The Government has insisted it will not be required to seek any change in the 1992 Maastricht Protocol on abortion if its proposed constitutional amendment on the issue is successful.
A Government spokesman last night gave a detailed account of its legal position following a Labour Party claim that the planned constitutional amendment will not be protected by the 1992 Maastricht Protocol on abortion and may therefore be open to legal challenge.
According to Labour leader Mr Ruair∅ Quinn, if the amendment is passed, a new protocol would have to be ratified by all member states involving a referendum in Denmark if it is to be protected from EU law.
Mr Quinn said yesterday the Government plan may lead to the constitution containing two distinct passages regarding abortion. One of these passages would be protected from the effects of EU law and the other would not, he maintained.
"When the Maastricht Treaty was being negotiated in 1991, the then Fianna Fβil/PD government insisted on the inclusion of a protocol designed to reassure opponents of abortion that the 1983 pro-life amendment could not be challenged by the European courts," he said. That protocol said: "Nothing in the Treaty on the European Union . . . shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland." However, according to Mr Quinn the new subsections to be added to the Constitution, 40.3.4. and 40.3.5. will not be protected by this protocol.
However a Government spokesman insisted last night that "nothing in the Government's proposal has any European dimension at all. It does not affect any area of law in which the European Union or the European Court of Justice has jurisdiction under EU law . . . The change proposed to the Constitution does not affect in any way the status of the 17th Protocol to the Maastricht Treaty." He said it was difficult to envisage circumstances in which Ireland's new abortion regime, if enacted, could be jeopardised by EU law and therefore require protection from it.
Meanwhile, Fine Gael has rejected as "contemptible" Government accusations that it is raising obscure legal and medical queries to deflect attention from its indecision on the central issue. "The Taoiseach invited us this week to come back to him seeking clarification", a party spokesman said last night. "Now that we have done so his spokesman has accused us of putting up a smokescreen."
The spokesman angrily rejected another claim from the Government spokesman that Fine Gael had distributed its letter seeking clarification to the press before it was sent to the Taoiseach.
"That's just not true", the spokesman said. "If they have internal postal problems in their office they shouldn't use it to make unfounded attacks on the Opposition."
The Taoiseach yesterday sent a detailed response to a number of queries raised by Mr Quinn on Thursday. A reply to Mr Noonan's queries is still being prepared.
In his reply Mr Ahern rejects Mr Quinn's assertion that his proposal on abortion conflicts with the Constitution, as it contains two proposals instead of the one required by the Constitution. "Since the publication of the Government's proposals, no independent legal commentator or expert has expressed any doubt on the correctness of the Attorney general's view on this matter," he said.