Constitution not a block on assisted dying laws, committee told

The constitution is not a block on the Oireachtas legislating over assisted dying, a Dail committee has been told.

Members of the Joint Committee on Assisted Dying were told by two academics that whichever way the legislature chose to proceed on the issue, it has the right to do so.

However, a third academic disagreed and said he did not believe the Oireachtas has the “legislative competency” to change the ban on assisted suicide or euthanasia.

The special Oireachtas committee was set up to look at the area of assisted dying and to make recommendations for legislative and policy change relating to a statutory right to assist a person to end his or her life and a statutory right to receive such assistance.

The constitution places a duty on the State to protect the sanctity of all human life.

Dr Tom Hickey, a constitutional law expert from Dublin City University, said it was up to the legislature to decide an approach.

He said: “The constitution is not a bar or a block on the legislature from legislating as it sees fit in the public matter on this issue.

“If you, as a body of legislators, form the view that it is in the public interest to retain the blanket ban on assisted suicide, that is absolutely something you are constitutionally entitled to do.

“Equally, and for the same constitutional reasons, if you as a body of legislators form the view that it is in the public interest to loosen the ban, to allow for assisted suicide under limited circumstances, that is something you are perfectly entitled to do.

“Whichever course of action you take, if there is a challenge in five years or 10 years, somebody goes to the High Court and seeks a declaration of unconstitutionality, it is very unlikely in my view that that litigant would win.”

He added: “You are the legislators, you are the Oireachtas, you get to make the call on what is in the public interest.”

Dr Andrea Mulligan, assistant professor of law at Trinity College Dublin, agreed with that assessment.

She said: “Almost everything about how to and whether to regulate for assisted dying is complex, except for the primary constitutional question which is – is the Oireachtas entitled to legislate for assisted dying?

“It absolutely is.”

She added: “The absence of a right to die does not mean the Oireachtas isn’t entitled to legislate for it.”

During the hearing on Tuesday, frequent references were made to the case of Marie Fleming, who in 2013 lost a landmark Supreme Court right-to-die challenge.

Ms Fleming, who had multiple sclerosis, unsuccessfully sought an order declaring a section of the law that bans assisted suicide to be incompatible with the European Convention on Human Rights.

Dr Conor Casey, senior lecturer in public Law at the University of Surrey, said in the Fleming ruling, the Supreme Court had left “unresolved” the question of whether the Oireachtas has legislative competence to permit assisted suicide or voluntary euthanasia by a statutory regime.

He continued: “I think that in the absence of a determinative judgment of the superior court, the most persuasive interpretation of the constitution open to us is that the Oireachtas is not competent to introduce a legislative regime that would permit either a statutory right to assisted suicide or to voluntary euthanasia.”

Fine Gael Senator Mary Seery Kearney said she objected to the use of the word “killing” eight times by Dr Casey in his written submissions to the committee.