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How the Fine Gael lost the Dáil vote on abortion in 1983 while in government

23 November, 2012 2 comments

The events of the past week prompted me to look back to see how Article 40.3.3° was proposed in the Dáil, knowing that there was an odd circumstance in its passing as the only constitutional amendment that was not a government amendment. The speeches are interesting to read as a snapshot into Ireland of 1983, and Oliver J. Flanagan’s contribution stands out in that respect, as does the speculation from Fianna Fáil’s Dr Seán McCarthy as to whether the Taoiseach had been influenced by the “pro-abortionists in Young Fine Gael”.

Though further amended in 1992 to protect the freedom to travel and receive information, the substantive clause as still exists was inserted by the Eight Amendment to the Constitution Act, 1983,

3º The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Dr Garret FitzGerald was then leading a coalition government of Fine Gael and Labour, but only 13 TDs from the two government parties actually voted for that wording.

The wording above was drafted by the Pro-Life Amendment Campaign. There had been fears since the US Supreme Court had found a right to abortion in Roe v. Wade in 1973, and the Pro-Life Amendment Campaign was further mobilised in the aftermath of Pope John Paul II’s visit to Ireland in 1979. By the third election between June 1981 and November 1982, they had secured commitments from both Fine Gael and Fianna Fáil to introduce this amendment. The Eighth Amendment to the Constitution Bill was first moved in the dying days of the Fianna Fáil government in November 1982.

Fine Gael initially accepted this wording and in the Programme for Government with Labour, it was agreed that Labour would have a free vote on the bill. It was moved by Michael Noonan as Minister for Justice in February 1983.

Fine Gael’s alternative wording

Peter Sutherland, the Attorney-General, subsequently advised of problems with the wording, and in April, Michael Noonan moved an alternative amendment,

Amendment One

3º Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.

This wording would have meant that the current legislation prohibiting abortion, the Offences Against the Person Act, 1861, could not be deemed unconstitutional, and similarly for any possible subsequent legislation on abortion. This would thereby prevent a Roe v. Wade–like decision in the courts.

At the same time, a law to allow for abortion would also be consistent with this alternative amendment. This led to splits in both government parties. In Fine Gael, TDs who maintained their support for the original wording abstained in the vote on the alternative amendment. Labour allowed a free vote, and split three ways, between those who supported the original wording, those who opposed any amendment, and those who accepted that there would be a referendum and saw the Fine Gael alternative as at least better the the Pro-Life Amendment Campaign original wording.

Michael Noonan’s reasons for opposing the original wording seem chillingly prescient in the current context. This was on 27 April 1983,

Briefly, those defects are twofold: first, that the expression “the unborn” is very ambiguous; second, that the reference to the equal rights of the mother is insufficient to guarantee that operations necessary to save the live of the mother but resulting in the death of the foetus may continue.

On the first point, it is scarcely necessary to say that objection is not being raised simply on the basis that there is a certain degree of ambiguity. Some ambiguity is probably inescapable — language is not a precise instrument. The criticism in this case is the extent of the ambiguity, a criticism which is strengthened by the fact that it was obviously accepted in order to avoid argument.

On the second point, I would like the record to show very clearly what is being said by way of criticism — and what is not being said. It is not being said that the wording would be held to make the operations in question unlawful. Nobody could say with certainty what interpretation a court might put on the words. What is being said is that, on the ordinary meaning of words, that should be the interpretation and that therefore there must be a definite risk.

Of the opposition parties, Fianna Fáil maintained a strict whip against the alternative and in favour of the original wording and the two Workers’ Party TDs were against any amendment.

With this division between the parties, the amendment proposed by Michael Noonan was defeated by 65 votes to 87.

Between the parties:

  • of the 74 Fianna Fáil TDs, 73 voted against;
  • of the 70 Fine Gael TDs voted in favour, 60 voted in favour;
  • of 16 Labour TDs, 5 TDs voted in favour (Liam Kavanagh, Barry Desmond, Michael Moynihan, Seamus Pattison, Dick Spring) and 10 TDs voted against (Michael Bell, Joe Bermingham, Frank Cluskey, Eileen Desmond, Seán Treacy, Toddy O’Sullivan, Frank Prendergast, Ruairí Quinn, John Ryan, Mervyn Taylor);
  • both Workers’ Party TDs voted against, and;
  • both Independents, Neil Blaney and Tony Gregory voted against.

Workers’ Party amendments

The Workers’ Party proposed further amendments, but as there weren’t sufficient numbers in the voice vote, the house wasn’t divided, and all these were lost. Even tho they opposed the amendment altogether, they proposed them to make the amendment a lesser harm or clearer in its meaning, and these proposed changes to the original wording highlighted show the nuances to the discussion at the time.

Amendment Two

3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Amendment Three

3º The State acknowledges the right to life of the unborn and, subject to the right of the mother to life and bodily integrity, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Amendment Four

3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable without interference with any existing right or lawful opportunity of any citizen, by its laws to defend and vindicate that right.

Amendment Five

3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable without interference with any existing right or lawful opportunity of any citizen, by its laws to defend and vindicate that right. This subsection shall not be cognisable by any Court except in a case seeking to have section 58 of the Offences Against the Person Act, 1861, declared unconstitutional or contrary to any provision of this Constitution.

Original Pro-Life Amendment Campaign wording passes

After all attempts to change the wording had failed, the Dáil then proceeded to vote to retain the initial wording. This was a very strange vote; a vote to amend the constitution in which no Government Minister from the senior party voted. Nearly all the Fine Gael members who voted for the alternative wording abstained on this vote, while those who had abstained on the alternative voting in favour of this one. This motion passed by 87 vote to 13.

Between the parties:

  • of the 74 Fianna Fáil TDs, 73 voted in favour;
  • of 70 Fine Gael TDs, 8 TDs voted in favour (Michael Begley, Liam T. Cosgrave, Michael Joe Cosgrave, Joe Doyle, Oliver J. Flanagan, Alice Glenn, Tom O’Donnell and Godfrey Timmins), while 2 TDs voted against (Monica Barnes and Alan Shatter);
  • of 16 Labour TDs, 5 voted in favour (Michael Bell, Frank McLoughlin, Frank Prendergast, John Ryan and Seán Treacy) and 8 TDs voted against (Joe Bermingham, Frank Cluskey, Barry Desmond, Eileen Desmond, Toddy O’Sullivan, Ruairí Quinn, Dick Spring and Mervyn Taylor);
  • both Workers’ Party TDs voted against;
  • and of the Independents, Neil Blaney voted in favour and Tony Gregory voted against.

The Bill proceeded to the Seanad where, after the three Trinity Senators, Catherine McGuinness, Mary Robinson and Shane Ross, were unsuccessful in pursuing amendments, it passed, with only Fianna Fáil Senators voting in favour.

Referendum

The referendum was held on 7 September, 1983. The leaders of the two government parties, Dr Garret FitzGerald and Dick Spring, both called for a No vote; the leader of the opposition, Charlie Haughey, called for a Yes vote. It was passed by 67% of the electorate, carried in all  but five constituencies (all in Dublin), on a turnout of 54%.

Fine Gael must move on equal marriage at this Ard Fheis

5 March, 2012 3 comments

Most of the Fianna Fáil Ard Fheis meant little to me. There was nothing in Micheál Martin’s speech that made me feel that the party was on the cusp of a recovery or that they were going to offer a particularly distinctive voice. I acknowledge Martin’s apology on behalf of his party, but he could have made it stronger by referring directly to his time in cabinet. Philip O’Connor draws attention to his equivocations in this piece in The Journal. I found the whole speech, with all the time devoted to bins in Dublin, a little underwhelming. But of course I’d think that, wouldn’t I?

But I did notice that the Ard Fheis passed motions supporting marriage equality and for same-sex couples to be considered for adoption. They are to be commended for this, as is Martin for making his personal support clear on The Week in Politics last night. I noticed a lot of commentary on Facebook which was quite cynical in relation to this. But I don’t think it reflects any cynical attempt to gain votes which they weren’t interested in while they were in power, rather the very rapid social change on this matter. This is a growing norm, and as we look to what exists in other countries and in US states, very little has been offered on the other side.

I see no substantial reason that we would not see Fine Gael move in the same way. We might have a reputation because some of prominent members as being conservative and there is a Christian democratic tradition, but doesn’t necessarily mean an opposition to progress on this front. I’ve pointed on a number of occasions to the speech Charlie Flanagan made during the civil partnership debate. Others too from Fine Gael spoke during that same debate who stated explicitly or indirectly that civil partnership would only be a step towards equality, such as Dr James Reilly, Deirdre Clune and Simon Coveney, who gave a very honest speech on how he changed his own mind to support marriage. Of the 2011 intake, Seán Kyne urged Young Fine Gael members to vote for equal marriage at our summer school last July, and he as well as Simon Harris put questions recently to Alan Shatter, Minister for Justice, Equality and Defence, to make provision for children of same-sex couples.

What ultimately matters is that we support this before the referendum, which I expect could be in the second half of this government’s term in office, around 2015, to give time for the Constitution Convention to deliberate on this and its other issues. There will be another Ard Fheis before then, but we should move now, and vote on this at our Ard Fheis at the end of March. We should not let time go as the only party not in support of allowing gay and lesbian couples to marry. We should also give ourselves the chance to include this the party’s submission to the Constitutional Convention.

As this is moving closer to being a reality, we are going to have to start thinking about the specifics of how this change should take place. I had previously followed on the logic of Zappone–Gilligan that this could be achieved legislatively by amending the Civil Registration Act 2004. This view was argued by constitutional lawyers Sen. Ivana Bacik, SC, and Gerard Hogan, now a High Court Justice. But having asked other constitutional lawyers, there is enough doubt on this that I know think it should be put to a referendum. Article 41 as a whole does envisage a heterosexual marriage, as seen in provisions (which should be amended, if not deleted) such as a recognition of the duties of mothers within the home. I have no doubt in my mind that with a good campaign, it can be won.

Considering other provisions in the Constitution prohibiting sex discrimination (Articles 9.1.3° and 16.1.1°–3°), I would propose:

Article 41 of the Constitution is hereby amended as follows:

(a) insert new subsection 2°, “Ní bheidh aon chosc ar phósadh idir bheirt toisc iad bheith fireann nó baineann.”, after section 1° of section 3 of the English text,

(b) insert new subsection 2°, “No two people may be excluded from marriage by reason of their sex.”, after section 1° of section 3 of the English text,

(b) subsections 2° and 3° of section 3 of both texts shall be numbered as subsections 3° and 4°.

Facilitating an Independent for president in 1945

11 September, 2011 1 comment

The leading parties this year differ from those in 1945, the first contested election, but as the only election to date where an Independent candidate secured a place on the ballot by canvassing the support of Oireachtas members, and with reports today that David Norris could well be successful in his attempts to secure a nomination in this way, it is interesting to read back on this year.

Seán T. O’Kelly, then Tánaiste and Minister for Finance, was chosen as the Fianna Fáil party candidate. Fine Gael had been declining in support, losing seats and votes at each election since 1933, and at the outset were reluctant to contest. On 11 April, The Irish Times reported that the only likely candidate was Dr Patrick McCartan. This report also included a statement from Labour that “no member of the Labour Party in the Oireachtas may sign a nomination on behalf of any Presidential candidate or associate himself in promoting any such candidate”.

Patrick McCartan had been a member of the 1st, 2nd and 3rd Dála, elected in 1918, 1921 and 1922. He reluctantly voted for the Treaty, and soon after retreated from political life, not contesting the 1923 general election. By 1945, he was associated with anti-de Valera Republicans, and received the support of the Old Comrades’ Association of the IRA (Irish Times, April 1945). McCartan had to secure the support of either four County Councils or 20 Oireachtas members; he fared poorly with the former, while working quietly on the latter.

The prospect of an Independent candidate spurred Fine Gael to action, who nominated Seán Mac Eoin, an IRA leader during the war of independence. His paper was submitted on 6 May 1945 with 17 Fine Gael signatories, as well as Independent TDs Alfie Byrne, Thomas Reilly and Richard A. Anthony.

On 15 May, Labour Party then reversed their decision, and allowed their members to sign a nomination form, perhaps concerned by then that a straight contest between the two largest parties would give Fine Gael too much of a dominant position within the opposition. Patrick McCartan was nominated with the support of 9 of the 11 Clann na Talmhan TDs, 5 of the eight Labour TDs and 6 Labour Senators. His Labour nominees included future leader Brendan Corish. This year, it is the many Independents, Fianna Fáil, Socialist Party and People Before Profit TDs and Senators who are free from any direct order as to who to nominate, while it is still not precisely sure what Sinn Féin will do.

The high salary of the president, at £22 000, was an issue in the campaign; Clann na Talmhan had agreed to sign McCartan’s form on the condition that he would accept a reduction to £5000 with expenses of £2500.

Patrick McCartan performed reasonably in the election, and transferred relatively strongly to Seán Mac Eoin, despite ideological differences, presaging the success of Clann na Poblachta in 1948 and the formation of the Inter-Party government.

Candidate First Count Second Count
Vote % Transfers % Total
Patrick McCartan (Ind) 212,834 19.6% -212,834
Seán Mac Eoin (FG) 335,539 30.9% +117,886 55.4% 453,425
Seán T. O’Kelly (FF) 537,965 49.5% +27,200 12.8% 565,165
Non-transferable +67,748 31.8%

So Seán T. O’Kelly was elected on the second count and was unopposed when he nominated himself for re-election in 1952, serving till 1959.

Irish rogues

I had a letter published in this week’s edition of The Economist, clarifying a side comment in their article on the visit of the Queen Elizabeth to Ireland.

SIR – You said that unlike Elizabeth II, Henry II did not receive an invitation to Ireland (“Irish, and British, eyes are smiling”, May 21st). This is not quite accurate.

The Norman invasion of Ireland was instigated at the invitation of Diarmaid Mac Murchada, King of Leinster, who was dispossessed of land by the High King of Ireland, Ruaidhri Ó Conchobair. Diarmaid met Henry II in Aquitaine in 1166. Henry agreed to send a force led by Richard de Clare, Earl of Pembroke (nicknamed Strongbow), who was married to Aoife, Diarmaid’s daughter. They arrived in 1169, and when a dispute arose over the succession to Leinster on Diarmaid’s death in 1171, Henry II claimed fealty of the entire island of Ireland.

Naturally, this invitation from Diarmaid for foreign assistance started centuries of English involvement in Ireland, and it has earned Diarmaid a place of infamy in the gallery of rogues of Irish history.

William Quill
Bray, County Wicklow

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