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Dáil Éireann díospóireacht -
Tuesday, 10 Mar 1992

Vol. 417 No. 1

Ceisteanna — Questions. Oral Answers. - Supreme Court Constitutional Judgment.

John Bruton

Ceist:

1 Mr. J. Bruton asked the Taoiseach the steps he intends to take following the Supreme Court's decision relating to Article 40.3.3º of the Constitution; and if he will make a statement on the matter.

Alan Shatter

Ceist:

2 Mr. Shatter asked the Taoiseach the action the Government intend to take following the Supreme Court's decision relating to Article 40.3.3º of the Constitution.

Proinsias De Rossa

Ceist:

3 Proinsias De Rossa asked the Taoiseach if he will outline the Government's response to the judgment of the Supreme Court regarding Article 40.3.3º in the recent appeal from the High Court by a 14 year old pregnant rape victim and her family, and if he will make a statement on the matter.

Dick Spring

Ceist:

4 Mr. Spring asked the Taoiseach if he will make a statement on the Government's intentions in relation to Article 40.3.3º of the Constitution in the light of the detailed judgment of the Supreme Court in the matter.

I propose to take Questions Nos. 1, 2, 3 and 4 together.

The judgments of the Supreme Court have raised a number of complex issues which will need careful consideration. It is vital that these issues be treated with insight and care so that their precise implications can be fully understood. Because of the constitutional, political, humanitarian and other questions involved, this process will inevitably take time and it would be irresponsible to attempt to come up with instant solutions or suggestions.

I have already invited the Leaders of the Opposition parties to consultations this afternoon. I would like to assure the House that when these consultations are complete, and all the implications of the judgments have been fully examined, we will be able to announce our proposals to deal with this matter.

Following his preliminary examination of this matter over the past few days does the Taoiseach see any need to modify the constitutional position in the matter as set out by the Supreme Court in its majority judgment?

It is much too early to give a definitive answer in that regard. I am certainly of the view that we must look again at the protocol of the Maastricht Treaty, and I will be discussing the details of that with the Leaders this afternoon.

Arising from the Taoiseach's inability to give a definite answer on that question, which I understand, may I ask him if he is considering any proposal to modify the provision in the judgment in regard to the right to travel, in view of the implications of that for the Maastricht Treaty and for the debate thereon?

Yes, the Government are considering the question of the right to travel as it affects the protocol in the Maastricht Treaty.

I am calling on the Deputies in the order in which their questions appear before me on the Order Paper. Deputy Shatter.

Has the Taoiseach received advice which indicates that dealing merely with the Maastricht Protocol will not resolve the problem of the right to travel? Is the Taoiseach giving consideration to an amendment to Article 40.3.3º of the Constitution to ensure that nothing contained in that Article can be used by the courts to impede the right to travel in future? Would the Taoiseach agree it is essential that in future alleged victims of rape or sexual abuse should not find, if a private decision is made to travel outside this country, that they are brought before our courts, and that there is a repetition of the type of court proceedings that took place over the past three weeks?

The Deputy is attempting to ascertain definitive answers to very complicated questions. The question of the right to travel is being fully addressed as it affects the rights of our citizens to go elsewhere within the Community.

Will the Taoiseach acknowledge that the complexities he spoke of arising from the judgment of the Supreme Court more specifically arise from the nature of Article 40.3.3º of the Constitution and that essentially it would be better if that Article was not in the Constitution thereby freeing the hands of this House to legislate for the termination of pregnancies in circumstances which this House would agree to? Would he agree that that is the only clear way of avoiding the type of interminable court cases that are likely to arise regardless of how this House seeks to deal with the matter as long as the 1983 amendment remains in the Constitution?

Again, I must repeat that definitive answers are being sought here. The point is that Article 40.3.3º is in the Constitution and we must consider the matter on that basis.

I accept from what the Taoiseach said that we are dealing with a number of very complex issues which, as he said, require insight and care. Will the Taoiseach at this stage give the House the benefit of the briefing he and his Government colleagues shared this morning in relation to the complexities of this issue, particularly in terms of Article 40.3.3º and the legal position that exists in relation to abortion as specified by the Supreme Court judgment and the restriction on travel? Would the Taoiseach not give some details to the House in relation to the necessity for either withdrawing the Maastricht Protocol or substantially amending it?

I will certainly try to be as helpful as I can at this stage — that is the approach I always adopted. The withdrawing of the protocol is not the advice I am getting at this stage. I will be discussing with the party Leaders this afternoon the details of the advice I have been given. The question of amending the protocol certainly arises in regard to the problem of the right of our citizens to travel, and that aspect is being addressed. The Deputy will be fully aware that the Supreme Court decision has altered the situation in relation to legal termination of pregnancies here. That is a very complex matter and one that has to be handled with care and sensitivity. It will need much deeper study than took place at our short Cabinet meeting today.

There are several Members offering. Perhaps Deputies could ask brief questions and I shall try to facilitate all of them.

What is the mechanism for amending the Protocol, if that were to be the Government's decision, and what is the Taoiseach's current thinking on the timing of the referendum to ratify the Maastricht Treaty as a whole?

On the latter part of the question, it would be pure speculation for me to attempt to put a date on that before I have had an opportunity to find out whether we can get agreement, first on amending the Protocol and, second, on the content of that amendment. The procedure to be followed would be to contact the legal department of the Commission and the permanent representatives in Brussels and then to contact all of the other permanent representatives. The matter would have to be agreed by all of the other 11 member state governments.

Having regard to the distaste expressed throughout the country on the restriction to the right to travel, including the distaste expressed by the Taoiseach himself, would the Taoiseach agree to consult the Attorney General for the purpose of ensuring that, pending the determination of the complex issues referred to, no further application for an injunction will be applied for by the Attorney General in the name of the State?

I assure the Deputy that I shall take up with the Attorney General the question he has asked me to raise.

Does the Taoiseach agree that it is essential that the whole issue does not become intertwined in the debate on the referendum on the Maastricht Treaty? Would he confirm to the House that it is unrealistic to expect that referendum to take place in June of this year, as was originally intended, and that the referendum will probably have to be postponed until the autumn? Finally, will he assure the House that the necessary Government action arising out of the Supreme Court judgments will be taken in advance of the Maastricht referendum so as to avoid the issues becoming intertwined and so as to avoid the main issue of the Maastricht Treaty, being further political and economic union, being lost sight of?

I certainly hope that the referendum on the Maastricht Treaty will not become intertwined with a debate on this question. That would not be in the interests of this country or in the interests of Europe. If anything should happen that the Maastricht Treaty were not approved in this country then it could not proceed for any of the other member states, either. It is a highly important national issue that I hope will be dealt with on that basis. Consequently, I shall immediately move to try to determine whether changes in the Protocol can be effected and agreed in time to hold a referendum at the earliest possible date. It would not be my choice to have the referendum held later in the year, and I shall certainly endeavour to have it held in the earlier part of the year, before the end of the summer.

Further to the Taoiseach's earlier reply to me that Article 40.3.3º is part of the Constitution and therefore something that has to be dealt with as it stands, may I take it that he does not intend to agree to the kind of amendment to that Article for which Members of his own Oireachtas party are planning to campaign, an amendment that would seek to reverse the decisions of the Supreme Court? Can I take it that the Taoiseach's Government will not agree to an amendment that would seek to reverse the current position as defined by the Supreme Court?

The Deputy may not draw any such conclusion from what I have said. I want to make it clear that the Government are in the early stages of consideration of that aspect of the implications of the Supreme Court decision. I am moving in the first instance on the issue of the right to travel and the way in which we can deal with the right to travel as it is affected by the Maastricht Protocol. The other issue needs much more detailed examination and understanding and I am not in a position to say one way or the other at this stage.

Does the Taoiseach not agree that at this stage three things at least seem to be necessary: first, a definition of the scope of what the Supreme Court has characterised as "limited circumstances" in which a termination of pregnancy must now be legal in this country; second, a definition of the extent of the right to travel, and would the Taoiseach not agree with me that that is a right now dealt with anachronistically in our courts and that it should be characterised as an inalienable, fundamental human right that does not need to be conferred by either a constitution or laws; third, that whatever resolution is found to those two issues needs to be applied to the Maastricht Treaty? Furthermore, does the Taoiseach not agree that the wording of the Maastricht Protocol itself is another example of the kind of impetuous rush to decision that occurred in 1983 in relation to the wording of the offending amendment to the Constitution? Is the Taoiseach aware that there is a very definite problem in relation to timing in that the Danish referendum on the Maastricht Treaty is due to take place in June and that if we are to resolve the issue of the Protocol, so precipitately and without consultation put in by his predecessor, it will have to be resolved before the Danish referendum?

I am anxious to bring these questions to finality.

I certainly agree that it should be resolved before the Danish referendum. I would have to reject totally the question of the wording of the existing Protocol to the Maastricht Treaty, based on the best advice available to me. Everyone was clear in his or her own mind, and I do not think it was disputed, that the wording of the Protocol to the Maastricht Treaty, prior to the Supreme Court decision, in no way affected Ireland's situation. The position is now different——

It was never debated.

——because of the Supreme Court decision that has been delivered. The Supreme Court decided — and I am sure that Deputy Dukes has studied their judgments — that the right to life was superior to the right to travel. As I read the judgments, that is clearly what came out of them. Consequently, that situation has to be addressed.

I am anxious to get on to other questions. However, I shall hear a final question from Deputy Spring.

The Taoiseach said that whatever happened in relation to the Protocol he would seek agreement on an amendment to the Protocol. Can I take it that the Taoiseach was talking about agreement from the high contracting parties to the Maastricht agreement? I further ask the Taoiseach whether any contact has been made at this stage, at the level of his office or at ministerial level, in relation to the difficulties.

Yes, the Government initiated preliminary inquiries yesterday and again today in that regard. On the question of agreement, it relates to agreement by the other 11 member states. As the Deputy knows, the question is being debated in the European Parliament this week. We will all be interested to know the reaction of the Commission. The Deputy may take it that the initiative has already been taken to find out what procedures the Government have to follow.

Question No. 5, please.

A Cheann Comhairle, could I ask a very brief question, please?

It will have to be very brief, Deputy. The Chair is conscious of an element of repetition involved in these questions.

This question has not been raised before. In relation to the Maastricht Protocol and in the context of some of the EC member states whose parliaments have to ratify the Maastricht Treaty, is the Taoiseach aware that a number of parliamentarians have reservations in regard to ratifying the Treaty until we resolve the problems in relation to the Protocol? Will the Taoiseach assure the House that, if a form of wording is produced to amend the Protocol, that wording will be brought before the House for debate and will not be secretly inserted as an amendment in the Protocol in the same way as the Protocol emerged in the first place, without any prior consultation with the House?

The latter question is not relevant at this stage because, as I am sure the Deputy appreciates, my approach to this matter from the start has been one of consultation with the Leaders. I intend to continue that consultative policy and to keep them fully appraised of the direction in which I am going. On the question of ratification by other Parliaments, I am aware of individual Members of Parliament who have been expressing various views about this attitude, but I am not aware of any Parliament, in total, expressing a view that they have any serious reservations in this area because they are waiting to see how we handle the matter.

Can the Taoiseach say whether any procedure exists to have the European Court examine the wording of the Protocol or indeed any proposed amendment thereof, to satisfy itself as to whether it affects the right to travel?

Normally the question of asking the European Court to decide on such a matter would arise in circumstances in which the matter would be referred either by the High Court or Supreme Court to the European Court for adjudication. That has not happened in this case. Mr. Justice Costello made the point that he had not been posed that question during his hearing. In relation to the Supreme Court judgment, because they decided the matters before them on the basis of domestic law, the question of referral to the European Court did not arise in their minds.

There is a provision in the Treaty — Article 169 — where the Commission itself, in given circumstances, could refer a matter like that where they feel that a member state was infringing parts of the Treaty in some way. I am not too clear whether the Commission might perceive these circumstances as warranting such referral, nor am I travelling that road at present. I will keep an eye on what the Commission will be saying in relation to questions raised in the European Parliament today.

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