Source: Irish Times Letter from 8 Barristers, 7th Oct, 2017
Sir, – The Government has committed to holding a referendum on the Eighth Amendment to the Constitution sometime during 2018. The Irish people will thus once again be asked, as they have been on numerous occasions since 1983, to consider how our fundamental law ought to address the issue of abortion. As a group of practising barristers who support progressive reform, we believe that the abiding legal lesson we have learned since the 1983 referendum is that it is impossible to regulate this subject with either precision or predictability through a provision of the Constitution. In order to ensure that legal clarity and certainty are brought to bear on this issue, we believe that the referendum should give the people the opportunity to remove the Eighth Amendment in its entirety and thus allow the Oireachtas to legislate for further reform.
During recent debate it has been suggested that a straightforward referendum to repeal the Amendment, if passed, would lead to legal uncertainty. An argument has been made that any legislation on abortion passed by the Oireachtas following repeal would be open to constitutional challenge, because the courts could strike it down by reference to the implied right to life of the unborn. We wish to challenge this argument. Following repeal, abortion would remain illegal in Ireland under the Protection of Life During Pregnancy Act 2013, in all cases except where necessary to save the life of the woman. This Act would remain in place following repeal; it would then be a matter for the Oireachtas to amend it to provide for abortion in any other cases. It is our view that the express removal of the constitutional text in Article 40.3.3 would allow the courts to defer to the legislature on this issue.
We favour the option of a straightforward referendum to repeal the Eighth Amendment. We believe that the alternative approach, to hold a referendum based upon a “replacement” text, is a highly uncertain one.
Our experience of the extensive litigation that followed from the Eighth Amendment tells us that the insertion of any text into the Constitution carries a high risk of unforeseen consequences. We do not believe that it will be possible to draft a substantive replacement text that could provide the legal clarity to which the people are entitled. – Yours, etc,
GRÁINNE GILMORE BL,
CATHERINE FORDE BL,
PETER WARD SC,
BILL SHIPSEY SC,
PATRICK GAGEBY SC,
NÍ CHÚLACHÁIN BL,
KATE BUTLER BL,
CLAIRE BRUTON BL,
GRÁINNE GILMORE BL,