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Vincent Browne: If Shane Ross votes against the Cabinet on abortion, Enda Kenny should remove him

The Cabinet has collective responsibility, and Shane Ross cannot break this, says Vincent Browne writing for TheJournal.ie.

Vincent Browne

ENDA KENNY IS right. Shane Ross has to abide by the Cabinet decision not to vote for Mick Wallace’s Bill on permitting abortion in cases where the unborn child has been diagnosed with a fatal foetal abnormality – and that is not just a rule or tradition, it is a constitutional requirement.

Article 28.4.2 states: “The government shall meet and act as a collective authority and shall be collectively responsible for the Departments of State administered by the members of the Government.”

If Shane Ross fails to do that, Enda Kenny would be fully justified in removing him from the government on that basis alone. Indeed, there may be an actual need for Enda Kenny to remove him, for Shane Ross would have breached a constitutional requirement. This might be a terrible tragedy for Irish tourism, transport and sport but so be it.

There cannot be a free vote for members of the government on matters decided by the “collective authority” of the government.

This is about Cabinet ministers, not hangers-on

Yes, on 16 July 1976 the then-Taoiseach Liam Cosgrave, accompanied by the then-Minister for Education Dick Burke, voted against their own government Bill on contraception and there was a free vote allowed. But that too would seem to have been a breach of the constitutional requirement of “collective Cabinet responsibility” and this precedent is not now a basis for ignoring the requirement.

It is clear also from that same Article 28 that this ordinance does not apply to Ministers of State, for it makes clear that by “government” it means the 7 to 15 Cabinet ministers appointed, not the hangers-on. So John Halligan, Finian McGrath and any of the other 16 hangers-on can do what they like.

None of them – Cabinet ministers and the hangers-on – need pay a blind bit of attention to the advice of the Attorney General. There is no constitutional or legislative basis for the claim that they must adhere to her advice and that advice, clearly, is not sacrosanct. The advice of several Attorney Generals in the past obviously was bad advice as the Bills which they endorsed as constitutional were later found by the Supreme Court to be unconstitutional.

And that applies to the present Attorney General too, who approved of the flyers that were distributed by the government prior to the children’s rights referendum. That advice was held to have been wrong by the Supreme Court.

The contention that the advice of the Attorney General may be disclosed only to the 15 members of the government is also a nonsense. There is no bar on the government disclosing such advice to anyone who wants to see it. But where there is a prospect of litigation, then the government may be entitled or even required to withhold the advice.

Get on with it

On the issue of the Bill permitting abortion in the case of fatal foetal abnormality, the reflexive view that where there is a prospect of even a second’s survival outside the womb the Constitution decrees that nothing should be done to terminate the life of the child, seems problematic. A decision of three judges of the High Court, including the then-President of the High Court, Nicholas Kearns, in PP v Health Service Executive (delivered on 26 December 2014), shows there are nuances to the apparently unconditional right to life of the unborn.

In that case the mother of the unborn child had suffered a fall which, ultimately, left her brain dead. There arose the question of to what extent should the relevant hospital medics go to sustain the life of the unborn by keeping the mother on support systems, which led ultimately to her body bloating and rotting. The court found that because there was no “realistic prospect” of the unborn child remaining alive up to birth, the medics were entitled to cease the support systems, leading, inevitably, to the death of the unborn child.

Yes, this case is not identical to fatal foetal abnormality, but it does suggest that in certain circumstance, even under the Constitution as it stands, it may be permissible to terminate the life of the unborn.

There seems to me to be no reason why the Dáil and the Seanad should not pass Mick Wallace’s Bill and then urge the President to refer the Bill to the Supreme Court to test its constitutionality, before signing it into law. One way or another of course the Supreme Court would be asked to adjudicate in the issue.

So, get on with it, irrespective of what the Attorney General says.

More from Vincent Browne on TheJournal.ie:

The EU, its elites and its hyperfans had this coming 

Enda’s latest move shows a cruelty of the heart and mind

Squalid little deals show it’s still old politics at work 

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Vincent Browne

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