We need your help now
Support from readers like you keeps The Journal open.
You are visiting us because we have something you value. Independent, unbiased news that tells the truth. Advertising revenue goes some way to support our mission, but this year it has not been enough.
If you've seen value in our reporting, please contribute what you can, so we can continue to produce accurate and meaningful journalism. For everyone who needs it.
Sign in. It’s quick, free and it’s up to you.
An account is an optional way to support the work we do. Find out more.
By continuing, you are indicating that you accept our Terms of Service and Privacy Policy.
ENDA KENNY IS right. Shane Ross has to abide by the Cabinet decision not to vote for Mick Wallace’s Bill on permitting abortion in cases where the unborn child has been diagnosed with a fatal foetal abnormality – and that is not just a rule or tradition, it is a constitutional requirement.
Article 28.4.2 states: “The government shall meet and act as a collective authority and shall be collectively responsible for the Departments of State administered by the members of the Government.”
If Shane Ross fails to do that, Enda Kenny would be fully justified in removing him from the government on that basis alone. Indeed, there may be an actual need for Enda Kenny to remove him, for Shane Ross would have breached a constitutional requirement. This might be a terrible tragedy for Irish tourism, transport and sport but so be it.
There cannot be a free vote for members of the government on matters decided by the “collective authority” of the government.
This is about Cabinet ministers, not hangers-on
Yes, on 16 July 1976 the then-Taoiseach Liam Cosgrave, accompanied by the then-Minister for Education Dick Burke, voted against their own government Bill on contraception and there was a free vote allowed. But that too would seem to have been a breach of the constitutional requirement of “collective Cabinet responsibility” and this precedent is not now a basis for ignoring the requirement.
It is clear also from that same Article 28 that this ordinance does not apply to Ministers of State, for it makes clear that by “government” it means the 7 to 15 Cabinet ministers appointed, not the hangers-on. So John Halligan, Finian McGrath and any of the other 16 hangers-on can do what they like.
None of them – Cabinet ministers and the hangers-on – need pay a blind bit of attention to the advice of the Attorney General. There is no constitutional or legislative basis for the claim that they must adhere to her advice and that advice, clearly, is not sacrosanct. The advice of several Attorney Generals in the past obviously was bad advice as the Bills which they endorsed as constitutional were later found by the Supreme Court to be unconstitutional.
And that applies to the present Attorney General too, who approved of the flyers that were distributed by the government prior to the children’s rights referendum. That advice was held to have been wrong by the Supreme Court.
The contention that the advice of the Attorney General may be disclosed only to the 15 members of the government is also a nonsense. There is no bar on the government disclosing such advice to anyone who wants to see it. But where there is a prospect of litigation, then the government may be entitled or even required to withhold the advice.
Get on with it
On the issue of the Bill permitting abortion in the case of fatal foetal abnormality, the reflexive view that where there is a prospect of even a second’s survival outside the womb the Constitution decrees that nothing should be done to terminate the life of the child, seems problematic. A decision of three judges of the High Court, including the then-President of the High Court, Nicholas Kearns, in PP v Health Service Executive (delivered on 26 December 2014), shows there are nuances to the apparently unconditional right to life of the unborn.
In that case the mother of the unborn child had suffered a fall which, ultimately, left her brain dead. There arose the question of to what extent should the relevant hospital medics go to sustain the life of the unborn by keeping the mother on support systems, which led ultimately to her body bloating and rotting. The court found that because there was no “realistic prospect” of the unborn child remaining alive up to birth, the medics were entitled to cease the support systems, leading, inevitably, to the death of the unborn child.
Yes, this case is not identical to fatal foetal abnormality, but it does suggest that in certain circumstance, even under the Constitution as it stands, it may be permissible to terminate the life of the unborn.
There seems to me to be no reason why the Dáil and the Seanad should not pass Mick Wallace’s Bill and then urge the President to refer the Bill to the Supreme Court to test its constitutionality, before signing it into law. One way or another of course the Supreme Court would be asked to adjudicate in the issue.
So, get on with it, irrespective of what the Attorney General says.
To embed this post, copy the code below on your site
Vincent it will be a terrible tragedy for the ability to think for oneself if Ross was forced to vote against his beliefs. Can we not get away from the nodding donkeys syndrome for government just once?
The nodding donkey made an agreement when he got his cushy job. He can’t have it both ways
No he did’t its just Vincent looking for the nodding donkey…
He’s right though, if you don’t want to vote with the govt then don’t be part of it! And people go on about my pro life views my answer would be the same if enda had pro-abortion plans and the minister wanted to vote against him!
I’m strongly pro choice but the constitution is pretty explicit here. If the issue is that important to him, he has no choice but to resign. Otherwise, he’s legally obligated to submit to the collective decision of the cabinet.
The constitution is flawed in this regard, in my opinion. I don’t see why elected representatives shouldn’t be able to vote the way they want (in the absence of a referendum, anyway).
Sure, it’s technically unconstitutional to vote against the government if you’re part of the cabinet, but it shouldn’t be. What is the point in suppressing the vote of a TD like this? It’s not going to change their opinion, it’s presumably a feeble attempt to maintain the “authority of the state” as the constitution bangs on about.
It doesn’t undermine the authority of the state to have free thinking individuals able to vote the way they want on any particular issue.
It also demands another question be answered – is out Constitution fit for purpose? Constitutional reform has been put on the agenda by numerous governments, but nothing done about it!
Our constitution has a lot of good, but also a lot of bizarre stuff, particularly when it comes to the idea of the “state” and how it should be protected.
There needs to be major constitutional reform but I can’t see any avenue through which it’ll come any time soon.
How would government work and not be completely all over the shop if everyone voted the way they wanted? It stands to reason that when you sign up for the government, you abide by the collective decision, whether you like it or not.
Same way anything else works… majority rule. Allow a free vote and let cabinet members vote against the government if they so choose. Then it’s a matter of numbers as usual.
The idea of an unbreakable collective in the government has led to a stifling of opinion on any issue. Where is there room for free debate on any issue if the government just decides everyone is voting the same way?
I think in all economic and political votes the party whip system has to stand. But of issues like this where it’s morale people should be free to vote whatever way they like!
On another note in glad we have a written constitution. It’s not perfect but better than the UK anyway.
Parties are bound by their whip, and that is a matter for individual parties and their members. In coalitions there will be differing points of view on some issues – some will be reconcilable, in cases like this, some not. Perhaps if the junior coalition partner in the last government was stronger in this regard, and stood up for their principles and beliefs then their numbers would not be so small now
In Ireland we also have a peculiar problem as we have a Westminster style of parliament with weak opposition. Look at other European Parliaments with stronger oppositions. The power of governments there is not absolute
Agree James. A written constitution, flawed as it is, is a million times better than being plunged into a constitutional crisis out of thin air every now and again because you actually have no constitution to refer to.
We got that part right. Now we need to perfect it.
Malachi collective cabinet responsibility has stood the test of time and exists for a reason. We either have a Govt or we do not. The notion that you can simply throw out anything you want from the playbook of Government and everything will be grand is simply wrong. If you are not bound by collective cabinet responsibility then you can simply decide to vote against your own Govt when unpopular or unpleasant decisions arise. It won’t work in Ireland. A great many people commenting on the constitution haven’t a clue why certain conventions or rules exist. Finally if something is “technically unconstitutional” it is unconstitutional. I’m afraid the word “technically” doesn’t grant a free pass to ignore the constitution.
@James Darcey All votes by politicians are political in fact voting by its very nature is political, the party whip system while political is undemocratic, by allowing a very small number of politicians to control the many. The mantra in favour of the whip system is that Government would never get anything done without it, my opinion would be that without it a consenus would have to be formed on each issue; there by allowing the democratic process to function and bad leglislation that is against the will of the people would have to amended and agreed too and not rammed through
@John R
You’re right, voting against the govt. as a minister is unconstitutional. My argument is that the constitution is wrong to uphold such a requirement.
You say that having a free vote would let the cabinet vote against the government when unpopular/unpleasant decisions arise. I don’t see why this is a problem?
We elect representatives, not political parties or governments. They are formed after we vote. Thus, changing the vote of the politicians the people elected is an unjust thing to do.
If politicians make promises (re: voting) to the electorate, the constitution should not deny them the ability to make good on those promises simply because they are part of the cabinet.
He works for the people, not the ruling party. Constitutional fail.
This is totally bizarre.. They ignore the Constitution in relation to Governance of the Country to vote for legislation that is in itself unconstitutional. Could Ross and Co have anymore contempt for the Country and its Constitution? If this is new politics God help us and can we have the d politics back again .. !!
That just blew my mind… I had almost forgotten about ‘the mother of the unborn child who had suffered a fall’ , I had to sit back for a minute. That actually happened in this country, under our watchful gaze, and we still just carry on like its normal to live in a country were our laws make things like that possible…
A foetal heartbeat reduces the status of the carrier to that of a bucket. It’s obscene that it’s illegal for a woman to be spared the emotional hell of wating 4 – 5 months to give birth to a child that won’t survive outside the life support of the womb.
The constitution is an unworkable relic and should be discarded. Let the convention draw up a new one.
Here we go again with this rubbish
cormac must be on the blob.
Surely it’s a matter of conscience, and Shane Ross not bound by a party whip should vote with his – something which is no doubt beyond Vincent Brown, a man who’s had more political ideals than I’ve had hot dinners!
The AG will have to go if he votes against this ridiculous bill
To be fair his argument isn’t that Shane Ross should obey a party whip, he’s saying that the constitution demands the cabinet work as a collective authority, and that he thus cannot express his individual vote lest he violate this constitutional requirement.
So should the Contraception Bill, 1974 be seen as invalid because a free vote was allowed on it and TDs voted in an unconstitutional manner? If our TDs vote in legislation that the AG deems ‘unsound’, then surely a referendum is required to change the constitution to make the legislation sound, and if the referendum doesn’t pass, the legislation can be thrown out.
I think VB’s point is that if Shane Ross feels that his conscience-based view is irreconcilable with his constitutional duty as a cabinet minister, he will have to abandon one or the other. He should resign his post as a Minister if he cannot bring himself to comply with the constitutional duty that ministerial office places on him, as VB has explained.
I understand VB’s point, but it is flawed. We have had free votes before, so why should Shane Ross be singled out as acting unconstitutionally?
Constitutional law and interpretation is dynamic. Since the adoption of the 1937 constitution, which is still the fundamental framework of the constitution as it is today, the Supreme Court and High Court, and latterly the Court of Appeal have teased out what it actually means, for example the doctrine of unenumerated rights is entirely judicially-developed., as is the law on heritage objects of antiquity. VB is making an argument here that may not have been made before the votes you mention.
I don’t see how you can say his logic is flawed, with respect to you.
His only constitutional duty is to vote yes, no or abstain. The constitution cannot predetermine an individual’s free vote. The outcome may or may not be supported by the constitution, that’s a different matter.
I hope he dose vote against the government.
In fairness it’s not much of a government really.It exists only to enhance Fine Gael and Fianna Fails chances at the next election. Kenny hasn’t got the Kahonas to sack anybody, now his well paid advisors will encourage him to hang onto power for as long as possible. Ireland is like a rudderless ship at the moment.
Did he not sack o’reilly. kenny is a tough cookie. don’t be fooled by his amiable appearance
“Yes, on 16 July 1976 the then-Taoiseach Liam Cosgrave, accompanied by the then-Minister for Education Dick Burke, voted against their own government Bill on contraception and there was a free vote allowed. But that too would seem to have been a breach of the constitutional requirement of “collective Cabinet responsibility” and this precedent is not now a basis for ignoring the requirement.”
Except Vincent, the legal and political establishment let the Cosgrave action stand unsanctioned – thus CREATING a precedent – whether you like it or not.
After seeing kenny being firmly put in his box by the Northern Ireland first minister today, i think kenny should resign too!
There seems to be an impression that the Attorney General is somehow ‘above politics’.
This isn’t the case. The Attorney General is appointed by the Taoiseach, is answerable only to the Taoiseach and can be sacked by the Taoiseach for any reason ‘deemed sufficient’.
Marie Whelan’s record in office leaves a lot to be desired. The Fennelly Report and the Siteserv highlighted the infallibility of the office under her tenure.
The Pope is infallible. The Attorney General is not.
Where does the will of the people factor into this democratic process?
They were the ones who elected these lads to represent them. It’s weird how people don’t understand how a representative democracy works.
frank aaa got 1.9 % of the vote. surely that means that they should be running the country
Frank, they are elected to represent the will of their constituents
Francis Fitzgerald stood at my doorstep and assured me that Enda Kenny had assured them that any vote on abortion would be a free vote. While I take most of their assurances with a pinch of salt (“not another red cent…”, “to tax a person’s home…”) I would really hope that a td at any level should be allowed to vote with their conscience on moral issues. We vote for them based on their principles so they should be allowed to vote based on them too.
The poor Irish yet again manifesting their Catholic beliefs at the expense of common humanity. Vincent Browne should know better but obviously doesn’t. .
This is the kind of gibberish we get when Barristers think that legalism is something other than an expensive, arbitrary, elite-friendly farce.
Kenna WON’T sack Ross – and guess what?
The world will still rotate, the trains will run and the crops will be harvested.
And most of all, we’ll see a point scored for democracy…..
You never give a ‘child’ a diagnosis of ‘fatal foetal abnormality’ as that would be a silly thing to do ..
What child are you talking about this is about non viable fetuses….
” the unborn child has been diagnosed with a fatal foetal abnormality”
“On the issue of the Bill permitting abortion in the case of fatal foetal abnormality,” -”nothing should be done to terminate the life of the child”
It’s a fetus not a child.
Isn’t that what Sea View is getting at ?
Ah Vinnie we can’t be having this, only Kenny bashing is allowed here
There is of course a rather simple solution – resign from Cabinet then be re-appointed. You’re welcome.
Vincent don’t be silly Kenny will do anything to hold onto being Taoiseach ! Didn’t he appoint two ministers who were not paying water charges ?
The arrangement allows descent on this nature.
But what if the collective decision of the cabinet is to allow a free vote :0
VB prize bellend!
Vincent with his finger on the pulse as usual.
Article 28.4.2 states: “The government shall meet and act as a collective authority and shall be collectively responsible for the Departments of State administered by the members of the Government.”
That could have a number of meaning and understanding – the Government is collectively responsible – that I can understand – but there are two get out clauses
1. The collective could elect to have a free vote that would be acting collectively if all agreed by all to allow a free vote.
2. It could be considered that “acting as a collective authority” is required after a vote but not required for the vote so people can vote as they wish but must act in accordance with the outcome of the vote.
I am not a constitutional lawyer but wonder if either or these arguments would annul yours – and on this most sensitive moral and legal issue, there needs to be some latitude and understanding and it is not helpful to the country to be calling on someone to perform an act or threaten some act that could cause the fall of the recently elected government.
Maybe its that Collective Authority clause that is out of date and should be removed from the contitution, not Shane Ross from the cabinet Vincent.
This from the person who said on TV “sure Irishmen say all the time – I’d love to rape her”. Maybe his friends speak like that but most normal men would never say such a thing. High moral ground and Integrity don’t go in the same sentence as Vincent Browne.
have your say