Dublin Wellwoman Centre Ltd v Ireland

• Jurisdiction: Ireland
• Judge: MRS JUSTICE DENHAM
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-SC 2704
• Court: Supreme Court
• Docket Number: 308/94
• Date: 01 January 1995

DUBLIN WELL WOMAN CENTRE LTD v. IRELAND

BETWEEN/

DUBLIN WELLWOMAN CENTRE LIMITED

and

RITA BURTONSHAW

and

CAROLINE MC CAMLEY

Plaintiffs

AND

IRELAND, THE ATTORNEY GENERAL

and

THE SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN(IRELAND) LIMITED

Defendents

1994 WJSC-SC 2704

Hamilton C.J.

Egan J.

Blayney J.

Denham J.

Costello J.

308/94

THE SUPREME COURT

Synopsis:

CONSTITUTION

Courts

High Court - Order - Appeal - Respondent - Objection - Whether an appeal lay to the Supreme Court - Refusal of judge to accede to request that action be tried by another judge - Whether refusal was a decision of the High Court - Whether appeal lay from such refusal - (308/94 - Supreme Court - 21/12/94) - [1995] 1 ILRM 408

|Dublin Wellwoman Centre Ltd. v. Ireland|

JUDGE

Bias

Litigation - Party - Allegation - Request - Trial of action by another judge - Judge's refusal to accede to request - Appeal - Constitution - Courts - Decision of High Court - Whether refusal was a decision of the High Court - Appellate jurisdiction of Supreme Court - (308/94 - Supreme Court - 21/12/94)1995 1 ILRM 408

|Dublin Wellwoman Centre Ltd. v. Ireland|

WORDS AND PHRASES

"Decisions of the High Court"

High Court - Jurisdiction - Judge - Exercise - Bias - Allegation - Refusal of judge to accede to request that action be tried by another judge - Whether appeal lay to Supreme Court from such refusal - (308/94 - Supreme Court - 21/12/94) - [1995] 1 ILRM 408

|Dublin Wellwoman Centre Ltd. v. Ireland|

Citations:

CONSTITUTION ART 40.3.3

TREATY OF ROME ART 60

SPUC V GROGAN 1991 ECR 4685

SPUC V OPEN DOOR COUNSELLING LTD 1988 IR 593

CONSTITUTION ART 34.4.3

SPUC V GROGAN 1989 IR 753

R V SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

O'REILLY V CASSIDY UNREP SUPREME 12.5.94

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

METROPOLITAN PROPERTIES (FGC) V LANNON 1969 1 QB 577

FOURTEENTH AMENDMENT TO THE CONSTITUTION ACT 1992

MAASTRICHT TREATY

AG V X 1992 1 IR 1

1 MRS JUSTICE DENHAMDELIVERED ON THE21st DAY OF DECEMBER, 1994. [NEM DISS]

2 This is an appeal by the third named defendant, The Society for Protection of Unborn Children (Ireland) Limited, hereinafter referred to as the appellant, from the judgment and Order of the High Court delivered on the 12th October, 1994 refusing the appellant's application requesting the Learned High Court Judge to discharge herself from hearing and determining the proceedings inter-partes herein.

HISTORY

3 The first named plaintiff is a company limited by guarantee, incorporated in 1977 and at all material times providing a range of services relating to counselling on marriage, family planning, procreation and health. The second and third named plaintiffs are each a member, director and employee of the first named plaintiff.

4 From its incorporation until the 19th December, 1986 the first named plaintiff provided non-directive counselling to pregnant women resident within the State. Abortion or termination of pregnancy was one of theoptionsliable to be discussed during the said counselling and information provided to the said woman regarding the availability of abortion services lawfully available within member States of the European Community, including informing them of the identity and location and the method of communication with a specified clinic or clinics.

5 On or about the 28th June, 1985 the appellant instituted proceedings against inter alia the first named plaintiff seeking a declaration that the activities of the first named plaintiff in counselling pregnant women within the State as aforesaid, was unlawful having regard to Article 40.3.3. of the Constitution of Ireland. By order of the High Court dated the 24th September, 1986 the said proceedings were converted into a relator action brought at the instance of the second named defendent. By order of the High Court dated the 19th December, 1986 and by a varied order of the Supreme Court datedthe 16th March, 1988, the first named plaintiff its servants or agents were 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.

6 On the 23rd December, 1992 the President of Ireland signed an Act entitled The Fourteenth Amendment of the Constitution Act, 1992 following and consequent upon a referendum of the people of Ireland on the 28th November, 1992. Article 40.3.3 of the Constitution as amended by the addition of the 13th and 14th Amendment now states;

"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.

This subsection shall not limit freedom to travel between the State and another State.

This subsection 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 anotherState."

7 In 1992 Carroll J. was Chairwoman of the Second Commission on the Status of Women hereinafter referred to as the Commission which made a statement and representations which the appellant submits are relevant to this case. On 12th March, 1992, in the context of the run up to the referendum on the Maastricht Treaty and the Government's announcement that it intended to seek an amendment to the Protocol to provide for the freedom to travel, a letter was written by Carroll J. in her capacity as Chairwoman of the Commission:

"CSW. 284

12 March 1992

Mr. Albert Reynolds, T.D.,

Taoiseach.

Dear Taoiseach,

As part of its task of drawing up recommendations to the Government on matters affecting women's lives the Commission on the Status of Women has been considering the issue of abortion, with particular reference to the ban on counselling and information deriving from the Supreme Court decisions under the Eighth Amendment to the Constitution.

The case of the 14 year old girl and the Supreme Court decision on foot of the case (5 March 1992, Attorney-General v X and others) underlines how serious and complex the issues arising in this area are.

Now that the individual circumstances of that case have been dealt with, the most urgent aspect for consideration is the Protocol entered by Ireland to the Treaty on European Union (the Maastricht Treaty) and the Treaties establishing the European Communities.

The referendum to approve the Maastricht Treaty risks being distorted by people voting against the Treaty, if they consider that the rights theypresentlyenjoy to apply to the European Court of Justice are being taken away from them.

The Commission has deliberately avoided comment on topical issues as they have arisen but because the implications of the Irish Protocol to the Treaties are of such importance to Irish women and because of the urgency involved we feel it is incumbent on us to comment on thismatter.

The basic premise of our Statement is that women should have the right to avail of counselling and information as well as the right to travel. Indeed, if counselling were permissible some women might well decide against a termination in favour of another option.

When drafting this Statement the intention was to circulate it for discussion at the Commission's forthcoming meeting on 19 March 1992. However, in view of the urgency of the matter it seems imperative that it should issue immediately. Of the nineteen members of the Commission, fifteen have approved this Statement. It has not proved possible to contact three members in the short time available, and one member, Dr. Finola Kennedy, is not in agreement with the Statement being issued. Dr. Kennedy's statement is enclosed as an appendix.

The Commision on the Status of Women is making this, our Second Statement to Government, in the hope that it may usefully contribute to resolution of a very difficult problem.

Yours sincerely,

Mella Carroll

Chairwoman, Commission on the Status Women."

8 The Statement stated:

"12 March 1992"

COMMISSION ON THE STATUS OF WOMEN SECOND STATEMENT TO GOVERNMENT

9 The decision of the Supreme Court in Attorney General v X and other (5 March 1992) affirmed the right of a mother to a medical termination of pregnancy where as a matter of probability there is a real and substantial risk to her life if the pregnancy continues. In the same case the Supreme Court decided by a three - two majority that the mother of an unborn child did not have an unqualified right to travel andthat she could be restrained by injunction from travelling abroad for the purpose of terminating the pregnancy.

10 The protocol to the Maastricht Treaty provides:-

11 '.....Nothing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution ofIreland....'

12 It appears to be generally accepted that the affect of this protocol would be to remove the present right of litigants to refer to the European Court of Justice any apparent conflict between national law and European law in relation to the provision of medical termination of pregancy. This service is a service within the meaning of Article 60 of the Treaty of Rome (SPUC) v Grogan ECJ 4 October 1991).

13 The Government has announced that it intends to seek an amendment to the protocol to provide for the right of freedom to travel instead of deleting it in its entirety.

14 The Commission wishes to make the point that an amendment confined to the right to travel is too limited. Any amendment to the protocol should also provide for freedom for counselling and freedom of information because of...