Failure to legislate on X case test may cost lives
Judges have not pulled their punches as regards what they think of this legislative paralysis. In the X case itself, Mr Justice Niall McCarthy stated that the failure by the legislature to enact the appropriate legislation following the 1983 amendment to the Constitution “is no longer just unfortunate; it is inexcusable”.
In the Roche case on the status of frozen embryos heard in 2009, Mr Justice Hardiman spoke in equally blunt terms and stated that the fact that difficulties were raised did not absolve the legislature from the obligation to consider the degree of respect due to fertilised embryos and to act upon such consideration “by its laws”.
There has been a marked reluctance on the part of the legislature actually to legislate on these issues: the court simply draws attention to this. That is all it can do. That is what Mr Justice McCarthy did, apparently in vain, in the X case 18 years ago. In the same case, Mr Justice Fennelly stated that, “It is disturbing, to use no stronger word, that some four years after publication of the Report of the Commission on Assisted Human Reproduction, no legislative proposal has even been formulated.”
In the 2010 A, B C case, the European Court of Human Rights found this lack of legislative action incomprehensible and noted with frustration that “the Government have not explained the failure to implement Article 40.3.3 and no convincing explanations can be discerned from the reports following the recent public reflection processes”.
Quite aside from moral considerations there are also cost implications of failing to legislate, since leaving it up to the courts to make up the law on a case by case basis inevitably incurs legal bills. Thus at the conclusion of the Roche case the Supreme Court ruled the Attorney General should bear the costs incurred by both the wife and her separated husband in arguing the case in the High Court.
It is said that hard cases make bad law and nowhere is that truer than in the area of abortion. In the X case the Supreme Court had to consider the case of a suicidal 14-year-old girl who found herself pregnant as a result of a rape. In the A, B C case in Strasbourg, one of the appellants was in remission from a rare form of cancer and had become pregnant.
It is far better for the Oireachtas to debate legislation in a calm and coherent manner rather than for courts to have to develop the law on a piecemeal basis in response to ad hoc emergencies and where understandable sympathy for the individual before the court may colour the debate on the issues. Under the separation of powers, it is the job of the Oireachtas to enact laws and of judges to interpret them.
Unelected judges are uncomfortable being placed in a position where they are left to create the law themselves without any legislative guidance and this discomfort is evident in a number of the judgments delivered in the X case.
James McDermott is a barrister and lecturer in the UCD school of law