Wednesday 22 January 2020

John-Paul McCarthy: Staggering delay on abortion bill really a calculated act of defiance

We have a tradition of using confusion and obstruction to delay having to act

John-Paul McCarthy

SOME 21 years after the Supreme Court read a suicide exception into the eighth amendment, the executive has finally given that exception statutory shape.

The details of the Protection of Life in Pregnancy Bill are for another day. Today it is enough to linger over that staggering delay.

Even to describe the time lag in terms of delay is to risk euphemism. The failure of the political classes to give statutory form to the Supreme Court's analysis in 1992 was really a calculated act of defiance.

And you would be wrong in thinking that this kind of behaviour was unusual.

Recall how in 1979, the Supreme Court basically admitted that the State was funding a Roman Catholic seminary out of general tax revenues.

One Supreme Court judge, Seamus Henchy, asked archly "whether, in view of Maynooth continuing essentially as a seminary, it is constitutionally permissible for the State to be involved in its financing".

Considering the flat formal ban on the endowment of religion in Bunreacht na hEireann – it's flat in the English text at least, the Irish version naturally says something else – Seamus Henchy was hoisting a warning flag here.

Having been caught essentially red-handed, what did the State do?

Precisely nothing.

By 1984, scholars like Desmond Clarke were still trying to make people see what was at stake here in his influential book, Church and State: Essays in Political Philosophy.

Clarke explained that "the Irish Constitution's injunction against State endowment of any religion is hardly compatible with direct and indirect financing for religious schools at primary and secondary level, and at third level, of a Roman Catholic seminary", this last entity being one that was exclusively managed by Roman Catholic bishops under statutes drawn up by the same body.

Three decades after the Henchy-Clarke intervention here, we at last have an education minister in Ruairi Quinn who has set his face against this kind of church-State entanglement.

If we switch focus then to the territorial claim on Northern Ireland contained in the old articles 2 and 3 of the Constitution, we find similar confusion and obstruction.

The "national territory" equation lasted from 1937 until the constitutional amendments of 1998 were formally promulgated by Bertie Ahern a year later on the day that the Stormont power-sharing executive was activated.

So the Republic's claim on Northern Ireland lasted for some 62 years.

To be sure, the Supreme Court never formally criticised the "national territory" model, nor did they chastise the executive for relying on it.

But some judges dropped fairly heavy hints over these 60 years that Articles 2 and 3 were the black holes, so to speak, in our constitutional constellation.

Every politician knows about the court's solemn description of Irish unity as a "constitutional imperative" in the aftermath of the Anglo-Irish Agreement.

But few bothered to think through the implications of the Supreme Court's extradition opinions.

From a logical perspective, the court could have given Articles 2 and 3 a much bigger role in their extradition analysis if they were really serious about enforcing the "national territory" claim.

It's never really been explained why the courts did not just say that they could not entertain any extradition warrants that came from Northern Ireland because Northern Ireland was part of the national territory and courts cannot "extradite" people from the northern part of the national territory to the southern part.

The only reason they never went down this route is because most judges (and politicians) knew that Articles 2 and 3 of the Constitution were exercises in fantasy, and yet they lingered on.

Even the most cursory analysis of the circumstances in which these clauses were added to our basic law in 1937 would have uncovered the fact that the man who wrote them in Irish and English tagged them with what we might call a self-cancelling component.

Maurice Moynihan tied two heavy blocks around the "national territory" claim, the first being the Constitution's blunt parallel declaration that the Bunreacht only applied to the same area as the old Free State, and the second being the line committing us to the pacific settlement of international disputes some 26 clauses later.

As Cabinet secretary during the Inter-Party years in 1950, Moynihan was adamant that the "national territory" line could not be used as justification for allowing citizens of Northern Ireland to be represented in the Oireachtas.

In other words, Moynihan saw Article 2 in particular as a glorified tantrum rather than the actual bridge by which "re-integration" would take place.

And yet some 40 years after Moynihan warned Taoiseach John A Costello off the Article 2 route, another Taoiseach, Albert Reynolds, could still lecture the unionists with a straight face about how Moynihan's handiwork was really "a primary legislative objective".

Viewed through this sorry prism, the long-awaited abortion bill does little except amplify what Oliver MacDonagh wrote at the end of his powerful States of Mind: "there is a dreadful constancy in being vulnerable".

Irish Independent

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