Clare Daly (Dublin Fingal, Independent)
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All of the witnesses' papers contributed well to the types of information we were seeking here. Ms O'Toole's contribution, in particular, gave us a good insight into how the courts interpret these issues at present, which is critical for this because the repeal-replace discussion that we are having now really came in against the backdrop of the idea, introduced at the Citizens' Assembly by Mr. Brian Murray in his paper, that the courts might restrict the ability of the Oireachtas to legislate. If you like, that was where the fear of the courts came from. All of this uncertainty now is to do with how can we ensure the courts do not do that. My first question is, are we in danger of over complicating matters here and taking it a little too far? The courts have fairly well interpreted the provisions that have been there already. I merely wish to hear the witnesses' opinion. Dr. Kenny, in his paper, stated he did not think they would so interpret it. In fact, Mr. Brian Murray himself stated he did not think it either. Why are we spending so much time on it? That is my first question. The level of certainty we are seeking here is a Holy Grail. It is not to be found. We have a separation of powers in the State for a reason.

Is it not the case that prior to the eighth amendment, a sizable lobby in the State felt that the unborn did not have any rights even though abortion was outlawed under the Offences against the Person Act 1861 with the penalty of penal servitude for life? Even though that legislated existed, to be sure to be sure there would never be abortion, this was inserted because it was believed the courts could have a Roe v. Wade situation. Presumably, they did not think in 1983 that the unborn had a right. I wonder are we overstating those implicit rights?

My other question was to Dr. Kenny, in terms of his point that the Judiciary now might interpret it but the courts in the future may interpret it differently. I would put it to Dr. Kenny that a future Oireachtas could legislate, differently and in any way it likes. If the Constitution states the Oireachtas has exclusive powers, then the Oireachtas can do whatever the hell it likes, basically, and that can be against the wishes of the people either way.