The Government faces yet more Fine Gael defections in the imminent Seanad debate on the abortion legislation as attention turns to the question of whether President Michael D Higgins asks the Supreme Court to test its constitutionality.
Having contained to five TDs the Fine Gael rebellion in the Dáil against the Protection of Life During Pregnancy Bill, Taoiseach Enda Kenny must now confront the objections of up to seven Senators.
The Seanad debate on the Bill begins next Monday afternoon and is expected to continue until Monday or Tuesday of the following week. Although passage of the Bill through the Upper House is assured, it is greatly in Mr Kenny’s interest to minimise any defiance of the whip.
Further defections are inevitable, however, given signals from Senator Fidelma Healy-Eames that she will not support the Bill and the reservations of Senator Paul Bradford.
Disquiet
Mr Bradford has made his disquiet clear and he is considered unlikely to change his mind. His wife, Lucinda Creighton, resigned her junior ministry on Thursday after her vote against the Bill prompted her immediate expulsion from the Fine Gael parliamentary party.
Fine Gael Senators with doubts over the Bill include the party’s chief whip in the Seanad, Paul Coghlan. Other doubters also include Senators Michael Mullins, Michael Comiskey, Terry Brennan and Tom Sheahan.
Mr Coghlan declared in the Seanad last month he would not like to vote for or support abortion “in any shape or form” but his support appears assured. It would be truly extraordinary for the chief whip in the House to defy the very whip he was seeking to enforce on behalf of the Government. The second-stage Seanad debate is scheduled to begin at 3.45pm on Monday and will continue on Tuesday.
The committee stage begins on Wednesday and resumes on Thursday. The present plan is for the report and final stages of the debate to conclude by Tuesday week at the latest. Any amendments in the Seanad can be referred back to the Dáil.
The Bill will be sent to Mr Higgins once these enactment procedures are complete.
Speculation
As the Bill cleared the Dáil this week, there was already speculation about the possibility of the President referring it to the Supreme Court for a judgment on its constitutionality. Mr Higgins has absolute discretion in this regard.
However, a referral to the Supreme Court offers two advantages. The first is that the court would consider the entirety of the Bill. The second is that the constitutionality of any Bill signed following a referral cannot be challenged subsequently in the courts.
This means a positive Supreme Court ruling following such a referral would “bullet-proof” the entirety of the legislation against any future legal challenge.
In the absence of such a ruling, sections of the law would be open to challenge in the High Court and, on appeal, to the Supreme Court.
It is for the President alone to decide whether to send the Bill directly to the Supreme Court but he must first consult the Council of State. Its members include the Taoiseach, Tánaiste, the Chief Justice, President of the High Court, the Attorney General, the Ceann Comhairle and the Cathaoirleach of the Seanad.
Council
Previous holders of the office of president, taoiseach and chief justice are also on the council, as are seven appointed members: Ms Justice Catherine McGuinness; Michael Farrell; Prof Deirdre Heenan; Prof Gearóid Ó Tuathaigh; Ruairí McKiernan; Sally Mulready; and Prof Gerard Quinn.
If there is to be no referral to the Supreme Court, the President must sign the Bill on the fifth, sixth or seventh day after it is presented to him.
