Monday, 20 December 2010

Irish Abortion case 2

I have had a proper chance to read this decision see earlier Blog below and am even more puzzled than I was before as to what right or jurisdiction the ECHR had to make the decision it did.

The main part of the decision relating to the claimant C was that the Irish Government has not brought in legislation or guidance to allow Doctors to properly advise women who seek an Abortion when their life may be endangered by pregnancy. In the case of A.G. v. X [1992] BAILII:IESC 1 the Irish Supreme Court decided that women in that situation could obtain an Abortion in accordance with the
"and with due regard to the equal right to life of the mother"

wording within article 40.3.3 of the Irish Constitution

Assuming, for the sake of the argument, that the ECHR is correct in deciding that the Irish State has not properly implemented the 'X' case how does that give the ECHR jurisdiction to find a breach of Article 8 of the Convention ? If there is no right to an Abortion under Article 8 then at that stage the jurisdiction of the ECHR ends; the ECHR does not have the jurisdiction to deal with possible breaches of the Irish Constitution

There is also a broader issue arising from the the Judgment which provides a dangerous power for the ECHR to ultimately decide that Abortion is a "Human Right". Paras 233 - 238 read as follows

233. There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention.

234. However, the question remains whether this wide margin of appreciation is narrowed by the existence of a relevant consensus.
The existence of a consensus has long played a role in the development and evolution of Convention protections beginning with Tyrer v. the United Kingdom (25 April 1978, § 31, Series A no. 26), the Convention being considered a “living instrument” to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention (Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 41; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 60; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 102; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003-I and Christine Goodwin v. the United Kingdom [GC], cited above, § 85).

235. In the present case, and contrary to the Government’s submission, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law. In particular, the Court notes that the first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such States. The first applicant could have obtained an abortion justified on health and well-being grounds in approximately 40 Contracting States and the second applicant could have obtained an abortion justified on well-being grounds in some 35 Contracting States. Only 3 States have more restrictive access to abortion services than in Ireland namely, a prohibition on abortion regardless of the risk to the woman’s life. Certain States have in recent years extended the grounds on which abortion can be obtained (see paragraph 112 above). Ireland is the only State which allows abortion solely where there is a risk to the life (including self-destruction) of the expectant mother. Given this consensus amongst a substantial majority of the Contracting States, it is not necessary to look further to international trends and views which the first two applicants and certain of the third parties argued also leant in favour of broader access to abortion.

236. However, the Court does not consider that this consensus decisively narrows the broad margin of appreciation of the State.

237. Of central importance is the finding in the above-cited Vo case, referred to above, that the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected (see the review of the Convention case law at paragraphs 75-80 in the above-cited Vo v. France [GC] judgment), the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most Contracting Parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention (Tyrer v. the United Kingdom, § 31; and Vo v. France [GC], § 82, both cited above).

238. It is indeed the case that this margin of appreciation is not unlimited. The prohibition impugned by the first and second applicants must be compatible with a State’s Convention obligations and, given the Court’s responsibility under Article 19 of the Convention, the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved (Open Door, § 68). A prohibition of abortion to protect unborn life is not therefore automatically justified under the Convention on the basis of unqualified deference to the protection of pre-natal life or on the basis that the expectant mother’s right to respect for her private life is of a lesser stature. Nor is the regulation of abortion rights solely a matter for the Contracting States, as the Government maintained relying on certain international declarations (paragraph 187 above). However, and as explained above, the Court must decide on the compatibility with Article 8 of the Convention of the Irish State’s prohibition of abortion on health and well-being grounds on the basis of the above-described fair balance test to which a broad margin of appreciation is applicable.

The notion that the interpretation of the Convention can evolve and can be based on a developing "consensus" within Europe, the idea that the ECHR can say that its power to interpret a Convention that does not once mention Abortion is such that
"Nor is the regulation of abortion rights solely a matter for the Contracting States"
is wholly inimical to the concept of Democracy and the rule of Law. Article 40.3.3 of the Irish Constitution was passed by a referendum of the Irish people following a full debate and yet apparently that referendum result can be overturned by a group of unelected Judges applying their concept of a European consensus.

The rule of law depends on Judges applying legal rules whether they like them or not, once the law is at the whim of Judges then we no longer have the rule of law.

Most of the debate on this case seems to turn on whether the commentators agree or disagree with Abortion but I would suggest that there is another principle at stake and perhaps a more important principle. Are decisions on these fundamental moral questions going to be decided by European nations democratically or are they going to be imposed on Europe by an ECHR which is neither accountable to the peoples of Europe or removable by them


An Irish Catholic said...

Thank you for this. Do you think it is possible for them to impose abortion now on Ireland. But is it possible that it could be addressed in another way. I quote from a blog I read:

"But that “violation” does not relate to the ban on abortion as such. It only concerns the fact that there was no specific procedure in place to ascertain whether or not that applicant was entitled to a “lawful” abortion on the grounds that the pregnancy was endangering her life. This, however, can be repaired by establishing a legal procedure. And indeed, such a procedure, if correctly drafted, (and not cunningly crafted - my words), could be a good occasion for ruling out, once and for all times, preposterous claims such as that of the applicant in the present case, whose life (as it turned out) never was in danger."

You see, the woman had every right to proceed with her cancer treatment and if this unfortunately meant the loss of her baby, then that was still legal and understandable, but she was not allowed to deliberately abort the child based on a 'what if' scenario. The irony is she was afraid the treatment would harm the baby, so she decided to abort which killed the baby. Can no-one see the nonsense in this?

The deception here is something that needs to be challenged. Thank you for speaking up.

Yonmei said...

and am even more puzzled than I was before as to what right or jurisdiction the ECHR had to make the decision it did.

You may want to consider this point; women are human.

The Irish government currently claims vaguely that if a girl or a woman really needs an abortion, if continuing the pregnancy will kill her, she won't have to get on a plane to mainland UK or Belgium or wherever: she can have the lifesaving abortion in Ireland.

But the Irish government currently provides absolutely no means for a woman to access abortion - no method for her to go via the courts or via a medical ethics board.

The Irish government prefers that all abortions are outsourced to the UK (or to other EU countries).

This systematic appropriation of other EU country's healthcare systems to provide necessary medical treatment to Irish women, makes the issue an EU matter.

Plus, straightforwardly, given that the Irish government claims that lifesaving abortion will be provided, the Irish government needs to be made to follow through on its assertions and forced to provide the legal means by which a woman who may be seriously ill, can get the abortion she needs without having to travel to another country.

Neil Addison said...

Responding to IRISH CATHOLIC

As I read the decision there is no need to have another referendum and I suspect nobody in Ireland on either side of the debate wants one. As I heard one commentator say "at the moment Ireland has enough on its plate". I also can see the danger and difficulty of legislation.

Obviously the legal and constitutional framework in Ireland is different to that in the UK but I assume that it would be possible for the Irish Minister of Health to issue guidelines which stated in what way and under what circumstances Doctors could perform abortions where the life of the mother is in real danger, eg what degree of evidence is required, what degree of risk to the life of the mother is required etc. Such guidelines would presumably have to be OK'd with the Attorney General and/or DPP to ensure that a Doctor who acted in accordance with the guidelines would not be prosecuted under the Offences Against the Person Act 1861.

Such an approach has dangers of course particularly of the "slippery slope" type but the ECHR and the X case have already put Ireland on the slippery slope so the intention at this stage must be to ensure that Ireland does not slip too far. I also assume that any such guidelines will immediately be legally challenged by one or other side of the Abortion argument, probably both, but at least that legal argument would be in the Irish Courts with proper respect being given to the Irish Constitution and Irish sovereignty.

Neil Addison said...

Responding to YONMEI

You refer to this being an EU matter however the ECHR is nothing to do with the EU it is instead an organ of the Council of Europe

You also say
"the Irish government needs to be made to follow through on its assertions and forced to provide the legal means by which a woman who may be seriously ill, can get the abortion she needs"

Assuming for the sake of the argument that I accept the basic premise of this my question still remains namely what gives the ECHR to right to "force" the Irish government to act in a particular way. Once the Court agreed that there was no right to an Abortion under Article 8 then it had no right to go beyond that and enforce a "right" permitted by the Irish Constitution. That is for the Irish Courts and constitution NOT the ECHR which has has power to adjudicate concerning the European Convention but has absolutely no right whatsoever to adjudicate or decide on issues concerning the Irish Constitution.