Guest post by Ken Carty (University of British Columbia)
The pundits and editorial writers have worked themselves up over a bill to provide for abortions in the case of private members fetal abnormalities – a bill that may never pass out of the Oireachtas. The behavior of some ministers, we are told, ignores the constitution and undermines the collective responsibility demanded by it. But surely these charges are way out of proportion.
The Attorney General has advised the government – presumably because she was asked to – that she thinks the bill is unconstitutional. But that doesn’t make it so, and to keep describing it as such only muddies the water. Only the court can decide on a law’s constitutionality. If the Oireachtas passes the bill it may, in due course, get tested in the court but until there is some final decision it will be the law of the land. And this is how it should be. The presumption that the Attorney General can alone decide what is constitutional and what not denies the role of the Oireachtas and the authority of the courts. It represents a view that highly contentious issues can be arbitrarily banished from the public agenda, and out of popular politics, by a simple legal opinion.
The Taoiseach is reported to be unhappy about the divisions in his cabinet but surely that is the reality of the politics of such a fragmented Dáil. Collective responsibility does speak to the cabinet members being collectively accountable for government decisions they have taken, and for the administration they lead. But it is a very long stretch to suggest they need to be collectively agreed on a private members bill that all seem agreed is unlikely to pass and on an issue on which the Taoiseach seems determined that the government should have no policy.
Collective responsibility is not damaged by a few Independent cabinet ministers recording their position on an issue that the Taoiseach seems desperate to avoid by shuffling it off to a Citizens Assembly. Ministers, like all members of the Dáil, have a responsibility to their consciences, and to their electorate, and it would be an impoverished system of responsible cabinet government that demanded that those responsibilities were automatically overridden by the Taoiseach’s whip. Especially on issues that all acknowledge touch deep moral principles and the fundamental rights of individual citizens.
There might be issues on which resignation from the cabinet would be necessary for a dissenting minister. But an ill-fated private members bill is not one of them. The electorate has returned a Dáil that is going to demand new ways of doing government as well as politics. It isn’t going to work well if the government charges TDs (including some of its own members) with reckless constitutional impropriety at the first sign of political trouble.