A PANEL OF three judges have ruled against the Pro Life Campaign’s application to become a legal adviser in a Supreme Court case on defining “the unborn” in the Constitution.
In a decision given this afternoon, Mr Justice Donal O’Donnell, Mr Justice William McKechnie and Ms Justice Elizabeth Dunne rejected the application for the Pro Life Campaign to become an amicus curiae or an impartial adviser, saying that this was a “pure issue of law, with no medical or social issue”, and both parties in this case were already legally represented by “experienced teams”.
The panel of judges also questioned the impact the groups involvement would have in the context of the upcoming Eighth Amendment referendum, and asked why they had waited until the last minute to lodge the application to become an amicus, when when the appeal was lodged in the summer of 2016.
The case concerns an appeal by the State to a High Court decision handed down in 2016, where it was ruled that the use of the word “unborn” in Bunreacht na hÉireann meant an “unborn child”, with rights extending beyond the right to life.
Many legal experts say that if the High Court ruling is upheld, that it would pose problems for the possible referendum on the Eighth Amendment. It could lead to a “slightly awkward clash of different rights” where the unborn has both the legal right to remain in Ireland, and also be allowed to be aborted (if the Eighth Amendment is repealed).
Yesterday Benedict Ó Floinn SC, representing the Pro Life Campaign, said that the organisation had spent a “significant amount of time” considering the issue that was to come before the court.
He said that although the Pro Life Campaign were a campaigning group, as many organisations were, “any submissions made will be confined in that way”.
He assured the court that their advice would “remain rooted in the case, will remain rooted in the arguments, and will proceed on that basis”.
Mary O’Toole SC, who was representing the State in opposing the definition of the unborn in the Constitution as an “unborn child”, said that she had a number of concerns about the precedent this would set, and about the timing of the application for the status as amicus, just months before a possible referendum.
“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 said.
Today’s judgement
Reading out the judgement today, Mr Justice Donal O’Donnell said that although non-government organisations played an important part in society, that this case was an issue of pure law, and both sides were already legally represented.
What is before this court is a pure issue of law. No question of any medical or social issue falls to be determined. The only expertise in issue is legal. Here, however the parties are legally represented.
In particular the respondents to the appeal whose submissions the applicants seek to support and if necessary amplify, are represented by an experienced legal team.
He said that the legal team of the family didn’t consider themselves at a disadvantage, and there was no suggestion that they needed the “support or amplification” offered by the Pro Life Campaign.
“There’s no measurable concern has been established to the satisfaction of this court which would suggest that the full argument will not be made, or not be made skillfully and forcefully, on the issues of law that properly arise on this appeal.
“Accordingly, it seems that the assistance that can be offered at this stage is minimal,” Justice O’Donnell said.
The judge also mentioned the proposed Eighth Amendment referendum, and the impact the applicant’s role as an amicus curiae could have if their application had been approved.
He said that the Pro Life Campaign was “not the only group, entity, or body which is concerned with the issue [of the unborn]“.
He said there were “many of these groups” that will campaign in referendum, and if this application were to be approved, it would be “significantly more difficult to reject any subsequent applications from other groups” which would pose “obvious logistical difficulties”.
He said that this could risk “blurring distinction between legal arguments and broader arguments that might be advanced at the level of policy”.
Mr Justice O’Donnell also said that the Pro Life Campaign’s involvement in the case could lead to publicity which would “significantly blur the important, critical distinction” that is to be made.
“The desire to advance arguments of more general application consistent with a group’s generally expressed views, would exert a gravitational pull away from the particular issue in this case and towards more general matters of public controversy and accordingly away from the court’s central function.”
A seven-judge Supreme Court is to hear the case itself on the 21 and 22 February.
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