An unfortunate end to Dáil’s deliberations on the most sensitive of topics

One of the low profile but important staffer jobs during the course of any large-scale election campaign is dealing with correspondence from interest groups or individuals on specific policy positions.

Campaigning groups make a point of writing to each of the main parties at election time seeking written clarifications or commitments on particular policies. Usually somebody in the political party’s research and policy unit is given the job of formulating careful responses to each query. Their task in so doing is to ensure that where party policy is clear, it is stated as such but, where it is more nuanced, the reply is worded subtly to avoid alienating any potential voters before polling day while simultaneously avoiding commitments which might come back to haunt the party should it secure a role in government.

The letter from Phil Hogan setting out Fine Gael's position on abortion during the February 2011 election has all the signs of emanating from such a careful political drafting process.

The letter is just four paragraphs long. The first paragraph contains one sentence which says "Fine Gael is opposed to the legalisation of abortion." The letter goes on in the next paragraph to promise the establishment of an all-party Oireachtas Committee with access to medical and legal expertise to "consider the implications of the recent ruling of the European Court of Human Rights". In the third paragraph Hogan says that Fine Gael representatives on that committee would bring a "clear commitment that woman in pregnancy will receive whatever treatment they require to safeguard their lives and the duty of care to preserve the life of the baby will also be upheld". The fourth paragraph states Fine Gael's opposition to research on human embryos.

The letter makes no mention of the X case or of permitting abortion on grounds of a risk to the mother’s life from suicide. Some Fine Gael TDs later described it as a “letter of comfort” furnished to the pro-life movement. On closer reading however it’s clear that while it signalled a pro-life stance, it left Fine Gael with some wriggle room in government.

The Labour Party manifesto by comparison included an express commitment to legislate for the X case. The compromise negotiated between the two parties in their Programme for Government was to establish an expert group on the implications of the European court rulings. Interestingly, the Programme for Government did not include a commitment to legislate for the expert group's recommendations.

Even though it seems the tragic death of Savita Halappanavar had little if anything to do with lack of legislation, the public response to her story transformed the political context within which government came to deal with the abortion issue. There is every possibility that, on the Fine Gael side at least, there would have been an inclination to let the abortion issue lie but the detail and profile of Savita's story made legislative change inevitable. It also led to a shift in measured public opinion towards legislating for the X case.

The level of public support for the basic tenets of the Protection of Life in Pregnancy Bill 2013 varies in opinion polls depending on whether the words “X case” or “suicide” are included within the question. However any detached reading of the various polls suggests that the policy reflected in the Bill enjoys the support of about two-thirds of the electorate.

The government’s initial response to the expert group report when it was published was an example of what should be best practice in law-making. Cabinet made a relatively quick decision on which of the expert group’s options to implement. The “heads” of a Bill were produced almost simultaneously. These were referred to a pre-legislative committee process where legal and medical experts were asked to offer their view. A full draft of legislation was published shortly afterwards. This again was considered at committee hearings, at which an even wider range of experts were heard. When the full legislation came to the Dáil, the Second Stage debate was reasoned and comprehensive.

Then however the government began to make mistakes, perhaps because Fine Gael ministers were spooked by the risk of large-scale defections.

The Committee Stage of the legislation was dealt with in the Dáil’s health committee rather than as a committee of the full house, which could have been justified given the legislation’s significance. While the Dáil committee deliberations were lengthy and any TD could speak, only those who were members of that committee could propose amendments. This was partly the reason why so many amendments were proposed and had to be debated when the legislation returned to the full Dáil at fourth stage this week.

When it became clear that the fourth stage debate was moving slowly, Fine Gael party managers panicked. Anxious, in the Taoiseach’s own words, to “get rid” of the legislation as soon as possible, the government whips proposed at 10pm on Wednesday night that the sitting would run to midnight and later again insisted on an all-night sitting to 5am. It was a bizarre decision.

After delaying 30 years to introduce legislation to implement the 1983 referendum and 21 years since the X case, TDs could have allowed themselves one more day to make sure they were fully awake when finally passing the Bill. Instead the final stages descended at times to farce with one tired government deputy pressing the wrong voting button and another engaging physically in the chamber with a female colleague, creating images which went viral around the world.

The government whips have only themselves to blame for the shambles into which that Thursday morning’s “late night” session descended. It was an unfortunate end to the Dáil’s deliberations on this most sensitive of topics. Now the legislation goes to the Seanad.