A new constitutional clause empowering the Oireachtas to legislate for abortion will not prevent challenges being taken in the Supreme Court to any future legislation, the attorney general will advise the cabinet tomorrow.
Seamus Woulfe, the state's chief law officer, has already reassured a number of ministers who have concerns about the “repeal and replace” approach that it would still be legally possible to challenge any subsequent abortion law in the courts.
A new clause in the constitution empowering the Oireachtas to legislate for abortion would allow the courts to interpret a “yes” vote in the repeal referendum as an instruction to TDs and senators to provide a legal framework for abortion, Woulfe is expected to say.
Government sources expect agreement at tomorrow’s cabinet meeting to approve the “repeal and replace” approach, but ministers could yet argue or campaign against the amendment in a personal capacity. To date, none has signalled any intention to do so.
Katherine Zappone, the children’s minister, has told The Sunday Times she would prefer a straightforward repeal, known as repeal simpliciter, but is open to persuasion, having discussed the matter with Woulfe.
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“I have had discussions with the attorney general, in preparing for our [cabinet] meeting, about whether to repeal and delete or have some form of enabling provision explicitly empowering the Oireachtas to legislate,” said Zappone, a non-party minister. “I am against immunising legislation against the Supreme Court.
“The Oireachtas committee, in taking that view [in favour of repeal simpliciter], acknowledged that the separation of powers between the courts and the Oireachtas is part of our constitutional and democratic foundations.”
Zappone is worried about the political practicalities of trying to persuade voters to add a new clause to the constitution after article 40.3.3 had “caused so many problems”, and to convince them to support a constitutional enshrinement of politicians’ powers.
“Article 15 already gives the Oireachtas the power to legislate, so it is probably not absolutely necessary but it may be worth including a new clause,” said Zappone. “That is not my view but I feel less opposed to it after speaking to the attorney general. The language will be important. It needs to be clear that it’s not about giving the Oireachtas any more power than we have right now.
“It would be terrible if the people voted to repeal and then a constitutional challenge [against] the legislation was successful.”
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Last April, the citizens’ assembly recommended article 40.3.3 be replaced by a clause authorising the Oireachtas “to legislate to address termination of pregnancy, any rights of the unborn, and any rights of the pregnant woman”, but did not suggest a wording.
Lawyers who gave evidence to the joint Oireachtas committee on the eighth amendment said “absolute legal certainty” was unachievable. The most that could be achieved was a reduction in the Supreme Court’s scope to find any new law unconstitutional.
“Nobody wants the situation where they go through a difficult referendum campaign and, if the people choose to repeal the amendment, then have uncertainty,” said a government source.
Leo Varadkar, the taoiseach, will set out his personal views about the issue after tomorrow’s cabinet meeting. He told the BBC on Friday that he would campaign for the liberalisation of abortion laws. “I’ll be campaigning for them to be changed and to be liberalised, yes,” he said.
Simon Harris, the health minister, is expected to tell the cabinet meeting his wish is that the referendum be held by Friday, May 25. Zappone said: “I would love to see it happen before the end of May to facilitate our young people to vote.”
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“Frankly, it’s really important that we all come to an agreement. I expect that will happen,” added the children’s minister.
“I am heartened by the recent opinion polls. I have had a feeling for a couple of months there is a strong momentum building and it is time for this change.”
Varadkar told a meeting of Fine Gael’s women ministers, TDs and senators last Tuesday that Woulfe’s advice to the government was in favour of an enabling provision in the constitution. The taoiseach is said to have asked whether they approved of his approach to the referendum so far, and nobody voiced any criticism of it.
Shane Ross, the Independent Alliance minister for transport who is an opponent of the eighth amendment, is to make his views on the government approach known at cabinet tomorrow. Close attention will also be paid to the views of Michael Creed, Heather Humphreys, Richard Bruton, Michael Ring and Denis Naughten, who have yet to publicly state their positions.
Woulfe has sought external legal opinion from senior counsel on the wording of the referendum, as his office routinely would do on significant advice to government.
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Cora Sherlock of the Pro Life Campaign said it was “deeply regrettable that the leader of our country is going to campaign for the removal of the most basic human right, namely the right to life itself, from our constitution”.
Ailbhe Smyth, the convenor of the Coalition to Repeal the Eighth amendment, said: “We would be concerned about anything that complicates the referendum. [We] have been campaigning for repeal of the eighth amendment, not for another amendment.”
