Richard Greene (Cóir) Article in the Irish Times

Manuss

It would seem to me that the protocol protects our right to decide our own abortion laws. The problem is that Gerard Hogan, a respected constitutional lawyer told the Irish Times that the Supreme court would be eclipsed by the EU fundamental rights charter, the Irish member of the ECJ has said that its foolish to claim that the charter will not effect national laws, and the European Centre for Law and Justice said that an ECJ decision that abortion was a fundamental right under the charter would be binding on Ireland.
Granted that doesn't seem to make sense, but those working in the area where law is bindingly interpreted apparently believe that Lisbon would allow the EU courts impose abortion. That seems to back-up the Coir argument on abortion. At least where lawyers are concerned, its open to debate. Hardly the absolute position the government cheerleaders claim.

Scofflaw

Manuss wrote: »

It would seem to me that the protocol protects our right to decide our own abortion laws. The problem is that Gerard Hogan, a respected constitutional lawyer told the Irish Times that the Supreme court would be eclipsed by the EU fundamental rights charter, the Irish member of the ECJ has said that its foolish to claim that the charter will not effect national laws, and the European Centre for Law and Justice said that an ECJ decision that abortion was a fundamental right under the charter would be binding on Ireland.
Granted that doesn't seem to make sense, but those working in the area where law is bindingly interpreted apparently believe that Lisbon would allow the EU courts impose abortion. That seems to back-up the Coir argument on abortion. At least where lawyers are concerned, its open to debate. Hardly the absolute position the government cheerleaders claim.

Where's the bit where something overrides the existing (or proposed) protocol? Leaving aside the fact that the EU has no right to rule on abortion's legality and that the Charter cannot create any new competence for the EU - which together mean that the Charter cannot create an EU competence on the legality of abortion - the Charter, even at the hugest stretch of fevered imagination, will not be superior to the treaties, where our Amendment 40.3.3 is specifically protected from all EU interference.

regards,
Scofflaw

ixtlan

I'm no expert on this but I usually look at things to see if from a certain angle the point may be true. Often then this other angle has nothing to do with the point in question.

Manuss wrote: »

It would seem to me that the protocol protects our right to decide our own abortion laws. The problem is that Gerard Hogan, a respected constitutional lawyer told the Irish Times that the Supreme court would be eclipsed by the EU fundamental rights charter,

Possibly true in a general way for some laws, but surely the EU fundamental rights charter will be eclipsed by the treaty protocols for Ireland. The protocols are specific while the charter is not, so it's hard to see the protocol losing a legal battle.

Manuss wrote: »

the Irish member of the ECJ has said that its foolish to claim that the charter will not effect national laws,

Of course it could affect national laws, but again in this case with the existence of a very very specific protocol abortion laws could not be affected.

Manuss wrote: »

and the European Centre for Law and Justice said that an ECJ decision that abortion was a fundamental right under the charter would be binding on Ireland.

Well if there was no protocol maybe that might be true, but since there is a protocol... which again I will add is specific while the charter is vague... I cannot see any way the ECJ could affect Irish laws on abortion.

Manuss wrote: »

Granted that doesn't seem to make sense, but those working in the area where law is bindingly interpreted apparently believe that Lisbon would allow the EU courts impose abortion. That seems to back-up the Coir argument on abortion. At least where lawyers are concerned, its open to debate. Hardly the absolute position the government cheerleaders claim.

Remember that there are several states in the EU that have laws against abortion. If the EU started getting involved in this there would be chaos at a council level. So why isn't anyone panicing? Because it will not happen.

I'm open to correction as a lay person and not a lawyer, but surely if as the argument goes, there is conflict between the FRC and the abortion protocol, the protocol has to win. The courts job is to rule on what was meant by the treaties. It's 100% clear what the protocol means. The charter could be open to interpretation. 100% clear vs interpret. How could the court possibly rule that Irish abortion laws must be changed?!

Ix

BlitzKrieg

but surely the EU fundamental rights charter will be eclipsed by the treaty protocols for Ireland.

I think the wording of the protocol is very important. It specifies that nothing in the treaties can affect the irish constitutional stance on abortion.

Nothing in the Treaties, or in the Treaty establishing the European Atomic Energy Community, 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 of Ireland.

Now the issue that can be argued here is that the charter is not a treaty, but a seperate document that is referenced in Lisbon in the declaration section

1. Declaration concerning the Charter of Fundamental Rights of the
European Union
The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms
the fundamental rights guaranteed by the European Convention for the Protection of Human Rights
and Fundamental Freedoms and as they result from the constitutional traditions common to the
Member States.
The Charter does not extend the field of application of Union law beyond the powers of the Union or
establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.

It could be argued very weakly that protocol 35 does not apply because the charter is not in Lisbon or any associated treaties, nor is it a treaty or an act by itself.

thankfully though the last line of the declaration covers protocol 35's arse with this

establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.

If this wasnt here the court could have kept the whole issue away from the treaties, arguing that protocol 35 did not apply. But because the charter has been specified to not modify the powers and tasks as defined by Lisbon, that means it is subject to Protocol 35 for as long as abortion remains illegal as defined by our constitution.