Legislating for Article 40.3.3 O’Sullivan, Schweppe and Spain Introduce the Blog Carnival

Authors: Dr Catherine O’Sullivan, Faculty of Law University College Cork, Jennifer Schweppe, School of Law, University of Limerick and Dr Eimear Spain, School of Law, University of Limerick

Welcome to the RightsNI/Human Rights in Ireland Blog Carnival entitled ‘Legislating for Article 40.3.3°.

We would like to thank RightsNI for hosting this Blog Carnival while HRinI deals with some technical issues. The Carnival follows a three-day Oireachtas Hearing on the issue, and we hope it will provide a useful context for discussing the need for, and scope of, any legislative or regulatory regime introduced to ensure Ireland’s compatibility with the European Convention on Human Rights and Fundamental Freedoms.

Article 40.3.3° of the Constitution states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

The extent to which the State is obliged to ‘respect, defend and vindicate’ the right to life of the unborn, while balancing it against the right to life of the mother has never been established through legislation. In A, B and C v Ireland the European Court of Human Rights declared that the “absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which [‘C’] could have established whether she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3° of the Constitution” amounted to a failure to protect C’s Article 8 rights, and thus Ireland’s current regime was incompatible with the Convention.

Today, legal academics and practitioners will be discussing the appropriate mechanisms that could be used to ensure Ireland’s legal regime is compatible with the Convention, as well as what the scope of any potential legislation might include. We hope that it will provide a useful backdrop to these issues, and help detail some of the less often discussed aspects of the Constitutional provision which require legislative consideration.

The day will be split into two parts: the first will examine some general questions, including the form of the legal response to the decision in A, B and C v Ireland, and the second will examine the content of the legal response.

We would like to thank all those who have contributed posts to the blog carnival, and invite our readers to contribute to the discussion in the comments section.

Catherine, Jennifer and Eimear