court denied cert in Naim v Naim 350 U.S. 985 (1956), when a majority of 28 States had such laws. It eventually struck them down 11 years later in Loving v Virginia 388 U.S. 1 (1967), when a clear minority of just 16 still had them (12 State legislatures repealed their laws in the interim).

While there are obvious parallels between those cases and the marriage equality cases, the big difference is that the present Supreme Court has not simply sat back and waited for State legislatures to pass laws indicating that the majority of States now favour marriage equality. Instead, it has waited for courts to strike down laws indicating the contrary – and it has helped to facilitate that process through its denial of standing in Hollingsworth and, more particularly, its denial of cert last October. Had cert been granted in October, the issue would have come before the Supreme Court at a time when marriage equality would have been a reality in just 18 States. The increase (of almost 100%) to 35 came about entirely because of the decision to deny cert at that point and the domino effect created by the preservation of Circuit Court rulings and widespread strategic litigation. A harsh critic might say that the Supreme Court has been discreetly massaging the figures in advance of an ultimate decision in 2015. It has not just waited for the numbers to favour a pro-marriage equality decision; it has indirectly helped to make those numbers look the way that they do.

Whether any of this will be seen to matter depends on whether the Supreme Court chooses to make an explicit issue of “objective indicia of consensus” in its ruling. It did so in the death penalty cases, but this approach is fairly well established in Eighth Amendment case law assessing “evolving standards of decency” with respect to what society regards as “cruel and unusual punishment”. It is less common in Fourteenth Amendment case law, although it did feature in Lawrence, which of course was another gay rights case. However, those cases involved overruling a previous Supreme Court decision to the contrary, and so the Court may have felt compelled to explain what had changed in the meantime.

Here, like in Loving v Virginia, there is no previous decision to overrule; the only thing the Court is changing is its mind on is whether the issue is ripe for a final determination. Thus, while the number of States with laws in favour of or opposed to marriage equality is likely to be something that features prominently in the Justices’ thinking, it may not feature at all in their judgment, which (again like in Loving v Virginia) may focus entirely on the Fourteenth Amendment, standards of review and associated matters.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw

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Repealing the Eighth Amendment: As Simple as it Sounds?

Dr Conor O’Mahony

2014 saw palpable growth in support for the repeal of the Eighth Amendment to the Irish Constitution, which guarantees the right to life of the unborn. While there has long been a call to this effect from the pro-choice lobby, the thing that changed in 2014 was that it became increasingly clear that this debate is not just about abortion. While the controversial Miss Y case was focused on access to abortion, the year ended with the tragic case of PP v HSE, which concerned the termination of life support for a brain dead pregnant woman and had nothing to do with abortion. The result was an intensification of the calls to “Repeal the Eighth”, with the Minister for Health, Leo Varadkar, and the Tánaiste, Joan Burton, both expressing the view that this should happen (albeit not before the next election). I expressed the view in the Irish Independent on December 27 that even to people not in favour of liberal abortion laws, the Eighth Amendment should be seen as an overbroad and unworkable law that should be repealed; the debate should shift to what (if anything) it should be replaced with.

repealthe8thRepeal the Eighth” is a catchy slogan that seems, on its face, appealingly straightforward. However, leaving aside the political difficulties, the process may not be as legally straightforward as highlighting the relevant text and pressing the delete button. For starters, what about the Thirteenth and Fourteenth Amendments (travel and information)? If the Eighth Amendment were simply deleted, then these should follow, as they refer back to it and would make no sense in its absence. But what if the Eighth Amendment were to be modified rather than deleted entirely? Could the travel and information clauses remain, or would they need to be modified or deleted?

The intention behind repealing the Eighth Amendment entirely would be to take the issue of the unborn out of the constitutional realm altogether, leaving it to the discretion of the elected branches of government to legislate for, and eliminating the all-too-familiar interventions of the courts. But would this suffice? If the Eighth Amendment were deleted entirely, would legislation providing for broader access to abortion be immune from constitutional challenge based on the right to life of the unborn?

There is an understandable reluctance to go further and to replace the Eighth Amendment with a new provision that stipulates the balance to be struck (in whatever way) between the rights of the mother and those of the unborn. Any such provision would be extremely difficult to draft, fraught with the deepest controversy, and would have the same potential disadvantages that the Eighth Amendment itself had: scope for unintended consequences and inflexibility when they arise.

Having said all of that, there are potential complications arising from leaving things unsaid also. Any Irish judge will interpret the Constitution “light of prevailing ideas and concepts”, to use the oft-cited words of Walsh J from McGee v Attorney General [1974] IR 284. While this means that the values of today’s generation are to prevail over those of their ancestors, it also has the more general implication that constitutional meaning is informed by values and opinions that are deeply rooted and widely shared in Irish society. Our history is one where unborn life has been accorded a highly significant status – protected by the criminal law for centuries and by the Constitution for at least three decades. Even in jurisdictions with liberal abortion regimes and no constitutional or legal recognition of the right to life of the unborn, the courts have nonetheless recognised that the unborn has some sort of legal status.

For example, in St George’s Heathcare NHS Trust v S [1998] 3 WLR 936 at 952, the English Court of Appeal stated that “whatever else it may be a 36-week old foetus is not nothing; if viable it is not lifeless and it is certainly human”. Similarly, the US cases of Roe v Wade 410 US 113 (1973) and Planned Parenthood v Casey 505 US 833 (1992), while protecting a right to an abortion, also recognise a State interest in protecting unborn life that grows stronger as the pregnancy progresses. The point of all of this is that the Irish courts, operating in a cultural context more protective of unborn life, would be likely to go further down this road than their English and American counterparts in the absence of clear directions to the contrary – and constitutional silence is not a clear direction to the contrary. In fact, should the courts be so minded, the pre-1983 case law gives them support to go so far as to conclude that the unborn still has a constitutional right to life.

In looking at the case law that pre-dated the Eighth Amendment, the following passage from the judgment of Walsh J in the Supreme Court in G v An Bord Uchtála [1980] IR 32 at 69 is significant:

“Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child’s natural right to life and all that flows from that right are independent of any right of the parent as such.” (Emphasis added)

There are two ways to view this passage. One (quite valid) perspective is to point out that its references to the unborn are entirely obiter dictum, since the case at hand did not concern an unborn child; accordingly, it is far from a solid foundation on which to construct a constitutional right to life for the unborn, particularly in the aftermath of a vote of the people to remove the provision that expressly recognises that right.

An alternative perspective is to say that the passage is not an isolated one; several other decisions support the notion that the right to life of the unborn enjoys constitutional protection even in the absence of the Eighth Amendment. Some years prior to G v An Bord Uchtála, in McGee v Attorney General [1974] IR 284 at 312, Walsh J expressly qualified his statements that State regulation of contraception would be unconstitutional by stipulating that “[o]n the other hand, any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.” Similarly, McCarthy J, in his dissenting judgment in Norris v Attorney General [1984] IR 36 at 103 went out of his way to qualify his finding that laws criminalising sodomy were an unconstitutional violation of the right to privacy by stipulating that the prohibition of abortion was quite different:

“For myself I am content to say that the provisions of the preamble [to the Constitution] which I have quoted earlier in this judgment would appear to lean heavily against any view other than that the right to life of the unborn child is a sacred trust to which all the organs of government must lend their support.”

All of these passages were considered by the High Court in Finn v Attorney General [1983] IR 154, which was an attempt to derail the enactment of the Eighth Amendment based on the argument that the right to life of the unborn was already protected under the Constitution and that the Amendment was therefore not a “variation, addition or repeal” within the meaning of Article 46.1. The case was rejected on the basis that the power of judicial review applied only to enacted laws, and Bills (including Bills to amend the Constitution) were beyond its scope. Nonetheless, it is notable that Barrington J concluded (at 160) that “[o]n the basis of the authorities opened to me … I would have no hesitation in holding that the unborn child has a right to life and that it is protected by the Constitution.”

Thus, it is entirely within the bounds of possibility that the repeal of the Eighth Amendment, without any substitution of an alternative provision, would leave the constitutional right to life of the unborn intact. What would have changed is that there would no longer be an express reference to the “equal right to life of the mother”. Because the right would be based on judicial interpretation rather than express text, it would be somewhat more malleable than the Eighth Amendment, but it would be no clearer in its precise scope and boundaries. There would be something of a blank canvas on the question of when that right must give way to other rights. The legislature could seek to fill in that canvas, and the courts would probably be highly deferential to legislative choice in such a sensitive and divisive field. However, the precise scope of this deference cannot be guaranteed, and legislation providing for a more liberal abortion regime would remain susceptible to constitutional challenge. The history of this debate in Ireland suggests that such a challenge would be almost inevitable.

What are the alternatives? Obviously, the answer depends on what the law is trying to achieve. If the issue is to be left to the discretion of the Oireachtas, Article 40.3.3° could be amended so as to read something like “The protection of unborn life shall be regulated by law”, or “The termination of pregnancies shall be regulated in accordance with law”, or “The circumstances in which it shall be permissible to terminate a pregnancy shall be specified by law”. A provision designed to slightly liberalise abortion laws while also acting as a bulwark against a more liberal regime could stipulate that “The intentional destruction of unborn life shall be an offence punishable by law, save in the following circumstances: XYZ”. A provision designed to protect an unencumbered right to choose could stipulate that “No law shall be enacted restricting the right of women to choose to terminate pregnancies prior to the viability of the foetus, as specified by law”.

Clearly, none of the above options is without its drawbacks, with the biggest being the political difficulty involved with choosing which one to put on a ballot paper. It has been proposed that this could be resolved by a Constitutional Convention, which is an interesting proposal that could build on the positive experience of the limited Convention held in 2013. However, there would inevitably be enormous controversy around the composition, terms of reference and conduct of such a body, and it is difficult to see either side of the debate happily accepting its recommendations. Thus, for political reasons, a simple repeal with no replacement is the most likely proposal to make it to a ballot paper. What this brief consideration has aimed to demonstrate is that this may not be the panacea that it is tempting to think it will be.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw

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