To legislate or not to legislate — the options open for debate
Consideration was given to the possibility of implementing the judgment without legislation, by the publication of guidelines or some other form of non-statutory protocol.
However, an argument can be made that guidelines in isolation do not fulfil all the requirements set out by the European Court of Human Rights judgment for a number of reasons.
Guidelines are, by their nature, non-binding and do not have force of law.
* Guidance documents can be used in an effective way to communicate, to implement and to explain existing law and the delivery of a service;
* A guidance document/non-statutory scheme can be flexible, detailed and can be more easily reviewed and amended, if and when necessary;
* This could be a quick option;
* Administrative guidance is likely to be required even if legislation is sought. So there are advantages to proceeding to guidance as soon as possible.
* Guidelines would not have force of law and could be subject to legal challenge;
* The legal uncertainty arising from the 1861 act would not be resolved and its ‘chilling effect’ on women and medical practitioners would not be removed;
* As compliance with the protocol would be voluntary, it would be vulnerable to inadequate or non implementation;
* Sanctions for lack of implementation would not be governed by the State;
* Could be difficulties ensuring timely decision-making;
* The process of seeking agreement could be just as time consuming as the legislation;
* It is likely that guidelines would not satisfy the Committee of Ministers of the Council of Europe.
A second approach would be for the Minister for Health to issue regulations. However, the Minister could not issue regulations without being given the power to do so by enabling legislation.
* The Oireachtas would have the opportunity to discuss and vote;
* Regulations could be amended relatively easily in order to address any future concerns;
* Access to lawful termination of pregnancy would be put on a statutory, and therefore, more secure footing;
* Legal protection from prosecution could be attained by compliance with the proposed regulations;
* Regulation is likely to satisfy the requirements of the implementation process of the judgment in A, B and C v Ireland.
* Primary legislation would still need to be enacted.
* Would clearly provide for the general prohibition of abortion while at the same time enacting in legislation the exceptions that might arise in lawful circumstances;
* The Oireachtas would have the opportunity to discuss and vote;
* Access to lawful termination of pregnancy in Ireland would be put on a more secure footing;
* Would arguably provide better protection for the unborn than at present;
* Legal protection from prosecution could be attained by compliance with the proposed legislation;
* The role of the minister would not come under scrutiny;
* Likely to satisfy the judgment in A, B and C v Ireland.
* The drafting and democratic scrutiny likely to take a considerable period;
* Might be too rigid an approach.
* Oireachtas would have the opportunity to discuss and vote;
* Access to lawful termination of pregnancy in Ireland would be put on a more secure footing;
* Arguably provide better protection for the unborn than is currently provided by 1861 act;
* The role of the minister would come under less scrutiny;
* The regulations could be amended relatively easily in order to address future changes;
* Likely to satisfy the requirements of the implementation process of the judgment in A, B and C v Ireland.
* May take considerable time.
* Would provide clarity and certainty;
* Comply with Ireland’s obligations under the judgment in A, B and C v Ireland;
* Would provide compliance with article 40.3.3° by providing a clear modern statement of the law on abortion.
* Likely to take a considerable period of time.
* Could potentially comply with our obligations in A, B and C v Ireland, while leaving the existing criminal prohibition intact.
* This solution would not address the lack of clarity in the 1861 act.
