Monday 17 December 2018

Supreme Court refuse Pro-Life Campaign's bid to join case on constitutional rights of the unborn

The High Court, Dublin
The High Court, Dublin

Tim Healy

The Supreme Court has refused the Pro Life Campaign’s application to be heard in the State's forthcoming appeal concerning the extent of the constitutional rights of the unborn.

The three-judge court said the appeal concerns pure legal issues and the assistance the PLC could offer would be minimal.

It was also concerned, if the PLC was allowed get involved in the February 21st appeal, other groups involved in the referendum would also seek to be heard creating potential for the issues to become more general and policy related.

The PLC sought to be joined as an amicus curiae - an assistant to the court on legal issues.

It voiced particular concern the State will press for a decision that Article 40.3.3 - the Eight Amendment giving equal protection to the right to life of the unborn and its mother - embodies the totality of the rights of the unborn.   

The State opposed the PLC being involved, arguing the core issues concerned Irish constitutional law and the PLC cannot bring any additional expertise the lawyers already involved do not have. It also expressed concern at the perception of a "partisan" organisation campaigning for a particular outcome in the referendum on the Eight Amendment being involved in the appeal,

Lawyers for the respondents to the appeal - a Nigerian man, his Irish partner and their child, who was unborn when the case was initiated in 2015 - adopted a neutral position but stressed the PLC need not be concerned the State's arguments would not be met "as forcefully as we consider appropriate".

Giving the court's decision today, Mr Justice Donal O'Donnell, sitting with Mr Justice Liam McKechnie and Ms Justice Elizabeth Dunne, said the appeal arose from a High Court judgment on an immigration case and concerned pure legal, not medical or social issues.

That judgment, which found the unborn had rights beyond Article 40.3.3,  was delivered in July 2016 and was immediately recognised as having “potentially wide ranging implications” but no application was made immediately after it to join the case notwithstanding any general interest in, or expertise about the legal status to be accorded to unborn children in pregnancy, he said.

It was therefore reasonable to infer this application to be joined was precipitated by the increased discussion of the case in the context of the forthcoming referendum.

That was not surprising because the potential interaction between the wide ranging decision of the High Court concerning the constitutional status of the unborn, and the subject matter of any referendum in relation to Article 40.3.3, is “obvious”.

As long as the High Court decision is under appeal, there is “inevitable uncertainty” about the correctness of that decision. Both parties to the appeal accepted the matter was of general public importance and it was in those circumstances the State sought an early hearing.

If the people of Ireland are asked to change their basic law, there  “should not be avoidable uncertainty” about what the law is, he stressed.

It was possible the outcome of the appeal may not satisfy any or all of the parties and may not result in greater certainty but there was clear public interest in the court hearing it, he said.

In this case, what was before the court in the appeal was a “pure issue of law” and no question of f any medical or social issue had to be decided.

The only expertise required is legal, the sides are legally represented and the respondents to the appeal are represented by an experienced legal team familiar with the issues. It was also particularly significant the lawyers for the respondents disavowed any suggestion they were disadvantaged because of how the case had been fast-tracked. There was also no concern about resources as the State would meet their costs.

The PLC ad also not identified any particular legal argument they believed they could advance to particular effect which was unsurprising given the constraints on a party seeking to intervene in litigation, he said.

The court was also concerned this application to intervene was being made against the background of a referendum campaign.

The PLC interest related to the constitutional position of the unborn but that was not the only issue in the appeal. Many other groups were concerned with the unborn issue and are likely to participate in the referendum campaign, he noted.

If this admittedly partisan application was granted, it would be significantly more difficult to reject any other applications from other groups which would create obvious logistical difficulties.

The court was particularly concerned arguments would also then tend towards more general ones, unmoored from the specific contentions in this case and the distinction between legal and policy arguments would be blurred. In all the circumstances, the court would refuse the PLC application, he ruled.

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