Attorney General Máire Whelan

Last year, Clare Daly’s bill on fatal fetal abnormalities was vetoed by Fine Gael and Labour TDs, many of them pro choice, acting on unpublished advice from the Attorney General Maire Whelan,

On Thursday, another, blll sponsored by Mick Wallace, in similar terms will go before the Dáil.

Once again, the Government has stated that it should not be voted for, in view of the AG’s previous advices.

We asked Legal Coffee Drinker, what gives.

Broadsheet: “Legal Coffeee Drinker, what gives?”

Legal Coffee Drinker: “I’m not sure what you mean but what matters is whether or not these advices are correct. The courts’ view of the scope of the right to life of the unborn does not appear to be  the same as the Attorney General’s.
P (P) v Health Service Executive [2014], in which it was held that the withdrawal of life support from a woman, who was brain dead, and whose foetus had no viable prospect of survival outside the womb, was not in breach of the State’s obligation to vindicate the right to life of the foetus where there was no reasonable prospect that it would be born alive.
A legislative provision like the proposed Bill, which only provides for termination in circumstances where there is no possibility of the unborn being born alive, would not therefore be unconstitutional.”

Broadsheet: “So you feel that it is wrong to oppose the bill on the basis of the AG’s advice?”

Legal Coffee Drinker: “On the basis of this advice as communicated to the public, yes. All we have is a bald assertion by the AG that the Bill is unconstitutional, based on the wording of the Constitution. No copy of the AG’s advices have been published and it’s not clear whether or not these advices took into account the P case, which would appear to make it quite possible – if not highly likely – that the Bill is constitutional.
There’s also the separate question of whether or not over-reliance on the A-G’s opinion in this matters could potentially breach the separation of powers provisions in our Constitution.
The Constitution provides for a clear division of power between the Goverment, the Oireachtas and the Courts, and also provides that the Courts – and not the Government, of which the AG is part – are the arbiters of unconstitutionality. In view of this, the Constitution even provides, in Article 26, for a special mechanism whereby a Bill may be referred to the Supreme Court, prior to being signed, to have its constitutionality ascertained.”

Broadsheet: “So over-reliance on the A-G’s opinion as to unconstitutionality may itself be unconstitutional?”

Legal Coffee Drinker: “Precisely. If bills don’t go ahead because there is too much deference to the AG’s opinion, then the constitutionality of the bill never gets to be decided on by the Supreme Court. Treating the AG’s opinion as final and conclusive – in circumstances where there is High Court authority to the contrary – is itself a breach of the separation of powers.
At the very least – given that there is authority which appears to be in direct conflict with her advices – more detail about the AG’s advices should be published to TDs before they can reasonably be expected to rely on those advices.
And attempts to discipline party or government members, who vote for a Bill opposed by the Government solely on the basis of the AG’s advice as to its constitutionality – could also be challenged on the grounds that a TD. should never be punished for seeking to uphold the principle that the courts be the sole arbiters of the Constitution…”

Broadsheet: “Thanks Legal Coffee Drinker. It’s been a while. May readers have been asking for you. Welcome back.

Legal Coffee Drinker: *click*

Previously: Unequivocal But Wrong

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