Billy Kelleher (Cork North Central, Fianna Fail) | Oireachtas source

I welcome the opportunity to speak in public on this matter. The purpose of the motion that I tabled was to arrive at a situation where we could consider the Citizens' Assembly's recommendations. Tabling it was important because we were asked to consider those recommendations as part of our terms of reference. If we had just opted for a repeal simpliciter, we would have had parked the substantive recommendations of the Citizens' Assembly, namely, that Article 40.3.3^oshould not be retained in full, it should be replaced or amended or it should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman. These were the three substantive issues on which the Citizens' Assembly voted. Had we supported a repeal simpliciter, we effectively would not have been debating those recommendations anymore and it would have been difficult to move on to its following recommendations in view of the fact that we had rejected them without consideration.

This is a compromise. We can still debate the substantive issues and all of the legal advice and options that have been placed before us. Deputy Chambers and others have gone through them. Some of them sit uncomfortably with me not only in the context of what they propose, but predominantly on legal grounds. Entrenching legislation in the Constitution, which was recommended in option No. 2 on a repeal based on published legislation entrenched in the Constitution, would be a dangerous road to take. While it might give certainty, it gives no flexibility. We could be tying the hands of legislators and others for many years to come if we opted for the entrenchment proposal. Even if people just wanted to change a comma, we would have to hold another constitutional referendum. That option should be parked fairly soon in our deliberations.

On the broader issue of repeal simpliciter, it allows for the Oireachtas to legislate in its own right and within the confines of judicial oversight. This might affect the rights of the unborn that are already recognised without being explicit in the Constitution, but we would not know what the effect might be until after the legislation was enacted and subjected to constitutional challenge on grounds of expressed or inherent rights in the Constitution for the unborn, bodily integrity, privacy or the other areas stated in the legal opinion.

This is probably the option that many people believe would give the Oireachtas the most flexibility to legislate but, once the repeal simpliciteris passed by the people, what do those who are currently proposing it propose in terms of legislation? This is an important question and people need to be up front about it. Have they in mind a restrictive proposal in terms of fatal foetal abnormalities, incest, rape or something else? Will it relate to the health of the woman? Where do they sit in this regard?

That is an issue the committee will have to tease out if there is a recommendation for a repeal simpliciter. It would be disingenuous to propose a repealsimpliciterwithout setting out in a broad legislative format what one will recommend in the context of a referendum. The publication of legislation in tandem has been proposed before and tried before. There is no legal framework that underpins it other than that it would be a political intention to pass legislation if the public changed the Constitution or repealed Article 40.3.3^o. That is probably just a political possibility whereby there would be broad consensus as to what would be put before the people by political parties or broad opinion in the Houses of the Oireachtas. There could be no legislative guarantee in view of the fact that very soon after the referendum, there could be an election, a change of opinion or proposed amending legislation. As such, the draft legislation might be substantially changed. However, it might give comfort to some individuals to have an opinion as to what they are voting on in the context of repeal. People should be upfront and honest, individually and politically as parties, if they have an opinion or a policy as to what should be in that legislation.

We have been discussing this issue for quite some time over the past couple of weeks. We should not be complaining about that, however, because we are charged with a fundamental issue and should take our deliberations very seriously, as all members are doing. We have a deadline by which we must report. Whether we make a decision today, tomorrow or next week, we ultimately must report by mid-December. There is no prevarication on my part. The motion I tabled was never intended to delay decisions. All decisions must be made within three months of our first public meeting, which took place in mid-September. Regardless of whether motions are put down to delay a decision in the context of the modular process, my motion was not put down to delay the final decision, which will be made when the committee has completed its full deliberations. Some people seem to suggest the motions were put down for prevaricative or even provocative reasons, which was certainly not my intention. I have never tried to make political capital out of this particular issue since I was appointed spokesperson by Fianna Fáil six years ago. I wish that to be clear to everybody in the room. People can look at the views I have expressed publicly in the Dáil and in committees in previous times. They will see that I have never tried to put other political parties under pressure in this context. It is too serious and emotive and it deserves that respect from others as well.