A THREE-JUDGE PANEL will decide tomorrow afternoon whether the Pro Life Campaign will be allowed as an adviser in a Supreme Court case on defining “the unborn” in the Constitution.
At the hearing today, barrister for the organisation Benedict Ó Floinn told the court that the campaign group should be permitted as an “amicus curiae”, or an impartial adviser to the court, as they had spent a “significant amount of time on the issue that will be decided by the court”.
The case concerns an appeal by the State to a High Court decision handed down in 2016. In that case, Judge Richard Humphreys ruled that the use of the word “unborn” in Bunreacht na hÉireann meant an “unborn child”, with the unborn’s rights extending beyond the right to life.
The judgement was made in a case of a man and a woman and their unborn child, now two years of age. The man, who is originally from Nigeria, was facing a deportation order after being refused asylum in 2007.
Many say that the ruling, if upheld, could have implications on the possible upcoming Eighth Amendment referendum (the 21 February date given for the case to be heard has already been pushed forward because of the implications the judgement could have).
In his arguments on behalf of the Pro Life Campaign (PLC), Ó Floinn said that his client has been for “upwards of a quarter of a century advocating the rights of the unborn and their children”.
He said that they didn’t claim to have legal expertise but “expertise in a general sense”, and said that the issue of defining the unborn was something the organisation had spent “significant amount of time on”.
“[This application is] not about distorting the arrangements in place for this matter, not about addressing the court orally, but about the opportunity to make submissions to the court.”
He added that if their application was successful, “either they will succeed in raising matters which would otherwise be overlooked”, or they won’t, which would be of no loss to the case.
Representing the unborn
When Ó Floinn was asked what further expertise the PLC had beyond the respondents’ (ie, those arguing against the State), he said that the family were representing the child, and no-one was there to make representations on behalf of the unborn.
This prompted one of the judges, Mr Justice William McKechnie, to say that the family and their legal team “absolutely shouldn’t be here at all”, if that were true.
They’re here to make submissions that Mr Justice Humphreys was correct, they’re not arguing on behalf of the child now.
Ó Floinn replied that he wouldn’t agree with that particular perspective.
He then continued to say that the sped up manner in which the case was brought forward was disadvantageous to the family’s case.
Mr Justice Donal O’Donnell said that he didn’t understand where his argument was coming from.
“This court is obliged to be fair and impartial, it would not proceed otherwise,” he said.
‘Dangerous’
The six barristers representing the State said they opposed the amicus curiae application by the Pro Life Campaign.
A member of the legal team for the family, Maurice Collins SC, told the court they did not see why there was an assumption that the State’s argument “will not be met as forcibly” as possible.
Mary O’Toole, SC for the State, said the State had a number of concerns about the application: the precedent this would set for those applying to be amicus, and the possible Eighth Amendment referendum.
She spoke of concerns of allowing a campaigning group to become a legal adviser to the court, and asked whether there were other campaign groups on this particular issue which should also be included as advisers.
“The State has concerns of one particular group who could be elevated to status of amicus,” she said.
She added that in a wider political context, it was important to note that the campaigning group was seeking the status as amicus ahead of a possible summer referendum on the Eighth Amendment.
“The State’s view is that any status of that nature [should be given with the] utmost caution – a particular status is promoted before the court in this set of circumstances.”
She added that there was “nothing in the application that shows there’s an extra dimension that would be of use to the court”, stating only that they would “support and amplify” arguments put forward by the respondents.
Justice O’Donnell responded that “the problem with that is we don’t know until we see the arguments made by the respondents”.
Justice McKechnie added that the lack of forensic or scientific expertise was almost immaterial, as “this is reaching a stage where it’s a matter of almost pure law”.
The State added that there was a danger in saying, “Sure look, join us as an amicus, and if nothing comes of it – no harm done.”
“That’s not how the authorities justify their application,” she said.
In his final argument, Ó Floinn said that if the application is successful, “any submissions made will be confined in that way”.
“In relation that this is a campaigning group, which is true of many of the groups that apply to be amici, is irrelevant to the court.”
The Pro Life Campaign would “remain rooted in the case, will remain rooted in the arguments, and will proceed on that basis”, he said.
The Supreme Court will decide on the application tomorrow at 2pm. The full case is to be heard on the 21 February.
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