An Bille um an Ochtú Leasú ar an mBunreacht, 1982: An Coiste (Atógail). Eighth Amendment of the Constitution Bill, 1982: Committee Stage (Resumed).
Thursday, 19 May 1983
Seanad Eireann Debate
In page 4, after line 20, to insert the following Schedule:
3º Ní cead aon ní dá bhfuil sa Bhunreacht seo a agairt chun aon fhoráil de dhlí a chur ó bhail ná a fhágáil gan feidhm ná éifeacht ar an ábhar go dtoirmisceann sí ginmhilleadh.
3.º 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.”.
Professor Dooge: We have had a long discussion on this amendment to the Schedule and this is symptomatic of what has been a very long debate. What we have seen over recent months has been a prolonged search for a satisfactory wording which would give a guarantee in some form or another against the introduction of abortion in this country against the wishes of the population.
We should consider the alternative forms of wording — in the Schedule and in the amendment — and then ask ourselves how much progress have we made as a result of this long discussion? We do not have very much progress to show. If we ask ourselves where we are now, compared to where we were three months ago, I do not think we will see much difference. What has this debate demonstrated? I feel it has demonstrated one thing above all, and that is the folly of using an adversary mode of debate on constitutional matters or on moral matters. Since we have been dealing in this question with something which is both a  constitutional question and a moral question, I feel we have in this case a double folly. This is the lesson we should learn as we reach the impasse that we face in regard to the heart of this Bill, which is the Schedule that we are now discussing. We should learn the lesson that in regard to moral matters, above all to moral matters, affecting the Constitution, the only path that will result in an improvement in our constitutional position without other indirect effects whose disadvantages would far outweigh the advantage of some constitutional improvement, is that we will have to follow the road of seeking all-party agreement. We have been guilty of double folly in the manner in which we have tackled this and I hope that this folly is not repeated in regard to other matters.
This House is entitled on Committee Stage to seek an improvement in the wording of the Schedule. The scope for such improvement is wide indeed. All of us who have followed this long debate have read various suggestions sent to us as to how the particular wording could be improved. If these wordings commended themselves to the Seanad and the Seanad thought there was a reasonable chance of the wordings commending themselves to the Dáil, then our duty would be clear. But there is one amendment that is just not worth our while discussing and that is the one that was categorically rejected in the other House. Unless we believe in fairy godmothers, we could not hope for a reversal of that particular vote. The one amendment which we have had before us on Committee Stage is an amendment that is really not worth our while discussing, it is not worth our while sending it back to the Dáil. That is the reason why the members of the Fine Gael group — in spite of this amendment being flapped in front of their faces as the Fine Gael wording — are not to be tempted into doing something which would be pointless, namely, returning to the Dáil the form of words which Dáil Éireann has rejected by 87 votes to 65. That has been our position throughout this debate on the amendment and it remains our position at the end.
Mrs. Bulbulia: I would like to clarify one point. I would like to reassure Senator Fitzsimons that in my earlier remarks no attack was intended on the integrity of any one individual Member of the Opposition. It was the collective integrity which bothered me, and a certain smug moral triumphalism which I perceived. I listened intently to Senator Fitzsimons' lengthy contribution on Second Stage and I was touched by certain personal facts to which he alluded and by the integrity, depth and honesty which he portrayed in this discussion. I would like to give this assurance to him personally and to reassure the Opposition Senators individually.
Mr. Ross: I would like to reply to one or two points which Senator Dooge made when he said this was the one amendment which was not worth discussing. It was, as far as I could see, the one amendment which had any chance of getting through this House. If the Leader of the House had an interest in new amendments and new wordings, surely we would have seen these put down by the Fine Gael Party. It is no coincidence that my amendment is the only amendment before this House. I did not expect any amendments from Fianna Fáil or the Labour Party. The Fine Gael Party publicly declared that they had no interest in obstructing this Bill going through this House. As far as I can see the sense of that is “We would like it to go through as quickly as possible”. The proof of that is that the Fine Gael Party put down no more wording. If there was another wording they thought would get all-party agreement or would have been acceptable to this House, why was it not put down for discussion by this House at this stage? They had that opportunity but they did not put it down. That is a very big gap and that is a yawning fault in the argument Senator Dooge is making.
The House has probably heard me four times on this subject so I shall be very brief. The debate on this amendment has been proved to be a pretty unholy mess. Both major parties have made a disgrace of themselves and on the whole, their silence has been deafening. All day yesterday  I saw both of them putting out one person to bat on a very sticky wicket, with few other contributions. We had Senator Ryan for Fianna Fáil all day trying to explain the inexplicable and Senator O'Leary nearly all day trying to defend the indefensible, with some very vacant Fine Gael benches all day as well. They are about 300 per cent better represented now than they were all day yesterday. The sweet reason of Senator O'Leary in his calling at this late stage for all-party talks I find difficult to accept and difficult to give credibility to. Why has this not happened before? Why is it coming at this stage when we are nearing the end of this long and very tortuous procedure?
I thought Senator O'Donoghue's ideas of new wording on Report Stage were encouraging. They were constructive, certainly, but I do not believe that there will be all-party agreement. Senator Ferris also made some constructive suggestions, but I do not believe at this stage it is possible that this will happen. The Minister presented a reason for him not being able to recommend a defeat for this amendment because, he said, there was no reason to believe the Dáil will change its mind. I do not mind whether the Dáil changes its mind or not. I am not here — nor is any Senator — to predict the will of the Dáil or the decisions of the Dáil. We are here with a constitutional duty to take each issue on its merits. There is absolutely no point in us being here, amending legislation, talking about legislation, delaying, revising or defeating legislation, if we are going to say “Ah, well, the Dáil is not going to allow this, so there is no point in doing it at all”. There is not really much point voting on anything if that is the situation. We are an independent body with a different constitutional function. It is not for the Minister, or for anybody else, to predict what the Dáil is going to do; it is for us to act as an individual body and leave the Bill to take its constitutional course.
I do not know what the effect would be if we did defeat this Bill but it is being said that it would make absolutely no difference in terms of the referendum  when it goes to the country. I do not believe that. The Seanad defeated the constitutional Bill put before it on the PR referendum. I believe that had a significant effect in the country. I gather the Fine Gael Party are going to recommend to the country that they vote “no”. I believe the defeat by the Seanad of that constitutional Bill gave a credibility to the opponents of that Bill which helped to defeat it in the country. I also believe such a defeat here would probably have the same effect in the country when it comes to the poll.
I think a defective, dangerous and ambiguous Bill is about to be allowed to proceed through the House without much opposition with the active connivance of those who oppose it in this House. I make no apology for putting forward this amendment, because I believe it is right that the governing party should be made to face up to their responsibility and this they have singularly failed to do.
Professor Dooge: Senator Ross has posed a number of questions to the Fine Gael Party. He asked why there was no Fine Gael amendment down for Committee Stage, and later, he gave as his opinion that he did not believe it would be possible on Report Stage to get an amendment to which there would be all-party agreement and that is the answer to his first question. If Fine Gael had managed to find a satisfactory wording which would have all-party agreement in this House, and therefore have a chance of all-party agreement in Dáil Éireann, we would have followed that road. Such a form of words has not been found. Whether it is really impossible to find it I do not know. It has not been found, and that is the reason why we had no amendment down.
In regard to the appeal that this House has a constitutional function which it must discharge, the constitutional function of this House is the power of delay. The Constitution is clear on that point. We have no constitutional function of decision regarding such constitutional matters. We do not even have the power of initiative in regard to constitutional matters.
 The net question is whether, in fact, the delay is in the public interest or not. Senator Ross has mentioned it again and drawn a parallel with 1959. The situation was very different then. On that occasion, it was Fine Gael who were in Opposition and they were joined by Labour and Independents. Most important of all, that was based on a political issue and not on a moral issue. This has been part of the problem, that we have been dealing wrongly with something which is both a moral and a constitutional function. We do not believe that further delay is in the public interest and we will not facilitate further delay.
Mrs. McGuinness: I had not meant to intervene again in this debate but I cannot resist drawing attention to the fact that what Senator Dooge in his inimitable way makes appear to be sweet reasonableness, is in fact nonsense. The Fine Gael Party are the Government. The Fine Gael Party, with the Labour Party's agreement, could very easily put an amendment through this House without the agreement of Fianna Fáil. They do not need all-party agreement for an amendment. Therefore, the putting  down of an amendment at the Committee Stage or the Report Stage is far from useless, if they do not need to get the kind of all-party agreement he is speaking about. Therefore, they have taken a conscious decision not to put down an amendment, and they cannot get out of it by saying there is no use doing it without an all-party agreement.
Secondly, I was very pleased to hear him admit in unequivocal terms that this is a moral as opposed to a political issue. Many of us have had grave doubts about the wisdom of using the Constitution because this is regarded as being a purely moral issue, and not a legal and political issue.
Professor Dooge: May I make a plea that I may have been talking only partial nonsense to the extent that all-party agreement is necessary to find an amendment not to get it through this House but to get it through the other House. It is only under those circumstances is it worth acting.
Cuireadh an cheist: “Go ndéanfar an leasú.”
Question put: “That the amendment be made.”
Rinne an Coiste vótáil: Tá, 5; Níl, 20
The Committee divided: Tá, 5; Níl, 20.
McGuinness, Catherine I.B.
|Ross, Shane P.N.
de Brún Séamus.
Higgins, Michael D.
O'Toole, Martin J.
Tellers: Tá, Senators Ross and B. Ryan; Níl: Senators W. Ryan and de Brún.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared lost.
 Cuireadh an cheist: “Gurb é an Sceideal an Sceideal a ghabhann leis an mBille.”
 Question put: “That the Schedule be the Schedule to the Bill.”
Rinne an Coiste vótáil: Tá, 19; Níl, 7.
The Committee divided: Tá, 19; Níl, 7.
de Brún, Séamus.
O'Toole, Martin J.
Higgins, Michael D.
|McGuiness, Catherine I.B.
Ross, Shane P.N.
Tellers: Tá: Senators W. Ryan and de Brún; Níl: Senators Ferris and M. Higgins.
Fáisnéiseadh go rabhtas tar éis díultú don cheist.
Question declared carried.
Aontaíodh alt 1 agus 2.
Sections 1 and 2 agreed to.
Aontaíodh an Réamhrá.
Preamble agreed to.
Aontaíodh an Teideal.
Title agreed to.
Tuairiscíodh an Bille gan leasú.
Bill reported without amendment.
Ordaíodh do dtogfaí Céim na Tuarascála Dé Céadaoin, 25 Bealtaine 1983.
Report Stage ordered for Wednesday, 25 May 1983.
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