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Thursday 30 November 2023 Dublin: 3°C Dr Tom Hickey of DCU, one of three legal experts who appeared at today's committee
Dying with dignity

Committee hears whether TDs are legally allowed to pass assisted dying laws in the Dáil

Three constitutional experts appeared before the committee today.

LEGAL ACADEMICS HAVE told an Oireachtas Committee that there is nothing in the constitution that would prevent TDs from passing assisted dying laws in the Dáil.

Members of the Special Committee on Assisted Dying heard from three constitutional experts this morning on whether there are any legal obstacles to the Oireachtas legislating for assisted dying laws.

The committee was set up to examine the Dying with Dignity bill, which if passed would allow medical professionals to assist terminally ill patients to end their own lives.

It began its first public hearings last week and is expected to last nine months, after which it will recommend whether any legislative or policy changes are needed relating to the right to help a person end their own life.

Today, the committee featured three legal experts who explored whether the bill is potentially conflict with Articles 40.3.1 and 40.3.2 of the Constitution, which set out the duty of the State to protect human life.

Dr Tom Hickey, an Assistant Professor of Constitutional law at Dublin City University, told the committee that the constitution is “not a bar or a block” on the Oireachtas from legislating in the public interest.

“If you as a body of legislators form the view that it’s in the public interest to retain the existing blanket ban on assisted suicide, that is something you are constitutionally entitled to do,” he said.

“And for the same constitutional reasons, if you as a body of legislators form the view that it’s in the public interest to loosen the ban, to allow for assisted suicide in certain limited certain circumstances, that is something you are perfectly entitled to do, constitutionally speaking.

Hickey said that even if an individual challenged the constitutionality of the Oireachtas decision in the courts, he believed it would be “very unlikely” that person would win.

He suggested that the Oireachtas would be defended through legal principle of ‘deference’, under which Irish courts recognise the independence of the Oireachtas through certain doctrines which have been set out in a series of rulings.

He cited one such ruling by the High Court from 1939, which established the doctrine called the “presumption of constitutionality”.

“Judge Hanna [who made the ruling] says that the Oireachtas has democratic authority, it has electoral credentials; the judges don’t,” he explained.

“The Oireachtas is made up of members who represent the very different moral views, perpsectives and so on, has the competence to consider everyone’s [perspective], whereas the court only has these litigants.”

He added: “As a constitutional lawyer, what I’m saying to you is that you are the legislators, you are the Oireachtas, you get to make the call on what is in the public interest.”

Dr Andrea Mulligan, assistant professor of law at Trinity College Dublin, also said that assisted dying laws could be passed by politicians without being impeded by the Constitution.

“Is the Oireachtas entitled to legislate for assisted dying? It absolutely is,” she said, citing a landmark Supreme Court ruling from 2013 brought by Marie Fleming. 

The court found that Fleming – a seriously ill woman who had multiple sclerosis (MS) - did not have a right to die under the terms of the Constitution.

In rejecting her argument, the Supreme Court repeatedly referred to Article 15.2 of the Constitution, which states that ”the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas”.

“The case of Fleming and Ireland is crystal clear on the issue on whether or not the Oireachtas has this power [to legislate for assisted dying],” Mulligan said.

And I think the Supreme Court would be surprised to hear Fleming to be described as not being a definitive judgment from the superior courts. It certainly is a definitive judgment from the superior courts.

Dr Conor Casey, a senior lecturer in public Law at the University of Surrey, earlier disagreed with this interpretation of the Fleming judgment.

He claimed that the Supreme Court’s ruling had not resolved whether the Oireachtas could legislate for assisted dying.

He suggested that the court did not provide “explicit judicial endorsement of the proposition the Oireachtas has competence to legislate in this area of social policy”.

However, asked to clarify his position later by Fine Gael TD Emer Higgins, Casey said it was simply his belief that the Supreme Court did not decide either way – rather than saying the Oireachtas could not legislate for assisted dying laws.

“If the Oireachtas were to legislate, I would emphatically agree with my colleagues [Hickey and Mulligan] that the presumption of constitutionality would attach,” he said.

And not only that, in Fleming the court reminds us that in constitutional challenges, the burden of displacing the presumption of constitutionality is on the challenger.

Use of language

The committee also heard from members about the importance of language in relation to assisted dying.

Two members of the committee were critical of Casey for his use of the word “killing” eight times in the opening statement he supplied.

Fine Gael Senator Mary Seery Kearney urged Casey to be more considerate in his use of language and called for his opening statement to be edited before it was made publicly available at the conclusion of the committee.

People Before Profit TD Gino Kenny said he found the terminology used by Casey “deeply distasteful”.

“It is wholly inappropriate to use that terminology in relation to this issue, and I think you should refrain from using that terminology,” he said. 

In response, Casey said he agreed with the need to be precise with language and added he did not intend to be inflammatory with his remarks.

“I was trying to use the most anodyne language possible: [saying] ‘intentional taking of life’, rather than using the language of the Supreme Court itself,” he said.

However, Independent Senator Ronan Mullen later defended Casey’s use of language.

“Having read [the opening submissions], I didn’t spot any language that raised my eyebrows,” he said.

“And though I greatly esteem my friends, Senator Mary Seery Kearney and Deputy Gino Kenny, I would say that there is one thing I am devoted to and that is the concept of academic freedom.

“And there is one thing that I am very allergic to and that I am talking about a lot at the moment, and that is cancel culture.

“I personally won’t stand for unnecessary marking of people’s language where they are seeking to make explicit clearly held analysis on these issues [...] Let there be no cancel culture at this committee, I would appeal to people.”

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