An Bille um an Ochtú Leasú ar an mBunreacht, 1982: An Dara Céim (Atógáil). Eighth Amendment of the Constitution Bill, 1982: Second Stage (Resumed).
Wednesday, 23 February 1983
Dáil Eireann Debate
“ndiúltaíonn Dáil Éireann an dara léamh a thabhairt don Bhille go dtí go bhfaighidh sí tuarascáil ar an mBille ó Chomhchoiste den Dáil agus den Seanad ag a mbeidh cumhacht fios a chur ar dhaoine, ar pháipéir agus ar thaifid.”
“Dáil Éireann declines to give a second reading to the Bill until it receives a report on the Bill from a Joint Committee of the Dáil and Seanad, having powers to send for persons, papers and records.”
Minister of State at the Department of Labour (Mr. G. Birmingham): I had all but concluded when I spoke here last week. At some length I had put on record the extracts which had been published of the opinion of the Attorney General on the proposed wording. Since then there has been further public debate on the wording and it is not unfair to suggest, as some have done, that we have been over-cautious in our concern to get the wording right. I do not want to travel the same territory again, but I want to make very briefly and bluntly this point.
We have been asked to bring in an amendment not because anybody suggested that the status quo is unsatisfactory, and not because anybody suggested that there is an immediate danger of the Supreme Court upsetting that status quo, but against the possibility that at some date in the medium or long term the Supreme Court might interpret the Constitution in a way not now foreseen. If it is appropriate, and such a view has gained support from both sides of this House, to take account of that possibility in the medium term, then it equally behoves us to take particular account of the wording, and to take into account, not just what the Supreme Court might do today but what it might do at some stage in the future.
Earlier I said I was distressed by what seemed to be a lack of respect for the Supreme Court that had emanated from both sides during this debate, but if it is ever the case that we are so ill-served by our Supreme Court that its members would interpret the Constitution as it now stands, and the fact that it is silent on the question of the right to life of the unborn as providing for abortion, is it not equally likely that those members who compose the court would in turn take advantage of any conceivable ambiguity in an amendment to achieve the same results? Does it not make basic, common and logical sense that if we ever had a Supreme Court which wanted to take advantage of the fact that there is no reference in the Constitution, as it now stands, to the right to life of the unborn child, and take the view that there is a personal right to have an abortion, they could place that interpretation  on the amendment? Our responsibility is to put the status quo beyond doubt now and for the foreseeable future. We know what the members of the Supreme Court would do under the Constitution as it stands, but we do not know what might happen at some dim and distant date in the future.
If anybody who is unconvinced by the views of the Attorney General and the Director of Public Prosecutions that the amendment as presently drafted is imprecise and vague, may I suggest that the situation would be put beyond doubt if they took the trouble to read the speech by Deputy Woods. On 9 February 1983, at column 1386, volume 339 of the Official Report he said:
Despite what would undoubtedly have been the wish of the promoters of this amendment and the majority church in this island, there is no attempt in the wording of the amendment to define the moment at which the life of the unborn begins. The amendment does not attempt to make this definition. Most, of course, would argue that it begins at the time of conception, but this is a matter of theological and scientific argument and in preparing the wording of the amendment we felt it was not appropriate to the Constitution to have such definitions.
Deputy Woods, Opposition spokesman for Health and the Minister who had charge of the Bill when first brought before this House, admits openly and without shame that the Bill is deliberately vague, deliberately bland, keeping a foot in both camps and an eye in every direction.
We were asked to bring in this amendment for one purpose, and one purpose only, to copperfasten the status quo and to meet the fears that had been expressed by responsible people in the legal and medical worlds. In those circumstances we have an absolute obligation to get this wording right and to ensure that there are no ambiguities and no double think. That means we must look beyond the wording which is being presented to us.
In the course of the debate a number  of Deputies expressed concern about the tenor of the debate in sections of the media and in the contributions made. Any proposal to amend our Constitution deserves to be seriously examined and scrutinised, and all must be free to engage in that exercise without any fear or pressure that their concern to do their duty as legislators, would leave them open to the charge of somehow being concerned with technicalities and, in an unspecified way, being soft on abortion. Those who attempt to make that sort of point do no service to the cause they seek to promote.
I notice Deputy Flynn is sitting on the Opposition benches. He is a good humoured colourful contributor to our debates, one to whom it is a pleasure in times of light relief to listen, but he did himself, his cause and his party no credit when, while in Government, he purported to suggest that the Fine Gael commitment to oppose abortion was in doubt. If he shares our total opposition to abortion — and I have no doubt that he does — he has a responsibility to go a little beyond his usual colourful exchanges and to look very seriously at what he proposes to put before the people. He should ask himself whether, in conscience, he is prepared to put to the people a wording which might, just might, provide for abortion up to perhaps 25 or 28 weeks. It is precisely because we on this side of the House are absolutely determined that no such mistake is going to be made that we are determined to look at this wording very carefully and see that the wording the people are eventually invited to vote on will put the matter beyond doubt.
Mr. Flynn: Ba mhaith liom cúpla tuairimí a nochtadh don Dáil maidir leis an leasú bunreachtúil seo atá os ár gcomhair i leith beatha an duine a chosaint, agus mar is eol do chuile dhuine is rud dearg-ghránna do thromlach an daonra go bhfuil sé ar intinn ag duine ar bith gin-mhilleadh a chur ar fáil do éinne sa tír seo. Béimíd ag déanamh ár ndicheall geallúintí an Rialtais a chomhlíonadh chomh luath agus is féidir. Sin é an rud bunúsach atá ag teastáil do mhuintir na tíre ag an am seo. Tá siad in aghaidh  gin-mhillte agus is ceist bhunúsach é do chuile dhuine. Táimid araon ag iarraidh an daonra a chosaint ar an ghin-mhilleadh. Sin an rud a bheidh romham san méid atá le rá agamsa.
I regard this enabling legislation as a very serious business, indeed. It is probably one of the most important pieces of legislation ever brought before this House. Ideally, I would have been very pleased if every single Member could have found the time and the willingness to contribute to this debate, so putting his or her attitude to the whole business on public record.
My views on this matter are well known. They have been expressed, not only in the House, but outside in public. It is unnecessary for me to say anything at all on the matter here, but because of my personal attitude towards this legislation and the proposed referendum it is incumbent upon me to put on record my stance. I look forward to many more Deputies taking the same opportunity afforded to them. If we had this type of discussion on a lot more legislation, we would have a real cross-section view of the various elements which go to make up this House.
Changing a Constitution, or any part of it, is a matter of considerable importance and seriousness and it will be treated accordingly by me. On 23 March 1982 the Taoiseach of the day, Deputy Haughey, indicated on the Government bench opposite to me here that his Government were going to promote this amendment to the Constitution, specifically to protect the right to life of the unborn child and it was in those terms that the Taoiseach of the day initiated this amendment in the Dáil chamber. If we are to believe all that we read in the newspapers, the Attorney General of that time had suggested very many different wordings which might be suitable, or at least might be considered as suitable for the promotion of this amendment.
I am not at liberty, even in the privilege of this House, as a former member of that Cabinet, to divulge what went on at the Cabinet table or what documents or memoranda in support of matters were raised in Government and I do not propose  to do so. There would seem to have been very educated guesses, to put it at its least, concerning some of that documentation of which I have good memory, because it was a memorandum in which I was particularly interested. From recent reports in the media it would appear that certain people in the media had more than just a casual acquaintance with some of the confidential material submitted in this matter to the Government of which I was a member. We have heard a lot of talk recently about leaks of Government papers——
Mr. Flynn: ——and leaks of memoranda of Government. This is a very serious matter and leads one to begin to believe that perhaps nothing is confidential in so far as Government papers are concerned. This might not be a proper place to raise such a matter, but it is relevant in that in the very recent past it was obvious to me, as one with a clear memory of some of the memoranda attached to this item, that certainly more than educated guesses were being made by certain people reporting on this issue.
Mr. Flynn: It would not have been when the Cabinet were considering it. This certainly is leaking no confidence about Government happenings and procedures. It was the view of the Taoiseach of the day, of all concerned and of myself that the wording would be positive. That was an essential element on which all were agreed. I was reinforced in my attitude towards the idea of being positive in that in not a single Article of the Constitution is condemnation of any specific activity expressed. The framework or framers of the Constitution——
Mr. Flynn: ——must have had that uppermost in their minds, as well, at the time. Certainly, I would regard it as inappropriate, many years later, that an element of negativeness should venture into  any provision for reform of our Constitution.
It is easy to be critical about any word or word framework which might be suggested as the proper one, but I uphold the view, as expressed by my leader and my party, of supporting the wording as outlined in the enabling legislation which we are asking the House to pass and in the wording as outlined in Minister Noonan's speech to the House in the recent past. It is easy to be critical of it, or any alternative type of wording. Obviously, certain individuals would not like to have that wording incorporated in the final Act, but it would be extraordinarily difficult to find an alternative wording because, if they had had wording of an alternative nature readily available to them, I am quite sure that they would not have allowed the Minister for Justice to suffer the enormous embarrassment on Second Stage of the Bill — the wording as agreed by us incorporated in the speech — of finding subsequently that somebody said perhaps there should be a rethink on the subject.
Two months is a fair time and I would have thought that if an alternative wording were being promoted by the Government as a substitute to what had already been agreed by all in the matter, it was a reasonable period of time in which to find an alternative and promote it. They did not do so. This leads me to think that there is something other than common embarrassment involved as far as the Minister for Justice is concerned. I will try to suggest what might very well be the ploy and strategy of the Government in adopting this divisive tactic which they have employed as far as this legislation is concerned.
I agree wholeheartedly with the Minister of State when he suggests that this is a very serious business. I agree also that a referendum to bring about an amendment of our Constitution is the ultimate in the democratic process and reflects the real will of the people. To deny that lightly would be a very undemocratic thing to do. It not only reflects the real will of the people but also protects those same people in public from a  number of things important in the context in which we speak. It protects them from a certain kind of legislation, from a certain kind of Government trying to protect or promote a certain sectional interest they might wish to legislate for. We are all here familiar with and well aware of political manoeuvring. I suppose that would be regarded as fair game for the day in most things. A certain amount of political manoeuvring goes on; otherwise we would not have political parties putting forward various manifestos and programmes to entice people to their way of thinking. Political moods have a big bearing on political activity here also, the moods of individuals, groups of individuals and parties. Particular types of movements and moves have a way of developing at particular times during the legislative process as practised here.
The first thing the Constitution does is that it protects the public from certain kinds of legislation, from certain kinds of Legislatures at certain times who might accommodate the interests of certain sections of the community. The Constitution fulfils a second function: it protects the public from certain kinds of judicial rulings. Here I refer to rulings of the Supreme Court when it hands down majority decisions on the existing Constitution that might very well be at variance with the attitudes and principles of the wishes of the majority. That is not unique in our society, decisions being handed down by the Supreme Court that would not find favour with the majority of the electorate. That is another reason we have the Constitution and why it affords some element of protection to the majority point of view.
As far as I am concerned, there is nothing more fundamental than human life. Equally I contend there is nothing more democratic than giving the ultimate decision on constitutional matters to the electorate. That is precisely what was in the minds of the Government of which I was a member when they considered bringing enabling legislation into this House for the purpose of getting the decision of the people of Ireland, no more or no less, on a subject on which we believed the majority had a particular  wish they would like to express in a certain way. We said we would like to give them that opportunity. Would any one person or persons seek to disallow such a process or such freedom to the electorate? If they would, then they have no place in the democratic process. To deny the electorate the right to decide this matter would simply be undermocratic and we are determined that they will be given that right.
Some people would say that the Constitution is the voice of the people. Others would say that the voice of the people is as enshrined here, from the mouths of those people whom the electorate voted to represent them. Whatever attitude one takes on that matter, however one regards it, there is one thing sure: the Constitution does exert a control on Governments. It enunciates the basic rights of the citizens of this State; it declares ideals and maintains standards for the common good. These matters are enshrined in our Constitution. But, like any document devised by men or women, it has its limitations; it can have weaknesses. It is incumbent on those who represent the electorate at any given time during our lifetime, when they feel that some element of that Constitution has developed a weakness or is in danger of being interpreted in a way that would be contrary to the majority wish, to seek a formula that will put that weakness right. No one politician, no one group of politicians, has the right to think for all the people of this land or to impose a bias on them. That Constitution has served us well; we are all agreed on that. It has served as a major bulwark against those who would seek to have it interpreted in a particular way to suit their interests. It has served also as a bulwark against the infringement of our country's rights and on the rights of the individuals who make up that country.
It is interesting to pose the question why the pro-life campaign started at all. While it might sound simplistic, I would offer the folowing as at least one good reason it became necessary to have a campaign. I would contend it is as a result of the policy of the referral clinics in certain areas of our country of proceeding  by degrees in their campaign for legalised abortion. That 1861 Act has no definition at all of when life begins. There is no doubt at all in my mind but that that Act would have been challenged in the not too distant future. It was going to be challenged by a very vocal, articulate and well-placed minority in our society. They are seeking to impress and impose their aspirations and attitudes on the majority who do not share their permissive latitude in the matter of abortion, and any shilly-shallying now, or any device to thwart or confuse, or worse, to abandon the enabling legislation, as far as I am concerned will be regarded as a victory for the abortionists.
I have no doubt if that could be achieved it would accommodate their stated objectives, which is legislation to allow abortion here. They do not put a tooth in it — I will give them that. They print it in their leaflets. The one I have here by the Anti-Amendment Campaign, with a PO box number, states in item 4, without any ambiguity, that the proposed amendment will impede further discussion and possible legislation on abortion.
Mr. Flynn: I have referred to a document produced by the Anti-Amendment Campaign. I will be referring to the matter later. It does not give an address. It has a PO box number, 1285, Dublin 7, and a telephone number. As far as I am concerned, confusion is one of the main strategies, the main aim of the abortion lobby. It could be achieved in various ways. You would have those against the amendment, one way or another; those who would be against the wording; those who would prefer various types of wording; those who would be against abortion but against the amendment, for their own reasons. You could have a whole range of small sectional groups who would be against this for many little reasons of their own. But it is hoped by that abortion lobby that in the confusion the Government might be tempted to abandon the amendment altogether.
That abandonment would mean the  life achievement of the abortionists and it would not please anybody except themselves. I believe the amendment of the Constitution is not just desirable but essential, because the Constitution does not contain any specific protection for the unborn child. When I say that, I am aware that the amendment will not change the present legal position in regard to abortion. That is not at issue. However, it will do something: it will reinforce the existing law as we know it and it will guarantee that any future decision regarding abortion or the legalising of abortion, or any related matter, will have to be done by a further referendum, the surest guarantee the electorate will have that the majority opinion, which abhors abortion, will be protected. The electorate are entitled to have control of the fundamental policies attached to their rights in this land. Those rights are enshrined in the Constitution and it is important for the electorate that they can recognise them and have them on display.
We do not want a situation ever to arise when, because of political gatherings, or groups or interests, or difficulties that might be attached to a particular Government at a particular time because of voting strength, that legislation could be promoted here to give effect to something that the vast majority of the people do not want, namely, to legalise abortion in some shape or form. What a magnificent document the Constitution is. It is a fundamental document that has stood the test of time. Just as it is fundamental as a document it sets out our fundamental rights. I am suggesting that a weakness has been found and it has become mandatory on us, if we have the respect for that document as the protector of our fundamental rights that we should have, to take the necessary steps to bring about a situation that will put that weakness right, that will continue to afford the protection that the vast majority of the people wish to enjoy.
The insertion of this amendment in the Constitution will mean simply that abortion cannot and will not be made legal either through legislation or judicial  decision. Abortion is prohibited under the 1861 Protection against the Person Act. We might as well face up to it that that piece of legislation could be changed by the Oireachtas any time it likes. It is simply a matter of getting enough marching feet through the lobby. For any reason, through pressure that might be put on a Government not totally in control of their destiny, the marching feet might very well be found to traipse through the lobby to change the legislation.
What protection then would the vast majority of our people have against something they abhor, namely abortion? Whatever safeguard there might be because there are people here who would stand their ground no matter what the pressure put on them — there are people here who would prefer to march out the gate rather than have to carry the load if this legislation were changed — there would be no protection at all if the thing could be changed by the courts. It might possibly be changed by the courts in the event of a challenge to the constitutionality of the 1861 Act.
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