‘If This Is Let Slide, It Will Be Very Serious For The Attorney General’


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Pat Leahy,headshots 5.08.05©tos

From top: Independents 4 Change TD Mick Wallace in the Dáil last night and Irish Times deputy political editor Pat Leahy

Further to last night’s debate on Independents 4 Change TD Mick Wallace’s bill to allow for terminations in Ireland in the case of fatal foetal abnormality – a bill which has been deemed unconstitutional by the Attorney General Máire Whelan.

Pat Leahy, deputy political editor of the Irish Times, spoke to Seán O’Rourke on RTÉ Radio One this morning.

During their discussion, Mr Leahy insisted that, having seen Ms Whelan’s advice, it is ‘utterly unconstitutional’.

He also suggested that if the Government doesn’t accept Ms Whelan’s advice, she may have to step down.

Readers may note that Mr Wallace has called for the advice to be published – to allow for a debate on the advice.

From the interview…

Pat Leahy:At present the Government is unable to reach a collective position on Mick Wallace’s bill which was debated in the Dáil yesterday evening but won’t be voted on until next Thursday. And normally what would happen is with a private members bill like this, the Government would oppose it or not oppose it. But normally would oppose it, put down a countermotion and Government TDs would be whipped into voting for the countermotion or the amendment but, at its meeting last Tuesday, the Government was unable to reach a decision. Now, constitutionally, legally, the Government must act with collective authority. That means that it must, all its members must agree to act and speak as one…”

Sean O’Rourke: “I’ve just happened to find that article 28 in Bunreacht na hÉireann, it says, one, well it says, ‘the Government shall be responsible to Dáil Éireann’ and then, ‘the Government shall meet and act as a collective authority and shall be collectively responsible for the departments of state, administered by members of the Government.’

Leahy: “Yeah. And at present in relation to this issue, the Government is unable to do that. And that’s despite having been advised by its chief law officer and legal advisor, the Attorney General, that the bill that Mick Wallace has put before the Dail is unconstitutional. And I’ve seen that advice, I wrote about it in the Sunday Business Post last year and again recently in the Irish Times, and that advice is utterly unequivocal, it’s not, ‘on the balance of probabilities, this is probably unconstitutional’. It’s completely unequivocal that, it couldn’t be stronger that the bill is unconstitutional. And despite that clear advice, the Government is unable to come to a collective position on that.”

O’Rourke: “Why?”

Leahy: “Because the Independent Alliance members want a free vote. Now it’s my understanding that the Independent Alliance members of the Cabinet are prepared to sign up, if you like, to a collective decision to oppose this bill. But they want to be allowed the right to abstain on it themselves. Now that sounds slightly constitutionally shaky to me but it may be a way out. And, ultimately, if you were to ask me, I suspect that that’s the way out that will be found. As of yesterday, I’m told, that the Taoiseach and Sarah Bardon writes about this in our paper [Irish Times] today, the Taoiseach was absolutely firm that that would be impossible. That having been advised by the Attorney General, the Government must follow his advice and ministers must act in accordance with that advice.”

Later – after Mr O’Rourke played clips of Fine Gael TD Kate O’Connell speaking during last night’s debate and Independent Alliance TD John Halligan speaking earlier today on RTÉ’s Morning Ireland

Leahy: John Halligan gave a very powerful speech last night in the Dáil. Not the first powerful speech he’s given on this subject and there was motions on this in the last Dáil as well and it’s peroration was that he didn’t care what the Attorney General’s advice does, sorry, didn’t care if it was unconstitutional. Anyone who was there last night or anyone who was watching last night, couldn’t have been in any doubt other than he’s certainly, if he’s not going to vote for this, he’s certainly not going to vote against it. I think that presents him with a problem.”

O’Rourke: “Here’s a question and I’m just wondering, I’m no constitutional lawyer but is John Halligan part of the Government in the sense of being part of the Cabinet, he’s not?”

Leahy: “No, he’s not. No, he’s not. He’s not. The Government in the constitution, we use it as a generic term to mean everybody in Government buildings and so forth.”

O’Rourke: “So could it not be said, look he’s not in the Cabinet, so he’s not, he doesn’t have the same constitutional responsibility, we’ll cut him a bit of slack. On the other hand, it’s very bad, is it not, for political discipline?

Leahy: “That deal could perhaps, maybe that’s what happens. But he’s got a slight problem with the programme for Government that he spoke about there and in the programme for Government it says that where the Government reaches a decision that all members and office holders specifically, and he is an office holder, are bound to support that decision. Now, so under the terms of that, under the terms of the programme for Government…”

O’Rourke: “That’s where his difficulty will lie…”

Leahy: “If the Government decides that to oppose this bill, and that depends on the independent ministers in Cabinet, resiling from their opposition to that collective decision being made, then he’s got…but there’s another problem here I think Sean, which is that if this is let slide and the Government does not reach a position on it, I think that’s a very serious situation for the Attorney General, whose advice to the Government is unequivocal. Now if the Government is unable to follow that advice, I think it probably puts her in a more or less untenable position.”

O’Rourke: “You think she might resign if the Government doesn’t stick by and accept the Taoiseach’s insistence, they have to vote against this…”

Leahy:If the Government doesn’t take the Attorney General’s advice on an issue such as this then it would be hard to know what the Attorney General is for…”

Listen back in full here

Previously: ‘You Allow An Unconstitutional Bill On Property Rights But Not Women’s Rights?’

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44 thoughts on “‘If This Is Let Slide, It Will Be Very Serious For The Attorney General’

  1. newsjustin

    “.. ..that advice is utterly unequivocal, it’s not, ‘on the balance of probabilities, this is probably unconstitutional’. It’s completely unequivocal that, it couldn’t be stronger that the bill is unconstitutional.”

    Yeah. Thought that alright.

    1. Nigel

      Good. That’s the point. Keep driving home the appalling, brutal fact that a woman’s life and health is of lesser value than that of a fetus with a fatal abnormality, and that a woman at risk in the course of a pregnancy is constitutionally denied treatment. Hammer it until bloody sense kicks in.

    2. The Real Jane

      Well let’s change the constitution so. Luckily it can be changed quite easily – for example, when we want to change it to hinder the lives and health of women.

      It wasn’t given to us on tablets of stone by an imaginary old man in the sky.

      1. newsjustin

        Yeah Jane. It looks likely to me that Ireland will have the opportunity to change the constitution on this matter.

    3. Caroline

      With respect to Pat Leahy, unequivocal legal submissions make for very convincing reading. That does not elevate them above opinion. (Whether the Government is free to ignore an AG’s legal opinion is a separate but very real issue, as he rightly points out.)

      This is what the government of Ireland argued at the European Court of Human Rights with regard to the Eight Amendment (Article 40.3.3), as summarised by the court in its ruling:

      “However, there had been little judicial examination of the meaning of “unborn” and certainly no case comparable to the present. Accordingly, although it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3 clearly excluded an abortion in the applicant’s situation in Ireland.”

      Of course, to borrow a phrase, isn’t that what you tend to say during court cases.

      1. MoyestWithExcitement

        “With respect to Pat Leahy, unequivocal legal submissions make for very convincing reading. That does not elevate them above opinion.”


  2. Barry the Hatchet

    Legal advice is just that. Advice based on the writer’s opinion (and not one even prepared in respect of this specific Bill, but in relation to a previous Bill). So, in the AG’s unequivocal opinion, the measures are unconstitutional. That’s fine. It’s her view. it’s not a binding authority. And other legal experts disagree. It therefore remains possible that the Bill is constitutional – there are arguments on both sides. The only view that matters is that of the Supreme Court. The Oireachtas should refer the Bill there and let the Court do its job.

    1. MoyestWithExcitement

      “So, in the AG’s unequivocal opinion, the measures are unconstitutional. That’s fine. It’s her view. it’s not a binding authority.”

      Exactly. And FG are using it as a cop out. They’ve no problem with other unconstitutional bills. They are an utterly disgrace to Ireland.

  3. nellyb

    Pretty much same theme like in Brexit.
    Power structures play legal/procedural/bureaucratic games long divorced from reality and then get surprised finding themselves in terrible situations.
    Now that’s not me saying that (but agreeing with) -it’s a kind of a summary of discourse by reputable Brits with respectable service records.
    Will OUR politicians learn from Brexit calamity of underestimating the ‘pleb’? No, we need to make our own mistake and then weep like banshees, clasp hands (‘Quelle Surprise!”) and do endless discussion based on completely wrong premises.
    Half the Dail just doesn’t give a fupp about country, people or whatever. Just sitting out the term and then milk the connections in some business match making business. Like Tonio Blairinius Minimus or Bertio Ahernius Stadionius.
    And one would expect more intellectual vigor and understanding modern realities from whomever occupies the position of attorney general.

  4. dav

    SO our AG is also on the High Court or the Supreme Court ?
    I recollect that those people determine what is constitutional or not.

  5. Paul

    I must admit, I’m completely lost in all these stories now. I have no idea what’s what anymore, and this interview hasn’t helped.

    If the bill is indeed unconstitutional, then is the solution to put it to the people to change the constitution? Then bills like this can be acted upon in the Dail.

  6. ollie

    So now 1 person’s (Máire Whelan) opinion is taken as gospel?
    This is typical Fg s h I t e, hiding behind whatever they can to avoid dealing with the issue. just like water, refuse, car tax, gangland crime, Garda corruption and pretty much every other issue that’s occurred since 2011

    1. newsjustin

      Attorney General ollie. She’s the Attorney General giving her expert advice to the Cabinet. She’s not just Mrs Whelan from down the shops.

    2. phil

      I hear ya, and then the Government tells the UN to take a hike when they offer an opinion …

      I dont think anyone is fooled by the Poe faced who speak with such authority…

    1. phil

      We will never find that out, the usual freedom of religion thing will be sighted , but the rest of us do not get freedom from religion ….

      The cuts werent deep enough during the last civil war, we need another ..

          1. Clampers Outside!

            I see it playing out over a game of backgammon on a Sunday afternoon. Then breaking at 3pm for tea and scones. Then back to the pitchforks before tea with a final battle unfolding until midnight, at which time everything stops and we hand over the fighting to the Wiccan and Pagan Gods so that everyone else can go back to normal business. I see that Wiccan, shakin’ that ass, shakin’ that ass!

          2. D'El Boy

            I see it being like that Game of Thrones show. Lots of anal play and the likes especially on the religious woman haters.

  7. martco

    straight question:
    what’s with the reluctance to publish advice? is there some consequence or danger in it not being opaque?

    1. newsjustin

      That’s a good question. Does the AG ever publish advice she gives to Cabinet? Does she ever speak in public?

    2. Skeptical O'Hare

      How has Pat seen the AG’s advice when the TDs proposing the Bill are being denied access to same?

      1. Anne

        That’s an interesting question and he does confirm he’s seen it, unequivocally like.

  8. Anne


    Fintan O’ Tooley put it well –

    The Attorney General is one of the most powerful and influential people in the State. She is also one of the least accountable. If she screws up, she does not have to answer to anybody except the Taoiseach and then only in private.

    But she came very badly out of the Fennelly report into the resignation of the former Garda commissioner, Martin Callinan. And she comes badly out of the debacle over the establishment of a commission of inquiry into the Siteserv controversy that did not have the legal powers to do the job.

    This happens – people get things wrong. But in a democracy it is crucial that when it happens, the person responsible has to explain how and why things went so badly awry. Yet a combination of colonial overhang, legal pomposity and political convenience gives us a powerful public servant who does not answer to the public.

    The Fennelly report raised very serious questions about the AG’s judgment. She gave seriously inconsistent evidence to the inquiry.

    1. Anne

      And this –

      A fug of pomposity surrounds the office of Attorney General . The courts call the AG a “great officer of State” and an “independent constitutional officer”. But in practice, the system does nothing to make the AG really and truly independent of politics. We end up with the worst of both worlds – a highly political office sealed off by a fiction of complete political independence. The AG can’t answer questions because that would threaten an independence the role does not in fact have.

      1. Gorev Mahagut

        “A fug of pomposity” is right. And Leahy is not helping when he says “…it probably puts her in a more or less untenable position.” This is drivel. The AG’s position can’t be made “untenable”. Her job is to give advice, not orders. She can’t be undermined because it’s not her job to make people obey her.

  9. ahjayzis

    When did we vote to change the constitution to omit all mention of “Supreme Court” and put in “Maire Whelan” instead?

    Either put it through and let Michael D. refer it to the SC, or hold a vote.

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