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Supreme Court Constitution - Personal rights - Right to life of unborn child - Right to life of mother - Freedom to obtain and make available information relating to services lawfully available in another state - Whether such freedom extending to information relating to identity and location and method of communication with specified clinics for termination of pregnancies - Purpose of Fourteenth Amendment to Constitution -Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. Constitution - Personal rights - Right to life of unborn child - Right to life of mother - Freedom to obtain and make available information relating to services lawfully available in another state - Freedom subject to regulation by law - Test to be applied where Oireachtas engaged in balancing of rights - Whether courts confined to considering whether balancing by Oireachtas was fair and reasonable - Whether balance fair and reasonable - Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. Constitution - Natural law - Whether Constitution supreme law of State -Whether the People incapable of exercising power of amendment of Constitution in a manner incompatible with natural law and existing provisions of Constitution - Constitution of Ireland, 1937. Constitution - Personal rights - Right to life of unborn child - Right to life of mother - Freedom to obtain and make available information relating to services lawfully available in another state - Whether prohibition on doctor making appointment for pregnant woman with foreign clinic for termination of pregnancy an unjust attack on rights of pregnant woman - Whether doctor prohibited from giving full medical information on likely effect of pregnancy on pregnant woman's health and life -Whether provisions of Bill so unclear as to constitute unjust attack on rights of woman - Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. Constitution - Personal rights - Right to life of unborn child - Right to life of mother - Freedom to obtain and make available information relating to services lawfully available in another state - Whether absence of requirement to inform parents that minor had sought information as to termination of pregnancy an unjust attack on rights of such parents - Whether absence of requirement to inform husband that wife had sought information as to termination of pregnancy an unjust attack on rights of husband - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. Article 40, s. 3, sub-s. 3 of the Constitution of Ireland, 1937, as inserted by the Eighth Amendment thereto, originally provided:— "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The Fourteenth Amendment added the following provision to sub-section 3:— "This sub-section shall not limit freedom to obtain or make available in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State." Section 1 of the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995, provided that "termination of pregnancies" means "intentional procurement of miscarriages of women who are pregnant." Section 2 limited the application of the Bill to information (known as "Act information") that:— "(a) is likely to be required by a woman for the purpose of availing herself of services provided outside the State for the termination of pregnancies, and (b) relates to such services or to persons who provide them." Section 3 of the Bill dealt with the giving of Act information to the general public (as opposed to an individual woman) by means including newspapers, books, magazines, broadcasts and public meetings, other than the means specified in section 4. The provision of Act information by the means specified in s. 3 was unlawful unless "the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of, the termination of pregnancy." Further, if the Act information related to services provided in a particular place or to persons providing them in a particular place, such information must, in addition, relate only to services lawfully available in that place and to persons who, in providing such services, are acting lawfully in that place; and the information and the method and manner of its publication must be in compliance with the law of that place. Section 4 of the Bill made it unlawful to display in public any notices, or to distribute without solicitation any publication, containing Act information. Section 5 regulated the dissemination of Act information to pregnant women. By s. 1, sub-s. 1 of the Bill, "a person to whom s. 5 applies" was a person engaging in, or holding themselves out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy. Section 5 provided that when a person to whom the section applied might be requested by or on behalf of a pregnant woman to give information, advice or counselling, it should not be lawful for such person to advocate or promote the termination of pregnancy. Further such person might only give Act information in compliance with the provisions of s. 3; in a manner which did not advocate or promote the termination of pregnancy; and if, at the same time, the woman was advised in a truthful and objective manner as to all courses of action other than termination of pregnancy which were open to her. Section 6 prohibited the giving of Act information where the information provider has an interest in a pregnancy termination service, or the service has an interest in the provider, or a third party has an interest in both. Section 7 prohibited other forms of financial benefit to the givers of Act information, such as payments by pregnancy termination services, charges specifically for Section 8 prohibited a person to whom s. 5 applies from making an arrangement with a pregnancy termination service for or on behalf of a woman; however, it did not preclude the giving to the woman herself of copies of any medical or other records or notes which might be relevant to her care. Section 9 provided for the issuing of search warrants and the seizure of items found pursuant to such search for the purposes of evidence. Obstructing such search was made an offence. However items such as medical records might not be seized. Section 10 provides that the contravention of the earlier sections should be offences, carrying, on summary conviction, a fine not exceeding £1,500. Prosecutions might only be brought by or with the consent of the Director of Public Prosecutions. Having been passed by both Houses of the Oireachtas, the Bill was referred to the Supreme Court by the President, pursuant to Article 26 of the Constitution. Held by the Supreme Court (Hamilton C.J., O'Flaherty, Egan, Blayney and Denham JJ.), in deciding that the Bill was not repugnant to the provisions of the Constitution, 1, that both the Bill and the Fourteenth Amendment were concerned with the right to obtain or make available information; they did not purport to make lawful any act directly affecting the life of the unborn which would not have been lawful prior to the passing of the Fourteenth Amendment; they did not deal with the use which might be made of the information obtained thereunder; and they did not address the circumstances in which abortion might be legal inside or outside the jurisdiction. That the type of information likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies included information with regard to the identity and location of and method of communication with a specified clinic or clinics for the purpose of termination of pregnancies. That where there was a real and substantial risk to the life, as distinct from the health, of the mother, and that risk could only be avoided by the termination of the pregnancy, then such termination was not unlawful having regard to the provisions of the Constitution. The Attorney General v. X. [1992] 1 I.R. 1 applied. That prior to the enactment of the Fourteenth Amendment, if the purpose of travel or of securing information had been to procure an unlawful abortion, then such travel or procurement would have been unlawful; but that if the purpose had been the procurement of a permitted or lawful abortion then neither the travel nor the giving or obtaining of information with regard thereto would have been unlawful. Judgment of Egan J. in The Attorney General v. X [1992] 1 I.R. 1 approved. That the purpose of the Fourteenth Amendment had been to remove the inhibition placed on the granting of information with regard to services lawfully available in another State relating to the termination of pregnancies, by the decisions of the Supreme Court based on the provisions of Article 40, s. 3, sub-s. 3 of the Constitution; and that the provisions of the Fourteenth Amendment related to and included information relating to medical termination of pregnancy, performed in accordance with the law of the State in which it was carried out. Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan (Case C-159//90) [1991] 1 E.C.R. 4685 considered. That it could not be contended that the type of information permitted by the Fourteenth Amendment was limited to information of a general nature about information; rather "information relating to services lawfully available in another State" included information with regard to the nature of the services, where and by whom they were provided and all inforMation in relation thereto, including the identity, location and method of communication with specified clinics or a specified clinic where such services were available. That the Constitution was the fundamental and supreme law of the State, representing as it did the will of the People: the Court could not accept the argument that "the natural law" was the fundamental law of the State and was antecedent and superior to all positive law including the Constitution, or that it was impermissible for the People to exercise the power of amendment of the Constitution unless such amendment was compatible with the natural law and existing provisions of the Constitution, or that if the People purported to do so such amendment was of no effect, in that:— (a) Article 5, Article 6, Article 15, s. 4, Article 26, s. 1 and s. 3 sub-s. 1 clearly illustrated the supremacy of the Constitution; (b) Article 28, s. 2, Article 34, s. 1 and Article 35, s. 2 and the judicial oath established that all the organs of the State were subject to the Constitution and the law; (c) from a consideration of all the cases which had recognised the existence of a personal right not specifically enumerated in the Constitution, it was manifest that the Court in each such case had satisfied itself that such personal right was one which could be reasonably implied from, and was guaranteed by, the provisions of the Constitution, interpreted in accordance with the ideas of prudence, justice and charity; and that the courts had at no stage recognised the provisions of natural law as superior to the constitution. Byrne v. Ireland [1972] I.R. 241, McGee v. The Attorney General [1974] I.R. 284, Ryan v. The Attorney General [1965] I.R. 294, The State (Healy) v. Donoghue [1976] I.R. 325 considered. That in The Attorney General v. X the proper principles had been applied to the interpretation of the relevant provisions of the Constitution and the determination of the issues raised therein. The Attorney General v. X. [1992] 1 I.R. 1 affirmed. That in passing the Bill the Oireachtas had been engaged in the balancing of constitutional rights and duties, including the right to life of the unborn, the right to life of the mother, the right to information and other constitutional rights. That where the Oireachtas had been engaged in so balancing constitutional rights, the approach to be taken by the Court, whether on a constitutional challenge to a statute or on a reference pursuant to Article 26, was not to impose its view of the correct or desirable balance in substitution for that of the legislature, but rather to determine from an objective stance whether the provisions in question represented a fair and reasonable balancing by the Oireachtas of the various conflicting rights, and were not so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights. Tuohy v. Courtney [1994] 3 I.R. 1 applied. That the prohibition on the advocacy of the termination of pregnancy, the prohibition on a doctor to whom s. 5 applied from making an arrangement of the type therein contemplated and the prohibition in s. 7 on financial benefits to providers of Act information did not constitute an unjust attack on the rights of the pregnant woman in that: (a) although such doctor was prohibited from making such an arrangement, such doctor was not precluded, once such arrangement had been made, from communicating in the normal way with the person providing the service with regard to the condition of his patient, provided that such communication did not advocate or promote the termination of pregnancy; (b) while such doctor was precluded from advocating or promoting the termination of pregnancy, he was not in any way precluded from giving full information to a woman about her state of health, the effect of the pregnancy thereon and the consequences to her health and life if the pregnancy continued, and then leaving to the woman the decision whether in all the circumstances the pregnancy should be terminated; (c) s. 8, sub-s. 2 explicitly provided that there was no prohibition on the giving to a woman of her medical, surgical, clinical, social or other like records; (d) the provisions of s. 7 were quite clear and it could not be said that they were so difficult to understand as to make the giving of Act information almost impossible for fear of breaking the law; (e) there was no substance in the contention that s. 7 would create problems for women with medical insurance or in regard to medical fees. That constitutional justice required that in the giving of information, counselling and advice, regard be had to the rights of persons likely to be affected by such information, counselling and advice; that the effect of the presumption of constitutionality (to which the Bill was entitled) was that it must be presumed that information, counselling and advice would be given in accordance with constitutional justice and that any departure therefrom would be restrained by the courts; and that having regard to the presumption of constitutionality, the fact that the Bill did not contain any provision requiring notification to parents of minors who sought Act information or to husbands whose wives sought Act information, did not render it unconstitutional for failing to respect and vindicate the constitutional rights of parents or husbands. East Donegal Co-operative v. The Attorney General [1970] I.R. 317 and The Adoption (No. 2) Bill, 1987[1989] I.R. 656 applied. That the restrictions on the giving of information to the public contained in ss. 3 and 4 represented a fair and reasonable balancing by the Oireachtas of the conflicting rights arising, and was not so contrary to reason and fairness as to constitute an unjust attack on the rights of the unborn or of any other person. That the question of the determination of the appropriate penalty for the commission of an offence created by statute was a matter for the Oireachtas, and the adequacy or otherwise of such penalty could not be regarded by the Court as a ground for holding that the provision creating the offence and providing the penalty therefor was repugnant to the Constitution; and that accordingly the Court could not accept a fine not exceeding £1,500 for contravening the provisions of the Bill was so inadequate as to amount to a failure by the Oireachtas to respect, and as far as practicable to defend and vindicate the right to life of the unborn. That even if it were accepted that the definition in the Bill of "termination of pregnancies" did not cover all methods currently in regular use for the termination of pregnancies, this would not affect the constitutionality of the Bill but would amount at most to a possible defect in the Bill, something which did not come within the ambit of what the Court had to consider. Cases mentioned in this report:— The Criminal Law Jurisdiction Bill, 1975 [1977] I.R. 129; (1976) 110 I.L.T.R. 29. The Electoral (Amendment) Bill, 1983 [1984] I.R. 268; [1984] I.L.R.M. 539. The Housing (Private Rented Dwellings) Bill, 1981 [1983] I.R. 181; [1983] I.L.R.M. 246. The Matrimonial Home Bill, 1993 [1994] 1 I.R. 305; [1994] I.L.R.M. 241. The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. The Attorney General v. X. Buckley and Others (Sinn Féin) v. The Attorney General [1950] I.R. 67. Byrne v. Ireland [1972] I.R. 24. Cox v. Ireland [1992] 2 I.R. 503. Dillane v. Ireland [1980] I.L.R.M. 167. East Donegal Co-operative Livestock Marts Ltd. v. The Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81. Educational Company of Ireland v. Fitzpatrick (No. 2) [1961] I.R. 345; (1961) 97 I.L.T.R. 16. Finn v. The Attorney General [1983] I.R. 154. Gillick v. West Norfolk Area Health Authority [1986] A.C. 112; [1985] 3 W.L.R. 830; [1985] 3 All E.R. 402. McGee v. The Attorney General [1974] I.R. 284; (1973) 109 I.L.T.R. 29. Metropolitan Properties Ltd v. O'Brien (Unreported, Supreme Court, 3rd April, 1995). Norris v. The Attorney General [1984] I.R. 36 Northampton County Council v. ABF [1982] I.L.R.M. 164. The People (Director of Public Prosecutions) v. John Murphy & Sons Ltd. Paton v. The British Pregnancy Advisory Service Trustees [1979] 1 Q.B. 276; [1978] 3 W.L.R. 687; [1978] 2 All E.R. 987. Dudley and Stephens (1884) 14 Q.B.D. 273. Royal College of Nursing v. Ryan v. The Attorney General [1965] I.R. 294. The Society for the Protection of Unborn Children (Ireland) Ltd. v. The Society for the Protection of Unborn Children (Ireland) Ltd. v. Slattery v. An Taoiseach [1993] 1 I.R. 286. The State (Byrne) v. The State (Burke) v. The State (Healy) v. The State (Richardson) v. The Governor of Mountjoy Prison [1980] I.L.R.M. The State (Ryan) v. Tuohy v. Courtney [1994] 3 I.R. 1; [1994] 2 I.L.R.M. 503 Reference pursuant to Article 26 of the Constitution. The Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995, was passed by the Oireachtas on the 14th March, 1995. On the 18th March, 1995, the President of Ireland referred the Bill to the Supreme Court pursuant to the provisions of Article 26, s. 1, sub-s. 1 of the Constitution of Ireland, 1937, for a decision as to whether the provisions of the Bill, or any of them, were repugnant to the provisions of the Constitution or any provision thereof. The relevant sections of the Bill and of the Constitution are set out in full in the judgment of the Court,infra. On the 4th, 5th, 6th and 7th April, 1995, the Supreme Court (Hamilton C.J., O'Flaherty, Egan, Blayney and Denham JJ.) heard argument from counsel assigned by the Court to oppose the Bill on the basis of the right to life of the unborn, counsel assigned to oppose the Bill on the basis of the right to life of the mother; and from the Attorney General. Peter Kelly S.C. (with him Ralph Sutton S.C. and Mary Irvine ) counsel assigned by the Court to argue based on the right to life of the unborn: Abortion is a choice for death, but there is no choice for the person who will thereby die, namely the unborn. This State has a Christian Constitution — accordingly its laws should protect innocent human life at its most defence-less. The natural law is the bedrock of our Constitution. This Bill violates that law by permitting information which knowingly assists abortion; it is also unconstitutional in that the definition of "woman", by failing to distinguish between adults and minors, fails to protect the rights of minors, parents and guardians; further, the rights of the lawfully married father of an unborn child are violated — the information which will be used to destroy the unborn life can be dispensed without notice to the father. In the words of Hamilton P. in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. , "The judicial organ of government is obliged to lend its support to the enforcement of the right to life of the unborn, to defend and vindicate that right and, if there is a threat to that right from whatever source, to protect and vindicate that right from such threat, if its support is sought." In that case, Hamilton P. concluded that the right to life of the unborn was not created by law or by the Constitution, but that the Constitution merely confirmed or acknowledged the existence of that right and gave it protection. He took the view that the right was in the first instance a matter of natural right. Hamilton C.J.: That case did not purport to consider the equal right to life of the mother. Peter Kelly S. C: The superior role of the natural law is acknowledged by the Constitution — see Article 6, Article 34, s. 5, Article 40, Article 41 and Article 43. Hamilton C. J: Is not the role of this Court, on a reference pursuant to Article 26, expressly confined to a consideration of whether the Bill, or any part of it, is repugnant to any of the provisions of the Constitution? Peter Kelly S.C.: The point is that natural law is the ultimate governor of all the laws of men — see the judgment of Walsh J. in McGee v. The Attorney General. See also Norris v. The Attorney General ; Murray v. Ireland and Northampton County Council v. ABF. See also Henchy, (1962) 25 M.L.R. 544. For as long as the present constitution remains in force, Hamilton C. J: Is not that view inconsistent with The Attorney General v. Did not that case examine the whole issue very carefully and conclude that in certain circumstances the right to life of the mother may prevail over the right to life of the unborn? Peter Kelly S. C: That case is of very little binding authority. First it was decided without any argument as to natural law. Secondly, it was decided on the basis of an unwarranted concession by the Attorney General that the Eighth Amendment envisaged a lawful abortion taking place in Ireland. Thirdly, no medical evidence was adduced, let alone tested. The Medical Council is the statutory regulator of the practice of medicine in this country, and it subsequently made clear that there are no medical grounds which require that an abortion be performed. In particular the concession made by the Attorney General was inconsistent with the equal right to life of mother and child. It failed to recognise the distinction between a direct attack on life and medical treatment of the mother which indirectly results in death as an unsought side effect. This distinction is at the root of medical treatment of mothers during pregnancy. On the issue of the fundamental nature of natural law, see The State (Ryan) v. Lennon at p. 236; the judgment of Kenny J. in Ryan v. The Attorney General ; McGee v. The Attorney General ; Norris v. The Attorney General ; Murray v. Ireland ; Cicero, and Costello, "Natural Law, The Constitution and The Courts." Hamilton C. J: Is it your contention that the provisions of the Fourteenth Amendment are of no effect? Or that there can be no reliance on the constitutional guarantee of the right to life, but only on the natural law right which you say underlies it? Peter Kelly S. C: In order to interpret the constitutional guarantee you must look at its basis. As to what that basis is, see R. v. Dudley and Stephens . Egan J: How are lawyers to know what is the natural law? Peter Kelly S. C: By reason. See Costello, "Natural Law, The Constitution and The Courts"; the works of Professor Charles Rice; G v. An Bord Uchtála . The right to life of the unborn was protected by the Constitution prior to the Eighth Amendment. Hamilton C.J. So the Eighth Amendment was unnecessary? Peter Kelly S. C: It wrote the right into the Constitution and ensured that the mother would not be deprived of medical treatment. But it did not confer any right to take human life. Hamilton C. J: Is not the Court, on a reference pursuant to Article 26, confined to the provisions of the Constitution? Is not Article 40, s. 3, sub-s. 3, after the Fourteenth Amendment, quite explicit about the type of information which is permissible? Peter Kelly S. C: The Court is obliged to take into account the natural law. The vox populi cannot be the decisive arbiter of what is right and wrong. [He introduced reports of the Council of Europe and the United Nations]. The Attorney General: I object to the way in which this evidence is being introduced. Hamilton C. J: The Court will allow it. Peter Kelly S. C: The position in the United Kingdom is set out in Royal College of Nursing v. The D.H.S.S. say that the giving of names and addresses is impermissible in this jurisdiction and only information of a general nature is permissible: the provisions of the Constitution must be interpreted harmoniously. Ralph Sutton S.C. following: The very title of the Bill offends against Article 40, s. 3, sub-section 3. The Bill professes to treat as legal the provision of information of a kind and in contexts which render it a form of assistance in the destruction of the unborn life. Turning to s. 1, the definition of "woman" is not restricted so as to exclude minors — therefore Act information can be given to a minor without any reference to her parents or guardians. The definition of "person to whom s. 5 applies" is also unconstitutional, because it has the effect of excluding from any legislative control a person The definition of "termination of pregnancies" is also unconstitutional, because it removes from the control of the Bill means of intentionally terminating the life of the unborn other than miscarriage. Section 2 is based on the incorrect premise that there is a constitutional right to have an abortion abroad. Admittedly one cannot be restrained from travelling abroad to have an abortion, but there is no right to do so. Information about abortion clinics abroad facilitates the destruction of human life, and is not made pursuant to any right. Section 5 purports to treat abortion as "one of the courses of action that are open" to a pregnant woman. That is impermissible. As Walsh J. stated in S.P.U.C. v. Grogan , a pregnant woman has an obligation "not to endanger or to submit to or bring about the destruction of" an unborn life. Section 8 purports to remove from the prohibition on making appointments a person to whom s. 5 does not apply. The effect of this is that there is no prohibition on a medical officer or health officer of a large organisation making appointments for female members or employees, since they are not members of the public. The penalties imposed by s. 10 for contravention of the provisions of the Bill are so inadequate as to amount to a failure to protect, and so far as practicable, to defend and vindicate, the right to life of the unborn. The penalties are not much different from those imposed for contravening the Control of Dogs Act, 1992. Returning to the definition of "woman" and the absence of any obligation, on a person who provides Act information to a minor, to also inform her parents or guardians, this is a violation of the rights of the parents or guardians; it is also an attack on the family, contrary to Article 41. See the Court of Appeal decision and the decision of Lord Templeman in Gillick v. West Norfolk Area Health Authority ; and P.H. v. John Murphy & Sons Ltd. Further, the absence of an obligation to inform a husband that Act information has been supplied to his wife is a violation of his rights. Frank Clarke S.C. (with him Inge Clissman S.C. and Fidelma Macken ), counsel assigned by the Court to argue on the basis of the right to life of the mother: These proceedings are not another round of the argument as to the It is submitted that the Bill amounts to an impermissible infringement of the rights of mothers for whom a termination of pregnancy is necessary if due regard is to be given to their right to life; and that certain sections of the Bill are an unreasonable interference with the rights of women in general. The arguments addressed to the Court about the supremacy of natural law are not well founded; nor are the criticisms of the decision in The Attorney General v. It is not necessary, for the purposes of this case, to attempt to enumerate those cases in which there is a real and substantial risk to the life as opposed to the health of the pregnant mother; but it must be assumed that such cases do exist, see The Attorney General v. X. It is clear from the decision of the Court in that case that in such circumstances a mother has a right to the termination of the pregnancy, under the collective provisions of the Constitution. Hamilton C. J: You say that the entitlement to a termination in those circumstances means there is a right to a termination? Frank Clarke S. C: Yes. Further, it is reasonable to assume that there may be cases where the mother may wish to travel abroad to terminate the pregnancy, rather than to do so in this jurisdiction, given the uncertainty of the law and medical ethics on this point, and a desire to avoid the controversy which having the termination in this jurisdiction would undoubtedly entail. In other words, the right to avail of a termination may properly be exercised outside the jurisdiction; and it follows that to place unjustifiable barriers in the way of the exercise of the right amounts to an excessive and impermissible interference with the right itself. This, however, is what the Bill purports to do. Where there is a real and substantial risk to the life of the mother, and where a person to whom s. 5 applies indicates to the mother that the best, or perhaps the only, course available to safeguard her life, such person is advocating a termination of pregnancy. But s. 5 purports to prohibit this. This is an excessive and impermissible interference with the right to life of the mother — she cannot be told what the best, or perhaps the only, course available to safeguard her life is. Under s. 8, the person to whom s. 5 applies cannot make an appointment for or on behalf of the woman (to whose life there is a real and substantial Section 6 appears to cover all circumstances where a person or body has an interest in both the s. 5 person and the foreign clinic. It is accepted that the prohibition is a pol icy matter properly within the competence of the Oireachtas. But it is submitted that in the light of s. 6, the provisions of s. 7, sub-s. 1 go much too far and may seriously interfere with the freedom of an "X case woman" to obtain the information she requires. It is important to note that the restriction in s. 7 is not confined to circumstances arising from a connection between the giving of information within the jurisdiction and the carrying out of a termination outside the jurisdiction. (Indeed in view of the restriction imposed by s. 8 on the making of arrangements between a person to whom s. 5 applies and a foreign clinic, it is difficult to see how such a connection could be a condition for the prohibition in section 7). The effect of s. 7, sub-s. 1 is that any Irish person or body engaged in pregnancy counselling is precluded from receiving any benefit, direct or indirect, from any foreign body engaged in the provision of termination of pregnancy, or which has an interest in a body so engaged. Thus a person to whom s. 5 applies is precluded from receiving a benefit (not connected with the termination of a pregnancy) from a UK Health Board, or a UK insurance company which has an interest in a hospital where terminations of pregnancies are performed. Hamilton C. J: To what provision of the Constitution is this repugnant, assuming that your interpretation is correct? Frank Clarke S. C: The point is that s. 7, sub-s. 1 is so unclear as to render it virtually impossible for a person to whom s. 5 applies to dispense Act information, for fear of breaking the law. This barrier on information is an impermissible interference with the right of "an X case woman" to avail of her right to a termination of pregnancy outside the jurisdiction: she cannot get the information she requires. A further issue which arises is the question of European law. Hamilton C. J: The Court takes the view that European law is not relevant on a reference pursuant to Article 26. Frank Clarke S. C: It is proposed to address the Court on the position which might arise where different members of the Court find different grounds on which the Bill is unconstitutional. Hamilton C. J: That is a matter for the Court to decide. Inge Clissman S.C. following: I propose to address the impact of the Bill on the rights of women generally. There are cogent reasons for the Court to review the basis of its decision in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. At the time that case was decided, Article 40, s. 3, sub-s. 3 had not been amended. In the light of the Thirteenth and Fourteenth Amendments, the principle of harmonious interpretation of the Constitution, enunciated in Dillane v. Ireland , now requires that the Constitution be interpreted as granting to all women a right to information concerning services lawfully available outside the State. The question, therefore, is not what limited information ought to be made available (an approach which the Bill appears to propose), but rather what conditions the legislature may lawfully impose on the otherwise unrestricted availability of information. It is difficult to consider the impact of the Bill on the health of women generally in a reference pursuant to Article 26. If this was a hearing commenced by plenary summons, it would have been the view of counsel on this side that evidence would have to be called with regard to the importance and value of a referral letter. Such a letter comprises the advice and professional assessment of the doctor treating a patient and covers any complication that the referring doctor feels might occur, any relevant previous history; and advice as to the management of her condition. Simply furnishing medical records may be insufficient, and evidence could be called to establish that. [She referred to the book of submissions presented to the Court.] Ralph Sutton S. C: What are the sources for this information? The Attorney General: There must be liberty to hypothesize part of the way. Hamilton C. J: The Court will allow it for the sake of the argument being proposed — it is not being tendered in evidence. Inge Clissman S. C: The Housing (Private Rented Dwellings) Bill, 1983 ,the Court reserved a decision on the point as to whether evidence could be taken on an Article 26 reference. It is submitted that, in the absence of evidence, the Court must assume the truth of what is being proposed in this regard. Section 8, sub-s. 2 permits the supply to a woman of her medical records. This does not go far enough to protect her health or life. To prohibit the sending of a letter of referral (which is what s. 8, sub-s. 1 does) is not only an unwarranted interference in the proper carrying out of professional medicine, but could in many cases result in a threat to the life or health of a woman. The concept of proportionality is relevant here — see Cox v. Ireland. Once a woman has made the decision to go abroad for a termination of pregnancy (which the Thirteenth Amendment allows her to do), the interference perpetrated by the Bill in the relationship between the woman, her doctor and the foreign doctor can only be detrimental to her health, and possibly her life, while at the same time doing nothing to protect the unborn. Hamilton C. J: Is not the restriction only on the making of appointments or arrangements? Inge Clissman S. C: The Bill is vague in the extreme about what the Irish doctor can or cannot do by way of contact with the foreign doctor; this uncertainty represents an impermissible interference with the right to health of the mother. The Attorney General (with him Peter Shanley S.C. , Donal O'Donnell , Gerard Hogan and Bláthna Ruane ): The Bill represents a constitutionally permissible attempt by the Oireachtas to balance competing rights. Such balancing is primarily for the Oireachtas — see Murphy v. Greene ; Ryan v. The Attorney General and Tuohy v. Courtney. The Court must look to the problem which the Fourteenth Amendment sought to resolve — see Metropolitan Properties Ltd. v. O'Brien. The Amendment was held on the issue of whether detailed information as to names and addresses could be supplied; in other words, to alter Article 40, s. 3, sub-s. 3 in the light of the interpretation which had been put on it by the Court in earlier cases. O'Flaherty J: It seems a giant step to say that the People, by the Fourteenth Amendment sought to reverse all the previous decisions of this Court. The Attorney General: The Amendment was surely designed to achieve something; it is submitted that it was clearly designed to amend the provisions of Article 40, s. 3, sub-s. 3 as it then read, and as it had been interpreted prior to the Thirteenth and Fourteenth Amendments. It is important to stress that the "entitlement" to a termination of pregnancy In The Attorney General v. X. it was not characterised by any of the judges as a "right", but rather as a permission. Any contention that the Constitution requires, mandates or encourages a decision to have a termination is surely mistaken. As to the position of natural law with regard to the Constitution, it is submitted that natural law cannot prevent the amendment of the Constitution in whatever way the People may desire — see The State (Burke) v. Lennon ; Slattery v. An Taoiseach and Finn v. The Attorney General. Hamilton C. J: Is there no limit to the sovereignty of the People? The Attorney General: I do not believe there is; the natural law cannot invalidate the Constitution. Egan J: Is natural justice the same thing as the natural law? The Attorney General: I do not believe so. Turning to consider the structure of the Bill, it makes a very sharp distinction between information in relation to services for the termination of pregnancy available outside the State on the one hand, and on the other the promotion or advocacy of termination or a referral. Truth and objectivity are the important factors — there is no prohibition on the giving of full information, provided that all the other options are presented, and the information is not accompanied by the advocacy of termination. In this way, the Oireachtas has reconciled the competing rights. In assessing the constitutionality of the Bill any consideration of the right of the mother must be accompanied by a consideration of a right of the unborn, and vice versa. The Constitution requires that both be considered, and it is for their failure to consider both that the submissions against the Bill must be rejected. Blayney J: What do you say to Mr. Kelly's submission that the provision of names and addresses constitutes promotion? The Attorney General: The provision of factual information is permitted by the Fourteenth Amendment and does not constitute promotion; what the Bill does is to say that the provision of factual information must not be accompanied by advocacy or promotion. Hamilton C. J: But even if one assumes that the information is factual, is not the very act of providing it assisting in the destruction of the life of the unborn? Is it not the first step? The Attorney General: If one looks for the "first step" that must surely be the very fact of informing someone about abortion. It must be remembered that we are talking about a constitutional entitlement to give or receive this information. The Bill is about regulating this entitlement; the Bill cannot take the entitlement way. The entitlement is not confined to women in the "X category". Hamilton C. J: Can a doctor who feels a woman will die unless there is a termination advise a termination? And if not, is that an adequate vindication of her right to life? The Attorney General: The doctor cannot advise that the woman have a termination, but he can say that she will die without a termination. That is the point at which the Oireachtas has drawn the line, the line between information and advocacy. A line must be drawn at some point, because the rights of the unborn must be considered. Hamilton C. J: So the woman must be denied the advantage of medical advice in favour of abortion? She must decide for herself? The Attorney General: Yes. Truthful and objective information may be given to her, but the decision to utilise Act information is for the woman herself. Peter Shanley S.C. following: The submissions asserting the supremacy of natural law are a fundamental attack on the sovereignty of the People and the jurisdiction of this Court. On an Article 26 reference, the Court is restricted to considering the provisions of the Constitution. The submission that The Attorney General v. X failed to consider the natural law is misconceived. The natural law concept that the taking of innocent life cannot be justified had no application in the circumstances. A foetus which threatens the life of the mother is not "innocent" in the natural law sense of "innocence" or "not harmful". See the works of Thomas Aquinas, and the theological doctrine of double effect. Hamilton C. J: Does the Bill purport to deal with the position where a termination is permissible within this jurisdiction under the terms of The Attorney General v. X. Peter Shanley S. C: Not once she has made the decision to have the abortion here. Turning to the argument that the "woman" as defined includes a minor, a woman does not have to be an adult to become pregnant. Is it right that parents should always be able to prevent a girl from going to a doctor to obtain information? The Bill does not purport to change the pre-existing situation in any way. Blayney J: The Fourteenth Amendment empowers the Oireachtas to impose conditions on the dissemination of information — how are the rights of parents vindicated in the absence of an obligation to inform the parents of a minor? Peter Shanley S. C: The person to whom s. 5 applies is only disseminating information; the freedom of minors to obtain information is not restricted by the Fourteenth Amendment. Whether parents or guardians are fully performing their obligations is a matter of fact and is not to be assumed - see Hewer v. Bryant. There is nothing in the Bill which infringes Article 41. See also Gillick v. West Norfolk Area Health Authority. It is not claimed that the Bill represents the only constitutionally permissible legislative scheme; but given the inter-dependency of the rights of the mother and the unborn, and the terms of the Eighth, Thirteenth and Fourteenth Amendments, it is submitted that any alternative legislative scheme could not depart significantly from the scheme of the Bill. Inge Clissman S.C. in reply. Ralph Sutton S.C. in reply. Cur. adv. vult. Pursuant to the provisions of Article 26, s. 2, sub-s. 2 of the Constitution, the decision of the Court was pronounced by a single member. This is the decision of the Supreme Court on the reference to it by the President of the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995, (hereinafter referred to as the Bill) pronounced pursuant to Article 26, s. 2, sub-s. 1 of the Constitution of Ireland, 1937. The Reference By order given under her hand and seal on the 18th March, 1995, the President, Mary Robinson, in pursuance of the provisions of Article 26 of the Constitution, after consultation with the Council of State, referred the Bill to the Supreme Court for a decision on the question as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof. The long title of the Bill states that it is:— "An Act to prescribe the conditions subject to which certain information relating to services lawfully available outside the State for the termination of pregnancies and to persons who provide such services may be given to individual women or the general public, to amend the Indecent Advertisements Act, 1889, and the Censorship of Publications Acts, 1929 to 1967, and to provide for related matters." Proceedings on the Reference Having regard to the nature of the Bill and to the possibility of the challenge to its constitutionality being based on diametrically opposed viewpoints, namely, those based on or with particular reference to the right to life of the unborn and those based on or with particular reference to the right to life of the mother, and the Court's duty in testing the provisions thereof to examine it in as wide a manner as possible, the Court considered Prior to the oral hearing, counsel assigned by the Court in pursuance of Article 26 of the Constitution presented in writing heads of the argument intended to be made by them and submissions of law in support of such argument. These were replied to in writing by and on behalf of the Attorney General together with submissions of law on his behalf. The oral hearing then took place before the Court on the 4th, 5th, 6th and 7th April 1995. Summary of main provisions of the Bill At this stage it is desirable to emphasise that both the Fourteenth Amendment to the Constitution and the Bill are concerned solely with the freedom to obtain or make available information. They do not purport to make lawful any act directly affecting the life of the unborn which would not have been lawful prior to the passing of the Fourteenth Amendment. They are exclusively concerned with the question of information and do not deal with the use which may be made of the information obtained. It does not address circumstances in which abortion may be legal either in this jurisdiction or outside the State. The main provisions of the Bill may be summarised as follows:— (1) The Bill applies to information, likely to be required by a woman for the purpose of availing herself of services provided outside the State for the termination of pregnancies, being information which relates to such services and to the persons who provide them — such information being defined in the Bill as "Act information". (2) Section 3 of the Bill provides that it shall not be unlawful to publish or procure the publication of, in any of the ways set out below, Act information relating to services which are lawfully available in a particular place or to persons providing them in a particular place (i) if the information relates only to services which are lawfully available in that place, and to persons, who, in providing them are acting lawfully in that place; (ii) the information and the method and manner of its publication are in compliance with the laws of that place; (iii) the information is truthful and objective; and (iv) does not advocate or promote and is not accompanied by any advocacy or promotion of the termination of pregnancy. The ways referred to are:— (a) orally at a meeting to which the public have access whether upon payment or free of charge, (b) in a book, newspaper, journal, magazine, leaflet or pamphlet, or any other document, (c) in a film or a recording (whether of sound or images or both), (d) by means of radio or television, or (e) by any other means to the public. The provision of Act information is subject to the qualification set forth in s. 4 of the Bill. (3) Section 4 of the Bill provides that it shall not be lawful to display a notice (including an advertisement) containing Act information in or at a place to which the public have access whether upon payment or free of charge or to distribute without solicitation by the recipients, a book, newspaper, journal, magazine, leaflet or pamphlet or any other document, or a film or a recording containing such information. Consequently, it is not unlawful to publish or procure the publication of Act information to the public by any means, other than by a notice in a public place or in publications distributed without solicitation by recipients provided that the conditions set forth in s. 3 of the Bill are complied with. (4) By virtue of the provisions of s. 3 of the Bill, if the information relates to services provided in a particular place or to persons providing them in a particular place and the information relates only to services which are lawfully available in that place and to persons who, in providing them, are acting lawfully in that place and the information and the method and manner of its publication are in compliance with the law of that place, and the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of, the termination of pregnancy, the publication of such information is not rendered unlawful by the Act; neither is the sale or other distribution of such information rendered unlawful, subject of course to the provisions of s. 4 which render it unlawful to display a notice containing Act information in or at a place to which the public have access whether upon payment or free of charge, (5) A person to whom s. 5 of the Bill applies is defined in s. 1, sub-s. 1 of the Bill as — "a person who engages in, or holds himself, herself or itself out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy". Such persons are subject to the restrictions contained in ss. 5, 6, 7 and 8 of the Bill. The provisions of these sections apply when such a person is requested by or on behalf of an individual woman who indicates or on whose behalf it is indicated that she is or may be pregnant to give information, advice or counselling in relation to her particular circumstances. Section 5 provides that in such circumstances, it shall not be lawful to advocate or promote the termination of the pregnancy to the woman or any person on her behalf. This section also provides that it shall not be lawful to give Act information to the woman or anybody on her behalf unless (i) the information and the method and manner of its publication are in compliance with the requirements of sub-paras. (i) and (ii) of s. 3, sub-s. (ii) the information is given in a manner which does not advocate or promote the termination of pregnancy, and (a) at the same time, information (other than Act information), counselling and advice are given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances aforesaid, and (b) the information, counselling and advice (i) are truthful and objective, (ii) fully inform the woman of all the courses open to her in relation to her particular circumstances, and (iii) do not advocate or promote and are not accompanied by any advocacy or promotion of, the termination of pregnancy. (6) Section 6 makes it unlawful for a person or body, to whom s. 5 applies, to give Act information if such person or body provides the services to which the Act information relates or has an interest in a body providing Section 7 makes it unlawful for a person to whom s. 5 applies:— (1) To obtain directly or indirectly any financial or other benefit or advantage from any person who provides services outside the State or who has an interest in a body providing such services, or (2) to obtain directly or indirectly from the woman concerned any financial benefit in respect of:— (a) the giving of Act information, or (b) the availing by the woman of a service provided outside the State for the termination of pregnancy. It was submitted by counsel on behalf of the mother that the section was unreasonably wide and could make the giving of information virtually impossible as anyone doing so might think they were at risk of breaking the law. The Court will deal with this submission when the other submissions made by counsel on behalf of the mother are being considered later in this judgment. (7) Section 8, sub-s. 1 provides that — "(1) It shall not be lawful for a person to whom section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies." Sub-section 2 provides that:— "(2) Nothing in sub-section (1) shall be construed as prohibiting the giving to a woman by a person to whom section 5 applies or the employer or principal of the person of any medical, surgical, clinical, social or other like records or notes relating to the woman in possession of the person or the employer or principal of the person or a copy or copies thereof in written form." While s. 8, sub-s. 1 of the Bill provides as aforesaid, it only relates to persons or bodies to whom s. 5 applies and there is no similar provision with regard to any other person or body. (8) Section 10 of the Bill provides that a person who contravenes ss. 3, 4, 5, 6, 7, 8 or 9 shall be guilty of an offence and liable on summary conviction to a fine not exceeding £1,500. Section 9 of the Bill provides for the issue of search warrants by a judge of the District Court and the seizure of certain documents by members of the Garda Siochána if they believe on reasonable grounds that they may be (9) In the Bill, "woman" is defined as "a female person" and "termination of pregnancies" means "intentional procurement of miscarriages of women who are pregnant". It is clear from the aforesaid summary of the Bill that its purpose was, as stated in the long title thereto, "to prescribe the conditions subject to which certain information relating to services lawfully available outside the State for the termination of pregnancies and to persons who provide such services may be given to individual women or the general public and to provide for related matters". The information to which the Bill relates is information likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies, relating to such services and the persons who provide them. The information likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies includes information with regard to the identity and location and method of communication with a specified clinic or clinics for the purpose of termination of pregnancy. The giving of such information, viz. relating to the services and the persons who provide them, to a woman for the purpose of enabling her to avail of such services for the termination of pregnancy had been held by this Court in a number of cases, including The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 to be unlawful having regard to the provisions of Article 40, s. 3 sub-s. 3 of the Constitution, which at the time of such decisions, provided that:— "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." Were it not for the enactment and provisions of the Fourteenth Amendment to the Constitution, the provisions of the Bill in so far as they permitted the dissemination of such information would undoubtedly be repugnant to the Constitution. The Fourteenth Amendment to the Constitution provided that:— "This sub-section shall not limit freedom to obtain or make available in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State." The Bill was passed by both Houses of the Oireachtas on the 14th March, 1995, and purports to lay down the conditions subject to which the information relating to services lawfully available in another State may be given to an individual woman and to the general public. Presumption of constitutionality of the Bill The Bill having been passed by both Houses of the Oireachtas, is entitled to the presumption that no provision thereof is repugnant to the Constitution. This Court has held in many previous decisions viz. The Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129, The Electoral (Amendment) Bill, 1983 [1984] I.R. 268, The Adoption (No. 2) Bill 1987 [1989] I.R. 656 and The Matrimonial Home Bill, 1993 [1994] 1 I.R. 305 that there must be applied by the Court, to a Bill referred to it by the President pursuant to Article 26, a presumption of constitutionality. The Court in its consideration of this Bill on this reference applies the presumption of constitutionality and if and where relevant to the provisions of the Bill the principles by way of presumption of constitutionality laid down by it in East Donegal Co-operative v. The Attorney General [1970] I.R. 317 which are summarised in the decision of this Court in The Adoption (No. 2) Bill, 1987 [1989] I.R. 656 as follows, at p. 661:— "(1) That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice, and (2) that as between two or more reasonable constructions of the terms of the Bill the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions." The issue which falls to be decided by the Court is the question whether it has been established that the provisions contained in the Bill or any of them is or are repugnant to the Constitution or to any provision thereof. Constitutional provisions particularly involved Article 5 of the Constitution provides that:— "Ireland is a sovereign, independent, democratic state." Article 6 of the Constitution provides that:— All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution." Article 40, s. 3 of the Constitution provides that:— The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right [Hereinafter referred to as the Eighth Amendment]. This sub-section shall not limit freedom to travel between the State and another State [hereinafter referred to as the Thirteenth Amendment]. This sub-section shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State [hereinafter referred to as the Fourteenth Amendment]." Article 41, s. 1 provides that:— "1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. 2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State." Article 41, s. 2 provides that:— "1 In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. 2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home." Position prior to the passing of the Fourteenth Amendment The determination of the issue as to whether or not the Bill or any provision thereof is repugnant to the Constitution or any provisions thereof, of necessity involves an examination of the relevant provisions of the Constitution. Prior to the passing of the Eighth Amendment to the Constitution, the right to life of the unborn was not one of the personal rights acknowledged specifically by the Constitution. However, the right to life of the unborn had been referred to and acknowledged by Walsh J. in the course of his judgment in G. v. An Bord Uchtála [1980] I.R. 32 when he stated at p. 69:— "Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child's natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary, natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child's natural right to life and all that flows from that right are independent of any right of the parent as such." He then repeated what he had said in McGee v. The Attorney General [1974] I.R. 284 at p. 312:— any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question." In Norris v. The Attorney General [1984] I.R. 36, McCarthy J. stated at p. 103 that:— "For myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than that the right to life of the unborn is a sacred trust to which all the organs of government must lend their support." The right to life of the unborn was clearly recognised by the courts as one of the unenumerated personal rights which the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate. The Eighth Amendment of the Constitution added to s. 3 of Article 40 the following sub-section:— "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right", thereby acknowledging the right to life of the unborn. The nature and extent of this right was considered in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. The defendants in that case considered it essential to the service which they wished to provide that they should be at liberty to inform such women who wish to have an abortion outside the jurisdiction of the court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard, but it was declared by this Court at p. 627 of the report:— that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic: by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution." [Emphasis added]. Having so declared, this Court then ordered that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise". [Emphasis added]. In the course of his judgment in that case, Finlay C.J., having considered the admitted facts, stated at p. 624 that:— "I am satisfied beyond doubt that having regard to the admitted facts the defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me to be an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective." And at p. 625:— "The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s. 3, sub-s. 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s. 6, sub-s. 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails." The other members of this Court agreed with the judgment of Finlay C.J. This case clearly decided that the giving of information with regard to the identity and location and method of communication with a specified This decision by this Court was based on its interpretation of the provisions of the Eighth Amendment to the Constitution, interpreted with particular emphasis on, and with reference to, the right to life of the unborn. As stated by Finlay C.J. at p. 621:— "It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant women in relation to abortion outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right of life of the mother mentioned in the sub-section of the Constitution which I have already quoted, and this portion of that sub-section did not therefore arise for interpretation or decision in this case." That this was so is exemplified by the following statement of Finlay C.J. and the manner in which he identified the issue in that case:— "I am satisfied, however, that the essential issues in this case do not depend upon the plaintiff establishing that the defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s. 3, sub-s. 3 of the Constitution, is the issue as to whether the defendants' admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn." The effect of the decision of this Court in that case was further considered by this Court in S.P.U.C. v. Grogan [1989] I.R. 753 and in the course of his judgment Finlay C.J. stated at p. 764 that— "It was decided by this Court in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 at p. 627 'that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic; by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution'. This Court by the same order restrained the defendants in that action by permanent injunction from carrying on these activities. That decision clearly established that the actual activity which the defendants in this case are claiming and intending to pursue as of right is unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution. I reject as unsound the contention that the activity involved in this case of publishing in the students' manuals the name, address and telephone number when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 on the grounds that the facts of that case were that the information was conveyed during periods of one to one non-directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation. This application for an interlocutory injunction, therefore, consists of an application to restrain an activity which has been clearly declared by this Court to be unconstitutional and therefore unlawful and which could assist and is intended to assist in the destruction of the right to life of an unborn child, a right acknowledged and protected under the Constitution. That constitutionally guaranteed right must be fully and effectively protected by the courts." This decision reiterated the opinion of the Court that the activities of informing pregnant women of the identity and location and method of communication with a specified clinic or clinics for the purpose of obtaining a termination of pregnancy were unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution (the Eighth Amendment). The provisions of the Eighth Amendment to the Constitution were further considered by this Court in The Attorney General v. X [1992] 1 I.R. 1 but with particular regard to "the intimate human problem of the right to life of the unborn and its relationship to the right of the mother of an unborn child to her life". The events which gave rise to these latter proceedings were, in the words of Costello J., painful and distressing: and there is no need to refer to them in this judgment. In that case, the Court was obliged to consider the effect of that portion of the Eighth Amendment which did not arise for "interpretation or decision" in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 and which dealt with the equal right to life of the mother. One of the issues which arose in The Attorney General v. X [1992] 1 I.R. 1 concerned the mother's right to life which was acknowledged by the Eighth Amendment. It was submitted on behalf of the defendants in that case that although the Eighth Amendment required the courts to defend and vindicate the life of the unborn, they were, in doing so, to have regard to the equal right to life of the mother. In considering the terms of Article 40, s. 3, sub-s. 3 of the Constitution in this context, the Court recognised that, in certain circumstances, there could be a conflict between "the right to life of the unborn" and "the equal right to life of the mother"; that where such conflict of rights could not be avoided, the Constitution required that its provisions be interpreted harmoniously and that the rights thereby guaranteed should be interpreted in concert in accordance with the concepts of prudence, justice and charity. In the course of his judgment in The Attorney General v. X. [1992] 1 I.R. 1, Finlay C.J. stated at p. 53 of the report:— "I accept the submission made on behalf of the Attorney General, that the doctrine of the harmonious interpretation of the Constitution involves in this case a consideration of constitutional rights and obligations of the mother of the unborn child and the interrelation of those rights and obligations with the rights and obligations of other people and, of course, with the right to life of the unborn child as well. Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, as they have been explained in the judgment of Walsh J. in McGee. The Attorney General [1974] I.R. 284, leads me to the conclusion that 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. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother's right to life. I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution." The basis for the orders made in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 was that:— no right could constitutionally arise to obtain information the purpose of which was to defeat the constitutional right to life of the unborn child which right 'must be fully and effectively protected by the courts'." The Attorney General v. X. [1992] 1 I.R. 1, however, established that having regard to the true interpretation of the Eighth Amendment, termination of the life of the unborn is permissible if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that that risk can only be avoided by the termination of her pregnancy. In such a case, does a constitutional right arise or exist to obtain information the purpose of which is to vindicate the right to life of the mother though with the inevitable consequence of, and at the expense of, terminating the right to life of the unborn child? Once the termination of the pregnancy is permissible, the mother has the right to all relevant information necessary to enable her to have the pregnancy terminated and this includes the information which was the subject matter of the orders in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 viz. information with regard to the identity and location of and method of communication with a specified clinic or specified clinics. The effect of the decision of the Supreme Court and the judgments of the majority of the Court in The Attorney General v. X. [1992] 1 I.R. 1 is that where there is a real and substantial risk to the life, as distinct from the health, of the mother, and that risk can only be avoided by the termination of the mother's pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution. In such circumstances, the mother would have the right to travel outside the jurisdiction to avail of such services to secure a termination of the pregnancy. It would appear, however, that irrespective of the mother's constitutional right to travel, the exercise of that right would have to be subordinated to the constitutional right to life of the unborn in circumstances where the pregnancy constituted no threat to the life of the mother. As stated by Finlay C.J. in the course of his judgment in The Attorney General v. X. "I accept that where there exists an interaction of constitutional rights the first objective of the courts in interpreting the Constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied, where such harmonisation may not be possible and in those instances, I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights. Notwithstanding the very fundamental nature of the right to travel and its particular importance to the characteristics of a free society, I would be forced to conclude that if there was a stark conflict between the right of a mother of an unborn child to travel and the right to life of the unborn child, the right to life would necessarily have to take precedence over the right to travel." He further stated that:— "The submission made that the mother of the unborn child had an absolute right to travel which could not be qualified or restricted, even by the vindication or defence of the right to life of the unborn, is not a valid or sustainable submission in law." In the course of his judgment in The Attorney General v. X. [1992] 1 I.R. 1, Egan J. stated at p. 92 that:— "The right to travel can only effectively arise in reference to an intention to procure an unlawful abortion and must surely rank lower than the right to life of the unborn." While these observations were made in respect of the right to travel, they can, with equal validity, be applied to the right to information. If the purpose of the travel or the securing of information is to procure an unlawful abortion, then it would be unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution, but if the purpose was the procurement of a permitted or lawful abortion, i.e. one that complies with the test laid down in The Attorney General v. X. [1992] 1 I.R. 1, then neither the travel nor the giving or obtaining of information with regard thereto would be unlawful. That would appear to be the position with regard to the provision of information with regard to the services provided outside the State for the This amendment provided that:— "This sub-section shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State." The sub-section referred to in the said amendment was that which provided that:— "The State acknowledges the right to life of the unborn and with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." For the reasons set forth in the course of this judgment, it is manifest that, were it not for the provisions of the Fourteenth Amendment to the Constitution, many of the provisions of the Bill relating to the provision of information relating to services available in another State for the obtaining of abortions or termination of pregnancies, including the identity and locations of and method of communication with clinics where these services were available, would be repugnant to the provisions of the Constitution despite the conditions imposed by the Bill on the availability and nature of the information to which the Bill related. The giving of such information had been held to be unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution in that, in effect, it provided assistance in the destruction of the life of the unborn. The provisions of the Fourteenth Amendment however provided that this sub-section should not limit freedom to obtain or make available in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State. The purpose of this Amendment was to remove the inhibition placed on the granting of information with regard to these services relating to the termination of pregnancies, by the decisions of the Supreme Court based on the provisions of Article 40, s. 3, sub-s. 3 of the Constitution. The Fourteenth Amendment gave to the Oireachtas the power to lay down the conditions subject to which such information should be obtained or made available and expressly provided that the sub-section of the Constitution which acknowledged the right to life of the unborn should not limit freedom to obtain or make available in the State, such information. Arguments were addressed to the Court that the provisions of the Fourteenth Amendment were self-executing and did not require any Act of the Oireachtas to bring it into affect. It is not necessary for this Court to decide in this reference whether the provisions of this Amendment were self-executing or only came into effect when such conditions were laid down by law. The conditions laid down by law are contained in the Bill and the issue before this Court is whether the provisions of the Bill or any of them are or is repugnant to the provisions of the Constitution. Before dealing with the issue as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or any provision thereof the effect of the Fourteenth Amendment to the Constitution must be determined and this necessarily involves the construction by this Court of its provisions. The subject of this amendment was "information relating to services lawfully available in another State". The medical termination of pregnancy, performed in accordance with the law of the state in which it is carried out constitutes a service lawfully available in another state. It also constitutes a service within the meaning of Article 60 of the European Economic Community Treaty. The Court of Justice of the European Community held in Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan (Case C — 159/90) [1991] E.C.R. 4685 (at p. 4739) that:— "It must be held that termination of pregnancy, as lawfully practised in several Member States is a medical activity which is normally provided for remuneration and may be carried out as part of a professional activity . Consequently the answer to the national courts first question must be that the medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty". There can be no doubt but that the provisions of the Fourteenth Amendment relate, inter alia, to and include information relating to medical termination of pregnancy, performed in accordance with the law of the state in which it is carried out. The next matter for consideration is the nature of the information which may be obtained or made available in the State in relation to such services. It was argued by counsel assigned by the Court to present arguments against the constitutionality of the Bill based on the right to life of the unborn that the information permitted to be obtained or made available did not He argued that it had already been held by this Court in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 that the making available of such information constituted assistance in 'the destruction of the life of the unborn' and that the provisions of the Fourteenth Amendment should not be interpreted or construed so as to permit of the giving of such assistance. He further argued that if the terms of the amendment permitted the giving of such information, which amounted to assistance in the destruction of the life of the unborn, such amendment was inconsistent with the terms of the Eighth Amendment to the Constitution which acknowledged the right to life of the unborn, and that the principle of harmonious interpretation of the provisions of the Constitution did not permit of such interpretation. It is not possible to construe the provisions of this amendment in the manner so argued for, as the terms of the Fourteenth Amendment specifically provided that the Eighth Amendment should not limit the freedom therein referred to. They deal with "information relating to services lawfully available in another State". Such information must include, and was intended to include, information with regard to the nature of the services, where and by whom they are provided and all information in relation thereto including the identity, location and method of communication with specified clinics or a specified clinic where such services are lawfully provided. As the provision of such information would constitute assistance in the destruction of the life of the unborn, it was further argued by counsel for the unborn that (i) any provision in the Constitution or in any legislation which would permit or render lawful the giving or obtaining of such information was contrary to the natural law right to life of the unborn which right is acknowledged by the Eighth Amendment to the Constitution; (ii) that the natural law is the foundation upon which the Constitution was built and ranks superior to the Constitution; (iii) that no provision of the Constitution or of any Act enacted by the legislature or any judicial interpretation thereof can be contrary to natural law, and if it is, cannot be enforced. These arguments raise the question of the role of the natural law in the development of constitutional jurisprudence with regard to the identification 'of the personal rights of the citizen' referred to in Article 40, s. 3 sub-s. 1 of the Constitution and the guarantee therein set forth on the part of the State to respect, and as far as practicable, by its laws to defend and vindicate such rights. It is fundamental to this argument that, what is described as 'the natural law' is the fundamental law of this State and as such is antecedent and superior to all positive law, including the Constitution and that it is impermissible for the People to exercise the power of amendment of the Constitution by way of variation, addition or repeal, as permitted by Article 46 of the Constitution unless such amendment is compatible with the natural law and existing provisions of the Constitution and, if they purport to do so, such amendment had no effect. The Court does not accept this argument. By virtue of the provisions of Article 5 of the Constitution, Ireland is a sovereign, independent, democratic state. By virtue of the provisions of Article 6, all powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State, and, in final appeal to decide all questions of national policy, according to the requirement of the common good. The powers of government therein referred to are exercisable only by or on behalf of the organs of State established by the Constitution and are exercisable only in accordance with the provisions thereof. In the course of his judgment in Byrne v. Ireland [1972] I.R. 241 Budd J. stated at pp. 295 and 299 of the report that:— "It is . the People who are paramount . The State is not internally sovereign but, in internal affairs, subject to the Constitution, which limits, confines and restricts its powers." The Constitution limits, confines and restricts the powers of the State and the organs of State established by the Constitution. Though Article 15, s. 1, sub-s. 1 of the Constitution provides that 'the sole and exclusive powers of making laws for the State is hereby vested in the Oireachtas' these powers are restricted by the provisions of Article 15, s. 4 which provide that:— "1 The Oireachtas shall not enact any law which is in any respect repugnant to the Constitution or any provision thereof. 2 Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid." These provisions which prohibit the Oireachtas from enacting any law which is in any respect repugnant to the Constitution or any provision thereof clearly illustrate the supremacy of the Constitution in so far as the law making powers of the Oireachtas is concerned. In addition Article 26, s. 1 of the Constitution provides that:— "The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provisions or provision of such Bill is or are repugnant to this Constitution or any provision thereof." Article 26, s. 3, sub-s. 1 provides that:— "In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill." Again this provision clearly illustrates the supremacy of the Constitution. The decision which the President, after consultation with the Council of State, was entitled to seek from this Court was whether the Bill or any provision thereof was repugnant to the Constitution or any provision thereof. Article 28, s. 2 of the Constitution provides that:— "The executive power of the State shall, subject to the provisions of this Constitution be exercised by or on the authority of the Government." The judicial organ of the State is also subject to the provisions of the Constitution and the law. Article 34, s. 1 of the Constitution provides that:— "Justice shall be administered in Courts established by law by judges appointed in the manner provided by this Constitution . Article 35, s. 2 of the Constitution provides that:— "All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law." Before entering his or her duties as a judge every person appointed a judge under the Constitution is required to make and subscribe a declaration to, inter alia, "uphold the Constitution and the law". These provisions of the Constitution clearly indicate and establish that all the organs of the State, the Oireachtas, the executive and judiciary are subject to the Constitution and the law. In addition to administering justice in courts established by law, it is the responsibility of judges of the High Court and the Supreme Court to interpret the Constitution and apply the provisions thereof. In the course of his judgment in McGee v. The Attorney General [1974] I.R. 284 Walsh J. stated at p. 318 of the report:— "In this country, it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law and which are imprescriptible or inalienable." These rights are referred to in the various articles of the Constitution contained in the sections thereof entitled "Fundamental Rights" and including Articles 40 to 44 inclusive of the Constitution. These Articles deal with Personal Rights, the Family, Education, Private Property and Religion. In the course of its interpretation of these Articles and in particular Article 40 of the Constitution, this Court, agreeing with the view expressed by Kenny J. in the course of his judgment in the High Court in Ryan .v. Attorney General [1965] I.R. 294 held that the 'personal rights' mentioned in Article 40, s. 3, sub-s. 1 of the Constitution are not exhausted by the enumeration of 'life, person, good name and property rights' in Article 40, s. 3, sub-s. 2 of the Constitution, which states:— "The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen." In delivering the judgment of the Court in Ryan v. The Attorney General Ó Dálaigh ó dálaigh C.J. stated, at pp. 344 and 345 of the judgment, that:— "The Court agrees with Mr. Justice Kenny that the 'personal rights' mentioned in s. 3, sub-s. 1 are not exhausted by the enumeration of 'life, person, good name and property rights' in s. 3, sub-s. 2 as is shown by the use of the words "in particular": nor by the more detached treatment of specific rights in the subsequent sections of the Article. To attempt to make a list of all the rights which may properly fall within the category of 'personal rights' would be difficult and fortunately is unnecessary in this present case." In the course of his judgment in McGee v. The Attorney General [1974] I.R. 284, Walsh J. stated at p. 318:— "While the Constitution speaks of certain rights being imprescriptible or inalienable, or being antecedent and superior to all positive law, it does not specify them. Echoing the words of O'Byrne J. in Buckley and Others (Sinn Féin) v. The Attorney General [1950] I.R. 67, I do not feel it necessary to enter upon an inquiry as to their extent or, indeed, as to their nature. It is sufficient for the Court to examine and to search for the rights which may be discoverable in the particular case before the Court in which these rights are invoked. In a pluralist society such as ours, the courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as they are to be found in the natural law. The same considerations apply also to the question of ascertaining the nature and extent of the duties which flow from natural law; the Constitution speaks of one of them when it refers to the inalienable duty of parents to provide according to their means for the religious, moral, intellectual, physical and social education of their children: see s. 1 of Article 42. In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity — not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time: no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts." In the course of his judgment in The State (Healy) v. Donoghue [1976] I.R. 325, O'Higgins C.J. stated as follows at p. 347 of the report:— "The preamble to the Constitution records that the people 'seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution'. In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity, which may gradually change or develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment. Walsh J. expressed this view very clearly in McGee v. The Attorney General [1974] I.R. 284." The principles set out in these two judgments were accepted by Finlay C.J. in the course of his judgment in The Attorney General v. X [1992] I.R. 1, where he stated at p. 53 as follows:— "I not only accept the principles set out in these two judgments as correct and appropriate principles which I must follow in interpreting the provisions of this sub-section of the Constitution but I find them particularly appropriate and illuminating in the interpretation of a sub-section of the Constitution which deals with the intimate human problem of the right of the unborn to life and its relationship to the right of the mother of an unborn child to her life." It is clear from the passages from these judgments set forth herein that the courts in interpreting the Constitution and in ascertaining and declaring what are the personal rights which are guaranteed by the Constitution and in determining, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable, must act in accordance with the aforesaid guidelines as laid down in the Constitution and must interpret them in accordance with their ideas of prudence, justice and charity. As stated by Walsh J. in the course of his judgment in McGee v. The Attorney General [1974] I.R. 284 at p. 318 of the report:— "In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the differing religious denominations of either the nature and extent of these natural rights as they are to be found in the natural law." From a consideration of all the cases which recognised the existence of a personal right which was not specifically enumerated in the Constitution, it is manifest that the Court in each such case had satisfied itself that such personal right was one which could be reasonably implied from and was guaranteed by the provisions of the Constitution, interpreted in accordance with its ideas of prudence, justice and charity. The courts, as they were and are bound to, recognised the Constitution as the fundamental law of the State to which the organs of the State were subject and at no stage recognised the provisions of the natural law as superior to the Constitution. The People were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the People. It was further argued by counsel for the unborn that The Attorney General v. X [1992] 1 I.R. 1 was wrongly decided because — (a) no argument was addressed to the Court on the question of the natural law, (b) the Attorney General had wrongfully conceded that the provisions of the Eighth Amendment envisaged a lawful abortion taking place in the State, (c) no medical evidence was adduced with regard to the question of the medical necessity for an abortion. This submission was part of counsel's general argument that the natural law was superior to the Constitution. Having regard to the judgment and decision of this Court, which recognises and emphasises the supremacy of the Constitution, this Court is satisfied that in the consideration of the issues raised in that case and the conflicting constitutional rights involved, the proper principles were applied to the interpretation of the relevant provisions of the Constitution and in the determination of the issues raised therein and rejects this submission. The Bill The Bill which has been referred by the President to this Court must be examined to enable this Court reach a decision as to whether it or any specified provision thereof, in the words of Article 26, s. 1 of the Constitution, "is or are repugnant to this Constitution". The Court is only concerned with the provisions of the Constitution. The provisions of the Fourteenth Amendment give to the Oireachtas, which by virtue of the provisions of Article 15, s. 2, sub-s. 1 of the Constitution has vested in it the sole and exclusive power of making laws for the State, the power to lay down by law the conditions to which the obtaining or making available within the State of information relating to services lawfully available in another State may be subject. In determining the conditions to which the obtaining or making available of the information relating to services was subject, the legislature, as one of the organs of State, was obliged to ensure that such conditions are in accordance with the provisions of the Constitution and in particular the provisions of Article 40, s. 3, sub-s. 3 which provide:— "The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen." Normally the legislature in determining such conditions would be obliged to have regard to the provisions of Article 40, s. 3, sub-s. 3 which "acknowledges the right to life of the unborn and which the State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate with due regard to the equal right to life of the mother". The terms of the Fourteenth Amendment specifically provide that the freedom to obtain or make available in the State information relating to services lawfully available in another state shall not be limited by the provisions of Article 40, s. 3, sub-s. 3 of the Constitution. In laying down in the Bill the conditions to which the obtaining or making available of this information is subject the legislature is not entitled to and is indeed prohibited from having regard to the provisions of Article 40, s. 3, sub-s. 3 for the purpose of limiting the freedom to obtain such information. The provisions of the Fourteenth Amendment with regard to information relating to services lawfully available in another state is in direct conflict with the effect of the provisions of the Eighth Amendment in this regard as decided by this Court in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 and subsequent cases. The People in enacting this amendment were aware of this conflict because they specifically decided that the freedom to obtain or make available such information should not be limited by the provisions of the Eighth Amendment. In passing the Bill, the Oireachtas was essentially engaged in laying down the conditions subject to which such information should be obtained or made available and in doing so was engaged in the balancing of constitutional rights and duties, including the right to life of the unborn, the right to life of the mother, the right to information and other constitutional rights. Where such an exercise is involved the position is as enunciated by Finlay C.J. in Tuohy v. Courtney [1994] 3 I.R. 1 at p. 47:— in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights. It is in accordance with these principles that the Court approaches the ultimate task of deciding upon the constitutional validity of those impugned statutory provisions." A similar approach should be and has been adopted by the Court in the consideration of a Bill referred to the Supreme Court for a decision in accordance with the provisions of Article 26 of the Constitution. Consequently, the approach to be taken by the Court in determining whether the provisions of the Bill or any provision thereof are or is repugnant to the Constitution or any provision thereof is not to impose its view on the terms of the Bill as passed by the Oireachtas but rather to determine from an objective stance whether the provisions of the Bill represent a fair and reasonable balancing by the Oireachtas of the various conflicting rights and are not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or on the constitutional rights of the mother or any other person or persons. Right to life of the mother Neither the provisions of the Fourteenth Amendment nor the provisions of the Bill purport to affect in any way any of the provisions of the It is fundamental to the provisions of the Bill that the information to be given does not advocate or promote the termination of pregnancy and is not accompanied by any advocacy or promotion of the termination of pregnancy. This condition applies to information to which both s. 3 and s. 5 of the Bill relates. In addition s. 8, sub-s. 1 of the Bill provides that:— "It shall not be lawful for a person to whom section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies." The condition that the information to be given does not advocate or promote the termination of pregnancy and the prohibition on any person, to whom s. 5 applies, making an appointment or other arrangement on behalf of a woman with a person who provides services outside the State for the termination of pregnancies are a clear indication of the intention of the legislature to respect and as far as practicable to defend and vindicate the respect to life of the unborn, having regard to the equal right to life of the mother. It was argued by counsel assigned by the Court to oppose the Bill from the perspective of the mother that in the case of a mother in respect of whom there was a real and substantial risk to her life which could only be avoided by the termination of her pregnancy, that in so providing and thereby depriving her of the right to have advice, as distinct from information, and assistance in the making of arrangements for the termination of her pregnancy, the Oireachtas was failing to respect and, as far as practicable, to defend and vindicate her right to life and in the case of a mother, in respect of whom there is not a real and substantial risk to her life, the restrictions contained in s. 8 amount to an unreasonable interference with her right to health in circumstances where she has already decided to avail of a termination of pregnancy and where the only practical issue remaining is as to the circumstances in which she may avail of such service lawfully available outside the State. As already stated, the effect of the decision of this Court and the judgments of the majority of the Court in The Attorney General v. X [1992] 1 I.R. 1 was that where there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the mother's pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution. The position as therein set forth is unaltered by either the provisions of the Thirteenth or Fourteenth Amendment to the Constitution or of the Bill. The provisions of the Thirteenth Amendment relate to travel; those of the Fourteenth Amendment relate to information and the Bill prescribes the conditions subject to which the information may be given to individual women or the general public. The provisions of the Thirteenth Amendment or of the Fourteenth Amendment or of the Bill do not give a right to abortion or termination of pregnancy where none existed prior to their enactment. The Bill merely deals with information relating to services lawfully available outside the State for the termination of pregnancies and the persons who provide such services. The condition subject to which such information may be provided to a woman who indicates or on whose behalf it is indicated that she is or may be pregnant is that the person giving such information is:— (i) not permitted to advocate or promote the termination of pregnancy to the woman or any person on her behalf; (ii) not permitted to give the information unless it is given in a form and manner which do not advocate or promote the termination of pregnancy, and is only permitted to give information relating to services which are lawfully available in the other State and to persons, who in providing them are acting lawfully in that place if:— (a) the information and the method and manner of its publication are in compliance with the law of that place, and (b) the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of the termination of pregnancy. At the same time information, counselling and advice must be given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances and such information, counselling and advice must not advocate or promote and must not be Subject to such restrictions, all information relating to services lawfully available outside the State and the persons who provide them is available to her. It was submitted that:— (i) The prohibition on advocacy or promotion of termination of pregnancy prevents a doctor or adviser, whobona fide forms the professional opinion that a termination of pregnancy is necessary to remove a real and substantial threat to life of such mother, from giving proper advice. (ii) The prohibition on the making of appointments or other arrangements on behalf of such a mother amounts to an unreasonable interference with the protection of the right to life of such mother. (iii) The provisions of s. 8, sub-s. 2 of the Bill which provides that:— "Nothing in subsection (1) shall be construed as prohibiting the giving by a person to whom section 5applies or the employer of the person of any medical, surgical, clinical, social or other like records or notes relating to the woman in the possession of the person or the employer or principal of the person or a copy or copies thereof in written form" are an insufficient protection of such rights placing as it does a serious barrier in what would otherwise be the normal communication between doctors treating a patient, and that the restriction on what would be, in ordinary circumstances, the normal communication between a doctor in the State and a doctor in a foreign jurisdiction amounts to an impermissible interference with her rights. It was further submitted that in certain circumstances, a woman's life and/or health may be placed at serious risk in the event that a doctor is unable to send a letter referring her to another doctor for the purposes of having her pregnancy terminated. This submission is based on a misinterpretation of the provisions of the Bill and in particular that of s. 8, sub-section 1. This section prohibits a doctor or any person to whom s. 5 of the Bill relates from making an appointment or any other arrangement, for or on behalf of a woman, with a person who provides services outside the State for the termination of pregnancies. It does not preclude him once such appointment is made from communicating in the normal way with such other doctor with regard to the condition of his patient provided that such communication does not in any way advocate or promote and is not accompanied by any advocacy of the termination of pregnancy. While a doctor is precluded by the terms of the Bill from advocating or promoting the termination of pregnancy, he is not in any way precluded from giving full information to a woman with regard to her state of health, the effect of the pregnancy thereon and the consequences to her health and life if the pregnancy continues and leaving to the mother the decision whether in all the circumstances the pregnancy should be terminated. The doctor is not in any way prohibited from giving to his pregnant patient all the information necessary to enable her to make an informed decision provided that he does not advocate or promote the termination of pregnancy. In addition s. 8, sub-s. 2 does not prohibit or in any way prevent the giving to a woman of any medical, surgical, clinical, social or other like records relating to her. It was submitted also, as mentioned earlier in this judgment, that s. 7 was unreasonably wide and could make the giving of information almost impossible, as any one doing so might think that they were at risk of breaking the law. The Court does not accept this submission. All s. 7 does is to make it unlawful for a person to whom s. 5 applies to obtain directly or indirectly any financial or other benefit or advantage from any person who provides services outside the State or to obtain directly or indirectly from the woman concerned any financial benefit in respect of the giving of Act information or the availing by the woman of a service provided outside the State for the termination of pregnancies. It seems to the Court that the provisions of the section are quite clear so that a person to whom s. 5 applies would have no difficulty in understanding what it is that the section makes unlawful. The Court is also satisfied that there is no substance in the further contention put forward by counsel in relation to this section, namely, that it would create problems for women with medical insurance and also in regard to medical fees. There is no ground for suggesting that either of these matters would be affected by the section. Having regard to the obligation on the Oireachtas to respect, and so far as practicable, to defend and vindicate the right to life of the unborn having Right to life of unborn The main argument made by counsel appointed by the Court to argue against the constitutionality of the provisions of the Bill from the perspective of the unborn, viz. that the natural law was superior to the Constitution and that no provision of the Constitution or of any Act enacted by the Oireachtas or any judicial interpretation thereof can be contrary to natural law, has already been considered and rejected by this Court for the reasons set forth earlier in this judgment. In addition they have argued that the provisions of the Bill are repugnant to the Constitution because:— (i) By virtue of the definition of 'woman' contained in the Bill as meaning 'a female person', it is permitted to give the information to which it relates to a minor, who is or may be pregnant, without creating any obligation to inform the parents of the minor of the fact that such information was sought and had been given; (ii) a wife is entitled to seek and obtain such information, which would provide assistance in the procurement of a termination of pregnancy, without the knowledge and consent of her husband and father of the unborn child. It was argued that the failure of the Oireachtas to require in the Bill that, where such information was sought and/or given, the parents of the minor should be so informed and, in the case of a wife, the husband should be so informed, amounted to a failure by the Oireachtas to respect and so far as practicable to defend the constitutional rights of the parents, when the The constitutional rights and obligations of parents with regard to the care and control of their children and the rights of a husband, as a member of a family, remain unaffected by the provisions of the Fourteenth Amendment and of the Bill. The question to be considered is whether the Bill infringes the rights of the parents of a minor or a husband by failing to contain a provision requiring that they or he be notified of the fact that the minor or the wife has sought and obtained the information to which the Bill relates. This objection to the Bill relates to a situation where a woman, be she a minor or a wife, indicates or has indicated on her behalf, that she is or may be pregnant and requests from a person to whom s. 5 of the Bill applies, information, advice or counselling in relation to her particular circumstances, having regard to the fact that she is or may be pregnant. In these circumstances the person giving the information is obliged by the provisions of s. 5 of the Bill to give, at the same time, information (other than information to which the Bill relates), counselling and advice directly to the woman in relation to all the courses of action which are open to her. In the consideration of the Bill and any particular provision thereof, the Court should apply to such consideration the principles laid down by it in East Donegal Co-operative v. The Attorney General [1970] I.R. 317 which are summarised in the decision of this Court in The Adoption (No. 2) Bill, 1987 [1989] I.R. 656 at p. 661 of the report as follows:— "That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice." The Oireachtas was also entitled to make that presumption. As stated by Walsh J. in the course of the judgment in East Donegal Co-Operative v. Attorney General [1970] I.R. 317 at p. 341:— "At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from these principles would be restrained and corrected by the Courts." Persons to whom s. 5 of the Bill applies are obliged to give information, counselling and advice directly to the woman in relation to all the courses of action which are open to her in relation to her particular circumstances and it must be presumed that in the giving of such information, counselling and advice, the person giving same will have regard to and give advice in accordance with the principles of constitutional justice and if there is any departure from these principles, such departure would be restrained and corrected by the courts. Constitutional justice requires that in the giving of such information, counselling and advice, regard be had to the rights of persons likely to be affected by such information, counselling and advice. Having regard to such presumption, the fact that the Bill does not contain any provision requiring notification to parents of minors or to husbands of wives, requesting information to which the Bill relates, does not render it repugnant to the provisions of the Constitution by failing to respect and so far as practicable to defend and vindicate the constitutional rights of parents or husbands. In such circumstances the Court considers that the provisions of s. 5 and s. 8, sub-ss. 1 and 2 represent a fair and reasonable balancing of conflicting rights and are not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn, of the mother or any other person. Section 3 of the Bill sets forth the conditions under which information may be given to the public at large at meetings, in publications, in a film or recording, and by means of radio or television or by any other means to the public. The conditions to which the giving of such information is subject are set forth in detail in s. 3 which has been summarised earlier in this judgment and it is unnecessary to set them forth in detail at this stage. Again the Oireachtas has expressly provided that such information must not advocate or promote or be accompanied by any advocacy or promotion of, the termination of pregnancy. The giving of information to the public is further restricted by the provisions of s. 4 of the Bill which provides that it shall not be lawful to display a notice (including an advertisement) containing information, to which the Bill applies, in or at a place to which the public have access whether upon payment or free of charge or to distribute without solicitation by the recipients a book, newspaper, journal, magazine, leaflet or pamphlet, or any other document, or a film or a recording (whether of sound or images or both) containing such information. The requirement that the information to be given relates only to services lawfully available outside the State, is truthful and objective, and does not advocate or promote and is not accompanied by any advocacy or promotion of the termination of pregnancy represents a fair and reasonable balancing by the Oireachtas of the conflicting rights herein and is not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or any other person. It was further argued that the penalty fixed by the Oireachtas for contravention of the provisions of the Bill viz. a fine not exceeding £1,500 was so inadequate as to amount to a failure by the Oireachtas to respect and as far as practicable to defend and vindicate the right to life of the unborn. The question of the determination of the appropriate penalty for the commission of an offence created by statute is a matter purely for the Oireachtas and the adequacy or otherwise of any such penalty cannot be regarded by this Court as a ground for holding that the provision in regard to the creation of the offence and providing the penalty therefor is repugnant to the provisions of the Constitution. The Court has dealt in detail with the provisions and effects of ss. 3, 4, 5, 8 and 10 of the Bill and is not satisfied that any of them is repugnant to the Constitution or any provision thereof. It was submitted by counsel on behalf of the unborn that the manner in which the phrase "termination of pregnancies" is defined in s. 1 of the Bill does not cover all possible ways in which a pregnancy might be determined. The definition provides that it means the "intentional procurement of miscarriages of women who are pregnant". It was submitted that methods other than the intentional procurement of a miscarriage are currently in regular use for the termination of pregnancies, which cause the embryo to be absorbed and not aborted. Since no evidence is received when the Court is considering a Bill referred to it under Article 26, it is not possible for the Court to make any finding as to the accuracy of the facts underlying this submission but even if they are accurate, that could not affect the constitutionality of the Bill. At most it would indicate a possible defect in the Bill, something which does not come within the ambit of what this Court has to consider. The Court has considered all the remaining provisions of the Bill, whether arguments have been addressed to the Court with regard thereto or not, and is not satisfied that any of them is repugnant to the Constitution or to any provision thereof. Conclusion The decision of the Court therefore is that the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995, is not repugnant to the Constitution or to any provision thereof. I certify this to be the judgment and decision of the Court. Solicitor instructing counsel assigned to argue against the Bill on the basis of the right to life of the unborn: Patrick Glynn. Solicitors instructing counsel assigned to argue against the Bill on the basis of the right to life of the mother: Hussey & Bates. Solicitor for the Attorney General: The Chief State Solicitor. James Devlin, Barrister
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An Córas Dlí An Córas Dlí agus an Scaradh Cumhachtaí Is é atá i mBunreacht na hÉireann ná dlí bunúsach an Stáit. D’achtaigh an pobal é de réir pobalbhreithe in Iúil, 1937 agus tháinig sé i ngníomh ar 29 Nollaig, 1937. Is é an Bunreacht an ceannbhrat faoina ndéantar ceart a riar agus faoina gcuirtear cearta dlíthiúla i bhfeidhm i gcúirteanna arna mbunú faoin dlí. Sna forálacha sainráite atá ann, aithnítear agus ráthaítear cosaint do chearta bunúsacha an duine. Sa Bhunreacht, a bhfuil 50 Airteagal ann, bunaítear institiúidí an Stáit agus leagtar amach na rialacha a rialaíonn an idirghníomhaíocht a bhíonn ann idir orgáin an Stáit agus idir an Stát agus an duine aonair, araon. Féadfaidh don phearsa aonair gairm le dúshlán a chur faoi bhunreachtúlacht dlíthe a ritheann an tOireachtas (an pharlaimint) agus le cúiteamh a lorg i gcás go sáraítear cearta bunreachtúla dá cuid. Faoi réir an Bhunreachta tá an córas dlí bunaithe ar thraidisiún an dlí coitinn. Faoi théarmaí Airteagal 6 den Bhunreacht is le muintir na hÉireann a dhílsíonn ceannasacht ach tá an Stát ceannasach go seachtrach i dtaobh a sheasaimh i gcúrsaí dlí idirnáisiúnta. Tá an Stát, Éire, freagrach os comhair na gCúirteanna as éagóracha a dhéantar i gcoinne pearsan aonair nó as sárú dá cuid cearta bunreachtúla nó dá cuid cearta dlíthiúla. Ní fhéadfar an Bunreacht a athrú ach amháin de réir reifrinn, a bhfuil foráil déanta dó in Airteagal 46. Bunreacht dátheangach Gné shuntasach amháin den Bhunreacht ná go bhfuil sé scríofa in dhá theanga. Foráiltear le hAirteagal 8 den Bhunreacht gurb í an Ghaeilge, mar an teanga náisiúnta, príomhtheanga oifigiúil an Stáit agus aithnítear an Béarla mar an dara teanga oifigiúil. Is é an téacs Gaeilge a bhíonn i réim más rud é go dtagann mí-ailíniú idir an dá leagan den Bhunreacht chun cinn. Deighilt na gCumhachtaí Foráiltear sa Bhunreacht go mbeidh deighilt cumhachtaí trípháirteach: an Reachtas, an Feidhmeannas agus na Breithiúna. Is é an Rialtas an t-orgán stáit a fheidhmíonn an chumhacht feidhmiúcháin rialtais, is iad an dá theach parlaiminte atá san Oireachtas (ar a bhfuil an tUachtarán ina cheannasaí teidealach air, i dteannta stádas bunreachtúil a bhfuil aige nó aici mar Cheann Stáit) a fheidhmíonn an chumhacht reachtach rialtais, agus is iad na cúirteanna arna mbunú faoi Airteagal 34 den Bhunreacht a fheidhmíonn an chumhacht bhreithiúnach rialtais. Áirithítear leis sin nach bhféadfar aon orgán amháin de chuid an Stáit cur isteach ar na feidhmeanna a shanntar don dá orgán stáit eile. In Airteagail 12 go 14, leagtar amach feidhmeanna Uachtarán na hÉireann, arb é an Ceann Stáit. Cumhachtaí searmanais go príomha a dhílsítear don Uachtarán cé go bhforáiltear go leor cumhachtaí discréideacha dó faoi théarmaí an Bhunreachta. D’ainneoin deighilt na gcumhachtaí feidhmíonn na Cúirteanna feidhm bhunreachtúil nuair a dhéanann siad bunreachtúlacht agus dlíthiúlacht ghníomhartha orgáin eile an Stáit a athbhreithniú. Is é atá san orgán breithiúnach rialtais ná na Cúirteanna sin a bhunaítear faoi Airteagal 34 den Bhunreacht iad, eadhon an Chúirt Uachtarach, an Chúirt Achomhairc agus an Ard-Chúirt. Foráiltear le hAirteagal 6 den Bhunreacht go n-eascraíonn na cumhachtaí rialtais uile, reachtach, feidhmiúcháin agus breithiúnach ón bpobal, agus leanann sé ar aghaidh chun rá gurb “leis na horgain Stáit a chuirtear ar bun leis an mBunreacht seo, agus leo sin amháin nó lena n-údarás, is féidir na cumhachtaí riala sin a oibriú.” Áirítear sa chumhacht bhreithiúnach rialtais atá ag na cúirteanna siúd an inniúlacht comhoiriúnacht den reachtaíocht leis an mBunreacht a athbhreithniú agus athbhreithniú breithiúnach a dhéanamh ar fho-reachtaíocht, ar chinntí nó ar ghníomhaí a dhéanann an Rialtas nó comhlachtaí an Stáit d’fhonn cinneadh a dhéanamh maidir lena ndlíthiúlacht agus lena gcomhoiriúnacht leis an mBunreacht, chomh maith le prionsabail a thagann ón mBunreacht, amhail próis chuí. (i) An Reachtas De réir mar a shainordaítear sa Bhunreacht, is é atá san Oireachtas ná parlaimint dhá-sheomrach agus Uachtarán na hÉireann. Is iad an dá theach san Oireachtas ná Seanad Éireann agus Dáil Éireann (seomra na dteachtaí). Cé go ndílsítear, de réir Airteagal 15 den Bhunreacht, an chumhacht reachtóireachta san Oireachtas amháin, tá teorainn leis an gcumhacht seo mar ní cheadaítear don Oireachtas reachtaíocht a théann in aghaidh théarmaí an Bhunreachta a achtú. Ar an gcaoi chéanna tá cosc ar reachtaíocht a chruthaíonn cion go cúlghabhálach nó a d'fhorálfadh do phionóis an bháis a ghearradh. Féadfar le reachtaíocht a thionscnamh i gceachtar den dá Theach, cé is moite Billí Airgid agus Billí do leasú an Bunreacht nach bhféadfar iad a thionscnamh ach i nDáil Éireann amháin. Téann Bille trí chéimeanna éagsúla sa dá Theach sula gcuirtear chuig Uachtarán na hÉireann é le síniú, agus leis sin déantar Acht Oireachtais den Bhille. (ii) An Feidhmeannas Is é an Feidhmeannas Rialtas na hÉireann agus foráiltear dó in Airteagal 28 den Bhunreacht, a shonraíonn nach mór nach mbeadh níos lú ná seachtar ball agus níos mó ná cúig bhall déag sa Rialtas agus áiríonn sé sin an Taoiseach arb é ceann an Fheidhmeannais é agus an duine atá díreach faoi, an Tánaiste. (iii) Na Breithiúna Foráiltear le hAirteagal 34 go 38 den Bhunreacht do chóras cúirteanna in Éirinn agus do chionta a thriail. Sonraíonn Airteagal 34 go soiléir 1. Is i gcúirteanna a bhunaítear le dlí agus ag breithiúna a cheaptar ar an modh atá leagtha amach sa Bhunreacht seo a riarfar ceart". Déantar foráil in Airteagal 35 do cheapachán agus thionacht bhreithiúna na hÉireann, agus faoi théarmaí an Airteagail beidh "gach breitheamh saor neamhspleách maidir lena fheidhmeanna breithimh a oibriú, gan de smacht air ach an Bunreacht seo agus an dlí." Faoi Airteagal 35.4.4 den Bhunreacht ní féidir baill den Chúirt Uachtarach ná den Ard-Chúirt a chur as oifig ach ag rún ag gach Teach an Oireachtais de bharr mí-iompair nó míthreorach a luaitear. Ar an gcaoi chéanna cosnaítear tionacht Breithiúna Cúirte Cuarda agus Cúirte Dúiche ag reacht. Ina theannta, faoi Alt 35.5.1 den Bhunreacht ní fhéadfar tuarastal breithimh a laghdú le linn dó nó di a bheith ina dtéarma oifige, ach amháin i gcomhréir le hAirteagal 35.5. Braitheann dlínse aon Bhreithimh ar dhlínse na cúirte a bhfuil sé nó sí i gceannas uirthi. Córas na gCúirteanna Sa Bhunreacht, leagtar amach struchtúr an chórais cúirteanna atá in Éirinn trí thabhairt ar bun go sainráite an Chúirt Uachtarach, cúirt achomhairc dheiridh sna hábhair uile a bhaineann leis an dlí bunreachtúil, sibhialta agus coiriúla, an Chúirt Achomhairc, sna hábhair a bhaineann leis an dlí bunreachtúil, sibhialta agus coiriúla, agus an Ard-Chúirt, cúirt céadchéime a bhfuil dlínse iomlán aici i ngach ceist, idir ceisteanna coiriúla agus sibhialta. Déantar foráil freisin in Airteagal 34.3.4 do chúirteanna le dlínse áitiúil agus teoranta a bhunú, ar a bunaíodh an Chúirt Chuarda agus an Chúirt Dúiche, a eagraítear ar bhonn réigiúnach iad, de réir reachta. (i) An Chúirt Dúiche Cúirt a bhfuil dlínse áitiúil agus teoranta aici atá sa Chúirt Dúiche, nach bhfuil ach údarás aici déileáil le ceisteanna áirithe a thagann chun cinn ina ceantar feidhmiúcháin. Bronntar cumhachtaí dlínse na Cúirte uirthi ag reacht agus mar sin, níl cead aici déileáil le haon cheisteanna a thagann taobh amuigh dá sainchuspóir reachtúil. I gceisteanna sibhialta, tá dlínse ag an gCúirt Dúiche déileáil le héilimh gur mó ná €15,000 an méid a éilítear iontu (agus gur mó ná €2,000 an méid a éilítear i gcásanna éilimh beaga) I gceisteanna dlí teaghlaigh, tá dlínse ag an gCúirt Dúiche i gceisteanna a bhaineann le cothabháil, caomhnóireacht leanaí nó rochtain orthu agus féadann sí orduithe a dhéanamh i dtaobh foréigin teaghlaigh. I gceisteanna coiriúla, cúirt dlínse achoimre atá sa Chúirt Dúiche agus déileálann sí le triail neamhghiúiré daoine a gearradh mionchionta orthu. Tá dlínse ag an gCúirt Dúiche le bannaí a bhronnadh sa chuid is mó de chásanna agus déileálann sé leis an gcúisí a chur ar aghaidh chun trialach i gcásanna lena mbaineann cionta coiriúla taobh amuigh dá dlínse, freisin. (ii) An Chúirt Chuarda Cúirt dlínse áitiúil agus teoranta atá sa Chúirt Chuarda freisin, agus tá dlínse achomhairc aici i ngach ceist a thagann chun cinn sa Chúirt Dúiche. Tá dlínse ag an gCúirt Chuarda i gceisteanna sibhialta ina sáraíonn an méid san éileamh thar theorainn dhlínse na Cúirte Dúiche ach gur mó ná €75,000 ann (agus gur mó ná €60,000 atá ann i gcásanna Díobhálacha Pearsanta) I gcúrsaí dlí teaghlaigh, féadann an Chúirt Chuarda, orduithe colscartha, idirscartha bhreithiúnaigh agus neamhnithe a bhronnadh chomh maith le haon orduithe coimhdeacha. I gcúrsaí coiriúla, tá dlínse ag an gCúirt Chuarda le plé le gach cion ach amháin iadsan a bhfuil dlínse ag an bPríomh-Chúirt Choiriúil orthu. Éisteann breitheamh a shuíonn le giúiré le trialacha coiriúla sa Chúirt Chuarda. (iii) An Ard-Chúirt/An Phríomh-Chúirt Choiriúil Tá dlínse iomlán ag an Ard-Chúirt i ngach ceist, idir ceisteanna sibhialta agus coiriúla. I gceisteanna sibhialta, níl aon uasteorainn ar líon na ndamáistí a fhéadann sí a bhronnadh. Nuair atá sí ag cleachtadh a dlínse choiriúil, tugtar an Phríomh-Chúirt Choiriúil ar an Ard-Chúirt, agus sa cháil seo, tá dlínse aici leis na cionta is troime a thriail, lena n-áirítear dúnmharú, dúnorgain, éigniú, tromionsaí gnéis, tréas, cindhíothú agus píoráideacht. Aistreofar trialacha coiriúla os comhair breithimh a shuíonn le giúiré. Uaireanta féadann Uachtarán na hArd-Chúirte treorú, in imthosca áirithe, go suífeadh beirt bhreithiúna nó níos mó sa Chúirt. Sna cúinsí sin, tugtar Ard-Chúirt rannach ar an Ard-Chúirt. Éisteann an Ard-Chúirt le hachomhairc freisin ón gCúirt Chuarda maidir le ceisteanna sibhialta. I dteanna lena dlínse i gcúrsaí sibhialta agus coiriúla, cleachtann an Ard-Chúirt freisin dlínse mhaoirseachta, i gcásanna Athbhreithnithe Bhreithiúnaigh, ina bhfuil an t-údarás aici bailíocht an dlí a shocrú agus í ag féachaint chuig forálacha an Bhunreachta. Rialaítear athbhreithniú breithiúnach ar aon dlí san Ard-Chúirt ag Airteagal 34 nó 50 den Bhunreacht, ag brath ar a shine agus atá an dlí imordaithe. Cuirtear dúshlán faoi dhlí a rith an tOireachtas ó achtaíodh an Bunreacht 1937, lena mbaineann toimhde na bunreachtúlachta, faoi Airteagal 34. Cuirtear dúshlán faoi dhlíthe a ritheadh sular achtaíodh Bunreacht 1937, nach mbaineann aon toimde bunreachtúlachta den sórt sin leo, faoi Airteagal 50. (iv) An Chúirt Choiriúil Speisialta Bunaíodh an Chúirt Choiriúil faoi théarmaí an Achta um Chionta in Aghaidh an Stáit, 1939 agus déileálann sí le dhá chatagóir cionta; iad siúd ar a dtugtar 'cionta sceidealaithe' agus iad siúd ar dearbhaigh an Stiúrthóir Ionchúisimh Poiblí ina dtaobh go raibh na gnáthchúirteanna neamhdhóthanach le riar éifeachtach an cheartais a bhaint amach. Suíonn an Chúirt Choiriúil Speisialta le triúir breitheamh agus níl aon ghiúiré inti. I gcónaí bíonn breitheamh Ard-Chúirte, Cúirte Chuarda agus Cúirte Dúiche inti. Feidhmíonn an Chúirt Choiriúil Speisialta faoi réir an Bhunreachta agus an ghnáthdhlí, agus is í an tréith idirdhealaitheach shubstaintiúil amháin a bhaineann léi ná nach mbíonn aon ghiúiré inti. (v) An Chúirt Achomhairc Níl aon bundlínse ag an gCúirt Achomhairc, toisc nach bhfuil inti ach dlínse achomhairc amháin. Suíonn an Chúirt i rannáin de thriúr breithiúna. Maidir le hábhair a bhaineann leis an dlí bunreachtúil agus leis an dlí sibhialta déantar achomhairc ón Ard-Chúirt a éisteacht agus cinneadh a dhéanamh orthu inti. In ábhair sa dlí coiriúil, déantar achomhairc a éisteacht ón gCúirt Chuarda, ón bPríomh-Chúirt Choiriúil agus ón gCúirt Choiriúil Speisialta inti agus, ina theannta sin, déantar iarratais chun daorbhreitheanna agus pianbhreitheanna a líomhnaítear gur de thoradh iomrall ceartais iad a athbhreithniú, a éisteacht agus cinneadh a dhéanamh orthu inti. Déantar achomhairc ó armchúirteanna a éisteacht agus cinneadh a dhéanamh orthu inti, freisin. Féadfar na hachomhairc a bheith i gcoinne cionta nó i gcoinne déine nó boige phianbhreithe. Féadfar déileáil le “cásaí sonraithe” ón gCúirt Chuarda agus ón Ard-Chúirt sa Chúirt Achomhairc freisin. (vi) An Chúirt Uachtarach Is í an Chúirt Uachtarach an chúirt achomhairc deiridh. Cliceáil anseo chun léaráid a fháil faoi Chóras na gCúirteanna. Cliceáil anseo chun léaráid a fháil ar struchtúr Chóras na gCúirteanna. Cearta Bunúsacha Tá cearta bunúsacha an tsaoránaigh ráthaithe in Airteagal 40 go 44 den Bhunreacht. In Airteagal 40 foráiltear go gcaithfear déileáil go comhionann le gach saoránach os comhair an dlí agus leagann sé oibleagáid ar an Stát cearta pearsanta an tsaoránaigh a chosaint. Mar thoradh ar an téarma "cearta pearsanta", mar a léirmhíníonn na cúirteanna é, aithnítear agus cosnaítear go leor ceart nach foráiltear go soiléir iad i dtéacs an Bhunreachta. Áirítear leis na cearta 'neamháirithe' seo an ceart chun sláine choirpe, an ceart pósadh agus beatha a shaothrú i measc cearta eile. Áiríonn na cearta 'áirithe' nó soiléire atá sa Bhunreacht an ceart chun saoirse tuairimíochta, saoirse tionóil agus saoirse comhlachais i measc ceart eile. In Airteagal 40 tá forálacha a rialaíonn an nós imeachta ar a dtugtar habeas corpus trína bhféadann pearsa aonair dúshlán a chur faoi dhlíthíocht a choinneála, freisin. Baineann Airteagal 41 agus 42 le cearta an Teaghlaigh agus le cearta Oideachais. Baineann Airteagal 43 le ceart an tsaoránaigh bheith ina úinéir ar mhaoin phríobháideach agus in Airteagal 44 ráthaítear an ceart adhradh reiligiúnach a chleachtadh go saor agus cuireann sé cosc ar bhronnadh ar aon chreideamh faoi leith ag an Stát. Cé go bhfuil na cearta seo cosanta ar bhonn bunreachtúla, níl aon cheann acu absalóideach agus féadfar teorainn a chur leo ar chúiseanna shlándáil an Stáit, chun an tsíocháin poiblí agus an t-ord poiblí a choimeád nó aon uair a n-iarrtar leis de réir mar is gá chun leasa an phobail. Dlí an Chomhphobail Eorpaigh Stát déach atá in Éirinn, foráiltear in Airteagal 29.6 den Bhunreacht go bhfeidhmíonn comhaontuithe idirnáisiúnta fórsa an dlí sa mhéid is a shocraítear san Oireachtas. Ciallaíonn sé sin nach mór conarthaí idirnáisiúnta a dtéitear isteach iontu a chuimsiú sa dlí intíre ag reachtaíocht sula bhfuil siad i bhfeidhm sa Stát (mar shampla cuireadh cuimsiú Choinbhinsiúin na Víne ar Dhíolúine Thaidhleoireachta agus Chonsalachta i bhfeidhm ag an Acht um Chaidreamh agus Díolúine Thaidhleoireachta 1967). Is í an eisceacht ón riail ghinearálta sin ná dlí an Chomhphobail Eorpaigh a dtugtar tús áite dó roimh dhlí intíre, faoi théarmaí Airteagal 29 den Bhunreacht. Ciallaíonn sé sin nach féidir aon dlí nó beart nach mór glacadh leis de bharr bhallraíocht na hÉireann den Aontas Eorpach, a dhéanamh neamhbhailí i bprionsabal ag aon fhoráil den Bhunreacht.