Government publishes advice from Attorney-General on 8th amendment referendum

Leo Varadkar has asked politicians to put their personal views aside

Government publishes advice from Attorney-General on 8th amendment referendum

Leo Varadkar after last night's Cabinet meeting. Photograph: Eamonn Farrell / RollingNews.ie

The Government has published advice from the Attorney-General in relation to a referendum on the 8th amendment.

On Monday night the Government confirmed a referendum will be held in May.

The question put to people will be to repeal the 8th amendment and insert an article into the Constitution, allowing the Oireachtas to legislate for abortion.

Mr Varadkar also said he would be advocating a Yes vote in the campaign.

The Attorney-General Seamus Wolfe has advised that there is "no absolute certainty about the post-repeal landscape of rights."

But it recommends a clause be put in the Constitution allowing the Oireachtas to control abortion laws, if the 8th amendment is repealed.

It says the additional wording would give greater certainty.

It says: "If Article 40.3.3 were repealed simpliciter, it might subsequently be argued before the courts that the unborn have residual rights arising under other articles of the Constitution that could continue to restrict the power of the Oireachtas to legislate on the issue."

It says to mitigate the uncertainty it was advised that consideration should be given to inserting wording into the Constitution that "expressly affirms the right of the Oireachtas to legislate for the regulation of termination of pregnancy."

Ireland's Attorney-General Seamus Wolfe | Image: lawlibrary.ie

"If the amendment is adopted by the people, the Oireachtas would have an express power to legislate to regulate termination of pregnancy as it considers appropriate, in the same way as it legislates in every other area of policy.

"The insertion of the additional wording would bring greater constitutional certainty to the primary authority of the Oireachtas to make laws in this area, dealing with controversial social and medical matters.

It adds that: "Such an amendment would make it clear that it will be primarily a legislative function for the Oireachtas to determine how best to guarantee and balance proportionately the rights, interests and values that are engaged, in the interests of the common good."

It says that any such amendment would be "fully consistent with, and maintain, the separation of powers provided for in the Constitution.

"It would not oust the judicial review jurisdiction of the courts as to the validity of any law, or restrict rights of access to the courts.

"Legislation enacted post-amendment would remain subject to review by the courts like any other legislation."

The Attorney-General says that while no approach "can be completely free from the risk of legal challenge", the approach recommended "is likely to be a legally safer option than a simple repeal."

Read the full note here

"People should be allowed to have this vote"

Earlier, Mr Varadkar appealed to pro-life TDs and Senators to allow people to have their say on abortion.

He said politicians should put their personal views aside to allow the public to decide on the issue.

In the Dáil on Tuesday, he said people need to be given their day.

"When it was last asked I was four-years-old - nobody under 52 has had a vote on this issue, this issue of Article 40.3.3 in our Constitution.

"I think it's appropriate that people should be allowed to have this vote.

"And I would appeal to members of this House, even those who don't agree with repealing the 8th amendment, that they still vote for the referendum bill - and at least allow other citizens to make that decision for themselves".

But the Labour Party said no extra wording on abortion should be put in the Constitution.

Labour's Jan O'Sullivan said they have concerns about the recommendation.

"Why they've decided that they would propose alternative wording in the Constitution rather than the legal term 'repeal simplicit' or simply 'repeal' which I suppose explains it more clearly".

Article 40.3.3

The Oireachtas will be tasked with bringing in new laws should the 8th amendment be repealed, but here us what people will actually be voting on.

Mr Varadkar said the question would likely be: "That article 40.3.3 be removed from the Constitution and that provision may be made by law for the regulation of the termination of pregnancy."

Essentially this means the 8th would be gone and power would lie with the Dáil and Seanad to legislate for abortion. 

This seems obvious, but the advice from the Attorney-General was that a provision needed to be added to the Constitution to make sure any new laws would better withstand any legal challenge. 

It is likely the final question will be known in March when Health Minister Simon Harris brings a referendum bill to the Dáil.

If that passes on schedule, May 25th is a likely polling day.

Additional reporting: Jack Quann