Taoiseach Leo Varadkar has ruled out as unconstitutional proposals by Tánaiste Simon Coveney for the inclusion of a two-third Dáil majority “lock” for votes on any future abortion legislation.
Mr Varadkar said he had sought the advice of Attorney General Seamus Woulfe on Tuesday morning on the proposal, which would seek to limit the scope for a future Dáil to introduce a more liberal abortion regime.
“The Attorney General advises me that it would be contrary to Article 15 of the Constitution and therefore could not be included in this legislation and therefore will not be.”
The Cabinet is discussing post-referendum legislation, the general parameters of which the Taoiseach said he expected to publish on Tuesday evening.
Following the Taoiseach’s statement, Mr Coveney acknowledged his proposal was unconstitutional.
“The option of a legislative lock was discussed earlier today but this would require constitutional change and is not possible in the timeframe,” a spokesman for Mr Coveney said.
“It in no way alters the Tánaiste’s full support for the heads being brought forward by Minister Harris.”
Opposition parties raised the issue in the Dáil amid concerns that Mr Coveney’s proposed two-thirds majority lock would be included in the legislation.
However, Mr Varadkar ruled out the proposal, saying “there will not be a requirement that any change to primary legislation would require a two thirds majority as doing so would require an amendment to the Constitution itself and it is not proposed to do that”.
Mr Coveney had suggested the mechanism, with a view to making it impossible for any one political group to change the law in the future. Although anti-abortion campaigners have raised concerns about further liberation of the law under future governments in the case of Article 40.3.3 of the Constitution being repealed, they criticised Mr Coveney’s intervention, saying the proposal was unconstitutional and thus did not go anywhere towards meeting their concerns.
Government figures told The Irish Times the Tánaiste had raised the matter previously and was informed of the Constitutional difficulties that would arise.
Labour party leader Brendan Howlin said the proposal was unconstitutional and the only circumstances in which a two-thirds majority was required in the Dáil is for the impeachment of a President.
"I have no doubt that what he is suggesting is unconstitutional," he told RTÉ's Morning Ireland on Tuesday.
“The problem is if that was inserted in the law, prima facie, that law would not be constitutional itself and I wouldn’t want to put the really hard work of advancing this case at risk.”
Mr Howlin said abortion was a complex issue and a complicated matter of law that should not be in the Constitution. It should be dealt with through legislation.
He said once the matter was settled in the referendum it will do so for one generation, he said.
Assistant Professor of law at Trinity College David Kenny agreed that Mr Coveney’s proposals were unconstitutional and would require a Constitutional change.
Fianna Fail TD Thomas Byrne described the suggestion as “truly bizarre” and said Mr Coveney should be “hammered for basic lack of knowledge” of the Constitution.
The made the proposal to counter claims that our “parliament can’t be trusted and to reassure voters that there will be no creeping change over time if they vote repeal”.
Those opposed to change have insisted politicians cannot be trusted not to change abortion laws into the future.
Introducing this clause would mean two-thirds of the Dáil would have to agree to any change.
Meanwhile, Fine Gael members are divided on the decision of Mr Coveney to support the proposition to allow for terminations up to the 12th week of pregnancy.
Mr Coveney had said previously he would not be in a position to support access to abortion within the first trimester, but has altered his stance after several meetings with Mr Harris and a number of medical professionals.
Additional safeguards
The Tánaiste said additional safeguards have been put in place to ensure there would be no unrestricted access to abortion at any point in pregnancy.
Mr Coveney’s comments were welcomed by Mr Harris, Minister for Justice Charlie Flanagan, Fine Gael TD for Dublin Bay South Kate O’Connell and Senator Catherine Noone. However, others including Fine Gael TD Peter Fitzpatrick and senators Paul Coghlan and Ray Butler expressed surprise at his remarks.
Mr Fitzpatrick said he would not criticise Mr Coveney, insisting he was welcome to his own view. However, he stated he was “taken back” by the decision to support “abortion on demand” within the first trimester. Mr Coghlan said he was “very disappointed”, while Mr Butler said he was “shocked” by the Tánaiste’s remarks.
One party member, who did not wish to be named but is a close supporter of Mr Coveney, told The Irish Times they were "shell-shocked" by the decision.
The member said: “I will make my decision based on my own conviction and won’t be looking over my shoulder when I make mine. Simon [COVENEY]should do likewise.”
Mr Coveney had last month stated his concerns regarding the proposition to allow for access to abortion up to 12 weeks, after the Cabinet agreed to hold a referendum on the Eighth Amendment to the Constitution. He had said he would support access to abortion when a mother’s life is at risk and in the cases of rape, where he stated no gestational limits should apply.
