Symposium: Repeal or Replace? The Challenge of Debating Complex Legal/Constitutional Questions in the Citizens’ Assembly

David Kenny

Trinity College Dublin

The task facing the Citizens’ Assembly was very challenging. It had to deal with many issues of medical, ethical and legal importance; to hear personal stories alongside complex regulatory information; and to offer space for ordinary citizens to process and deliberate on all of this. Eoin Carolan and Mairead Enright, writing in this Symposium, have each commented critically on the legalistic, lawyerly approach of the Assembly. There is a significant and legitimate question as to what extent the Assembly should have been tasked with providing answers to specific and complex legal questions, and the propriety of how it went about that task. At the same time, it is not clear to me that complex legal issues can be avoided if we wish to have citizen’s participation in what are unavoidably complex matters of constitutional or legal reform, or that we can go about having citizens debate them in a more effective manner.

One specific legal issue the Assembly decided became the subject of ongoing controversy as the proposals to remove the Eighth Amendment progressed: whether to simply remove the constitutional provision on abortion, or to remove it and replace it with text empowering parliament to legislate. I wish to examine this to show the difficulty with having citizens’ fora consider these points, but also the difficulty in excluding them from consideration when constitutional reform is in question.

The campaign for constitutional reform of the Eighth Amendment focused on removal of Article 40.3.3 from the constitutional text, or “repeal” as it was known. The Citizen’s Assembly considered other options, including replacement of the near-absolute ban with a clause allowing abortion in limited, listed circumstances. In the end, however, the Assembly decided that removal of the constitutional bar to legislation was appropriate. But this raised the question: what was the effect of repealing the clause, and would it accomplish this goal? Would it, in fact, be better to replace the clause with some language empowering parliament to legislate in this area?

An eminent Senior Counsel (i.e. a senior barrister) was invited to present to the citizens on the question of what repeal would accomplish. His evidence suggested that there was a modest but real uncertainty about the legal effect of repeal. It was possible, he said, that there had been—before the insertion of the Eighth Amendment in 1983—implied constitutional rights of the unborn recognised by the courts, and these could be resurrected by the courts after repeal. If this happened, courts might invalidate liberalising abortion legislation. On the other hand, the autonomy or bodily integrity rights of pregnant people might be also invoked after repeal to try to invalidate more conservative legislation. That is, repeal without some replacement created an uncertainty and risk of judicial intervention that could favour either a conservative or a liberal position. This risk could be offset with some clause stating that the Oireachtas (parliament) should be exclusively entitled to regulate abortion.

The Assembly ultimately followed this course, suggesting replacement of the Eighth with a clause giving the Oireachtas exclusive power to regulate abortion. It is hard to say what strength the Assembly wished this to have: was it to exclude the judiciary entirely from the area, or just to suggest primacy of the Oireachtas? Though this was very similar to repeal—it was not replacement of the clause in any substantive sense, as it intended to place no constitutional limit on provision of abortion—it met with opposition from pro-repeal groups, with some feeling that the Assembly had been given overly-cautious advice about the risk of repeal.

A special parliamentary committee set up to consider the Assembly’s recommendations heard from legal experts (including myself and Fiona de Londras, who also contributed to this Symposium) and took its own legal advice on the question. It ultimately held that simple repeal was sufficiently certain, and that any risk that existed was worth running. The Committee also seemed to feel that exclusion of the judiciary would be politically controversial in the campaign and might encourage people to vote against repeal. (However, it was also possible that the risk of judicial liberalisation of the law beyond what the legislature proposed could have become a political obstacle to repeal, as, according to a contemporary analysis by Brian Girvin,  one of the motivations behind insertion of the Eighth Amendment in 1983 was fear of an Irish Roe v Wade; the US Supreme Court decision that liberalised abortion regulation in the USA.)

The government had the final say as to the proposal, and its legal advisor, the Attorney General, sided with the Assembly’s view, but took the most minimalistic approach possible: not excluding judicial review, but formally empowering the legislature. The new clause would read: “Provision may be made by law for regulation of termination of a pregnancy.” (Thirty-sixth Amendment to the Constitution Bill 2018). This nodded to the uncertainty, attempting to dissuade judicial intervention, but not actually preventing it.

This solution was at least acquiesced in by Repeal campaigners; opponents of repeal seemed to agree that it the clause would cause the courts to defer to the legislature. It was what was ultimately passed by the people in May 2018. Interestingly, between the formulation of the proposal and the referendum, the Supreme Court clarified that no implied rights of the unborn had been recognised by the Court before 1983, suggesting that the risk of judicial invalidation of a liberalised regime was unlikely to actualise (though this aspect of the judgment has been questioned.)

So what does this say about consideration of complex legal issues in citizen’s assemblies? There was a risk that offering one expert legal opinion on this key issue would skew the findings of the Assembly. Uncontradicted, this evidence was bound to be persuasive. Many (myself included) do not think there was anything wrong with the advice given: the risk/uncertainty was real, if small. But the bigger issue was the judgement as to what to do about that risk/uncertainty: was it a small risk that could be easily borne, or one that we should attempt to offset with some new constitutional text? Legal advice does not answer this question, but asking or expecting the Assembly to make this largely political judgement in a manner that disregarded a legal risk testified to by a legal expert is probably unrealistic.

But what else to do? Duelling legal experts offering conflicting perspectives on the extent of the risk would have been unlikely, in my view, to bring additional clarity rather than additional confusion. Providing additional advice on the political judgement about how to address legal risks and uncertainties is not obviously easy to do: who should provide that advice to citizens? The back and forth that followed, with the parliamentary committee and the government/Attorney General coming to differing conclusions about this issue shows the scope for political disagreement in making this judgement. It is unclear how we could equip citizens to make it. The government’s ultimate compromise—in providing some minimal nod to the uncertainties identified in the Assembly, while not excluding judicial review in any formal way—is a kind of pragmatic, (in every sense) political compromise that might be unlikely to come from a process like the Citizen’s Assembly.

One idea would be to try to leave thorny legal issues like this to the political process, getting deliberate bodies such as the Assembly to decide major matters of principle and leave questions of implementation to the political process where there could be open debate. But this might have the effect of closing the political debate rather than opening it. In Ireland, where legal advice is regularly (and often without elaboration) used as a reason for certain policies not being pursued, avoiding legal issues like this at the deliberative stage would probably just empower the government and the Attorney General to make these decision, shutting down political debate on the topic. Given that this issue was of importance to campaigners, and one of the most significant questions in framing the constitutional change, it would be a major omission from the process of citizen’s participation if it was simply cut out.

My point, in the end, comes down to this: there are no easy answers to these questions about how to structure citizen participation in issues of complex legal and constitutional reform. The highly legalistic approach of the Citizen’s Assembly leaves a lot to be desired, but excluding this kind of question entirely could leave important and consequential questions to be decided by political elites under the guise of legal advice, and provide yet another opportunity for the public deliberation supposedly promoted by the Assembly to be frustrated. For those who wish to draw on the Irish experience to structure citizen’s participation in complex legal questions, this is a substantial obstacle that is not easy to surmount.

Dr David Kenny is an Assistant Professor of Law at Trinity College Dublin, teaching Irish and comparative constitutional law. He is the author of the recently published 5th edition of the leading text on Irish constitutional law, Kelly: The Irish Constitution. He presented to both the Citizen’s Assembly and the Joint Oireachtas Committee on the Eighth Amendment.

Suggested Citation: David Kenny, ‘Repeal or Replace? The Challenge of Debating Complex Legal/Constitutional Questions in the Citizens’ Assembly’ IACL-AIDC Blog (10 December 2018) https://blog-iacl-aidc.org/debate-the-citizens-assembly-in-ireland/2018/12/10/repeal-or-replace-the-challenge-of-debating-complex-legalconstitutional-questions-in-the-citizens-assembly