Supreme Court: Pro Life Campaign would ‘exert a gravitational pull’ away from issues in ‘unborn’ case

About this case:

• Judgment:
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Stating that the present action concerned a “pure issue of law” and that no “medical or social” issues were to be determined, Justice Donal O’Donnell stated that the outcome of allowing the group to participate could “exert a gravitational pull away from the particular issues” and hinder the court.

Background

Justice O’Donnell explained that the appeal to which the Pro-Life Campaign wished to participate involved immigration proceedings, arising in the context of the application on behalf of IRM, for revocation of a deportation order under s.3(11) of the 1999 Act.

IRM argued that the Minister was obliged to take into account the fact that the Sarah Jane Rogers, his partner, was pregnant – which ultimately resulted in the birth of SOM, their daughter.

The Minister for Justice and Equality argued that she did not have to consider the pregnancy or the rights or interests of the child not yet born.

In the High Court judge, it was held, inter alia that Article 40.3.3 guaranteeing the equal right to life of the unborn was not an exhaustive statement of the constitutional protection of the unborn, that an unborn child was to be considered a child for the purposes of the then recently inserted Article 42A of the Constitution, and furthermore that the three applicants together were entitled to be treated as a family and to benefit from the rights of a family under the Constitution.

Accordingly, the applicants succeeded and the State appealed that decision.

Supreme Court

In the application being considered by the Supreme Court, the Pro Life Campaign sought to be permitted to participate as an amicus curiae in the hearing of the appeal.

The Pro Life Campaign contended that the interests of the unborn child could be “overwhelmed by the desire of the government to adhere to a particular timetable or approach matters in particular ways”.

Accordingly they sought to join the appeal as an amicus curiae in order to “support and if necessary amplify” the arguments that might be made by counsel for the IRM, Sarah Jane Rogers, and SOM.

Delivering the judgment of the three-judge Supreme Court, Justice O’Donnell stated that it was “almost unavoidable” to infer “that this application is precipitated by the increased discussion of the case in the context of the forthcoming proposed referendum”

Permitting a person to intervene in proceedings and address the court as an amicus curiae was a matter within the discretion of the court.

The fundamental question in such applications is whether the Court is likely to be assisted significantly by the intervention offered.

While recognising the important role that organisations such as the Pro Life Campaign play in civil society, Justice O’Donnell said it was also important to recognise that their role in public debate “should not be conflated with an entitlement to be necessarily joined to proceedings such as the present”

Justice O’Donnell stated that the present action concerned a “pure issue of law” and that no “medical or social” issues were to be determined.

The respondents’ lawyers did not suggest that they needed, or could benefit from the “support or if necessary amplification” being offered by the applicant.

As such, Justice O’Donnell said it was clear that the Pro Life Campaign’s “concerns that the respondent’s team might be unprepared, outgunned, lacking either in resources or in the real commitment a fully fought case creates, or disadvantaged by the timescale of the appeal, can all be discounted”

Furthermore, the Pro Life Campaign did not identify a particular argument that it could make to particular effect, or argue better.

Justice O’Donnell stated possible assistance by the Pro Life Campaign at this stage was minimal, as it had not been established that there was a “measurable concern” suggesting “that the full range of argument will not be made, or made skilfully and forcefully, on the issues of law” in the appeal.

It was also clear that since the application had not been made in July 2016, after the High Court judgment, that the application was being made “against the background an incipient campaign in relation to a referendum”.

Recognising that the Pro Life Campaign was not the only group concerned with the issue, Justice O’Donnell said that it “could become significantly more difficult to reject any subsequent application from other groups, entities, or individuals, who wished to “support and if necessary amplify” arguments on one or other side”.

As such, further applications could result in the case being delayed “even though the principal parties were in a position to proceed” – and the resulting “general arguments, unmoored from the specific contentions in this case…would likely lead to a blurring of the distinction between legal argument and broader arguments that might be advanced at the level of policy”.

The outcome of this could “exert a gravitational pull away from the particular issues” and hinder the court.

Considering all of the above, Justice O’Donnell refused the application and stated that the Court was satisfied that the issues would “properly, adequately, and perhaps best, be advanced by the existing parties to these proceedings”.