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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%.

“Some things I cannot change, but till I try, I’ll never know.”

22 February, 2012 4 comments

It was only in November 2008, the morning after the US presidential election, that it properly and more clearly than before struck me that I was gay. Though I had engaged in low-level lobbying within the Progressive Democrats approaching the 2007 election on the lack of progress on a promised civil unions bill, it was partly on secular grounds because of my objection to the consultation between Michael McDowell, as Minister for Justice, Equality and Law Reform, with Roman Catholic bishops in drafting legislation relating to gay people, and partly on the urging of my then girlfriend. And it was only after Proposition 8 in California was defeated that I paid much attention to it.

It was a few days later, on 8 November, I regretfully spoke and voted in favour of a motion to disband the Progressive Democrats, something that seemed a possibility from the results of the 2007 election on.

So in looking for a new party, I was more conscious than before of parties’ attitudes to gay rights. The release of Milk early 2009 was a reminder of the value of political activism and how being honest and open can change assumptions and perception, being the story of Harvey Milk, who was one of the first openly gay people elected to public office, and who helped defeat Proposition 6, which would have barred gay teachers.

Yet I joined Fine Gael because it is the party closest to me on the role of the state in spending and economic governance. This did not mean that my deeply held liberal principles were set aside. I remembered what the late Dr Garret FitzGerald said, “You don’t join a political party because you agree with them. That always struck me as a rather static view. You join a party because you can change it. It’s a more dynamic view of politics.” And he did change assumptions not just within Fine Gael, but in the country as a whole, and remains a political inspiration for me.

In December 2009, I went to Leinster House on the first day of the debate on the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill. The first response was from Charlie Flanagan, who as Fine Gael Spokesperson on Justice, Equality and Law Reform gave an outstanding speech, the best of the evening, in which he stepped beyond party policy, “while many welcome it, others believe it does not go far enough. To those people I would say that change is incremental and I hope that full equality is not far away”, and went on to remind us what secularism has done for society

It was then with a measure of hope that in July 2010, I proposed a motion at Young Fine Gael Summer School (where motions are consultative) with Trinity YFG to support allowing gay couples to marry. But this was very narrowly defeated, with a mere two votes in it. Of course I was disheartened, but I realized that I hadn’t given the time to something that to me seemed so obvious. And a rephrasing of what Milk said in the clip above formulated in my mind: a young gay centre-right political activist who all of a sudden realizes that they are gay; there are two options, move to Labour, or stay in Fine Gael and fight.

So I stayed on, was elected to the National Executive in November, and appointed Director of Policy. Many friends of mine outside the party found my involvement difficult to understand. I did feel that too often people did accentuate the negative, and assume a focus on social matters far greater than existed. The election result of last year was a time of hope and political renewal.

At the Summer School in July 2011, I proposed the same motion for Dublin South-East again at summer school, with Meadhbh. That time it got near universal support. It almost made me glad two people who would have voted for it the year before had turned up late.

Then this Saturday, on my last full day on the National Executive, a motion at Young Fine Gael Conference (where motions are binding as policy), proposed by Úna and Noel for DCU YFG, calling on the government to bring forward legislation allowing gay couples to adopt, was similarly passed with near universal support.

I am proud to have been an active part of the organization during this rapid change on this issue of personal importance to me. I was taken aback and very appreciative of the response to my comment on Facebook on this.

Indeed, the shift in public opinion here and in other countries in the last few short years has been remarkable. This has been both reflected and advanced by popular culture, and cheesy though it may seem, it was the words of this song, as performed by Chris Colfer, as Kurt in Glee, that went through my head before Summer School last year, “Some things I cannot change, but till I try, I’ll never know.”:

Opposition to the cabinet confidentiality referendum held at the last presidential election

26 October, 2011 Leave a comment

At the last presidential election, held 30 October 1997, there was also a ballot to amend the constitution, the 17th Amendment to the Constitution Bill. This was to safeguard the tradition of cabinet confidentiality with explicit exceptions which sought to correct a difficulty which Justice Liam Hamilton found during the Beef Tribunal, when he was unable to question Ray Burke on his recollections of a cabinet meeting. With three tribunals of inquiry established in 1997 alone, this was of increasing importance.

It involved the insertion of a new Article 28.4.3°: -

The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter –

  1. in the interests of the administration of justice by a Court, or
  2. by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.

The amendment was supported by the five leading parties; the wording had originally been drafted during the lifetime of the Fine Gael–Labour–Democratic Left coalition, and the coalition of Fianna Fáil and the Progressive Democrats, which had been in government since June, carried the amendment bill forward, proposing it in September.

It was opposed within the Dáil by the Green Party, whose John Gormley described the attempt to railroad the amendment as “tantamount to blackmail” (The Irish Times, 28 Oct. 1997).

More notably and contentious politically, it was also opposed by senior figures within the Progressive Democrats. Party founder and former leader, Des O’Malley, then a backbench government TD, criticised the bill in the Dáil as being too restrictive. He spoke (Vol. 480, No. 4, Col. 680) of his own experiences of a Minister, and the effect the amendment would have on the ability of former ministers to write memoirs,

I was a Minister for 13 years and I know it is usual to speak with the Secretary. Will this now be illegal? Frequently it is necessary to speak with a number of civil servants about matters discussed at Cabinet. This is perfectly proper but the current proposal will make it illegal.

I am in the unusual position of having resigned, for good reason, on two occasions from Government. I know the procedure and the trauma occasioned by this. At present there is an absolute right for a Minister to explain to the House why he resigned from Cabinet. However, what is now proposed will preclude him from doing so. This is ridiculous.

It is a tradition in Britain and less so here that former Ministers write their memoirs. Two were written here in recent years by former Deputies Garret FitzGerald and Gemma Hussey. Both quote extensively from what was said and done at Cabinet meetings. In Britain, almost every former Minister writes his or her memoirs, quoting extensively from Cabinet discussions. Bona fide students of history need to know what discussions take place in Cabinet but now they will not be able to find out.

He criticized the rush of the bill, and called for it to be redrafted and delayed until the vote on the Amsterdam Treaty (which ultimately took place in May 1998).

Also outspoken was former Progressive Democrat TD (and future party leader), Michael McDowell. He publicly clashed with Mary Harney, then leader, after he wrote in an article for the Irish Independent that the proposal was “the predictable consequence of running the country out of the hip pocket and handbag of coalition leaders, without consultation or reflection”. He had also around this time criticized Mary Harney for rowing in behind Fianna Fáil and giving formal party support to Mary McAleese as a presidential candidate. He announced on Questions and Answers that he intended to allow his party membership to last until March. Significantly however, he would “not unequivocally rule out any future role in politics” (The Irish Times, 25 Oct. 1997).

The Irish Times editorial line was opposed to the referendum, with a heading “Vote No” to the editorial on the day of the vote and columnists Dr Garret FitzGerald, former Taoiseach, and Vincent Browne also wrote against it. Garret FitzGerald criticized the way that “the best that two successive government have been able to come up with has been a constitutional amendment for just two very specific and limited exceptions, outside of which the dangerous rigidity of Supreme Court’s ruling will continue to operate in a thoroughly perverse way”. He echoed O’Malley’s concerns of the right of resigning ministers to give an explanation, a right of a minister to discuss cabinet with civil servants, and the effect it would have on historians (18 Oct. 1997). Vincent Browne proposed an alternative constitutional amendment, “The confidentiality of government discussions shall not be a matter of Constitutional right but shall be regulated by law” (29 Oct. 1997), and expressed confidence that a further appeal to the Supreme Court would overturn their ruling of 1992.

The Irish Council for Civil Liberties opposed the amendment on similar grounds to those of Des O’Malley and Garret FitzGerald mentioned above (The Irish Times, 27 Oct. 1997).

It would be a stretch to draw any direct parallels between the referendum on cabinet confidentiality and tomorrow’s referendum on Oireachtas inquiries, it is interesting at least to find Michael McDowell, the Green Party, the Irish Council for Civil Liberties and The Irish Times, (and Vincent Browne as a columnist), again on the same side calling for a No vote. (And it was also Brendan Howlin who spoke for the Labour Party in the Dáil supporting the Amendment).

Ultimately, it passed by 52% to 48%, with 5% of votes spoiled. I would imagine that tomorrow’s vote on Oireachtas inquiries will be similarly tight, and again with a high proportion of votes spoiled.

Paddy Harte on Garret FitzGerald and Declan Costello

Within these recent weeks, we have seen the death of Declan Costello, the author of Fine Gael’s Just Society, and of Garret FitzGerald, its most prominent political proponent. In a letter in today’s Irish Times, Paddy Harte, Fine Gael TD in Donegal from 1961 to 1997, remembers his time with both, and how he convinced Garret to be ambitious for the leadership of the party after the retirement of Costello, in a sort of Leo–Bartlet moment,

We must get back to Declan, he told me. I did not agree, and told Garret that we must start looking elsewhere for a new leader. “Who?” asked Garret, to which I replied, “You”. Garret said, “How many votes would I get in the party tonight?” I replied, “One, however the vote will not be taken tonight, and tomorrow is a new day. Declan is a clear-thinking lawyer and he has made up his mind. When the party needs a new leader you will have to be ready”.

Garret was the unanimous choice when Liam Cosgrave retired in 1977.

The Just Society was, of course, a document written nearly fifty years ago, and those mindful of the positive influence they had on the party would pay tribute best by seeking to start again with reference to their broad principles than any direct emulation. But we should be sure that despite their deaths, their influence remains, however much or little of specific policy we carry forward.

Garret FitzGerald

garretThere is very little I could say in tribute to Dr Garret FitzGerald that has not been said by those who knew him through his long life and worked with him closely. But as I write here from time to time, it would be remiss of me not to express my thoughts.

He was an inspiring figure, who truly had a vision of modern Ireland, taking its place in the world. He showed that politics can be used to bring change to a country.

While customary to mention such a figure in isolation at a time as this, I do see him with Sean Lemass and Des O’Malley in particular as political figures who shared this commitment, who understood ahead of their time the need to engage with Unionists if we truly believe in a united Ireland, and who fought against the orthodoxies of their parties in many respects.

Garret understood that a truly republican society would be a pluralist one, confidently patriotic but not aggressively assertive in its nationalism, and not tied in its morality to any one faith. He was courageous in leading the movement of the constitutional crusade when he clearly did not have a guarantee of success, as seen in the defeat of the divorce referendum in 1986.

From the perspective of Fine Gael, he led the party to its highest-ever share of votes, with 39% in November 1982. Despite his clear differences with some of his parliamentary party, he did not hold grievances, as seen in the 1989 election. Contesting two years after stepping down as party leader, in excellent and enviable vote management he encouraged Fine Gael voters to support his constituency colleague Joe Doyle, a conservative who had opposed his liberal agenda, and had the humility to be pleased with the fact that he polled behind him.

He led a rich and varied life, coming to politics relatively late by some standards. He taught economics in UCD to his future Finance Ministers, John Bruton and Alan Dukes, saying later that he only appointed First Class students to the position. Elected a senator in 1965 at 39, four years later in 1969, he was first elected as a TD in Dublin South-East; four years later in 1973 appointed Minister for Foreign Affairs; four years later in 1977 he became party leader; four years later in 1981, he became Taoiseach. A short term, lasting till February 1982, he was re-elected November 1982, forming a coalition with Labour that lasted till January 1987. He stepped down that year as party leader, and in 1992 retired from the Dáil. Throughout his life he provided expert analysis from the opinion pages of The Irish Times, and on air particularly at each election, and he continued to show an active interest on our engagement with the European Union.

It was a privilege and pleasure to meet him on a number of occasions; the first at a book launch in Bray when I was 11, and then years later, particularly recalling inviting him to speak in a debate in the Hist on the Lisbon Treaty in 2008, and meeting him the following year as I was canvassing on the Lisbon Treaty a second time, and he was continuing work from his time as Minister for Foreign Affairs in the very early years of our EEC membership.

It is a sad day that we have lost him, but he will remain an inspiration in politics to me and many others.

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Leo Varadkar acting like a tool

In short, I’m with Fergus O’Dowd, Fine Gael Spokesman on Transport and Marine, who tweeted last night, “Garret Fitzgerald attracted thousands of voters to Fine Gael including myself. He was a reforming and caring politician”, “Garret Fitzgerald vision of social justice and a caring ireland will be seen as the major reforming force in our time” and “Leo Varadkar must apologise and withdraw his insulting Dail comments with regards to Garret Fitzgerald, disgraceful.

Of course Dr Garret FitzGerald’s time in office should be as open to scrutiny as any former Taoiseach, and by members of all parties. My own opinion would be that he should not by any means be viewed uncritically given that the economy did continue to deteriorate during the 1982–87 Fine Gael–Labour coalition, but that the country needed someone to take leadership on issues such as the need for social progress, even if the 1986 divorce referendum did not pass, and on Northern Ireland, such as the 1984 New Ireland Forum and in negotiating the Anglo-Irish Agreement with Margaret Thatcher, which Fianna Fáil under Charlie Haughey opposed.

But this is not really about Dr FitzGerald’s time in office. It is about a member of the Dáil using the opportunity of a debate on a reshuffle to refer in derogatory terms to a former Taoiseach. Whatever the clear distance between Dr FitzGerald and the party he led for ten years, this was simply a matter of discourtesy. Of course the Fine Gael parliamentary party are put out that both Dr FitzGerald and Alan Dukes are supporting the government, but this is no excuse, particularly in referring to Dr FitzGerald’s current writing. This was clearly a scripted remark, as Deputy Varadkar’s speech bookended with references to Dr FitzGerald. What exactly was he trying to achieve by it?

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