If, as expected, the Bill on abortion to be introduced in Dáil Éireann next week by Mick Wallace TD is the same as that which Claire Daly TD introduced last year, then the Government position will be to oppose it. The Attorney General took the view that it was very unconstitutional then. Neither the Attorney General nor the Constitution have changed since. She has offered the same advice now.
What has changed since, however, is the composition of both the Dáil and the Cabinet, and it is this change which may throw other interesting constitutional considerations into the debate and vote on the Wallace Bill. A government usually has a majority with which to vote down legislation which it has been advised is unconstitutional. The Government cannot do that because it does not have a majority.
Media reports suggest that at least some of the Independent TDs supporting the Government, including some of the Cabinet members, want to have a free vote on the legislation and some want to be able to vote for the Bill.
Such a free vote would test the flexibility of collective Cabinet responsibility, which is, of course, itself constitutionally mandated. There have been historical incidents where Cabinet members have walked through the lobbies against government legislation. In 1974, for example, the then taoiseach Liam Cosgrave and his cabinet colleague Richard Burke both voted against their own government Bill liberalising the contraception laws.
A nonsense of norms
However, I can recall no precedent for Ministers being free to oppose legislation which the Attorney General has advised is unconstitutional. It is one thing for a Minister to have a free vote on animal cruelty legislation or even contraception legislation where the considerations are merely about differences in policy. It is quite another for Ministers to feel free while remaining in Cabinet to vote for the passage of legislation which the Cabinet itself has determined, on the Attorney General’s advice, is unconstitutional. Such a scenario would make nonsense of basic constitutional norms.
Whatever the Government Independents do, it seems likely that sufficient Fianna Fáil Deputies will exercise their “free vote” in opposition to the Wallace Bill, thereby ensuring it is defeated.
The position of the seven Labour Party Deputies in next week’s vote will also be interesting. The party supports change in this area but accepts it will require a constitutional referendum. That is why as government ministers or government backbenchers they each voted against this Bill last year. Logically it follows they will vote against the legislation next week.
It is clear from the previous public debates, including that surrounding the Protection of Human Life in Pregnancy Act in 2013, that the majority of constitutional experts agree with the Attorney General's view that providing for abortion in Ireland in circumstances of fatal, or potentially fatal, foetal abnormality requires constitutional rather than just legislative change. It requires either the deletion or amendment of the article inserted into the Constitution by the referendum on the eighth amendment.
What is also clear is that for political reasons the prospects of such a referendum any time soon are to be shaped, initially at least, by a citizens’ assembly rather than by the Oireachtas itself.
In its 2016 election manifesto Fine Gael committed to establishing a citizens’ assembly, within six months, to examine issues relating to the eighth amendment and “establish if a broad consensus can be reached on future change”.
During the course of the lengthy negotiations which preceded the formation of this Government, that commitment morphed into the following passage in the programme for government. “We will establish a citizens’ assembly, within six months, and without participation by politicians, and with a mandate to look at a limited number of key issues over an extended time period. These issues will not be limited to those directly pertaining to the Constitution and may include issues such as, for example how we, as a nation, best respond to the challenges and opportunities of an ageing population. That said, we will ask the citizens’ assembly to make recommendations to the Dáil on further constitutional changes, including on the eighth amendment, on fixed-term parliaments and on the manner in which referenda are held.”
Referendum proposals
It is proposed the report or recommendations on abortion from this citizens’ assembly would be referred then to a Dáil committee which would further deliberate on what, if any, proposals would then be put to the people in a referendum.
The Government has briefed to the effect it hopes this citizens’ assembly will be established by a resolution of the Dáil before the summer recess and could begin its work in early autumn. Little has been said publicly by Ministers about whether, how or at what pace the exploration of options will progress. Next week’s Dáil debates might at least provide an opportunity for greater clarity.