AG’s advice on constitutional implications of abortion legislation sought

The Government is awaiting advice from the Attorney General about the constitutional implications of abortion legislation being the sole prerogative of the Oireachtas.

Taoiseach Leo Varadkar said the Government had to consider the Citizens' Assembly proposal that a constitutional amendment would also be necessary to specify that legislation would be the sole prerogative of the Dáil and Seanad, and not the courts.

He also said that any proposal brought to Cabinet would have to have two elements including a referendum Bill to allow for the repeal of the Eighth Amendment on abortion and a detailed draft scheme of any legislation to be produced should a referendum be passed.

The Taoiseach told Labour leader Brendan Howlin there were other rights in the Constitution and the Government was concerned that any subsequent legislation could be deemed unconstitutional because of those rights.

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“We are awaiting advice from the Attorney General on that issue because we would find ourselves in a very strange position if we were to repeal the Eighth Amendment only to find that there were other rights to life in other parts of the Constitution that might make any legislation we would pass unconstitutional.”

He said: “We have to obtain the Attorney General’s advice on that issue.”

The Taoiseach said they all had to bear in mind that if the Eighth Amendment is removed from the Constitution “the legislation would then be in the purview of the Oireachtas and that the Government does not have a majority in the House”.

People Before Profit TD Richard Boyd Barrett expressed concern that the referendum could be delayed beyond the Taoiseach’s preferred date of May.

The Dun Laoghaire TD said “we need the legislation and a clear commitment that there will not be any delay, excuses, technicalities, obstacles, filibustering or anything else that will prevent the referendum from taking place in May which is when we will hear the voice of the public. We have had enough debate here.”

Mr Varadkar retorted that “with respect, the Deputy is one of the champion filibusterers in the House”.

The Taoiseach insisted that “despite what other people may think, it was never about delaying tactics or long-fingering this issue. I do not want to long finger it either.”

He said: “I am committed to having a referendum in May or June if possible.” The Taoiseach said the public would want some indication, “at the very least, a detailed general scheme” of what new law the House would enact if the Eighth Amendment is repealed.

If it was repealed in the morning the Protection of Life During Pregnancy Act 2013 would remain in place.

He added that the Citizens’ Assembly and the all-party committee differed about whether there needed to be “an enabling provision or amendment which makes it clear that only the Oireachtas can make the law on this issue because there is another right to life in the Constitution.

“There are also rights to privacy, children’s rights and rights to bodily autonomy,” and the Government had sought the Attorney General’s advice.”

Earlier People Before Profit TD Bríd Smith had questioned why the speaking time for each TD in the Dáil abortion debate had doubled from 10 to 20 minutes, potentially leading to a 52-hour debate, which could delay possible referendum date.

Government Chief Whip Joe McHugh said a number of people from different parties had requested extra time and the debate should not be stifled.

Independent TD Mattie McGrath said the debate should not be conducted with “indecent haste” on an amendment that he said had served the State well over decades.

Ceann Comhairle Sean Ó Fearghaíl said it was a new departure “to be talking about curtailing people’s ability to contribute here”.