Govt publishes summary of Attorney General advice on Eighth Amendment referendum

By Fiachra Ó Cionnaith

The Government has published a summary of the legal advice it got on the Eighth Amendment referendum.

Cabinet agreed to a referendum to repeal the Eighth Amendment and replace it with a short clause specifically saying the Oireachtas has the right to legislate on abortion after Attorney General Seamus Woulfe said failing to add in the clause may leave the referendum outcome open to challenge.

The advice was confirmed in a two-page summary document of Mr Woulfe's views released to opposition parties by the Department of Health this evening.

As confirmed at a special Cabinet meeting on Monday night, the Government has agreed to hold a referendum on whether to repeal or retain the Eighth Amendment.

In addition, this referendum will include a short clause specifically saying the Oireachtas has the right to legislate on abortion should the referendum be passed.

The clause issue has led to some criticism from opposition parties which wanted a straightforward repeal question to be asked in the referendum.

However, in the summary of the advice given by Mr Woulfe to cabinet on Monday and published this evening, it has been made clear the attorney general said a failure to include a clause would leave any repeal outcome to the referendum open to question and potential legal challenges.

"The attorney general advised that there is no absolute certainty about the post-repeal landscape of rights. If article 40.3.3 were repealed simplicier, it might subsequently be argued before the courts that the unborn have residual rights arising under other articles of the constitution that could continue to restrict the power of the Oireachtas to legislate on the issue.

"To mitigate the uncertainty that might arise in such circumstances, it was advised that consideration should be given to inserting the wording into the constitution that expressly affirms the right of the Oireachtas to legislate for the regulation of termination of pregnancy," the advice, which can be read in full below, says.