Appendix 1
| UCD | TCD | ||
| 15 | A. HICKIE (St. Mary’s) | G. MURPHIE (Midleton College) | 15 |
| 14 | T. GRACE (Newbridge) | H.R. HERRON (Belfast Royal Academy) | 14 |
| 13 | G. O’HAGAN (St. Mary’s) | D.P. DONOVAN (Belmont Abbey) | 13 |
| 12 | B. BRESNIHAN (Gonzaga) | R.C. HUTCHINSON (Hurstpierpoint) | 12 |
| 11 | H. BLAKE (Glenstal) | K.G. KELLY (St. Patrick’s Armagh) | 11 |
| 10 | H. MURPHY (St. Mary’s) | W. McCOMBE (Campbell College) | 10 |
| 9 | R. COOKE (Mungret) | A.M. CARROLL (King’s Hospital) | 9 |
| 1 | P. SUTHERLAND (Gonzaga) | P.R. EVANS (Portora Royal) | 1 |
| 2 | J. O’HAGAN (Capt) (St. Mary’s) | A.H. McKINLEY | 2 |
| 3 | T. FEIGHERY (Clongowers) | J.W. GOODE (St. Andrews) | 3 |
| 4 | G. SHEENAN (Gonzaga) | R. DAVIES (Cowbridge C.S) | 4 |
| 5 | C. FEIGHERY (Castleknock) | M.G. ROBERTS (Magee College) | 5 |
| 6 | G. GILL (Blackrock) | R.E. DOHERTY (Campbell College) | v |
| 8 | S. DEERING (St. Mary’s) | C.J. HAWKESWORTH (Campbell College) | 8 |
| 7 | P.J. SMYTH (C.B.C. Monkstown) | K. SHERIDAN (Downside) | 7 |
Appendix 2
Sutherland’s full advice, as attorney general, on the Eighth Amendment to the Fine Gael–Labour government, 1983
The use of the word ‘unborn’ in the proposed amendment is significant because it has not to my knowledge been used before in a similar context, that is as a noun standing on its own. The word is usually taken in association with ‘child’, ‘person’ or ‘human being’. The word, used as a noun, is not in fact defined in any of the standard English dictionaries. The reason why it is used in the proposal, without any supporting noun, deserves detailed consideration, as this is the word which defines the class to be afforded protection.
The Irish text of the proposed amendment, which must prevail in cases of conflict and which corresponds to ‘the unborn’ in the English, can be translated as ‘the unborn living’ or ‘the living unborn’.
In the event that the Supreme Court is called upon to construe the proposal, it could come to a number of different conclusions as to the definition of the class which is afforded protection. Undoubtedly a view which might commend itself to the court is that all human beings fall within the ambit of the amendment, and that a human being comes into existence when the process of fertilisation is complete.
It is, I believe, the position of many in the community that the inalienable right to life attaches to the newly fertilised ovum prior to implantation. The consequences of such a definition of the commencement of human life are matters on which medical opinion would be required.
If, as would appear to be the case, it is correct to state that certain contraceptives can operate after fertilisation, then these would be abortifacient if human life commences on conception. Thus the importation, dissemination and use of such contraceptives would be prohibited, and as an example, the use of the ‘morning-after’ pill in the treatment of rape victims will not be permissible, nor will the use of such contraceptives in certain conditions of the health of a woman – e.g. valvular heart disease, diabetes.
As I stated earlier there are, however, other conclusions that the Supreme Court might reach in defining what is meant by ‘unborn’. It might simply conclude that the question cannot be answered definitively. (In considering the rights, if any, attaching to life before birth in the United States the Supreme Court there determined that to attempt to reach a conclusion on the issue would be to speculate because ‘those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus’.) Other conclusions might be that human life commences at the moment of implantation of fertilised ovum or when brain activity commences.
However, the point of time for which the most compelling legal argument could be made, other than the time of fertilisation, as being the moment of commencement of protection, could be said to be the time when the foetus becomes independently viable. I understand that this is probably at some time between 25 and 28 weeks of pregnancy.
Such a construction could be supported by an argument that ‘unborn’ could be regarded as being applicable only to something capable of being born. The word ‘unborn’ used as a noun must, as a matter of language, mean ‘unborn person’, ‘unborn child’ or ‘unborn human being’. It could be argued that neither a fertilised ovum, a fertilised and implanted ovum, an embryo or even a foetus prior to the time when it is independently viable, would come within this definition.
The consequences of such a finding could be that there would be no constitutional prohibition on abortion prior to this stage of pregnancy.
The next issue that is raised by the proposed amendment is the meaning and effect of the words ‘with due regard to the equal right to life of the mother’.
The meaning of ‘with due regard to’ is entirely unclear. These words are generally perceived to allow for, at least, termination of the life of the foetus in the case of ectopic pregnancy or cancer of the uterus. The words ‘with due regard to’ have been understood by many to suggest that the right to life enjoyed by the unborn was to be confined in some way. That interpretation is in my opinion incorrect. (The word ‘comh cheart’ in the Irish text is literally ‘the same right’.)
The right to life of both the unborn and the mother is stated in the proposed text to be equal, and in these circumstances I cannot see how it could be possible knowingly to terminate the existence of the unborn even if such termination were the secondary effect of an operation for another purpose.
The issue of intention does not arise in the proposed amendment, and thus, it seems to me, that even if the termination of the pregnancy is an incidental consequence of an operation to save the life of the mother, it could be prohibited. The correct logical consequence is that the right to life provided for the unborn is absolute.
If a doctor were to be faced with the choice as to saving the life of one, and thereby terminating the life of the other, then I believe that the only lawful conclusion to this dilemma would be that he could do nothing, absolutely nothing, which is infringed on either right. It is only where there is no possibility of the foetus surviving, even without the doctor’s intervention, that no difficulty will arise.
Whatever about such a clear-cut factual situation, the difficulties of applying the provision to other circumstances will be considerable. There may be cases where a doctor will have to consider whether he can treat a prospective mother for an illness which might otherwise shorten her life expectancy if this treatment will threaten the life of the foetus.
The proposed amendment will in my view tend to confuse a doctor as to his responsibilities, rather than assist him, and the consequences may well be to inhibit him in making decisions as to whether treatment should be given in a particular case.
The consideration of the points which I have raised is of particular importance having regard to the difference in principle between an ordinary legislative provision and a statement in the Constitution.
While a view may be formed as to the likely interpretation of a given constitutional provision at a particular time, such an interpretation is open to review in the future. One is considering in this instance a provision which is intended to stand the test of time. This type of constitutional provision, by its nature, is a statement of broad general principle. The fact that the interpretation of such provisions is often a complicated and difficult task is evident from the very many reported judgments on the Constitution which have been delivered by the Supreme Court. I draw attention to the ambiguities in the proposed draft because to do otherwise might suggest that the words are susceptible to only one interpretation.
It is further to be borne in mind that this constitutional provision, whilst a statement of general principle, will be susceptible to enforcement in various ways through the civil and criminal law. Uncertainty as to its meaning and effect could have the most serious consequences. These ambiguities and uncertainties are inherent in any statement of a general right, since the scope and extent of such a right must be settled by the Supreme Court, and often this will become definitive only after perhaps a number of references to the court.
Appendix 3
Part of Sutherland’s speech at the annual Cardinal Newman Lecture in St John’s College Oxford on 19 May 2010, a fortnight after the general election and a week after the Tories had formed a coalition with the Liberal Democrats
The more that I have reflected on this lecture, the more I have been struck by how alien and even destructive it may sound in Britain. Religion and values have not formed part of the narrative here of the troubled relationship between Britain and the process of European integration. But if the EU is no more than a Common Market, as many here believe, why should they be part of the story? In fact these subjects may be seen rather as added complications to a debate by those who seek a more constructive dialogue on European issues. The result of this is they are not much spoken of, particularly within and by the Churches. While this lecture is not intended to be exclusively focused on Britain in the European Union (which is not in any sense ‘Europe’), I will initially look at this issue.
Perhaps there is an unspoken suspicion that the whole business of European integration is a little too Catholic for British tastes. Even though the religious influence of the Reformed Churches, particularly in Germany, was profound in its creation and development, this would not be at all visible here, whereas the Founding Fathers, as they are perhaps annoyingly described by Europhiles like me, were to a man Catholic. Monnet, Schuman, de Gasperi and Adenauer were all Christian Democrats too, and only Paul Henri Spaak in the early European pantheon was a socialist. But others from the reformed tradition, such as the Danes, Swedes and Finns, however reluctant initially, have begun to put suspicions of this kind behind them. Increasingly they demonstrate a real belief in the integration process. This is particularly true of Finland.
It is indisputable that the United Kingdom has a fundamental problem with European integration. The evidence of polls suggests that the negativism here is qualitatively different from all other cases not merely in its consistency but in its depth. Thus it remains at the lowest position in Eurobarometer polls in its positivism towards the European Union. Indeed it is far from clear what the result of a referendum on membership would be today.
This ambivalence has been evident from the earliest days. In the lead-up to the Treaty of Paris that created the Coal and Steel Community and started the whole process, Dean Acheson counselled the French not to inform London because he foresaw its potential for destructive opposition.
The reasons for this antipathy are many, varied and in part understandable. It is apparent that history plays a substantial part in this, not merely through the memory of terrible continental wars but also in the sense of distinctiveness born out of the inviolability of Britain itself, an island that has not been invaded for a thousand years. Britain had pragmatic economic grounds, too, for its initial opposition to European integration. Its loyalty to and connection with an empire, already disintegrating but still connected in the 40s and 50s, and ‘the English speaking peoples’, was an essential element in such limited profound political debate as took place during the 1950s on the whole subject of Europe.
Winston Churchill of course, in his famous speech in the University of Zurich on 16 September 1946, though extolling the common inheritance of Christian faith and ethics and the prospect of a united Europe, saw Britain standing apart. So the Commonwealth and the United States form part of the backdrop to this, but so does simple nationalism. It is not hard to recall George Canning’s remark in 1826, following the collapse of the Congress of Vienna system, that ‘things are getting back to a wholesome state, every nation for itself, and God for us all’. It still has a resonance here even in this era of interdependence.
At the end of the day it is difficult to avoid the conclusion that Britain essentially dislikes, in principle, the sharing of sovereignty and, indeed, any interference with the constitutional principle of the supremacy of Parliament. So even the supremacy of European law, established beyond doubt in Britain by the Factortame case in 1989, has been erroneously characterised by many establishment figures as an unwarranted and unjustified intrusion of their basic understanding of what they joined in 1973.
In Britain there has never been sympathy for, or even a comprehension of, the political and indeed moral purpose of the project to pursue ‘an ever greater Union’ of the peoples of Europe. It has had few true advocates in the political world or even academia, and the Conservative party in the current government is the most Eurosceptic in the last twenty years. At every revision of the Treaties since accession, Britain has been the most reluctant member state to move forward and has always pressed for ‘co-operation by sovereign states’ rather than integration. In other words it has pressed for intergovernmentalism rather than supranationalism. This has been a tragedy for many of us who had hoped for constructive leadership in another direction from Britain. It seems tragic because Britain has so much to give to the process, its tolerance, long-standing democracy and commitment to the rule of law being particularly noteworthy and generally respected.
The real tragedy, however, may be that a debate on the substance of the issues has never truly taken place. In particular the overwhelmingly Christian intellectual foundations for European integration have not been explored in any substantive manner in political circles, and academia has not been much better.
The question may be asked whether the issue is relevant following the delayed conclusion of the agonising debate on the Lisbon Treaty and the general agreement on its adoption that further constitutional change was not on the agenda. Many contributions in recent times have pointed to the fact that there is no appetite for further constitutional change in Europe generally and this is clearly true for the majority for the moment. However, the debate is only in temporary abeyance. For one thing it is increasingly obvious that the dynamics of globalisation will demand a more united Europe if we are to play a real role in determining our own destiny. Furthermore the issues surrounding the survival of the Euro following the debt crisis will, in the view of many observers, probably result in a new drive for economic governance at European level. Mrs Merkel has already trenchantly said this and last week linked this issue to the survival of the Union itself. This argument about the future will undoubtedly be essentially about federalism and Britain, though not in the Eurozone will have to be part of it.
The word federal has taken on such pejorative connotations here that it can scarcely be mentioned in public company, and this notwithstanding the fact that for many continentals it is at the heart of the process and is inextricably linked to maintaining the admirable vision of its founders.