Sunday, December 30, 2012

Constitutional amendment that led to 30 winters of discontent

ANALYSIS: Successive governments led by Fine Gael and Fianna Fáil received legal advice in the early 1980s pointing to serious flaws in a ‘pro-life’ amendment to the Constitution. 

Nonetheless it went to a referendum and was carried in 1983.

Just who was responsible for the wording of the 1983 “pro-life” constitutional amendment has been a matter of some controversy down the years.

A referendum sought by the anti-abortion lobby to bring legal certainty to the issue has led to 30 years of court cases, further referendums and continuing debate.

State papers for 1982 show that successive governments led by Fine Gael and Fianna Fáil received legal advice pointing to serious flaws in the proposal. 

But neither was willing to pay the political cost of facing down the influential Pro Life Amendment Campaign (Plac) in a year that featured two general elections.

Plac had raised fears that the existing law could be challenged in the Supreme Court after a number of cases in the UK and the US tested abortion laws there.

It became a major electoral issue, and the two main parties pledged to support Plac by introducing an amendment. But they hadn’t counted on the legal complexities involved, and no fewer than three attorneys general offered advice on the proposed amendment in a 12-month period.

Peter Sutherland, who counselled Garret FitzGerald against the measure, took the unprecedented step of publishing his legal opinion in advance of the referendum in 1983.

It can be compared to advice proffered by Patrick Connolly and John L Murray, who both served in Charles Haughey’s government between February and December 1982.

The documents show the final wording resembles an initial proposal by Connolly aimed at satisfying Plac but that this was revised considerably by Murray, with Haughey’s input.

The files also show that officials in the departments of the Taoiseach and Foreign Affairs expressed concern about the proposal, including its implication for Anglo-Irish affairs, but these concerns were shot down for “political” reasons.

Fresh advice 

One of Haughey’s first decisions on taking up office in February 1982 was to get fresh legal advice on the proposed amendment. 

Sutherland’s damning critique, drawn up for Garret FitzGerald’s first government in 1981, was withheld from his successor Connolly but if this was aimed at securing an enthusiastic response it was only partially successful.

Connolly questioned Plac’s core contention that section 58 of the Offences against the Person Act 1861, could be challenged in the Supreme Court to allow for abortion.

“The degree of certainty expressed by the pro-life amendment campaign concerning the state of the existing law seems strange when one considers that in the 121 years that have elapsed since the enactment of that section not one sentence occurs in any Irish reported case concerning its meaning.”

Foreseeing some of the problems thrown up by the 1992 X case, he noted that, “whatever my personal views be”, a rape victim could not be exempted from any constitutional prohibition.

Nor, “in the current climate of what it is sought to achieve”, could the amendment exempt abortion where the mental health of a woman was at serious risk.

While offering a proposed wording, Connolly said any declared right to life of the unborn in the amendment should be “subject to the right to life of other persons”.

This advice was commended in a confidential memo by Martin Mansergh, then an adviser to Haughey. It noted a reported perception in Irish Protestantism that “a Roman Catholic doctor will always let the mother die in order to save the child, even when the foetus was by no means viable”.

Mansergh continued: “The Attorney General’s qualification ‘subject to the right to life of other persons’ is very important in dealing with this critical objection, even if one admits that it may be largely mythology.”

Connolly was forced to resign on August 16th after the arrest of Malcolm Macarthur in his home, an episode which helped to bring “Gubu” (grotesque, unbelievable, bizarre and unprecedented) to the Irish political lexicon.

His successor, Murray, made revisions to the wording, presenting Haughey with four options. Also, there were three other wordings which “the Taoiseach also asks the Government to consider”, a September memo noted.

Murray, who went on to become chief justice, was highly critical of the Labour Party’s opposition to the amendment. He proposed contributing to “a political brief” for Haughey refuting Labour’s “grossly misleading and inaccurate” stance, unaware perhaps that some of its claims were taken straight from Sutherland’s legal briefing.

International implications 

There was opposition to the amendment in the Department of Foreign Affairs, which noted that the then minister Gerry Collins shared “the concern . . . that the intended measure will have damaging effects on the image of the State in Northern Ireland and in Britain”.

The Department of Justice noted that the amendment would “be likely sooner or later to come into conflict” with the European Convention on Human Rights.

Seán O’Riordan, a principal officer in the Department of the Taoiseach, warned – somewhat prophetically – that the amendment could backfire on the “pro-life” campaign by challenging existing medical practice. 

Briefing the new Fianna Fáil taoiseach in March 1982, he also drew attention to Sutherland’s advice and noted: “I believe that this view may well be shared by many legal experts, but the weight which one attaches to it is of course ultimately a matter for political judgment”.

“It certainly is!” Haughey replied in a handwritten note in the margins.

Haughey hastily published the wording before the November 1982 general election, but was caught by surprise when FitzGerald gave it his blessing. 

On becoming taoiseach again, the Fine Gael leader changed his mind, proposing an alternative wording, on Sutherland’s advice, in February 1983 .

However, a group of Fine Gael and Labour TDs helped to vote it down, and the Fianna Fáil wording was put to the people.

It was approved in September 1983 by two-thirds of the 55 per cent of the electorate who voted.

It was, however, far from the last word on the issue.