Government seeking legal advice on Eighth Amendment removal

A final recommendation will be made by the end of this month or early February on whether a new provision is needed in the Constitution to enable the Oireachtas to legislate for abortion.

Minister for Health Simon Harris said that just as the Citizens’ Assembly and the Oireachtas Committee on the Eighth Amendment did, the Government was seeking legal advice for a recommendation on how best to remove the amendment, which gives an equal right to the life to the mother and the unborn.

A Dáil debate resumes on Thursday afternoon on the committee’s report, which recommends abortion be allowed up to 12 weeks into a pregnancy.

The Irish Times reported on Thursday that the Government fears a straight repeal could lead to legal challenges. It is likely to propose a new amendment to the Constitution giving the Dáil and Seanad prerogative on abortion legislation.

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Labour leader Brendan Howlin raised the issue in the Dáil and expressed concern that “we must settle this matter without further delay in a very open manner”. He called on the Government to provide the legal advice to the House “so that we can have an understanding of why there might a be consideration of an alternative to the all-party review which came to a recommendation that the article should be simply repealed”.

Mr Howlin said the matter had been carefully considered by the all-party committee and “the issue of the separation of powers loomed large in their consideration and their determination on this matter”.

‘Sensitive issue’

Mr Harris said that as the Government “now navigates this important, sensitive issue and moves towards having a referendum this summer we obviously need to get our own legal advice.

“We’re still in the process of that,” he said. “As I’ve already outlined I expect to return to Government to advice Government on this matter by the end of this month or the very start of the next month.”

Mr Harris added that he would “be very happy at that stage to brief members of this House and all political parties and groupings once the Government has made a decision in that regard”.

A spokesman for Taoiseach Leo Varadkar, who has not yet set out his own position on the abortion question, confirmed he is not scheduled to speak when the debate resumes on Thursday afternoon.

The Dáil debated the issue for five hours on Wednesday evening, with most speakers expressing their support for the repeal of the Eighth Amendment and the other changes recommended in the committee’s report.

Though the position of many TDs remains undeclared, the latest figures from The Irish Times referendum tracker suggest that repeal is within touching distance of a majority in the House already.

Some 76 TDs - just two short of a simple majority in the Dáil - are now on record as supporting repeal of the Eighth Amendment. A total of 32 TDs say they are opposed, while 50 remain undeclared.

You can check how each Oireachtas member is likely to vote here: irishtimes.com/news/politics/referendum-tracker.

Many TDs have said that they will make their positions on the issue clear when they speak in the House.

However, expectations on all sides of the debate, and in all parties, are that the proposal for a referendum will pass comfortably when a vote is taken. Even many TDs who say they are opposed to repeal say they will back a referendum so that people can have their say on the issue.

The Government is likely to pledge to introduce legislation to provide for abortions up to 12 weeks on request, in line with the committee’s recommendations, if the referendum is passed by the people.

The Eighth Amendment, Article 40.3.3, was inserted into the Constitution after a referendum in 1983.

It guarantees to protect as far as practicable the equal right to life of the unborn and the mother, thereby prohibiting abortion almost all cases.