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Five years of social and political reform with Fine Gael and Labour

24 February, 2016 Leave a comment

Five years ago we entered an election in circumstances which were embarrassing for our country. The outgoing government had just entered a bailout agreement with the Troika of the European Commission, the European Central Bank and the International Monetary Fund. Unemployment was at 14.3%.

The global economic situation has improved, and Ireland has more than taken advantage of it. We are now the fastest growing economy in the EU, with unemployment at 8.8% and falling, and a steadily improving rate of job creation. We have regained a position of respect within the European Union. This was done under the guidance of the Troika institutions, a program Ireland successfully exited from. Ireland compares very favourably to other countries which were very badly affected by the global economic crisis. This government of Fine Gael and Labour deserves credit for this stewardship of the economy.

No government shifts and improves a country’s budgetary position and economic standing as significantly as has been done here without taking decisions which merit or deserve criticism. This can be particularly said in the area of housing. However, what matters most is that there is a strong environment favouring job creation and growing incomes, to create the resources to tackle these problems, whether privately or by government.

But apart from the improved economic situation, there are many other ways in which we are a changed country since early 2011. We have seen a significant program of positive law reform.

It is now a crime to withhold information on the abuse of children. Our Taoiseach Enda Kenny spoke out strongly in the Dáil, condemning the role of the Roman Catholic Church and the Vatican in covering up the sexual abuse of children, the first Taoiseach to do so in clear and unambiguous terms. Children are now specifically protected in the Constitution, so that their voice can be heard in the legal process and their best interests considered.

Instead of filing in the District Court, in between regular business there, new Irish citizens now swear their allegiance in welcoming and open Citizenship Ceremonies.

After a wait of 21 years, and many governments, we finally had legislation in response to the X Case, which activists had called for since the judgment, legislation which certainly came at political cost, the first change to abortion law in this country since 1861. I would support more extensive reform, but this is as far as our current constitutional position allows, and it made space for debate on the next stage from here.

Local authorities now have the power to alter the local property tax within a range of 15% on either side of a base rate, giving much greater meaning and effect to local elections than before. The next Ceann Comhairle will be elected by secret ballot of TDs, creating a measure of independence from the government.

Reform of minor sentencing now allows for fines by installments, rather than needlessly sending people for short prison sentences.

We had the beginning of the process of school divestment from religious management, though admittedly this has been a process that has been slower than desired.

Gender quotas for candidate selection at general elections were introduced; though it will take more than one election to have an effect on the makeup of the Dáil, it is the beginning of a process.

A new Register of Lobbyists was created to monitor corruption in public services and provision.

The government called a vote on marriage equality, and with so many others too, strongly campaigned for a Yes vote. Both parties did so enthusiastically, and our country had a moment of pride on the world stage when we became the first in the world to vote in support of equal marriage in a popular referendum, in a campaign that captured the public imagination.

Last year also saw the enactment of one of the best gender recognition laws worldwide, with provision within the act itself for progressive review in two years’ time.

The Children and Family Relationships Act was the most comprehensive review of family law since the 1960s, which among its many provisions, gave fathers greater automatic guardianship in cases of cohabitation, allowed cohabiting couples or civil partners as well as married couples to adopt jointly, and provided for donor-assisted reproduction.

Changes to equality law mean that the ethos of a school or hospital can no longer be the basis of employment discrimination solely on the basis of personal characteristics like sexuality, or family status, or any of the other grounds of anti-discrimination.

I will be voting for a return of this government of Fine Gael and Labour. I do not expect it to be returned to office. But I do expect that it will be remembered as a reforming government, and that these many reforms will stand well to this country, improving the lives of those who live here in many small and significant ways, allowing us to continue to become a more open society.

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The Supreme Court without Scalia

15 February, 2016 Leave a comment

Abortion. Affirmative action. Contraception mandates. Immigration. One person one vote. Public sector labour unions. Each of these remain as matters for the now eight justices of the United States Supreme Court to decide this term.

2004-11-29 09.47.37Many of these would have been the blockbuster end-of-term 5-4 decisions. Many of these were the result of strategic litigation or legislation by conservatives designed to test current Supreme Court doctrine. The four liberal justices of Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan will very likely remain a clear bloc in these. Of the remaining conservative justices, Chief Justice John Roberts and particularly Anthony Kennedy would be expected to join the liberal justices on some of these matters, with Clarence Thomas and Samuel Alito unlikely to be with them on any of these. If the court splits 4-4, the decision of the Circuit Court of Appeals stands, with no precedential weight outside of the circuit area. As outlined by Linda Hirshman in December, because of the composition of the circuit courts of appeals, this will tend to favour the liberals. But let us consider each of these major cases in detail.

Therefore, the unexpected death of Antonin Scalia will have quite an effect on each of these, if we take Senate Republicans at their word, that they will not support any successor proposed by Barack Obama.

Abortion: Whole Woman’s Health v Hellerstedt

Abortion restrictions in the United States are currently subject to the “undue burden” test of Planned Parenthood v Casey (1992), a plurality opinion jointly written by Anthony Kennedy, Sandra Day O’Connor and David Souter. The court upheld provisions of a Pennsylvania law requiring a 24-hour waiting period, parental consent, a restrictive definition of medical emergency, and reporting requirements for abortion services. They held that requiring spousal notice of an abortion was such an undue burden.

Read more…

Concerns about Protection of Life During Pregnancy Bill

The Protection of Life During Pregnancy Bill is within the constraints of Article 40.3.3° and it is right that thirty years after its insertion into the Constitution, there will be legal clarity for women and for doctors. It was not good enough that this was simply regulated by Medical Council guideline. As Justice McCarthy wrote in 1992 in a concurring judgment to Attorney General v. X,

I think it reasonable, however, to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled. In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan’s case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction.

I do have a concern about the effect of the provisions for suicide. I do think that a woman whose pregnancy is contributing to her suicidal ideation should be allowed to have an abortion. But it is also possible that someone could overcome their feelings of suicide while still being in a condition of severe mental or physical distress. Both she and her doctor might still believe it the best thing for her well-being that she receive an abortion, but it would no longer be an option.

The provision of abortion in the case of suicide ideation means that a woman would end up confirming to herself, to her own GP, to two consultant and to an obstetrician that she may her take her life. This burden means that in most instances, a woman would most likely still feel it preferable to travel obtain an abortion. What has not received enough focus is the mental effect it would have to confirm this feeling again and again, that it could worsen the impact, and knowing that if she were to find that she was no longer suicidal, she could no longer obtain an abortion. Her GP would ordinarily attempt to alleviate her condition of suicidal ideation; but in this case, while he believed that an abortion was in her best interest, he would feel conflicted as to whether he should do so.

This situation is a result of the constraint the legislature is in, to act within Article 40.3.3°, specifically as interpreted by the Supreme Court in Attorney General v. X. Reading the judgment, which includes extracts from the oral proceedings, it did seem clear to me from a number of instances that the girl in question had entertained serious thoughts of suicide, but it also struck me that it was not primarily on that condition of suicide ideation that John Rogers, representing X, made his defence. It was on her more general case and circumstances that he made the case against an injunction preventing her from travelling to England to obtain an abortion.

This effect then reinforces for me a need for a referendum to remove Article 40.3.3°. This bill, and what I believe to be a generally unsatisfactory position, is within that provision.

Removing this Constitutional provision would not introduce abortion; it would rather remove the constitutional prohibition on doing do. I do not imagine that any likely government in the near future would introduce a liberal regime, but it would be a matter for Dáil debate and party negotiation as it is in most other countries. The Oireachtas would have the freedom then to consider various provisions, and review and revisit these laws after perceiving their application.

Outcome of the abortion bill

The Heads of the Protection of Life During Pregnancy Bill seem to fulfill minimal requirements of legislation in line with the ruling in Attorney General v. X.

In the wording of the first paragraph of Article 40.3.3°,

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.

there are two clauses that the government had to consider in drafting this legislation, ‘equal’ and ‘as far as practicable’. It also had to be considered the ruling of the Supreme Court that ‘the risks to the life of the mother which should be considered by the Court included a real and substantial risk that the mother might commit suicide’.

In all cases, the meaning of Constitution is what the Supreme Court says it is. Article 34.4.5°–6° is itself explicit in this regard. Their ruling in 1992 meant that a risk of suicide has been grounds for abortion, not just from that date, but from the insertion of 40.3.3° into the Constitution in 1983. A doctor could have taken it upon themselves to administer an abortion in response to a diagnosis that there was a real and substantial risk that a woman might commit suicide. This legislation does not grant or remove additional rights to either the mother or the unborn; legislation tightly within the framework of Supreme Court interpretation of the Constitution cannot do this.

It may not have been the only measure permissible; someone might reasonably ask whether the government’s defence in D. v. Ireland, that there could be a recourse under Irish law for a termination in the case of fatal foetal abnormalities, could have been included in this bill. There might also have been flexibility in terms of the nature and composition of panels in the bill.

There will be some members of Fine Gael who break ranks to vote against this. The debate in the coming weeks will show how many they are, but I expect that the bill will come into law in a form not that far from this.

I do not expect that without further constitutional amendment, this bill lead will lead to more than a minimal increase in the number abortions performed in Ireland. Unlike measures in Britain and California from 1967, this bill refers only to situations that threaten the life, as distinct from the health, of the mother. It is not a small thing for a woman to declare that she is suicidal, and it is not something that the medical system takes lightly. The consequences for her personal freedom after such a declaration would be such that for many women seeking to terminate their pregnancy, travelling to Britain would be a preferable outcome.

While campaigners against abortion have resisted legislation in line with the X Case till now, and sought to amend the constitution in 1992 and 2002 to overturn it, I would expect that to largely die away as a focus, given the small scale of the change. Similarly, while legislation for the X Case has served as focus point for those seeking for more widespread access to abortion, that will shift to an amendment to remove 40.3.3, as advocated this week by Labour Cllr Jane Horgan-Jones, which would make legislation on abortion a matter for the Oireachtas, and not a constitutional matter. However, I cannot imagine that referendum occurring for quite some time.

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%.

Action on X

14 November, 2012 Leave a comment

I am but one of thousands thinking and writing today about the death of Savita Halappanavar late last month. It is quite possible that she would have survived had her wishes been followed and she had been granted an abortion.

While she was told that she could not an abortion because this is a Catholic country, it is in fact legal to perform an abortion to save a woman’s life. The Irish Medical Council Guide to Professional Conduct and Ethics states in Section 21 on abortion, “Abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother.”.

In 1992, the Supreme Court ruled that in the case of a risk to a woman’s life, including a threat of suicide, an abortion was permissible under the Constitution.

The issue for the doctor was that there are no legislative guidelines or Department of Health directives outlining exactly when and how this Supreme Court interpretation should be applied, in varying difficult circumstances.

The question of whether abortion should be available in other circumstances is a debate for another time. As long as Article 40.3.3 remains as it is, and it can only be altered by a popular vote, it is within these limited terms only that abortion can be provided.

This should be a matter for the government to act without delay. My criticism of the government parties is not that they voted down an opposition motion earlier this year, something that happens every week on a range of bills, but that a year and a half after government, there has been no action on the European Court of Human Rights ruling of December 2010.

I will attend the protest in outside Leinster House at 6 calling for action, and then press for this over the coming weeks, whether legislation or clear Department of Health regulations.

The facts: Abortion and the EU

21 September, 2009 Leave a comment

First published on the Ireland for Europe blog

Despite the clear guarantees which we have secured on successive occasions, Cóir have persisted with the pernicious deception that Ireland’s position on abortion is being threatened.

It is helpful then to outline precisely what protections exist in Irish Constitutional law on abortion, and what European Union provisions protect this measure.

Article 40.3.3°

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.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

Because of concerns on abortion, we secured a Protocol as part of the Maastricht Treaty in 1992 ensuring that this provision would not be affected.

Protocol 17 of the Maastricht Treaty

Nothing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.

After the concerns raised during last year’s campaign on ethical issues, the Government secured an agreement with the 26 other EU countries which would come into law on the ratification of the Lisbon Treaty and would have the force of law of any international treaty, like the Belfast Agreement.

European Council Guarantee 2009

Nothing in the Treaty of Lisbon attributing legal status to the Charter of Fundamental Rights of the European Union, or in the provisions of that Treaty in the area of Freedom, Security and Justice affects in any way the scope and applicability of the protection of the right to life in Article 40.3.1, 40.3.2 and 40.3.3, the protection of the family in Article 41 and the protection of the rights in respect of education in Articles 42 and 44.2.4 and 44.2.5 provided by the Constitution of Ireland

The European Union cannot not make laws in areas not specified by the Treaties, and there is no mention of abortion anywhere in any of them. Furthermore, the European Court of Justice has previously made explicitly clear in its rulings that the EU has no competence to decide a country’s laws on the matter of abortion.

These guarantees in our own Constitution, in EU Treaty law and from rulings of the ECJ make clear that this claim has absolutely no basis whatsoever.

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