Sunday 25 February 2018

Pro-Life Campaign's application to join forthcoming unborn rights' appeal will be dealt with by Supreme Court

The appeal is due to open before a seven judge court on February 21 and has been set down for two days.
The appeal is due to open before a seven judge court on February 21 and has been set down for two days.

Aodhan O'Faolain

The Pro-Life Campaign’s application to provide submissions in the forthcoming appeal concerning the extent of the rights of the unborn will be dealt with by the Supreme Court this afternoon.

Lawyers for the State told the Chief Justice, Mr Justice Frank Clarke, today they are opposed to the PLC application.

During exchanges with lawyers, the Chief Justice stressed the appeal concerned an immigration case and while issues raised transcended that, the court would only address those issues as was necessary to determine this appeal.

Benedict Ó Floinn BL, for the PLC, told the Chief Justice his side were ready to address the matter and appreciated the appeal was for hearing on February 21 and, if it was joined, was not seeking to have that date changed.

Counsel previously said the Campaign, due to “concerns over recent developments", wants to be joined to the action as an amicus curiae - an assistant to the court on legal issues.  

Mr Justice Clarke, who had granted permission to Mr O Floinn on Monday to serve short notice of its application to be joined as an amicus on the parties to the appeal, said today the application would be heard this afternoon.

Mary O’Toole SC, for the State, said it was opposed to the PLC being joined. Maurice Collins SC, for a Nigerian man, his Irish partner and their child, who are respondents to the appeal, said they were neither consenting nor objecting but were anxious the time frames are not affected.

The Chief Justice also addressed case management issues for the appeal hearing on February 21 and made further directions for exchange of legal documents

Ms O’Toole agreed with the Chief Justice that the core issues are pure issues of constitutional law not greatly dependent on the facts of the case. Both sides agreed there was little dispute concerning the facts of the case.

He said there is an unusual aspect to the process adopted here in that there was an appeal to the Court of Appeal which has been deferred. When he asked whether there would be outstanding issues for that court to determine, as the Supreme Court had granted permission for an appeal on only a number of issues, Ms O’Toole said there were a number of issues.

He directed a further case management hearing on Friday.

The appeal is due to open before a seven judge court on February 21 and has been set down for two days.

It concerns findings of the High Court’s Mr Justice Richard Humphreys in July 2016 that the unborn has constitutional rights in addition to the right to life in Article 40.3.3 and is a “child” within the meaning of Article 42A with constitutional rights the State is required to protect and vindicate. 

The State will argue the High Court got it wrong in deciding the unborn has constitutionally protected personal rights, equivalent to those of an Irish citizen child, extending beyond the right to life in Article 40.3.3.

Its core argument is that the unborn is not a “child” within the meaning of Article 42A – inserted as a result of the 2012 Children’s Referendum – and its only constitutional right is the right to life as set out in Article 40.3.3.

If the Supreme Court decides otherwise, that has wide-ranging implications for the rights of pregnant women, as well as for the functions of a range of agencies, particularly Tusla, the State believes.

While Mr Justice Humphreys’ judgment was given in an immigration case, the implications of his findings, if upheld, extend well beyond immigration cases.

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