Michael Noonan
Question:1 Mr. Noonan asked the Taoiseach if he intends to hold a constitutional referendum before the end of 2001; and if he will make a statement on the matter. [19154/01]
Ceisteanna–Questions. - Constitutional Amendments.
Michael Noonan
Question:2 Mr. Noonan asked the Taoiseach the position in respect of the implementation of the recommendations of the all-party committee on the Constitution; and if he will make a statement on the matter. [20919/01]
Ruairí Quinn
Question:3 Mr. Quinn asked the Taoiseach the progress made to date in implementing the recommendations of the all-party committee on the Constitution; and if he will make a statement on the matter. [21442/01]
Ruairí Quinn
Question:4 Mr. Quinn asked the Taoiseach the constitutional amendments the Government intends to bring forward in the remaining period of the Dáil; and if he will make a statement on the matter. [21443/01]
Joe Higgins
Question:5 Mr. Higgins (Dublin West) asked the Taoiseach if he plans to bring forward a constitutional amendment during the life of this Dáil; and if he will make a statement on the matter. [22965/01]
I propose to take Questions Nos. 1 to 5, inclusive, together.
As Deputies will be aware, last week, with the Minister for Health and Children, I announced the Government's initiative in relation to the protection of human life in pregnancy. This will involve the introduction of legislation which will be underpinned by an amendment to the Constitution in a referendum. The Bill is the outcome of a detailed and extensive consultation process which culminated in examination of the issues by the all-party Oireachtas committee on the Constitution.
While the all-party Oireachtas committee did not reach agreement on a single course of action, the consultation process was very helpful in examining the complex legal, medical and social issues involved. Following consideration of the report of the all-party committee by the Cabinet committee on abortion, the approach now being adopted by the Government is based on one of the three possible courses identified by the all-party committee. Stated briefly, it will protect in legislation best medical practice, while providing for a prohibition on abortion and will link the legislation with a referendum to amend the Constitution.
In relation to the all-party committee on the Constitution, to date the Government has implemented three of its recommendations. They were: constitutional recognition of local government; abolition of the death penalty; and establishment of a Referendum Commission. It is unlikely that any of the other proposals for constitutional change recommended by the all-party committee on the Constitution will be addressed in this Dáil.
I put a series of questions to the Taoiseach by letter on Thursday last. A spokesman for him said publicly that the letter had not been sent prior to publication of the questions. Will the Taoiseach confirm that any delay in sending the letter to his office arose in Government Buildings and that, in fact, the letter had been delivered to Government Buildings before 5.30 p.m. on Thursday prior to publication of the questions and the accompanying letter by my press office?
When the Bill was first published the Taoiseach kindly sent me an advance copy with an accompanying letter indicating that a briefing would be offered to the Opposition parties. Last week in the House he indicated that he would be prepared to clarify any matters arising and answer questions, but last Thursday his spokespersons slapped down the questions that we had sent and said we were not serious and, in effect, were playing politics. It was suggested that the questions were spurious legal points and simply intended to put up a smokescreen. This claim was also attributed to questions in the name of the Labour Party leader, Deputy Quinn. Which way does the Taoiseach want this debate to proceed – by means of the Opposition carrying out serious parliamentary scrutiny of the proposals or the kind of political tennis match which his spokespersons seem to be setting up?
With regard to the first question raised, if that is the case, then I accept what he says.
The Taoiseach knows it is the case.
I was told that the letter—
The Taoiseach should check with his private secretary.
The Taoiseach to continue without interruption.
I was informed that it arrived at 10.30 a.m. on Friday.
It was in the office downstairs from 12.30 p.m. the previous day.
If it was, then I accept it, but that is not what I was told.
The Taoiseach should check with his private secretary.
I will. I was told it arrived at 10.30 a.m., but if the Deputy says it was in the Department, then I accept that.
With regard to the second matter, as the Deputy said, I stated in the letter that I would do my utmost to facilitate any briefing or clarification requested by the leaders of the opposition. That is still the position, as I stated here on Thursday. I know that other comments were made and a note was sent to me by Deputy Quinn. The Bill is now before the House and I will endeavour to answer any of the questions that I have been asked in writing. I have
answered some of Deputy Quinn's already and there may be more in a letter he sent me on Sunday. In the case of Deputy Noonan, some 34 or 35 questions have been asked and I will endeavour to answer them as soon as possible.
Will we be involved in a serious Committee and Report Stage debate in the next month of so, or is the Taoiseach committed to the letter of the Bill as published and not willing to accept amendments? Will he accept amendments to improve the Bill or is he committed to the Bill as published?
This legislation is no different from any other before the House. I am prepared to set out the process again, as I did last week. It is possible to bring forward amendments and up to the Minister to accept or reject them. The legislative process is the same as for any other kind of Bill.
Is there a willingness on behalf of the Government to accept amendments to improve the Bill—
As in all legislation.
—or are we simply going through a process where we will end up with the Bill as published?
One can never say that in advance.
Is the Taoiseach open to accepting amendments?
Yes. If somebody proposes something that would improve the Bill, the Minister has to consider it.
The Taoiseach will be aware that my party is opposed to holding this referendum in the first instance on the grounds that it will not prevent one single additional person from going to the UK or elsewhere to have an abortion. We do, however, welcome the announcement last week to establish the Crisis Pregnancy Agency to which Ms Olive Braiden has been appointed chairperson. When will that body be operational? Given that it was the one issue on which there was all-party agreement, is it the Government's intention to consult with Opposition parties on the composition of the board and on the possible selection of a chief executive? When will the referendum take place? What is the Government's preferred timetable subject to the normal constraints? Am I correct in understanding that it is the intention, subject to parliamentary time, that this Bill would have completed its passage through both Houses before Christmas and that the referendum proper would take place after 1 February? If that is to be the case, will the Government establish a referendum commission and, if so, will that commission operate in a manner identical to the one which operated during the course of the referendum on the Treaty of Nice?
To answer the Deputy's first question about the agency, the Minister is signing the regulations, the resources are available and it is his intention to move as quickly as possible on the matter. I will bring to his attention the Deputy's point about consultation. I am not opposed to that. The second question related to the timescale. The all-party committee did say a three-month period should be allowed. I am trying to honour that and have already accepted that it would be good practice. Therefore, it will be held early in the new year. As January is not the best month for a referendum, it may be held in February but no later than that. On the third question—
A referendum commission.
No decision has been made on that but the Government will discuss it shortly.
(Dublin West): In his speech of 2 October the Taoiseach said that the 6,500 women with crisis pregnancies who travelled to Britain for abortions last year demand a fair, compassionate and honest response. Does the Taoiseach believe it is a compassionate response to present a Bill that criminalises and proposes a 12 year jail sentence for any woman who in desperation might self-terminate a pregnancy in this State or anybody who might assist her? Does that provision fit under any meaning of the word “compassion”? The Taoiseach called for an hon est response. How does an honest response equate with bringing forward a Bill which on the one hand criminalises a woman who might seek to terminate a pregnancy in this State or somebody who might assist her and under the same Bill a woman may get information on abortion services in Britain and may avail of abortion in Britain? Would it not be more honest if the Taoiseach presented to each woman with a crisis pregnancy a map of England and, perhaps, a ferry or air ticket because he and the Government want to shut their eyes to the predicament of such women? Does the Taoiseach agree that a crisis pregnancy, and the difficult decisions women have to make, are private matters between them and their advisers who are close to them and not matters in which the State should interfere in this most crude and unsympathetic fashion?
I could answer all those questions at length, but perhaps I will do so in the correct way on Second Stage of the Bill.
I put it to the Taoiseach that a spokesperson on behalf of the Tánaiste was reported as saying at the weekend that while the Progressive Democrats Party in government was committed to the Bill as published, there was no agreement on the date of a referendum. The Taoiseach has indicated that the referendum will take place not later than February. Will he clarify the position between the two parties in government on the date of the referendum?
Is it the Taoiseach's advice that in the operation of the Referendum Commission the McKenna judgment, reinforced by the Coghlan judgment, is beyond challenge and that if he intends to change procedures in respect of the Referendum Commission, it is in the application of the McKenna judgment, rather than in its principle, that any such change will take place?
The Government has not fixed a date. What I was doing was replying to Deputy Quinn that it will not be before February, the first available date if we are to allow the three month period to elapse, something to which I committed myself some time ago. January is not the month for any kind of elections, if they can be avoided. Therefore, February is the earliest date, but the Government must fix a date in conjunction with the Minister for the Environment and Local Government in due course. That is precisely what both parties in government stated at the press conference.
There has not been any discussion on the second matter, but the position is as enunciated by the Supreme Court. Any change or deviation from it would require amendments to the Constitution. I do not think that will happen. There has been some debate in the committee of the House about how the system operates. Certainly that could be discussed.
Last week I asked the Taoiseach if he would publish the legal advice which had been made available to him in the course of preparation of this legislation in a manner similar to the way in which the legal advice of the constitutional legal adviser to the Government, the Attorney General, was made available in 1983 and 1995. He gave the impression that that would happen, but in fact what has really happened is that a legal response to a set of queries has been published by the Taoiseach. May I clarify the question because perhaps there might have been some misunderstanding of what I was asking for, although I do not think there was? In view of the expression of many legal concerns, which are serious legal concerns, not spurious or vexatious concerns, as the Taoiseach attempted to suggest in briefing notes, in order to deal with this aspect of the debate will the Taoiseach follow the precedent set in 1983 and 1995, when former Attorneys General Peter Sutherland and Dermot Gleeson had their advice to the Government published in order that everybody participating in the debate can see the legal basis upon which the Government is proceeding? That is the first question I wanted to put to the Taoiseach. I suggest that it would contribute immeasurably to the calm and reasoned debate which he is seeking if we all were working off the same legal platform regarding this particular matter.
I understood what the Deputy had asked me last week was, by virtue of Article 46.2, to outline the legal basis of that structure and how its parliamentary aspects would be dealt with as a second item. I have given him the advice I received.
On the other advice received on detailed questions, as the Deputy will know and as the House will be aware, there was a long process over the past 11 months or so from 15 November last, when the all-party committee on the Constitution presented its report to the Government. The Cabinet sub-committee, including the Attorney General, worked its way through all aspects and fundamentally did all of the work. It is within that sub-committee that the Attorney General gave his advice. In replies to a great number of questions from the Deputy, as well as Deputy Noonan, I have given the advice of the Attorney General. As they are legal questions, by and large, the Attorney General's judgment and findings make up the bulk of the replies.
In regard to Question No. 2, given that the all-party Oireachtas committee has produced recommendations on a wide range of other subjects with which the Government has not yet dealt, what is the Government's view on matters such as including the office of the Ombudsman in the Constitution, allowing 15 Members of the Seanad to be elected directly by the people, reorganising the university constituencies in the Seanad and establishing a judicial council with lay representation to deal with judicial misconduct? Does the Taoiseach agree these are important issues which deserve to be dealt with? What is his and the Government's view on these matters?
There have been five reports from the all-party committee on the Constitution and we have dealt with two of them. The judicial report ran into difficulties during the year and there are no further proposals on the issue. As the issues must be dealt with, I suggested that perhaps the Whips should deal with the matter.
I circulated the proposals on a range of other issues to the relevant Departments and requested a response. I have received a response in many instances, but not in all cases. We were seeking an omnibus way to deal with a substantial number of the amendments. A lot of work will be involved as an enormous number of proposals require constitutional change, not just in regard to modernising the language or gender-proofing which could be done by omnibus reports. Many proposals would require separate questions and we are seeking a way to deal with them. The all-party committee has done a good job and it would be a useful exercise if a mechanism could be found for putting a range of the questions in a referendum that perhaps would not be too controversial. I hope in the next month or so to be able to finalise the parliamentary position on the matter. While I do not intend to hold another referendum because the Dáil will run out of time, I would like to, at least, put forward how Departments have structured the work because that will not change.
Is the Government in favour of the proposals?
The Government supports a range of them.
May I take it from the Taoiseach's reply that it is not his intention to hold another referendum apart from the abortion referendum in the lifetime of the current Dáil? On the abortion referendum, does he propose finalising parliamentary procedures before the Dáil breaks on 14 December and holding a referendum in the spring? Will he confirm the abortion referendum will be held on its own without any other issue being put to the people on the same day?
Following a request from the Deputy's party I have already given a commitment that the abortion referendum will be held on its own. The answer to the other questions is "Yes."
May I ask the Taoiseach a question for perhaps the third or fourth time in order that there is absolute clarify in regard to what I am looking for and I have an absolutely clear understanding of his response. In view of the complex legal and constitutional nature of the issue, practice in the past and the fact there were two judgments by the Supreme Court in the X and C cases, and bearing in mind that this will undoubtedly be legally contentious during the debate, is it the intention of the Taoiseach and the Government to publish in its entirety the legal advice received by the Government from the Attorney General on this legislation, and not to pick and choose in terms of making that advice available? While the question is clear, so far the Taoiseach has not answered it clearly.
I hope my answer is clear. Last week the Deputy asked for legal advice on Article 40.6.4. I was also asked about the parliamentary process, and I produced it exactly as the Attorney General outlined it to us. On the other matters, I said all the issues relating to the legislation and arising from the time of the report of the all-party committee until the Government produced legislation were dealt with in great detail and the deliberations set out by the Cabinet committee on abortion. There is no entire minute on what happened in the committee over 12 months, but on a range of specific legal and medical questions there is medical advice and legal advice, given by the Attorney General, available, and I intend to reply in full to questions by setting out the information I have received. There should be no difficulty in understanding this.
My request to the Taoiseach is very simple. Will he make available to other Members the formal legal advice which the Attorney General furnished to the Government in respect of this final documentation passed by the Cabinet so as to enable all of us to have the certainty that we are operating from the same legal framework? Otherwise, because of the history of this issue, there will be disputes from time to time about interpretation. Does the Taoiseach agree that it would be far from satisfactory then if we were dependent on him offering snippets from time to time from the legal advice? He could contribute to the calm and constructive debate he is seeking by publishing in its entirety the legal advice formally received from the Attorney General in respect of this legislation.
The Deputy thinks there is one enormous document on legal advice, which is not the case. Right through the deliberations of the Cabinet committee the Attorney General gave his advice, both verbally and in writing, on all aspects, and I have that available to me. I will give that advice in the form of replies to the very detailed questions which have been asked. I cannot do any more. I do not have one big document which I can hand over.
The Taoiseach is aware that significant progress is being made in Europe in drawing up a European Bill of Human Rights, which would apply to all countries in the European Union. He is also aware that his predecessors in government negotiated a protocol to the Maastricht treaty, effectively to prevent legislation in respect of abortion being imposed here by way of secondary legislation from the European Union. My legal advice is that while the protocol protects the existing Constitution, in particular, Article 40.3.3, this protection would not extend to the new amendment proposed by the Government unless the protocol is renegotiated. Has the Government considered this, and is it it's intention to renegotiate the protocol to the Maastricht treaty?
I am advised there is nothing in the Government's proposal that has a Euro-
pean law dimension, and it does notaffect any area of law in which the European Union or the European Court of Justice has jurisdiction under EU law. The terms of the law envisaged by the amendment relate solely to Irish domestic criminal law defining and prohibiting abortion within Ireland and they are specially drafted to have no effect outside Ireland or on travel to and from Ireland. The proposed change to the Constitution does not affect the status of the 17th Protocol to the Maastricht Treaty and does not dilute or require any amendment to the protocol or any declaration or action by any other member state.
The Taoiseach has answered the reverse of what I put to him. Of course what is being proposed for inclusion in the Constitution does not have any adverse effect on the protocolumn. However, we are well down the road towards a European bill of human rights. This will be superior legislation in this jurisdiction and, by way of secondary legislation, will have the force of law here.
Article 40.3.3 is protected from any element of that which would legislate in the general area of the termination of pregnancies. What the Taoiseach is proposing to include in the Constitution does not have that protection. Has this been drawn to his attention? Does he propose renegotiating the protocol to ensure all parts of Article 40 will have similar protection from the application of European law by way of secondary legislation in this jurisdiction and in particular the application of a European bill of human rights, which in discussion and concept in draft form would consider that the rights of a woman are superior to the rights of the unborn and this would carry implications for what he is now doing?
On Friday, 5 October, the Government was reported in The Irish Times as stating: “it will seek to amend the Maastricht protocol on abortion agreed in 1992 if its proposed constitutional amendment on the issue is approved by referendum.” Is that an accurate report of the Government's position because the Taoiseach's earlier reply seems to contradict it?
In reply to Deputy Quinn's question, I am advised that it does not seek a change. In reply to Deputy Noonan's question, as I stated in the House last year, the work on human rights is put forward as a non-legislative model and there will be many aspects of it which will affect our law. The Deputy is correct in that regard. It was agreed that it would not be legislatively based because most countries, except those without written constitutions, would have had difficulty and would be seeking protocols to it. There was a long complex debate about extradition and other matters. If, following the work of the convention, the charter for fundamental human rights were to be legislated for, which might happen in the context of a future European constitution, we would need protocols in many areas. This may be one such area but not the only one.
Should the legislation be passed and the referendum approved by the people, does the Taoiseach expect a reduction in the number of Irish women who travel abroad for abortions?
As the Bill will be debated in the House, I shall not go into its detail. However, ultimately I believe it will be the agency's work on education, prevention and counselling before and afterwards that will assist in this regard. The work of the agency will be fundamental in making a difference, rather than anything written in the Constitution or legislation.
(Dublin West): In preparing to publish and draw up the anti-abortion amendment the Government has brought forward, from the time the all-party committee reported what groups did the Taoiseach consult regarding the final amendment? In particular, why did he not consult with any pro-choice group whereas, apparently, those who wanted a referendum to outlaw abortion were consulted with freely? Furthermore, why did he wait until the publication of the 25th amendment to bring forward the new crisis pregnancy agency when it could have been brought forward, and performed a useful role, at a much earlier date? Finally, will he clarify an issue which I believe will be on the minds of many concerned women? One of the roles of the agency is to treat women who have had abortions with compassion and understanding, and give them counselling. Should a woman present who has had an abortion in this State, through whatever means, will the agency be obliged to refer her to the Garda or the Director of Public Prosecutions since the Government has criminalised, with a term of 12 years in prison, what she has done?
As I said previously, I will bring the details of a Bill before the House. To answer the Deputy's first question, there was more consultation on this issue than on most other issues from the time the Government established the Cabinet committee and made requests for people to involve themselves in the preparation of a White Paper. There were 105,000 individual submissions to the Green Paper and when the all-party committee subsequently requested views tens of thousands put forward their views. People from various organisations, and from none, put forward views. There was, therefore, no lack of consultation or information. To the best of my knowledge, an enormous number of people in organisations and in none put forward their views and were able—
(Dublin West): With whom did the Taoiseach consult?
As I was not even a member of the Cabinet sub-committee, I was not involved in any of the discussions, but I talked to anyone who raised it with me over the past four years, as I am sure the Deputy did.
(Dublin West): There was much more available to some than others.
In one of his earliest replies the Taoiseach said that the abortion referendum will be held not later than February. Does the House deduce from that that if, for whatever reason, it does not prove feasible to hold it by the end of February, it will not be held in the lifetime of the Government?
I have answered this question already. I said it is a three month period – October, November, December – and it would seem that the next available date will be in February. That would seem like a reasonable time. I hope, therefore, it will be held in February.
By way of clarification of the Taoiseach's reply, Protocol 17 of the Maastricht treaty refers explicitly to Article 40.3.3 of the Irish Constitution, the amendment of 1983. If this legislation is enacted and subsequently ratified by way of referendum and the Constitution is amended, there will be two additional parts in the Constitution – Articles 40.3.4 and 40.3.5. They will not be referred to at all in Protocol 17 as it currently stands and, therefore, will not enjoy the protection the protocol gives to Article 40.3.3. Did I hear the Taoiseach accurately when he said it is not the Government's intention to attempt to amend in any way Protocol 17 to ensure it would now refer not just to Article 40.3.3, but also Articles 40.3.4 and 40.3.5?
I am advised that it is probably not necessary, but, as the Deputy knows, it is a regular occurrence at European Council meetings that protocols are just nodded through when people request a change. My note states that the change proposed to the Constitution does not affect in any way the status of Protocol 17 of the Maastricht treaty and does not in any way dilute or require any amendment to the protocol or any declaration or action by the other member states. I can imagine someone making the point the Deputy made and saying that if it is passed, the protocol should be amended. If it were, this would not create a difficulty with member states because on a whole range of issues protocols are regularly nodded through at European Council level.
The Taoiseach has given Deputy Quinn a different answer from the one he gave me. He indicated to me that if a threat emerged from the passage of the Bill incorporating the European Convention of Human Rights to Articles 43.3.4º and 40.3.5º of the Constitution, as they will become if this referendum is passed, he will seek an additional protocol to save these subsections from rights granted under the convention on a European-wide basis. He has now told Deputy Quinn he may seek an amendment to the protocol to the Maastricht Treaty, yet he told me he had no intention of seeking one. Does his advice cover the Bill incorporating the convention or did he make up that aspect?
Two different issues arise here. Perhaps Deputy Noonan was not listening to what I told Deputy Quinn. Deputy Noonan asked about the Bill incorporating the European Convention of Human Rights, which was in draft form last year and legislated for. I said it would affect the Constitution in a number of ways and the amendment of protocols would be required. Deputy Quinn asked about the present position leaving aside the convention. I outlined the advice I have received on that aspect and added that if this was raised I do not believe there would be a difficulty. They are two separate issues.
There is confusion.
There is no confusion, much as the Deputy would like there to be.