Michael McDowell (Dublin South East, Progressive Democrats)

Great minds think alike, but before Deputy Jim O'Keeffe smiles, he should wait for the rest of my reply. Approximately two years ago, the Taoiseach wrote to the Attorney General and me asking us to examine the issue. We have considered it and I will explain why it is a difficult matter.

If Dr. Hogan's dissentient opinion, which is derived from a Supreme Court opinion on the Constitution, is correct, it is not open to the Oireachtas to reverse his opinion by legislation. However, even that is not certain, as Dr. Hogan and the report in general concede. What is certain is that if I include the provision in the Bill, which would amount to a purported reversal of the Kenny case decided on by the Supreme Court, the likelihood of the Bill being referred to the Supreme Court under Article 26 would be enormous. If it turned out that Dr. Hogan was right and the majority was wrong, the Bill would fall.

If there is merit in taking a legislative approach, it should be a one-section Bill at another time, but I do not want to have this Bill fall or stand by reason of coming down on one side or another of a well reasoned argument set out in writing before us.

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