Tuesday 27 September 2016

It's time to stand up on 8th Amendment

The Independent Alliance are well aware the proposed bill is unconstitutional, writes Shane Coleman

Published 03/07/2016 | 02:30

TESTING TIME: TDs from the Independent Alliance, Minister for Transport Shane Ross, John Halligan, Finian McGrath, and Sean Canning. Photo: Tony Gavin
TESTING TIME: TDs from the Independent Alliance, Minister for Transport Shane Ross, John Halligan, Finian McGrath, and Sean Canning. Photo: Tony Gavin

What odds are on the Government that has yet to mark two months in office lasting two years? Pretty long if the Independent Alliance's stand on the Fatal Foetal Abnormalities Bill is anything to go by.

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No doubt their intentions are good and compassionate. And that they feel genuinely strongly about the issue. However, looked at calmly and rationally, the stance of the Alliance's ministers on Mick Wallace's bill is illogical and inconsistent.

Shane Ross and Finian McGrath both sit at Cabinet. So they know the details of the Attorney General's advice that the proposed bill is unconstitutional (on the basis of a Supreme Court judgement that it is the 'capacity to be born' that is protected in the 8th Amendment). They are also presumably aware of the advice of the chief medical officer who has said that, because of that 1983 amendment to the constitution, the bill is not medically practicable.

And that begs the question, why would any minister demand the right to vote for, or even abstain on, a piece of legislation that can never be implemented or be of use to medical practitioners?

The Independent Alliance's stance on what is, to be fair, a matter of principle, would be understandable if Fine Gael was refusing to countenance dealing with the issue. But the opposite is the case. There is a clear process to handle the question of the 8th Amendment. And it offers the very real prospect of a dilution of the constitutional prohibition on terminations to allow for the cases of fatal foetal abnormalities to be addressed.

The programme for government, which Ross and McGrath signed up to less than 60 days ago, specifically promises the establishment of a citizens' assembly to make recommendations to the Dail on constitutional changes, including the 8th Amendment.

There had been understandable fears this was simply a way of kicking the can down the road on a politically tricky issue. But the Taoiseach has since committed that the assembly will sit earlier than November; that the 8th Amendment is the first issue to be dealt with; and that the assembly can report module by module.

Nobody in Leinster House is in any doubt that this process will result in a referendum on the 8th Amendment. There are certainly questions on what exact form the referendum will take and how far it will seek to go in terms of liberalising the abortion laws. But the tragic incidents of fatal foetal abnormalities are commonly regarded as the least contentious cases in this regard.

If the Independent Alliance members had a difficulty with this process, why did they sign up for the programme for government? The programme also states that "Cabinet decisions, for example, in the response to Private Members' Motions and on Government Memoranda, will be collectively decided and bind all office holders". Before the ink is dry...

Supporting Mick Wallace's bill would breach that Cabinet collectivity - vital for the cohesion and unity of a government. It also leaves the Independent Alliance ministers at Cabinet open to the charge of engaging in the politics of tokenism - 'we accept this bill cannot work but we still want to vote for it' - seeking to have their cake and eat it.

Sitting at Cabinet brings responsibilities - not least of which is only voting for laws that are legal/constitutional. The argument has been made that this is an issue of political culture. The Alliance ministers, unlike their FG counterparts, are used to being free agents; oppositionists adopting only politically popular stances; unused to the discipline and inevitable compromises of being in government.

There's something in that and there will be incidents where that cultural clash is a major problem. But this is hardly one of them. There is no compromise required. Alliance Ministers can, in good conscience, stand up in the Dail and say: "We support what this bill is trying to achieve. But we cannot vote for it because it's not constitutional. However, we will work to do something far more practical and worthwhile - ensure the mechanisms are put in place to bring about the constitutional change that is clearly needed."

Their former allies on the independent backbenches may shout and roar, but it's hard to see anybody else having a problem with it. It's what the Labour Party is doing.

Obviously, the Government won't fall on this issue. Some compromise will be reached. But it doesn't augur well for the far higher political hurdles that lie ahead of them.

Sunday Independent

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