Clare Daly (Dublin Fingal, Independent) | Oireachtas source

It is very unfair to say we are making decisions before all of the evidence has been heard and without fully debating the issues. Most members have engaged very frankly, wholeheartedly and sincerely. For weeks, we have been listening to the very real difficulties with the current arrangement.

Dr. Peter Boylan said today that grave harm was done to women, including death. We know the present arrangement is hugely problematic for women in respect of their lives and health. The top echelons of the medical profession have told us week after week that they need flexibility and capacity to respond in terms of best practice in medicine in respect of maternity and foetal care. They claim the present constitutional arrangement does not give them such flexibility and capacity. The decision we made earlier was not to retain the present constitutional arrangement; that is all that was decided. Many members are in different places on that issue, which is absolutely fine, but to say we have not debated enough to get to that position is very disingenuous.

We have had much discussion on the intention of the Citizens' Assembly. We debated it yesterday with our legal adviser and with Ms Justice Laffoy. Anybody who reads the transcripts of the proceedings of the Citizens' Assembly and accounts for the voting process will realise it was very clear that the citizens wanted to take this issue out of the Constitution. There was an overwhelming vote for repeal and a little complication about something being replaced, but we teased that out and it was very clear that the citizens were afraid that the courts might try to tie the hands of the Oireachtas so it would be limited in its capacity to legislate for abortion provision. We had a discussion on these issues.

Arising today and every week was the idea that putting anything in the Constitution on such an intimate, private, individual health matter is very problematic in any of its formats. In that sense, option No. 2, which involves putting specific legislation into our Constitution, is the worst. In no other case is such an arrangement at play. If there were technical changes, or otherwise, the provision could not be changed. The legal adviser said it is completely impractical and without precedent. On that basis, option No. 2 is really a non-runner.

We were told option No. 4 would be incredibly legally difficult. I agree. It would not be so totally impractical as option No. 2 but near enough. It would put down woolly grounds in the Constitution. Again, it is open to wide interpretation. Option No. 5, which would put in broader grounds, was a little bit more problematic.

We did make a comparison with the divorce referendum and tease it out. Regarding divorce, some criteria were put into the Constitution in this regard. We said in private session yesterday that we have to take into account that the Oireachtas and Attorney General are now considering taking all that out of the Constitution because it proved cumbersome. The idea of a constitutional referendum to change this is not really practical. These matters of personal decision-making are really best left out of the Constitution. That issue was dealt with in terms of options Nos. 2, 4 and 5.

I agree with the points made that, although option No. 6 was the one chosen by the Citizens' Assembly, it is putting something in the Constitution and is writing out a role for the Judiciary that I do not believe would be welcome . It is not something that exists in other scenarios. Generally speaking, the interaction between the Constitution, the Houses of the Oireachtas and the legislation is fairly flexible. It has worked pretty well. The courts have been pretty good at interpreting matters when given space in this regard. Including in the Constitution something that, in effect, is trying to diminish the role of the Judiciary is not a good thing. It means one is left with options Nos. 1 and 3 as runners. My belief is that option No. 1, a simple repeal, is the best. Option No. 3 is repeal while publishing some sort of legislation in order that people might have an idea as to what legislation might look like. Our legal adviser told us that is really a political matter rather than a legal matter. It would not necessarily have any legal status but might be a little reassuring.

A constant theme in all this is that no matter what option we pick, criminalising women who have abortions is completely unacceptable to people. It arose again today. I believe the professor put it very well when he turned it the other way and said that, while many people have different opinions on abortion, they would give a very different answer if asked whether they wanted women to go to prison for abortion. Decriminalisation is an issue we have to address. It will deal with many of the issues.

We have made good progress. There was really genuine engagement by most members of the committee. I have seen games, however. Deputy Catherine Murphy is correct that there are games being played here. We have heard the opening salvos of the referendum campaign in some of the speeches tonight. It is not something to look forward to. There are also elements of the media playing games with this issue. Perhaps, through creating a big, cut-and-thrust divisive debate bringing us back to 1983, it is an attempt to halt flagging newspapers sales. People are not in 1983. The committee has demonstrated an ability to listen to impartial evidence-based advice. We can be adamant enough in making decisions on that basis without other people, inside or outside, trying to goad us on these matters.