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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%.

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Sam Smyth and the PDs

23 June, 2010 1 comment

Over the past two Mondays, Sam Smyth presented a two-hour program on the Progressive Democrats. It was fine to watch and reminisce, but it was lacking in crucial areas. The narrative of the program was too much driven by the choice quotes from some of those interviewed. These were certainly interesting to hear, Charlie McCreevy never failed to amuse and we saw how little love there was lost between Michael McDowell and Liz O’Donnell, from his account of her dislike for constituency meetings to her description of his proposed party constitution as Mugabesque. But there was a little more to the party than that.

PDlogoTiming was the biggest problem. The first hour covered the years 1985 to 2002, the second hour the years 2002 to 2008. Even given the time for the revelations of Operation Teatime, the discussions on a merger between Fine Gael and the Progressive Democrats that took place in 2004, there wasn’t a good reason when assessing the party as a whole to give such disproportionate time to the period when Michael McDowell when at his strongest point within the party. Sam Smyth is, of course, quite good friends with both McDowell brothers, Moore and Michael. There were times when it seemed that not a week went without either one or the other as a guest on the Sunday Supplement. One of the things that drew me to the party was how often I found myself in agreement with McDowell so often, and his naming of Adams, McGuinness and Ferris as members of the Provisional Army Council on the program.

But the party was much more than that, and even when I joined I was attracted to the party’s history and the spirit of 1985. Maybe there should have been a third hour. The scene in the 1980s should have been set. The commentary merely stated that Des O’Malley was expelled for disagreements with Charles Haughey. Would it have hurt to have mentioned the nature of these disagreements, to have spent a few minutes on the heaves against Haughey during the 1980s? To have given footage of the New Ireland Forum report in 1984, which Des O’Malley supported along with Fine Gael, Labour and the SDLP? And what sort of documentary on the PDs could neglect O’Malley standing by the republic in 1985, when he spoke out in the Dáil against the sectarianism in Fianna Fáil and their opposition to the government’s bill on contraception, which led him to be expelled from Fianna Fáil for “conduct unbecoming”. More could have been made on the state of Irish politics at the time, with high rates of taxation and public spending, and why it was that Michael McDowell saw fit to write to Des on the night he was expelled to discuss forming a part.

Then on the party’s first term in government, the program focused on questions like why Mary Harney didn’t get a seat at the cabinet rather than what she was noted for at the time, the establishment of the Environmental Protection Agency and the elimination of Dublin’s smog as Junior Minister for the Environment.

The program did not capture the party’s power and influence in that first period of government, that caused so much resentment in Fianna Fáil. During the 1990 presidential election, after Brian Lenihan, on “mature recollection”, changed his story of his phone calls to the Áras in 1982, the Progressive Democrats insisted that he be dismissed as Tánaiste. Michael McDowell was soon after to attack Pádraig Flynn on RTÉ Radio when he attempted to criticize Mary Robinson’s conduct during the campaign “as a wife and as a mother”, remarks which ultimately swung the campaign in Robinson’s favour. The party managed to veto Jim McDaid’s appointment as Minister for Defence in 1991, and then brought down Haughey in 1992 when Sean Doherty revealed him to be responsible for tapping the phones of Geraldine Kennedy and Bruce Arnold. The chronology as shown was also a little off; Reynolds’ “temporary little arrangement” remark dates from 1989, not 1992, as it seemed from how it was portrayed.

I don’t mean here to write a full account of the role the Progressive Democrats played in Irish politics, just to highlight a few points where this program was lacking, particularly in the earlier years. A shame, because there is a story there, which will probably not be documented again for a while after this attempt. There could also have been a better analysis of the reasons for its ultimate demise and fall in popularity, even as its policy outlook was adopted as the mainstream. And a nice coda would have been a mention of the success of former Progressive Democrats at the 2009 local elections. The party deserves an account played for more than just the laughs and the sensationalism of some of the interview clips.

Edit: Line on “mature recollection” corrected.

Questions and Answers and the Progressive Democrats

Originally posted on Facebook
Watching the last episode of Questions and Answers on Monday, from a personal political point of view, I couldn’t help smiling at the fact that of the fifteen guests, two Progressive Democrats, Mary Harney and Liz O’Donnell, as many as from any of the larger parties. Of course, missing from a collection of party members who have made the panel livelier over the years was Michael McDowell. We had one of his best contributions in the clips, where by simply saying “Fair enough. Then we all understand each other”, he soundly put Mitchell McLaughlin in his place when he refused to describe the murder of Jean McConville as a crime.

John Bowman noted to Mary Harney that the life of the program coincided with that of the Progressive Democrats, and in ways, the reasons for the demise of one and the other might have a little in common. Both began in the 1980s, when Charles J. Haughey was leader of Fianna Fáil, and the country at times seemed to be in the midst of a culture war. Fianna Fáil opposed the Anglo-Irish Agreement, contraception and divorce, and the Fine Gael/Labour government was struggling with the economy. The biggest and most lasting change during the period of the programme was that a settlement came all too slowly in Northern Ireland, highlighted in the clips shown on Monday of the changing tone of questions on the subject. A change I noticed in my own attitudes was that at a certain point after the IRA had decommissioned their weapons, I realized that it no longer made sense to refer to either them or Sinn Féin only as the Provisional Movement, which I had called them till then.

The early years of this period were a much more tribal and partisan period than we have today. Take the clip of Brian Lenihan at the time of the 1990 presidential election, and how important it was for Fine Gael members to take him down on this point, the sound of the talk of the importance of loyalty to certain Fianna Fáil leaders, and how particularly grating it was to many that it was loyalty to Haughey on that occasion. As was noted, it wasn’t really that incident alone that brought Lenihan down, but more clearly when Pádraig Flynn made disparaging comments on a radio discussion program about Mary Robinson’s commitment to her family. On that occasion, the panellist to call him up on that was Michael McDowell.

The tribalism of the period suited the PDs, not because the party particularly based on such principles, though a vote for the party in 1987 was clearly a vote against Haughey, but that within the centre, it was the non-tribal option. For many, the party served as a conduit for those who were unhappy with Fine Gael, but unwilling to vote for Fianna Fáil. This was seen as late as 2002, as there was enough of a swing to Progressive Democrats in the last week from Fine Gael voters to prevent a FF majority and for the PDs to double seat numbers. By 2007, most of these votes either went back to Fine Gael or had moved over to Fianna Fáil, the party now more palatable, having long abandoned its 1980s reactionary positions. Then in the recent locals, Fianna Fáil lost these voters and many more to Fine Gael. This level of fluidity is quite a change from the 1980s.

Back to Questions and Answers, this mellowing of Irish politics led to many describing it as stale or repetitive. There were some great moments still, such as the interchange between Pat Rabbitte and Dermot Ahern in the run-up to the last general election on the vote for Taoiseach, but often it seemed to be merely a case of each of the politicians on the panel merely trotting out the party line. Having said that I did still watch it most Monday nights. This is not to say that people no longer have strong political feelings, but now Fianna Fáil are unpopular because of perceived incompetence and bad management rather than a visceral dislike for their leader.

So after the Progressive Democrats had served as a catalyst for Fianna Fáil to modernize drop some of their more obnoxious policy stances, and where there was such a consensus that even Labour called for tax cuts during the boom, there seemed to be little reason to vote for them, and equally with such a consensus around what Fergus Finlay termed “the policy dot”, these may well have been the same causes for the decline in the liveliness of Questions and Answers.

Now that it’s over, I regret that I was never in the audience. It wasn’t quite convenient living in Bray to get back at the time it finished, but I did have a year when I was living in College when I could easily have done so. I never really imagined that it would end so soon.