The Supreme Court has rejected the entity known as the Pro Life Campaign’s application to participate as amicus curiae in appeal of M v Minister for Justice and Equality, in relation to article 34.5.4 of the constitution, due to take place later this month. In reaching this decision the Court noted that the decision to grant amicus status is a discretionary one and the fundamental question to be addressed in each case is whether the Court is likely to be assisted significantly by the intervention offered. For the reasons set out below the Court did not believe it would be.
By way of background the case was heard in the High Court in July 2016, and concluded that the respondent Minister for Justice was obliged to consider the position of any child of an applicant for a revocation of a deportation order made pursuant to s.3 (11) of the Immigration Act, including children unborn at the time of the application. Click here for earlier commentary on the case in the PILA bulletin.
The Applicants sought to join the appeal as amicus curiae in order to “support and if necessary amplify” the arguments that might be made by counsel for the respondent. In addition, the Applicants set out in their affidavits to the court that there should be a “comprehensive adjudication by [the] Court that article 40.3.3 embodies the totality of rights of the unborn”. They also expressed concerns that the interests of the foetus could be “overwhelmed by the desire of the government to adhere to a particular timetable or approach matters in particular ways”.
In its decision, the Court addressed from the outset the forthcoming referendum in relation to article 40.3.3, which was referenced repeatedly in the affidavits of the Applicants. The Court set out that its function is to uphold the Constitution and interpret it thus. It went further to state that the Court is not at liberty to make observations in general on social, political and legal issues. Its only function is to decide on the issues which are necessary in order to resolve the litigation between the parties present in the particular case before the Court. It followed that it is not the function of the court to give advisory opinion or to offer views on matters unconnected with the issues before it.
The Court further addressed the Applicants concern of the affect a strict timetable might have on the proceedings. It stated that, while the court may attempt to provide decisions in early course in order to address matters which are urgent, the Court does not hear cases according to a predetermined time table, or issuing a judgement before a case has been properly resolved. The Court further noted that the case in question surrounded immigration, where the first named applicant, who was appealing a deportation order, argued that the minister for justice and equality must take into account the rights of his unborn child. The High Court determination that the foetus was a child for the purposes of Article 42 was appealed by the State to the Court of Appeal. The Court further noted the Pro-Life Campaign did not make an application to join proceedings in the immediate aftermath of this judgement. Therefore the Court concluded that the current application was precipitated by the increased discussion of the case in the context of the upcoming referendum.
The Court then addressed the submission of the Applicants that they wished to “support and if necessary amplify” the stance of the respondents. The Court noted that the respondents were supported by an experienced legal team, and that the Court must observe that the respondent’s lawyers made no suggestion that they would need or benefit from additional support from the applicants. The Court went further to state that Council on behalf of the Applicants had not identified any particular legal argument they wished to make. The Court was not satisfied that the applicants had established that the applicants assistance to the respondents council was necessary and that the arguments could not properly and adequately be advanced by the existing parties to the proceedings. The Application to participate as Amicus Curiae by the Pro Life Campaign was rejected on these grounds.
Click here to read the full Supreme Court judgement