Wednesday 12 December 2018

Harris wants Oireachtas to have sole right to create new law

Health Minister Simon Harris Picture: Damien Eagers
Health Minister Simon Harris Picture: Damien Eagers

Shona Murray

Health Minister Simon Harris believes he can quash confusion by pushing for a repeal of the Eighth Amendment and replacing it with a clause to "enable" the Oireachtas legislate for access to abortion.

The minister intends to push for this option as it goes as far as possible in copper-fastening the Oireachtas's role in dealing with abortion.

However, critics warned that it could backfire by overcomplicating the situation as the referendum on abortion approaches within the next four months.

The "repeal and enable" option is what was proposed by the Citizens' Assembly last year.

Those in favour of using this wording say it bestows authority to the Oireachtas alone to legislate for abortion.

"There is a view that there should be an 'enabling text' which points directly to the Oireachtas as the body charged with writing and introducing legislation for abortion," a source said

"We need to minimise the risk of confusion as to whose job it is to deal with this issue."

The "repeal and enable" option gives a constitutional mandate for lawmakers to deal exclusively with the issue of abortion, according to constitutional lawyer Paul Anthony McDermott.

It will thereby safeguard the Government's subsequent legislation.

However, he added that "you could never stop it being challenged".

Even though the Constitution would recognise the Dáil as the arbiter of legislation dealing with abortion, a plaintiff could still take a case on behalf of the unborn to challenge the constitutionality of the law.

It is clear that by adding the "enable" part to the question, the Government wants "to be sure, to be sure" of its incontestable right to legislate, said Mr McDermott.

But he questioned: "Are you overcomplicating the situation and are you suggesting that was ever in doubt in the first place?"

The position of the Government is also at odds with the final report from the Oireachtas committee.

It voted to delete entirely the Eighth Amendment from the Constitution in the form of an option known as "repeal simpliciter".

Committee chair Catherine Noone insisted it is already implied that it is the Oireachtas' job to draft and enact legislation - therefore there is no need to replace the article with anything.

"I don't see any reason to deviate from the majority legal opinion given to the committee as well as the majority of the members' opinion," she said.

The next step will be a Cabinet meeting on Tuesday, January 30, where Mr Harris will seek permission to draft a referendum bill.

The Cabinet will confirm the approach it's taking to the wording - whether it will choose "repeal and enable" or "repeal simpliciter" as the question to put to the people.

It will then consider other proposals, such as access to termination up to 12 weeks gestation.

The Taoiseach said he will withhold his position on where he stands on the referendum until Cabinet agrees the wording.

A source says the Taoiseach will listen to the Attorney General and "get it right".

Irish Independent

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