John Bruton

Opinions & Ideas

Category: Uncategorized (Page 1 of 14)

A CRUCIAL CONTEST FOR EUROPE…A BATTLE ON THE FLOOR OF THE CONVENTION CENTRE

At its Congress in the National Convention Centre in Dublin on 6 March, the European People’s Party(EPP) will designate its candidate for the position of President of the European Commission.The prospective candidates are Jean Claude Juncker, until recently Prime Minister of Luxembourg, Michel Barnier, currently a member of the European Commission, and Valdis Dombrovskis, the former Prime Minister of Latvia and currently also a candidate to become a Member of the European Parliament .
            
The entry of Dombrovskis into the race, and the divisions in the ranks of the EPP parties in France and Italy, makes it more difficult for the leaderships of one or two big parties to control the outcome in advance, in the way some German and French leaders might have been able to engineer in the past. This race could go right  to floor of the Convention Centre.
            
Delegates from member parties tend to go their own way, and surprises can occur, as when, at the EPP’s last Congress in Bucharest, Lucinda Creighton topped the poll for the EPP Vice-Presidency, beating Michel Barnier of France into second place. The winner in Dublin next month will need to have spent a lot of time on the phone and visiting capitals long before delegates arrive here. 

The fact that this decision is not being made behind closed doors, but at a party congress, meeting and voting in public, demonstrates the increased importance of European political parties in the EU decision-making. It also demonstrates a desire to involve the public more directly in EU politics, giving them a sense that they can hire and fire some of the top people in the Union.

The nominee picked in Dublin will then enter the race with
               
+  Martin Schultz, who is currently President of the European Parliament,the nominee of the Party of European Socialists, of which the Labour party is a member  
                
+ Guy Verhofstadt, former Belgian Prime Minister who has been put forward  by ALDE, the Liberal party of which Fianna Fail is a member, and
                  
+ the nominees of  the Greens and European Left

Verhofstadt and the others would appear to have a slim chance of getting the big prize because their parties are unlikely to get enough seats in the European Parliament. This is critical, because the Lisbon Treaty says that the European Council must pick their nominee to be Commission President “taking account of the elections to the European Parliament”, and their parties are unlikely to elect enough MEPs.

In Ireland, a vote for Fine Gael in the European Elections will be a vote for whoever is the EPP Congress in Dublin chooses ; a vote for Labour is a vote for Martin Schultz; and a vote for Fianna Fail  for Guy Verhofstadt.

After the election, the European Council will decide on one nominee by a qualified majority.  But that nominee must then be elected by the European Parliament by an absolute majority .But no one party is likely to get such a majority in the Parliament. 

The latest ‘poll of polls’, collated on 19 February by VoteWatch Europe, suggests that the Socialists could get 221 seats in the new Parliament. That would still leave Martin Schultz 154 seats short of an absolute majority. 

The same polls currently give the EPP 202 seats, which would leave their nominee even further from a majority.
When they meet in Dublin, the EPP will be trying to pick a nominee that will help them gain the 20 or so extra seats that would put them ahead of the Socialists. Opinion polls in recent Euro-elections have tended to overestimate the likely Socialist performance so the race may be closer still.

The Treaty has, up to now, been interpreted in practice as meaning that the biggest party, even if it has no majority, would have the Commission President chosen from among its ranks.

But a nominee with only 30% of MEPs committed to him would have job getting up to 50% needed to pass in the Parliament.
There will be a lot of drama in the coming months. This will show that the EU is a not a bureaucratic entity, but increasingly a political and democratic one, where there is a real contest of both philosophies and personalities. 

Of course, once appointed, the Commission, under the Treaty, must “neither seek nor take instruction from any institution”, including from the European Parliament.  For that reason, I would have preferred if the President of the Commission was elected directly by the people directly, and did not have to depend on either the European Council or the European Parliament. But that is another debate.

All this highlights the ever more important role of European political parties. 

As the number of states in the EU enlarged, the number of members sitting in the European Commission and at Council of Ministers meetings became so large that free-flowing discussion was difficult.
To overcome that, Ministers of the different parties – EPP, Socialists and Liberals – started to meet in informal caucuses before formal Council meetings to discuss policy.  Many Ministers now feel they can get a better sense there of how the wind is blowing at these informal gatherings than at formal Council meetings. Similar party-based meetings are also taking place between Commissioners.
           
In  devising  common Europe wide party platforms for the European Elections, all parties  come to learn about political sensitivities in other EU countries, that they would not necessarily learn from  newspapers or diplomats. Gradually a European “demos” is being built.

IS THERE SUCH A THING AS EUROPEAN CIVILISATION? ARE THERE EUROPEAN VALUES? WHAT UNITES US AS EU CITIZENS?

These are really important questions that are seldom discussed. But if Europeans do not have a well understood consensus about them, we will find it increasingly difficult to build the sort of integrated economic unity, that is required by our present difficult economic situation. This is because values, and economics, cannot be separated.

A recently published European Values Survey ,conducted in all European  countries, shows that Europeans have widely divergent views about what constitutes a good life, about mutual obligations, and about individualism and community. When approaching common EU questions, each nation will tend to assume its approach is best, or indeed the only valid,one and may be quite uninformed about what others think and why. That is not a recipe for harmony and unity. And there is no common conversation in Europe about the things that are important.
The concept of EU citizenship goes back to the Maastricht Treaty. (Article 17 of current EU Treaties)

A promise of common citizenship implies a shared set of values, that encompasses shared rights, and, of necessity, and as the Treaties say, shared obligations.

A right without an obligation is a logical impossibility. If someone has a right, some other person, or group, has to be on hand and willing, to ensure that it is vindicated. 
The concept of European civilisation goes back even further.

Europeans once felt comfortable invading other parts of the world, because they felt they had something special, a special set of values, or some special knowledge, that they could bring to those parts of the world, that would not enter there, without some form of compulsion, and that the benefits would exceed the costs of the compulsion.

Of course, there were selfish reasons too, but Europeans were able to live with their consciences because they felt they were, ultimately, doing good.
The construction of the European Union, going right back to the 1950’s, proceeds from the assumption that Europeans share a set of values, that justify a pooling of sovereignty that would enable them to defend those values .

It also presumes the existence of some form of shared European civilisation that distinguishes Europeans from Asians, North Americans, Africans, and South Americans.

Some might sum up these ”European Values” up as simply, democracy and the rule of law.

But these concepts will only work if there is a minimal shared understanding, across Europe, of what they mean in practice. That is not something that can be delegated to lawyers in the European Court of Human Rights. Lawyers can only do their job well, and without hubris, if there is a minimum consensus on basic questions like these. 

What should law say?

How far should majority views, in a democracy, intrude on private lives?

Should people be treated exclusively as individuals, or do families have rights and obligations?

When does a life become human, and when should it begin to enjoy human rights?

Democracy cannot easily survive if people views, of what should be done collectively are totally divergent, and  if there is no underlying consensus. Democracy was brought down in the 1930’s in most of Europe because that necessary consensus had ended. That could happen again.

The Rule of Law will not survive, and laws will not be enforceable in practice, unless there is some shared sense, across Europe, of what the law should say, and of how far law should go in regulating our behaviour. Law needs some shared view of what is private, and what is public, and how far it should go in regulating the former.

Elites cannot go too far beyond the consensus in society when imposing, through the courts in Europe or nationally, their views of what the law should say.
This is especially so in a Europe of 500 million people, where so many different views are liable to exist.
If we are to proceed to create a society in the European Union, based on shared, and, to some degree, mutually enforced , values , we need to establish if such shared European values really exist.

And we need some mechanism for discussing these values with one another, across Europe, in a mutually respectful way.

It cannot just be a question of those countries or groups, who deem themselves to be the most “advanced”, “enlightened”, or “progressive” in their values, using their skill  in the legal system, and their access to Judges, to enforce their values, through European law, on those deemed by them  less progressive, enlightened, or advanced. That will not work, and will eventually provoke a reaction, and not necessarily one that will be welcome.
“Le Monde”, the French newspaper , on  19 June  reported on a recently published  European Values Study which showed dramatic differences  between Europeans in what they believe should be  the role of society, and of the individual. The Study chose 19 indicators to measure how “individualised “ were the values of Europeans in all 47 European countries. 
Among the indices of individualisation were the following 
  • adherence to a relativist value system, rather than one based on  a set of principles
  • a belief that one expresses and develops oneself primarily through paid work (as distinct from family responsibilities) 
  • a belief that one should  spend one leisure time according to personal taste 
  • a belief that one should choose ones form of family, with each member of a couple having a separate set of friends, choosing to have or not to have children, choosing to marry or not, 
  • a belief that homosexual couples should adopt children 
  • a belief in liberal abortion laws 
  • tolerance of  divorce, adultery, euthanasia and suicide

The survey ranks countries by the proportion of their population that was “individualised”, according to these measures, in 2008.
The most “individualised” country in Europe is Sweden, where 84% of the population had this set of beliefs.
 In contrast with Sweden’s 84% preference for individualism, support for that view is only at
 7% in Cyprus,
 10% in Malta, 
19% in Romania,
 22% in Croatia,
24% in Latvia,
 26% in Greece ,and
 28% in Bulgaria

Just across the Baltic Sea from Sweden, in Estonia, only 24% had the same opinion as the Swedes. Even closer to Sweden, only 20% were of that opinion in Poland, which means that 80% of Poles did NOT agree with the Swedish view!

After Sweden, the next most “individualised” country was Iceland ( 83%), followed by Denmark 78%, Finland (69%), Netherlands(68%) and France (67%).

There were many contrasts, even between close neighbours.

Britain was at 54% on the individualised belief scale, whereas Ireland was only at 34%, implying that almost 2/3rd of Irish people did not have an individualistic view in 2008.

Spain was at 61%, whereas Italy was only at 24%, a truly remarkable difference between two counties, often put in the same box!

The Czech Republic was 52% “individualised” while Slovakia was only 36% .

Germany is only at 52%, while its neighbours Denmark and Netherlands, as mentioned already, were at 78%, and 68% so, respectively.

Newer members of the European Union simply do not share the highly individualistic preferences of  some of the older EU states.

It is important that European institutions, including the ECHR as well as the EU, take note of what Europeans actually believe, as distinct from what the people administering these institutions personally believe themselves, or decide Europeans believe  ,having looked into their own hearts.
Malta is as much part of Europe as Sweden! 
Italy is as European as France!
European Courts can only be used to impose “European norms” when we have first debated, in a genuinely European electoral process, what those norms are and should be in future. We do not have such a process at the moment. Judges and regulators need democratic guidance, and we need a Europe wide venue for this.

THE NATIONAL COALITION OF 1973 TO 1977

I attended a small dinner in Leinster House recently of Fine Gael members of the Dail during the term of office of the National Coalition Government of Fine Gael and Labour ,  which was headed by Liam Cosgrave, as Taoiseach, and  which held office from  March  1973 to July 1977.

The dinner was hosted by Charles Flanagan, chairman of the Fine Gael  parliamentary party, whose father, Oliver J Flanagan, was from 1976 Minister for Defence in the National Coalition.

One of the   attendees was the current Taoiseach, Enda Kenny, who was elected to that Dail in a by election in 1975.
Notable attendees included Richie Ryan (Minister for Finance), Peter Barry(Transport and Power and later Education), Pat Cooney( Justice), Dick Burke(Education), and Tom O Donnell(Gaeltacht) .
The Government came to office after a General Election at the end of a period of 16  years of  single party  Government by Fianna Fail.

Fine Gael and Labour had a 14 point pre election pact, which enabled them to win the election, despite the fact that their combined  first preference vote was less than it had been in the  1969 election. In 1969, the Labour party had campaigned on the basis that it would not enter coalition and, as a result, the transfer of second preference votes between Fine Gael and Labour was much less, and thus  the seats won by both parties less than in 1973.
The term of office of the Government was dominated by two phenomena, the oil crisis of  1973 and its consequences for the economy, and the murder campaign of the IRA on both sides of the border.
The oil crisis meant high inflation, and restricted government revenues. The Government introduced food subsidies, and removed VAT from food .It also introduced new capital taxes, which proved controversial. Farm incomes rose substantially as a result of EU membership, and this led to urban/rural tensions of a kind not seen before or since. Social Welfare benefits were extended and new benefits introduced, such as for unmarried mothers. Education was reformed, with the removal of compulsory Irish from the Leaving certificate
The long, and pointless, campaign of violence by the IRA was at its most intense during the period of this Government.

Liam Cosgrave, Pat Cooney, and Conor Cruise O Brien and all the other Ministers of the National Coalition resolutely opposed the IRA by every legal and persuasive means at their disposal.

Liam Cosgrave negotiated the Sunningdale  Agreement in  1973, which in substance was as advanced  as the Good Friday Agreement of 1998. Unfortunately, many people had to die ,in the  quarter century it took the IRA to realise that  this was the maximum obtainable, given the demographic and political realities of Northern Ireland.
I served as Parliamentary Secretary to the Minister for Education (1973 to 1977), and to the Minister for Industry and Commerce (1975 to 1977), in the National Coalition.
One of the strengths of the Government  was the good personal relationship between Liam Cosgrave and the Tanaiste and Leader of the Labour party, Brendan Corish. They had served together in the Dail for long time previously and had shared interests, including horse racing.

PROMOTING INVESTMENT IN IRELAND

I am in the United States this week on a “road show” promoting the Irish Funds industry.
This is one of the biggest components of the international financial services industry in Ireland, and it  employs about 11,000 people, in well paid and highly skilled jobs.

Large numbers of Irish Fund promoters, lawyers, and accountants are taking part in the road show which is taking in Chicago, Boston, New York and California. 53% of the resources managed or administered by funds in Ireland  originate in the United States .

The Irish Funds industry operates under EU rules, which are in a process of constant evolution, and a  big part of the activity in the road show consists in  explaining the latest EU legal developments.

EU rules have the merit that, once complied with, the allow an approved fund to do business throughout the entire EU and in other jurisdictions which apply the EU rules.

Ireland has a number of key strengths as a location for the international funds industry.

One is the  depth of expertise available in Ireland in professional firms.

Another is a sophisticated and accessible regulator, in the Irish Central Bank.

A third one is the availability of highly motivated staff, at moderate salaries, in an English speaking country, with easy transport links.

TWO STATES, OR EQUAL RIGHTS IN ONE STATE—WHICH IS THE BEST OPTION FOR PALESTINIANS ON THE WEST BANK OF THE RIVER JORDAN?

The news that separate buses, on the same scheduled routes, are being introduced for Israeli settlers and for Palestinians in the West Bank has disquieting precedents.

The fight against segregation on the same buses in the American South was a key part of the Civil Rights campaign there. Segregation in transport also featured in South Africa in the past.
The West Bank has now been occupied, and governed, by Israel for 46 years now.  That is for most of the time that Israel itself has existed.
The Palestinian residents of the West Bank have no vote for the Parliament which makes the important decisions as to what happens in the area in which they live.

Israel is the only functioning democracy, apart from Turkey, in the region, but its democratic privileges do not extend to the Palestinians it governs in the West Bank.
West Bank Palestinians have been encouraged to pursue the goal of a Palestinian state in the West Bank, but the physical space that such a state might occupy is being increasingly taken up by Israeli settlements and infrastructure.
I wonder if the West Bank Palestinians might not be wiser to change the terms of the debate on its head and  seek 

  • ”one person one vote”, and equal privileges, and
  • the incorporation, on that basis, of the West Bank into Israel.

Given the history and ideology of Civil Rights in the US, it would be difficult for the US to decline to support such a demand. It would also require Israel to ask itself the hard questions about its long term intentions for the Palestinian people it governs on the West Bank. For its own sake, Israel needs to ask itself these questions sooner or later.

LAND ,RELIGION, SECULARISM, AND POWER POLITICS, A STORY OF MEXICO

I recently enjoyed reading Enrique Krauze’s “Mexico, a biography of Power 1810 to 1970”
It approaches the history of the country through the biographies of the succession of strong leaders who dominated the country for the last 200 years, starting with the revolutionary priest, Miguel Hidalgo, the theatrical General Santa Anna, the French backed Emperor, Maximilian,  through the  pure blooded Indian Benito Juarez, to the  modernizer who would not give  up power, Porfirio Diaz.

Then came the Revolution of  1910 which ushered in almost  20 years of civil war, first between the  revolutionaries themselves, and then between the  Revolution and Catholic guerrillas, the ”Cristeros,” who objected to the restrictions the Revolution was placing on the work of the church.

He deals with the formation of the PRI, the party that dominated Mexican politics for most of the twentieth century and which has recently returned to the Presidency again after an absence of 12 years.
In some respects the conflicts of the twentieth century Mexico had their origin in the colonial period when Mexico was part of the Spanish monarchy. The Catholic Church became an instrument of government under the Spaniards but also supplied much of the leadership of Mexican society, including the priest leaders who shook off Spanish rule.
After independence, the church was allied with conservative forces in Mexican society. When the French backed Hapsburg Emperor of Mexico, Maximilian was overthrown, with US support, by Benito Juarez in 1867, most of the churches privileges and property were taken away 
It is therefore something of a mystery, not explained in the book, as to why the “Liberal” generals, who, 40 years later, led the Revolution of 1910, were so hostile to the Catholic Church, seeking to licence and limit the activities of priests, and close church schools.
This led to a bloody guerrilla war, chiefly in western Mexico, where lightly armed but mobile “Cristero” guerrillas defied the battle hardened, but immobile, Mexican army for years. Some these same passions arose in the Spanish Civil War, which broke out in 1936, only a few years after the Cristero rebellion ended.

Like all Latin American countries, a theme of Mexican history is the relationship between the European settlers and the native American populations. In some countries like, Argentina and Uruguay, the natives were almost wiped out by disease and land grabbing. In Mexico, the population  was reduced to almost a  fifth of  its former size by the introduction of European diseases to which the natives had no immunity. As a result, Mexico and Ireland had the same population in 1840!
Land rights were a hugely contentious issue, with the natives asserting ancient rights to common land, and modernizing, European or mixed race, farmers wanting to take the land over for commercial production. Interestingly the Emperor Maximilian gave more  support to native land rights than did any of Mexico’s own leaders, including the man who overthrew and executed him, Benito Juarez, who was himself  of native blood.
Mexico is one of the emerging economic powers of the world, and understanding its history is a worthwhile exercise.

OPTIMISM AT LAST ABOUT JOB CREATION BY IRISH BUSINESSES.

8 out of 10 businesses in Ireland are now optimistic about their  growth prospects in the next two years .
Two thirds expect to expand  in Ireland in the coming years and  half intend  expanding abroad.
A majority intend hiring new staff in the next 2 years, with a strong emphasis on IT and digital skills. Already we hear of vacancies for staff with IT skills notwithstanding the high level of unemployment. 
Irish owned businesses are more optimistic than foreign owned ones
The survey showed that 6 out of 10 of the companies enable their staff to work from home during part of the working week. 77% of businesses supply laptops for work outside the office, and 79% supply smart phones for the same purpose.
Those businesses, which allow some working from home, tend to be more optimistic about their future, and more likely to be contemplating hiring more staff, than ones who do not provide for work from home at all.
The survey was carried out by Amarach consulting for UPC in August 2012. It involved interviews with 200 decision makers in businesses, large and small, native and foreign owned.

BUT IRELAND HAS GROUND TO MAKE UP USING THE INTERNET TO SELL GOODS AND SERVICES ABROAD

To my surprise, the survey suggests that only 53% have a business website . This may explain why Irish based businesses sell much less abroad over the internet, than Irish consumers buy over the internet from foreign websites.
Historically, Ireland, despite its high tech record in other fields, is coming from behind in terms of development of an economy based of use of the internet.
The Boston Consulting Group measured what it called “e intensity” by comparison with GDP per head in 2010 in a number of economies.  “E intensity” measured the reach of the internet infrastructure, amounts spent via internet and the degree to which business , consumers and government are involved with the internet.
With a a higher GDP per head in 2010, Ireland 50% less” e intensity” than the UK, and almost 100 less than Korea, which had then a GDP per head that was half Irelands.
Ireland lagged behind Denmark, Sweden ,Netherlands and Finland ,all of which had roughly the same level of GDP per head as Ireland in 2010
Ireland was at the same level of “e intensity” as Spain and Slovenia, which had considerably lower GDP per head in 2010.
Having said this, one should add that GDP is not a good measure of Irish spending capacity, and the figures date back to 2010,since when a number of things have changed.
There is a huge global market for all thing Irish, and a lot of effort goes into promoting the image of the country. This makes it really surprising that the Amarach survey showed that only 53% of the businesses they surveyed had a website from which they could sell their goods and services to a  global market.
Sending sales people abroad to drum up custom is expensive. Setting up a website is not !
Irish Americans and other members of the diaspora should be a priority  target market for the sale of Irish goods and services. 

FIVE REASONS TO NEGOTIATE A TRANSATLANTIC FREE TRADE AGREEMENT….

…AND THREE ISSUES THAT MUST BE RESOLVED

I was in Madrid last weekend to speak at two  meetings .  


One was at the IE Business School, which has been rated by the Financial Times as the number One business school in Europe, and where my topic was the Irish economy and the euro.

The other meeting was at the Casa America. There the debate was about intensifying economic cooperation between the United States and the European Union, including the possibility of negotiating a formal EU/US Trade Agreement.

Other speakers at the latter event included the Spanish Minister for Foreign Affairs,    Jose Manuel Garcia Maragallo, the former Spanish Minister for Foreign Affairs, Ana Palacio, the US Ambassador to Spain, Alan Solomont ,  and the Irish Ambassador to Spain, Justin Harman

In my remarks, I identified six reasons why a Transatlantic Free Trade Agreement would be a  good idea

  1. 15 million jobs  are already  dependent on transatlantic trade and investment , and eliminating the remaining barriers  to trade and investment could increase that number  of jobs and  could be worth  at least 200 billion euros in additional business
  2. Negotiating such an agreement could be a lever for removing remaining inefficiencies on both    sides of the Atlantic and help both the EU and the US to compete better on world markets.
  3. It would help restore global economic confidence after the recent failure of the  WTO Doha trade round negotiations
  4. It would prevent the US shifting all its economic energies towards the Pacific  Basin, where it is already negotiating a comprehensive  agreement
  5. A completed EU/US Trade Agreement would anchor the UK more firmly in the EU, because of the advantages it would bring, and counter the trend towards the UK leaving the EU altogether, which is gathering strength

I then identified three problems that have to be resolved, or taken into account, in such a negotiation.

1. While industrial tariffs between the US and the EU  are quite low and could be  eliminated without  too much  resistance by protectionist interests, the same cannot be said for Agriculture, where the US is increasingly protectionist, and the EU has a Common Agricultural Policy which  would be a barrier to some US  food exports to Europe
2. There are significant regulatory barriers to trade and investment. For example, the US protects its domestic  airlines from European  competition, insists that its government entities buy only  US  goods and services, and has different views and rules on hormones and GMOs in food products, and on data privacy, to those  in Europe
3. Any Agreement we negotiate should be open to others, for example to Mexico, Canada, Latin America and Africa so that it can evolve in into something that covers the  whole Atlantic basin, South as well as North. Seven of the ten fastest growing economies in the world today are in Africa.  It also should be compatible with the WTO.

THE ABORTION ISSUE IN IRELAND

Article 40.3,3 of the Irish constitution gives a right to life to an unborn child. It is included along with other rights of the person
It says

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of mother, guarantees  in its laws to respect , and as far as practicable, by its laws to defend and vindicate that right

This was inserted into the constitution of Ireland in 1983 by the people in a referendum .
It remains part of the constitution and there is no proposal to change it on the table.
In the so called X case  in 1992, the Supreme Court  decided that this article could be construed  as allowing for the life of an unborn to be  ended if the mother  was  believed to be suicidal.
Following a recent European Human Rights court case, the Government is contemplating introducing a law that would clarify when the life of an unborn child may be ended.

It is considering allowing in this law that

1. a threat of suicide by the mother to be one of those grounds for ending the life of the unborn child, along with

2. medical threats to the life of the mother where the medical treatment may require the ending of the life of the unborn child.
Would a law, including a provision allowing a suicide threat to be a basis for ending the life of an unborn child, be consistent with the constitution which requires   the state to “defend and vindicate”  the unborn child’s ”equal” right, to  be allowed to live?
In this paper, I try to answer that question and I examine the logic of the Supreme Court in the X case. 
I also deal with the more recent European judgement.
I conclude by suggesting how the law might best  be changed in accordance with the clear language of the constitution.



THE LANGUAGE OF THE CONSTITUTION, AND THE MEANING OF WORDS

The Irish Constitution belongs to the people.
It uses language, words, to convey certain understandings of what the Irish people guarantee to one another as a basis for living together.
The words of the constitution can only be changed by the people, and if so, the words in constitution should be interpreted, as the same words would be understand  in daily usage. 
They should not be interpreted  in some arcane way, understood only by constitutional lawyers.

Article 40 of the constitution acknowledges an EQUAL right to life of a mother, and of her unborn child. 
The sentence would have made sense even if the word “equal” was not there, but the word “equal” IS there, and it was put there with the explicit approval of the people.
Many words we use in daily language have ambiguous or various meanings, but the word “equal” has only one  meaning. Equal means equal, and that is the word in the constitution 
By any normal understanding of language, a risk is not equal to a certainty. A risk that someone might unilaterally end their life, is not equal to a certainty of the ending of another by the actions of a third party.
Likewise a law that took away a  right , before it could be exercised independently, could hardly be interpreted as” defending and vindicating” the same right
Judge Hederman put it this way in his minority judgement in the Supreme Court on the X case.

The Eighth Amendment establishes beyond any dispute that the constitutional guarantee of the vindication and protection of life is not qualified by the condition that the life must be one which has achieved an independent existence after birth. The right of life is guaranteed to every life born or unborn. One cannot make distinctions between individual phases of the unborn life before birth, or between unborn and born life.


ARGUMENTS USED IN THE “X” CASE JUDGEMENTS

The other Judges in their X case judgements offered two reasons for not treating the right to life of the unborn child as equal, in practice, to that of its mother, notwithstanding the words of the constitution.

1.) MEMBERSHIP OF A FAMILY GROUP

One was that the mother’s life is to be preferred because she has wider responsibilities. This is what Chief Justice Finlay said

“In vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur.

Given that, in EVERY case, a mother of an unborn child will already be” a member of a family group”, if membership of the mother of a “family group”, is a sufficient ground for  grating an abortion, then in no case could an abortion be denied.
That would  not be an interpretation of the relevant article in the constitution, but an abrogation of it.

2.) A ”CONTINGENT”  LIFE

The other argument used in the Supreme Court was that the life of the mother was a life in being, whereas the life of the unborn child was “contingent”. 
This is what the late Judge McCarthy said

“ The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery. It is not a question of setting one above the other but rather of vindicating, as far as practicable, the right to life of the girl/mother (Article 40, s.3, sub-s. 2), whilst with due regard to the equal right to life of the girl/mother, vindicating, as far as practicable, the right to life of the unborn. (Article 40, s.3, sub-section 3). If the right to life of the mother is threatened by the pregnancy, and it is practicable to vindicate that right, then because of the due regard which must be paid to the equal right to life of the mother, it may not be practicable to vindicate the right to life of the unborn.” 

Essentially he was arguing that, once a right is contingent on the behaviour of another person, it does not enjoy the protection of the constitution.
That is a radical doctrine, that would not be  held by many human rights lawyers.
Again, it is hard to reconcile with what the constitution actually says.
All lives are ”contingent” on the behaviour of others.  The life of a baby AFTER birth is certainly “contingent” on the care given to it by its mother and by others. 
If Judge McCarthy’s jurisprudence around “contingent” lives were to be taken as settled law on the right to life ( born or unborn), it  leave little value in the constitution.


OIREACHTAS SHOULD APPLY COMMON SENSE, AND INTERPRET PLAIN LANGUAGE PLAINLY

For these reasons, I would argue that the jurisprudence in the X case should not be treated as immutable and beyond question.
It is arguable, in common sense, that, in the X case, the President of the High Court, Declan Costello, and Judge Hederman in the Supreme Court were right, and the Supreme Court majority was wrong.
It would be imprudent for the Oireachtas to go along, without applying its own judgement,  with the view of the Expert Group that the particular decision a  majority of Judges, in the particular circumstances in the X case (a 14 year old rape victim), in the state of knowledge of the time,  is “the law of the land” in some immutable sense, and that a future Supreme Court will not come up with a better, more practicable, and more faithful constitutional reasoning in a  future case . 
Just as legislators can change their mind, so can judges. 
The members of the Oireachtas should read the X case judgement for themselves, and decide for themselves how constraining it is on them as to what they can, or must, do. They should also read the words of the constitution in their most likely meaning, and prepare legislation on that basis.

THE A,B, AND C CASES 

Neither the A the B, nor the C case involved a threat of suicide.
In only the C case, was a finding made against the  State. 

The C case concerned whether accessible and effective procedures existed whereby a  woman could establish her entitlement to a lawful abortion in Ireland .

C had an abortion in England believing that she could not establish her right to an abortion in Ireland. She was in her first trimester of pregnancy at the time.  Prior to that, she had been treated for 3 years with chemotherapy for a rare form of cancer. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the foetus if she were to have chemotherapy during the first trimester.

The cancer went into remission and the applicant unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests for cancer, contraindicated during pregnancy. 

When she discovered she was pregnant, she consulted her General Practitioner as well as several medical consultants. She alleged that, as a result of the chilling effect of the Irish legal framework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the foetus.

She therefore researched the risks on the internet. Given the uncertainty about the risks involved, she  travelled to England for an abortion.

She maintained that she wanted a medical abortion (drugs to induce a miscarriage) as her pregnancy was at an early stage, but that she could not find a clinic which would provide this treatment (in England) as she was a non-resident and because of the need for follow-up.

She therefore alleged she had to wait a further 8 weeks until a surgical abortion was possible. This happened in England , not Ireland.

On returning to Ireland after the abortion, she suffered complications of an incomplete abortion(in England), including prolonged bleeding and infection. She alleges that doctors(in Ireland) provided inadequate medical care. She consulted her own GP several months after the abortion and her GP made no reference to the fact that she was visibly no longer pregnant.

It would appear that it is not a case which, of itself, requires the Oireachtas to enact wide ranging legislation dealing with circumstances, such as a suicide threat, which was not even considered by the Court. The Oireachtas is, however, obliged to clarify the obligations of doctors in medical consultations. 


ECHR‘S GENERAL VIEW OF IRISH LAW ON ABORTION

It is worth adding that the Court found (in para 226) that the restrictions on abortion in Ireland 

“were based on profound moral values concerning the nature of life which were reflected in the stance of the  majority of the Irish people against abortion during the 1983 referendum  and which have not been demonstrated to have relevantly changed since”

The Oireachtas should take particular note of this

WHAT THE OIREACHTAS MIGHT DO NOW

It seems clear that legislation to deal with circumstances analogous to the C case is necessary. This would cover all circumstances where life saving treatment might be indicated, which  might affect the life  of the unborn. Such legislation may involve challenging drafting, but it will not be controversial. Given that the C case arose in 2005, it could be said that this legislation is quite urgent and should not be delayed by more difficult and inherently controversial matters.

The matter of whether to follow the Supreme Court majority, and enact legislation to allow an abortion on the strength of a possible threat of suicide, is something that requires separate consideration and ought not be a basis for delaying action on the C case. Suicide is very difficult to predict. It is rarely due to a single  factor.  The  then Governments Green Paper(para 5.23)  said that a study  that was frequently cited 

“concluded that the prediction of suicide, using standard risk factors, which have been identified in psychiatry was  wrong in  97% of the instances examined”

If that is the case, devising safeguards that are true to the constitution will be  horrendously difficult.  But that will only become fully obvious after the drafting and testing of the legislation is well under way.

It would not be prudent for the Oireachtas to make the legislation to deal  with the C case issues a hostage to this much more difficult and  hazardous exercise.

WHAT WOULD HAPPEN TO THE IRISH PEACE PROCESS IF THE UNITED KINGDOM LEFT THE EUROPEAN UNION?

One sentence in the recent article in the” Economist”, on Britain’s relationship with the EU, really alarmed me,
This was a”senior Labour figure” saying “Whatever our position on Europe, we cannot be seen as an anti referendum party”. If Labour adheres to that line, the UK, including Northern Ireland, could be out of the EU by 2016.
This is because,  in the next British General Election campaign, it would mean that both Labour and the Conservatives would be promising a referendum on whether the UK should leave the EU or not.
The parties are being driven to make this promise by the threat of UKIP to tip the balance in key constituencies. For example if UKIP took  even 5%  of its vote away from the Conservatives, this could send many tens of seats over to Labour, even though, under PR, these UKIP votes would have  transferred back to the Conservatives, when the UKIP candidate came to be eliminated. UKIP voters are primarily concerned about immigration and only secondarily  do they want Britain out of the EU.
The Conservative plan is to try to renegotiate the terms of UK membership and put the terms to a referendum. It looks as if Labour may adopt a similar policy, so as to prevent a leakage of its votes to UKIP.
 
 It is very unlikely that the results of any such renegotiation, whether conducted by  Labour or the Conservatives, will satisfy British popular expectations.  And if that is the case, the UK electorate may choose in a referendum to leave the EU, as a of protest against the perceived failure of their own politicians to negotiate a  good enough “deal” for Britain .
This negotiation is likely to be a disappointment because the expectations in Britain are simply unrealistic. It will not  be a  negotiation  with  bureaucrats in “Brussels”.
 
 The results of any renegotiation for Britain would have to satisfy the Governments of every one of the other 26 states. Britain may want to pay less, but other countries may want it to pay more. Many other EU countries see the very things British negotiators would most like to be rid of, like the working time directive, as  part of what they gained, in return for their opening  up to the Single Market in the first place. Concessions on these issues will, in particular, be anathema to left leaning Governments, of which there are an increasing number, on the continent. Exempting Britain from the CAP, another possible British demand, will get nowhere.
 
British popular opinion has been constantly  led to believe that the  EU is a foreign entity, with which Britain has a sort of treaty,  and not as what it actually is, a Union of which the UK is a  participating member with a vote on every decision. The role of British MEPS, British Ministers, and a British Commissioner in EU decisions is ignored.  All decisions are presented as emanating from an “unelected“ bureaucracy, and the role of “elected” British MEPs and “elected” British  Ministers in the whole process is passed over as if it never happened.
 
In the latest poll, 49%  of UK citizens say they would vote to leave  the EU, and only 32% that they would vote to stay in  a large margin of  17 points.
 If possible results of a renegotiation are hyped up in the next British General election, and if there is lots of talk of “red lines”, the margin could widen even more, if, as I expect, the actual results of the negotiation then prove to be  paltry.
 
 No matter how good the pro EU arguments might be, when the referendum campaign itself   actually starts in earnest, the mountain that might have to be climbed may simply be too high.  Referenda can deliver surprising results, for which no one has planned. Extraneous issues, anger, and complacency, can lead people to vote contrary to their own objective interests. And in the UK case, there is unlikely to be a second referendum.
I am particularly worried about the effect of Britain leaving the EU on the fragile situation in Northern Ireland.
 
 Northern Ireland, and its reversible peace process, is being completely ignored in the debate taking place in Britain on whether to have a renegotiation and referendum on the EU. It is also being ignored in Brussels, where the impatience with the British is palpable, and where there is little disposition to accommodate what are  seen as unreasonable British demands, being put forward when the EU has far more important things on its mind.
Obviously if the UK leaves the EU, it will negotiate a new relationship with the EU. All sides will agree on that. After all 50% of British exports go the euro zone.
 
But what sort of relationship will it be?
 
One of the big drivers of anti EU sentiment in Britain is immigration of EU citizens from central and eastern European countries, like Romania, Bulgaria, and the Baltics. Gordon Brown famously encountered this sentiment during the last British General Election.
 If the UK had left the EU, it would be entirely free to restrict immigration from these particular EU countries. But as a continuing member of the EU, the Republic could not restrict the entry of EU citizens.
 
 So if the UK wanted to prevent these EU citizens entering the UK through the Republic, it would have to introduce passport controls at Newry, Aughnacloy, Strabane and on all other roads by which such immigrants could cross the border from the Republic into the UK.
If the UK is outside the EU, tariffs would have to be collected on UK exports entering the Republic. Average EU tariffs are quite low, but some tariffs, on things like dairy products and clothing are quite high. Customs posts would have to be placed on all roads leading across the border to ensure collection of these tariffs. Smuggling, with all its potential as a funding source for other forms of illegality, would become very profitable again.
 
But the human and political cost in border counties would be the worst aspect of it. Nationalist communities would again feel cut off from the Republic by the inconvenience of passport controls, and the efforts to market Ireland as a single tourist destination set at naught. 
 
Some might say that these fears are exaggerated, because the UK could negotiate a free trade and free movement deal with the EU.
 
 To enjoy continued free access to EU markets for its goods and services, Britain would have to continue to apply EU rules, as now, but WITHOUT having had any say at all in them, something the UK does have as an EU member. This is what Switzerland and Norway have to do. It would also have to continue to contribute to the EU budget, as Norway does. That would be even more annoying to British euro sceptics than the present situation.
Furthermore free movement of people is one of the drivers of anti EU sentiment in Britain, and UKIP voters would be very dissatisfied with any deal that did not give back to Britain itself, the right to decide who could, and could not, work in Britain.
 
I believe the Irish diplomatic service, which had remarkable success in the 1980s in laying the foundations for previous Anglo Irish Agreements, should intensively brief all  British MPs on the possible dangers to the settlement we have achieved  in Northern Ireland , of  setting off a train of events, including a referendum, that could lead  to an unplanned and precipitate exit of Northern Ireland, along with the UK, from the European Union.

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