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 amendmnts allowing form 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

Stormont Health Committee Accepts Legal View That Abortion Guidelines are “Seriously Flawed”.

Stormont Health Committee Accepts Legal View That  Abortion Guidelines are “Seriously Flawed”.

The Health Committee, which oversees the Department of Health in N Ireland, invited witnesses to give evidence regarding the draft Abortion Guidelines recently issued for consultation by the Department of Health.

After hearing evidence on the 17th October 2008 from various witnesses, including Mrs Johanna Higgins, Barrister of the Association of Catholic lawyers of Ireland, the Health Committee has produced its response and published the full minutes of the evidence given in Hansard.

The Health Committee states;

“The Committee fully endorsed the statement by Professor John Keown, Kennedy Institute of Ethics, Georgetown University who argued that “The starting point of the Guidance should have been a clear statement of the illegality of abortion in Northern Ireland: that it is a crime punishable by a maximum of life imprisonment to use any means with intent to procure miscarriage, and an offence to supply means knowing that they are to be used with that intent. The Guidance should then have recalled the central if not sole purpose of this prohibition: the protection of the unborn child, a purpose which has informed the law against abortion for over 700 years. Only when the rule had been clearly stated should the scope of the exception have been considered.”

This is welcomed by the ACLI, who presented Professor John Keown’s statement in their evidence to the committee.

Mrs Higgins says: “ We asked Dr Keown for his view on the guidelines given that he is a leading expert in the field of ethics and abortion law, we are delighted to see that the Health Committee have taken on board the serious concerns raised in relation to the legal failings of the present draft guidance”.

Mrs Higgins stated during her evidence to the Committee:

“The issue before the Department is to explain the criminal law on abortion. Abortion is a matter of justice and criminal law and it should not be regarded as a medical issue per se. In this case, it is a matter of justice for the unborn child that the law should be stated correctly. The criminal law on abortion exists entirely to protect the unborn child; that is its one purpose. However, the departmental guidelines do not include a single mention of the victim, which, in this area of law, is the unborn child. That is a gross omission, to say the least.” (Hansard)

The Department of Health invited evidence from both the pro life lobby and those who seek to liberalise abortion laws. The only legal and medical evidence given were from the Association of Catholic Lawyers of Ireland and Doctors for Life.

Evidence session before Health Committee:

http://www.niassembly.gov.uk/health/2007mandate/moe/2008/081017.htm

Report of the Health Committee and endorsement of Dr Keown’s statement:

http://www.niassembly.gov.uk/health/2007mandate/responses/081110.htm

FULL STATEMENT BY DR KEOWN.

The opening statement of the Guidance on the Termination of Pregnancy (“Within the scope of this Guidance and the law in Northern Ireland, each Health & Social Services Trust must ensure that its patients have access to termination of pregnancy services”) is seriously misleading.

The starting point of the Guidance should be a clear statement of the illegality of abortion in Northern Ireland: that it is a crime punishable by a maximum of life imprisonment to use any means with intent to procure miscarriage. The Guidance should then recall the central if not sole purpose of this prohibition: the protection of the unborn child, a purpose which has informed the law against abortion for over 700 years. Only when the rule has been stated should the scope of the exception be considered. Similarly, the Guidance should clearly state the law against child destruction and its central purpose, the protection of a child capable of being born alive, and then note the exception to this prohibition. (It is remarkable that paragraph 2.6 of the Guidance, which purports to quote the statute, misstates this exception by omitting the important word ‘only’.)

Would one begin Guidance on the law of theft, which recognizes that in exceptional circumstances A may lawfully appropriate B’s property, by saying that “within the scope of law of theft, the government should ensure that everyone has access to everyone else’s property”? Further, just because there may be a defence to abortion in exceptional circumstances does not mean that the government is under a duty to provide access to abortion in those circumstances, any more than it is under a duty to provide citizens ready access to weapons for use in self-defence. Moreover, the government has a discretion as to how to allocate its healthcare resources: it is perfectly entitled to deploy those resources on medical procedures which do not involve the destruction of life.

John Keown MA DPhil PhD
Rose F Kennedy Professor of Christian Ethics
Kennedy Institute of Ethics
Georgetown University

About Professor John Keown

John Keown is the Rose F Kennedy Professor of Christian Ethics at Georgetown University, Washington DC. He graduated in law from Cambridge in 1984 and obtained a DPhil from Oxford in 1986 for a thesis on the historical development of the law on abortion. After being called to the Bar of England and Wales (Middle Temple) in 1986 he was appointed to a lectureship in medical law at the University of Leicester. In 1993 he was appointed to a lectureship in the law and ethics of medicine at Cambridge, where he was a Fellow of Queens’ College and Churchill College. In 2003 he assumed the Rose F Kennedy Chair at Georgetown.

His many publications include three books, all published by Cambridge University Press: Abortion, Doctors and the Law (1988); Euthanasia Examined: Ethical, Clinical and Legal Perspectives (1995) and Euthanasia, Ethics and Public Policy: An Argument Against Legalisation (2002)

Full Report of Health Committee

Iris Robinson MP MLA, Chairperson
Committee for Health, Social Services and Public Safety

Room 412
Parliament Buildings
BELFAST
BT4 3XX

E-mail: committee.hssps@niassembly.gov.uk
Tel: 028 9052 1920
Fax: 028 9052 1667

10 November 2008

Mr Michael McGimpsey MLA
Minister for Health, Social Services & Public Safety
Castle Buildings
Stormont Estate
BELFAST
BT4 3SQ

Dear

The Committee welcomes the opportunity to comment on the draft Guidance on the Termination of Pregnancy in Northern Ireland and is grateful to the officials for attending the meeting on 17 October. As you know the Committee also took evidence from both Pro Life representatives and Pro Choice representatives on the same date.

The comments by the Committee on the guidance are set out in the attached memo. A transcript of the evidence on the 17 October will be forwarded to the Department for information as soon as it is available.

The Committee recognises that the guidance deals with the need for advice and guidance for healthcare professionals in relation to the termination of pregnancy. However, the Committee also recommends that it is important for all healthcare workers to be given advice and guidance on all aspects of the law that is relevant to their work.

Iris Robinson MP MLA
Chairperson

Committee for Health Social Services and Public Safety

Guidance on the Termination of Pregnancy: The Law and Clinical Practice in Northern Ireland

Committee response to the Draft Guidance

1. The Committee recognises that there is an urgent need for this guidance and believes that it must be set out very clearly leaving no room for ambiguity. The Committee therefore believes that the starting point for the Guidance should have been a clear statement that abortion is illegal in Northern Ireland and that the purpose of the guidance is to explain the very limited circumstances in which it is lawful to terminate a pregnancy. The Committee fully endorsed the statement by Professor John Keown, Kennedy Institute of Ethics, Georgetown University who argued that “The starting point of the Guidance should have been a clear statement of the illegality of abortion in Northern Ireland: that it is a crime punishable by a maximum of life imprisonment to use any means with intent to procure miscarriage, and an offence to supply means knowing that they are to be used with that intent. The Guidance should then have recalled the central if not sole purpose of this prohibition: the protection of the unborn child, a purpose which has informed the law against abortion for over 700 years. Only when the rule had been clearly stated should the scope of the exception have been considered.”
2. The Committee is concerned that there is no mention in the draft of the rights of the unborn baby and believe that it must be made clear that all those involved including health care professionals and counsellors need to take the rights of the child into consideration.
3. In relation to clinical assessment the Committee has concerns about the suggestion in paragraph 3.3 that a GP or consultant obstetrician may carry out an assessment of a woman’s mental health and would recommend that such assessments must always be carried out by a relevant and fully competent professional.
4. In relation to counselling – paragraphs 5.6-5.9 – the Committee believes that this should be independent, non-directive and non-judgemental.
5. In paragraph 7.2 line 2 the words ‘considering termination’ and in line 3 ‘before the procedure’ should be omitted.
6. In paragraph 2.2(i) line 2 – after the words ‘performed in good faith’ insert ‘only’ and in paragraph 2.6 line 4 after the word ‘destruction’ insert ‘only’.
7. The Committee believes that the decision making process must be very clearly documented at all stages and welcomes the guidance set out in paragraph 5.13.
8. The Committee recommends that there must be clear pathways in place for referral for women who find themselves in a crisis pregnancy.
9. The Committee believes that there is a need for greater clarity for health care professionals and recommends that adequate training arrangements in relation to this issue must be put in place for all health care professionals.
10. The Committee recognises the legal position in relation to the requirement for parental consent for medical procedures for minors and notes the guidance in paragraph 5.4. However, it has very serious concerns that young people, particularly those with learning disabilities, could be seeking a termination of pregnancy without their parents’ knowledge or consent.
11. The Committee has very serious concerns about the existence of internet sites that purport to offer drugs, whether genuine or bogus, for the termination of pregnancy and the serious risks to health posed by such drugs. The Committee would urge the Department to consider what action can be taken to tackle this issue.

New Website for information on the Human Fertilisation and Embryology Bill.

A very helpfull website has been set up by the All Party Pro Life Group in Westminster to keep interested pro life groups and individuals abreast of the news regarding the forthcoming HFE Bill.

Click here for direct link…..

or go to http://hfebill.org