Serious legal concerns have been raised about a proposed new law on assisted dying, raising a doubt over whether it can proceed in its current form.
The Dying with Dignity Bill, introduced last year by Solidarity-People Before Profit TD Gino Kenny, is currently being reviewed by the Oireachtas Committee on Justice after a Dáil vote in October to allow it proceed to committee stage. As part of that process, a confidential legal opinion was drafted by the Office of Parliamentary Legal Advisers.
A copy of that opinion, seen by The Irish Times, raises a range of concerns about the Bill, including that parts of the Bill would be vulnerable to a constitutional challenge as they were an “overdelegation of ministerial power” which case law had found to be incompatible with the Constitution.
It identifies “ambiguities and serious drafting errors” in several sections of the Bill, containing flaws that could render them vulnerable to challenge before the courts, as well as errors of a more technical nature throughout the Bill.
It also finds that it has no enforceable compliance or offence provisions, "which is hugely problematic for this legislation given the statements from both the Irish Supreme Court and the European Court of Human Rights on the utmost importance of safeguards in legislation such as this". It suggests that given the gravity of the debate, the topic might benefit from consideration by a special Oireachtas committee or a Citizens' Assembly.
On Thursday night, Mr Kenny said that when he and colleagues put the Bill forward, they were "always open to changes and amendments". "The Oireachtas said in October the the issue needs further review, that will hopefully take place in the autumn in pre-legislative scrutiny, and we can call in stakeholders across the broad spectrum of debate and see if we can proceed."
He also said he would be happy for the Government to take the issue on and produce its own Bill “as long as the substantial issue is legislated for”.
“What we want to see is there’s a vision in the State for those who want to legislate for and have the choice of using assisted dying,” he said. While he would be open to the issue being examined by a Citizens’ Assembly, he also said it was “imperative” that it do so in tandem with efforts to legislate for the issue.