Dr. David Kenny:

Generally speaking, constitutions work best when they state broad principals. At the same time, when those principals are fleshed out, particularly by court judgments, it is sometimes also necessary to include matters of detail. It is also the case that detail sometimes has to be inserted for governance reasons. The choice needs to be made in this House as to what the appropriate level of detail would be and if certain regulatory changes need to be made. The people then ultimately get to decide if those changes are well advised or not.

The second question concerned whether or not the insertion of Article 40.3.3^owas necessitated. One of the things cited at the time was a fear of a Roe v.Wade type of judgment. This was specifically cited in the Dáil with the introduction of the wording, as well as in many public debates. Studying the judgments of the courts now with hindsight, it seems in my view that was a very unlikely possibility at that point. I certainly would not say that it was foreseeable. Again, there is a never-say-never aspect to this and one can never know how the courts are going to develop. As to whether or not there was an imminent risk at the time, however, I would say that it seems unlikely and it was probably not an immediate concern.

The simplest legal definition of repeal would be that the language is excised and no longer there. It would not simply be a case of repealing the eighth amendment, of course, but also the 13th and 14th amendments that have added to it. The repeal of Article 40.3.3^owould mean that the language is gone and what follows after that, and what is the actual meaning of that, are the big questions.