WORLDVIEW:IT IS possible that, a few months down the road, a European court may dramatically reshape the legal availability of abortion in Ireland. Indeed, if one litigant succeeds, it may even go as far as forcing a new, permissive interpretation of the constitutionally enshrined limitation on the right of abortion to cases where the life or health of the mother is threatened.
It may also decide, in the other plaintiffs’ cases, that denying women in practice the chance to vindicate that right when their lives are threatened may breach their rights, and require the authorities to ensure that women can exercise it without having to travel to Britain.
The three Irish plaintiffs include a woman at risk of an ectopic pregnancy; a pregnant woman who received chemotherapy for cancer; and a woman whose children were put in care as she was unable to cope.
But if it happens – and I suspect it won’t – it will not be in a court that has anything to do with the EU or the Lisbon Treaty. It will be in the Strasbourg-based European Court of Human Rights (ECHR), a court whose jurisdiction we signed up to in 1953, two decades before Ireland joined the EEC. A court founded by the 47-member Council of Europe and based on the European Convention on Human Rights, itself incorporated into Irish law in 2003.
The court and convention were founded to provide a benchmark for the development of human rights standards in Europe in the postwar period and have played a crucial role not only in Old Europe but today in New Europe in reinforcing the rule of law in the post-communist era.
They reflect concretely the commitment by European states to the idea of universalism in human rights, and are the main expression of the reality that the Irish legal system is not a national system of law but very much part of an international legal order. Today that order includes other courts to whose jurisdiction Ireland willingly submits, the EU’s European Court of Justice (ECJ), the UN’s World Court, the International Criminal Court . . .
Opponents of the Lisbon Treaty have suggested that the treaty creates a qualitatively new legal entity or superstate out of the EU, most notably by making our Constitution subservient to the European Court of Justice. In truth, however, the ECJ already has considerable sway over the way EU law is implemented here and in Lisbon gains only relatively small new powers.
Most controversially, however, certainly in Britain, it enshrines into member-state law the Charter of Fundamental Rights which is attached to the treaty. Based largely on the European Convention on Human Rights, the charter also draws on social rights and principles from the European Social Charter, although the extent to which any of them is justiciable is debatable. For many lawyers the charter is only an enumeration of existing rights with more symbolic than practical effect.
One of the grounds, for example, of the Irish women’s case to Strasbourg is the Article 3 provision of the European Convention: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Article 4 of the Charter of Fundamental Rights also provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
But the real difference is substantial – and is why the abortion case could not be taken to the ECJ, contrary to claims by Cóir. Under the Lisbon Treaty the field of application of the charter is limited under Article 51 to member states “only where they are implementing Union law”, or, in other words, where the EU has a legal competence. It does not have one in the area of abortion.
That reality is confirmed in the Irish abortion “guarantee” and in a similar declaration agreed earlier for the Poles: “The charter does not affect in any way the right of member states to legislate in the sphere of public morality, family law, as well as the protection of human dignity and respect for human physical and moral integrity”.
When it comes, however, to social rights, mostly described by the legally weaker, less enforceable, term “principles”, the charter does impinge on EU competences. But again, only in a very limited way. Fears about the issue, particularly the charter’s recognition of a right to strike, to protection from unfair dismissal, and to free collective bargaining, led Britain and Poland to demand what they initially called an “opt-out” from the social provisions. It suited the British political purpose of persuading its public that, with the opt-out, the Lisbon Treaty was different from the earlier constitutional treaty to justify its own retreat from a commitment to a referendum.
Later, however, even the British government was to admit that its protocol was merely clarificatory, like the Irish guarantees, and not an opt-out. In evidence to the House of Lords the department of work and pensions spells out bluntly the limited effect of the treaty on rights: “The UK Protocol does not constitute an ‘opt-out’. It puts beyond doubt the legal position that nothing in the charter creates any new rights, or extends the ability of any court to strike down UK law”.
In truth, Lisbon no more enshrines in law, as Joe Higgins claims, the previously decided “anti-worker” decisions of the ECJ like the Laval case (which will remain in force whether or not the treaty is passed), than it opens up a bright new dawn for the vindication of workers’ rights, that some trade union leaders and human rights lawyers would hope or wish us to believe.
Like it or not, Lisbon’s impact on rights and the Irish citizen’s relationship with the international legal system reflects continuity and only incremental rather than any radical change. The real game is elsewhere.
psmyth@irishtimes.com