Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

As the Deputy knows, legal advice and the advice of the Attorney General to the Government are privileged and it is not the norm - it is in fact somewhat unprecedented - to produce legal advice. Legal advice inevitably argues from a position of "on the one hand, on the other hand" and gives different sets of opinions. The advice we will publish today is a summary of the advice of the Attorney General. It sets out his conclusions in a detailed paper that explains exactly why we are proposing that an enabling provision be added to the Constitution. To put the matter simply, if we only repeal the eighth amendment or Article 40.3.3°, we go back to where we were in 1982 when it was argued that there were unenumerated rights of the unborn and there may have been a pre-existing right to life of the unborn. There is also a possibility that courts could find in future that the foetus or unborn child is a child, in which case children's rights would apply, or is a citizen or has a right to be a citizen, in which case citizens' rights would apply.

We do not want to be in a situation where the majority of the people vote to repeal the eighth amendment only to find out that it has no effect, and that there is still a ban on abortion in our Constitution. That is why it is proposed to insert a very simple enabling provision clarifying that the Oireachtas may legislate for the regulation of the termination of pregnancies. That, however, does not mean that there is any barrier on recourse to the courts or judicial review.

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