Lisbon Treaty Supranationalizes the Criminal Law.

“The Unborn Child is only safe if the law criminalising abortion is safe. Vague ‘right to life’ clauses are meaningless without this.”

Below is some of the text of a letter sent to the Irish Times regarding concerns held by the ACLI on the status of the criminal laws in Ireland, and indeed all member states, post Lisbon. In particular questions arise in relation to the Offences Against the Person Act 1861, which makes the commission of the crime of abortion a serious criminal offence.

The effect of the Lisbon Treaty will be to change the status of  criminal laws giving more centralised powers and adopting a situation entirely new over criminal matters. Legal analysists agree it is an unknown quantity and it is not yet clear what the effects will be. There is, among other changes, a plan to introduce a European Prosecutor.

The ACLI is concerned that Protocol 35 only protects the constitutional “right to life” clause and fails to protect the substantive statutory protection which the unborn child enjoys in Ireland. The further promises made to the Irish Government on issues of concern are made in the form of “decisions” which are legally binding UNLESS they conflict with another area of the Treaty. In other words we are trusting that these guaruantees will be included. The ACLI contest that notwithstanding Protocol 35 and the further guarantee, the Irish Government have only sought to protect the Constitutional position. It is possible that the Constitution may retain section 40.3.3 and yet Ireland may still loose its statutory criminal law protecting children. Further, the amendments allowing travel and information regarding abortion are ripe to be exploited by those who wish to liberalise abortion laws in Ireland. There could be an insistance that the State pay for Irish women to avail of abortion elsewhere in the EU.

The Unborn Child is only safe if the law criminalising abortion is safe. Vague “right to life” clauses are meaningless without this.

The Unborn Child

Regarding abortion, the present protection afforded to the Unborn Child in this country rests in the Irish Constitution at article 40.3.3. This cannot be changed without a referendum put to the Irish people. Further protection exists in the Criminal Law which makes Illegal Abortion a criminal offence under the Offences Against The Person Act 1861, punishable by life imprisonment.

Those who want us to say yes to the Lisbon Treaty want us to accept an unclear position with regards to the protection of our Unborn Children.

They want us to accept that the European Union will never change its mind with regard to the assurances it has given Ireland in the past, forgetting that those assurances were given to a Sovereign Nation with its own unshakeable Constitution and a complete hold over its criminal laws. They want us to accept that something called “Protocol 35” will afford the Irish Unborn Child as much protection as it currently enjoys.

What is forgotten by all those who are satisfied by this is that without the Criminal Law protecting the Unborn Child, that is, The Offences Against the Person Act 1861, s.58 and 59, the Constitutional Protection alone may be rendered practically useless.

The Irish Constitution reads:

“Article 40.3.3 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.”

Given that the Lisbon Treaty allows the newly formed Union many powers regarding the criminal laws of the member states, what stops the Union from abolishing our criminalisation of those who seek to destroy or attack the Unborn Child? The onus in article 40.3.3 is on the Irish state, not the EU “state”. So, in recognising article 40.3.3, the EU does not assume responsibility for the protection of the Unborn Child. It may no longer be “practicable” for the Irish state to “defend and vindicate that right” when it has handed over criminal legal powers to the EU.

Put simply, the Irish Government have only sought to protect half of the protection which our Unborn Children rely on. It has neglected the protection of our Criminal Law which in practice prevents abortion.

Regarding Criminal Laws in member states, the Lisbon Treaty states:

“Article 67. 3. The Union shall endeavour to ensure a high level of
security through measures to prevent and combat
crime, racism and xenophobia, and through measures
for coordination and cooperation between police
and judicial authorities and other competent
authorities, as well as through the mutual recognition
of judgments in criminal matters and, if necessary,
through the approximation of criminal laws.”

In April 2008 there was passed by the Council of Europe a resolution that abortion was a woman’s right and should be unrestricted. It will only be one further move to call for the decriminalisation of abortion in all member states, for abortion on demand to become a reality in Ireland. It could be argued that the decriminalisation of the anti abortion law in Ireland may be affected without touching the constitutional acknowledgement that the Unborn Child has a right to life.

The fact is that the Lisbon Treaty is uncharted legal territory. It is impossible to say that there will be no effect on the status of the Unborn Child in Ireland, especially given that the majority of our EU neighbours have allowed the abortion of their Unborn Children.

The Lisbon Treaty is riddled with problems on many issues, not least abortion, regarding which the above point is just one example. Further, what think those who would vote “Yes” of their brothers in the North of Ireland? If you regard the EU dangerous enough to require at least the partial protection you have sought for the Unborn Child in the Republic, do you intend then to throw the children of the North to the wolves and expect that this will not affect the whole country?

The Citizens of the North of Ireland, along with the Citizens of the rest of Europe have been denied a vote on this matter. Irish people must consider this, and realise that if they vote “yes” they will be speaking for millions of people without voices, and ironically, if they vote “yes” and undermine the Irish Constitution, which gave them this sole opportunity, they may never vote again on their own future.

Letter Sent To Irish Times

” The law protecting the unborn child in Ireland is not wholly found in the Irish Constitution but rather in the Offences Against the Person Act 1861, a criminal statute, sections 58 and 59 of which make it an offence, punishable by life imprisonment, to procure an abortion. There is a great deal of difference between the constitutional concept of “right to life” and the enactment of a statute to make the act of deliberate abortion a criminal offence.

The Irish Constitution acknowledges the unborn child’s “right to life” and states the government will uphold that right, “as far as practicable” by its laws. Protocol 35 and the decision obtained by the Irish government since the last referendum in 2008, only protect the constitutional clause, they do not apply to Section 58 aand 59 of the Offences Against the Person Act 1861, which is the real and substantial protection given to the unborn child in Ireland.

Article 67.3 of the Lisbon Treaty states that the Union will endeavour to establish “measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgements in criminal matters and, if necessary, through the aproximation of criminal laws.”

It is not made clear which laws will be affected by this, but the White Paper issued states “Minimum rules may be established regarding the definition of criminal offences” and lists crimes to be covered by the Treaty as including the “exploitation of women and children”.

Given that these areas of crime remain loosely defined and that the phrase “exploitation of women” has sometimes been used in the context of refusal to give women abortion rights, what is to prevent the Offences Against the Person Act from being altered to decriminalise abortion?

What is the value of the Protocol 35, and the later guarantee, if in the Treaty there is a provision for the transfer of undefined criminal legal competance? We may end up with a country whose constitution aknowledges the “right to life ” of the unborn but with no criminal statute to effect that, and a government who have done all they deemed “practicable” to protect the laws protecting the unborn, but who failed.”

J Higgins