Stephen Donnelly may be having his own Zappone moment

Appointment of chair of abortion legislation review receives almost no scrutiny

The lack of both transparency and fairness in the short-lived attempted appointment of Katherine Zappone has guaranteed that even if Simon Coveney were to personally negotiate peace in Ukraine, all the congratulatory articles would still refer to his lack of judgment when it came to UN special envoys.

Yet, as Regina Doherty, leader of the Seanad, commented in January in the chamber, "We had a debacle over the summer about how doing things in a non-transparent way in an open process gets people into trouble. I think we have just gone and done it all again."

Ms Doherty was supporting independent Senator Ronan Mullen in his call for Minister for Health Stephen Donnelly to come before the Seanad. They wanted him to answer questions about the appointment of the independent chair of the review of the 2018 abortion legislation. Almost no public outcry or media scrutiny ensued.

Prior to the call to come before the Seanad, on December 8th, the Minister for Health appeared before the Oireachtas Health Committee to brief it on the review of the scope and structure of the operation of the abortion legislation. He was accompanied by Geraldine Luddy, principal officer of the Department of Health. The review was meant to be conducted no later than three years after the legislation's commencement.

Mr Donnelly managed to irritate the committee members by failing to distribute the terms of reference of the review in advance. Neither were the terms available on the HSE website, something which the members described as “bad practice”.

The Minister said there were three strands to the review and there had been a briefing with “quite a wide range of civil society groups and service providers”.

His wide range appears to run the gamut from A to B, given that the civil society groups seem to have been entirely pro-choice. In response to earlier parliamentary questions (July 2021) by Deputy Carol Nolan, Independent, Deputy Peadar Tóibín of Aontú and Deputy Éamon Ó'Cuív, Fianna Fáil, the Minister said those whom he consulted included the "Oireachtas All-Party Group on Sexual and Reproductive Health and Rights, and a group of civil society organisations brought together by the National Women's Council of Ireland". (The latter is the Abortion Working Group, an alliance of prominent pro-choice advocates.)

Requests by various pro-life groups for meetings with the Minister and by the All-Party Oireachtas Life and Dignity Group did not lead to a meeting. Why?

E-tender process

When questioned about the appointment of the chair of the review on December 8th, Mr Donnelly insisted that the amount of money involved meant that it had to be advertised on the Government’s e-tenders website. He referred to “absolutely clear advice from the Department of Health that there is a legal requirement for us to go through this [e-tender] process”.

The Minister stated this several times and indicated that the process was under way. Deputy Bríd Smith of People Before Profit-Solidarity pointed out that the only e-tender on the website was one for “qualitative research... to inform the review of the operation of the... Act”.

Ms Luddy said there would be a separate tender for the chair in the coming days. This never happened. On January 19th, the Minister confirmed in response to parliamentary questions submitted by Deputy Peadar Tóibín and Deputy Michael Collins, Independent, that "a small number of candidates, identified as having suitable experience for the position, were contacted and invited to apply for the role of independent chair".

This was amended on February 1st to a statement that a small number of candidates were invited to tender. This closed process was a far cry from the promised public invitation to tender and should have immediately raised questions.

Barrister Marie O’Shea, a junior counsel and lecturer in UCD, was then appointed on January 26th. Former government chief whip Senator Seán Kyne had stated on December 8th that Government-appointed chairs of review bodies were normally “former Supreme Court or High Court judges, retired civil servants or people of that calibre”.

Her appointment was greeted immediately with delight by the National Women’s Council of Ireland, who applauded the decision not to go to e-tender.

It would be impossible to find a neutral chair for a review of abortion legislation. A creative solution might have been to have two co-chairs with strong views from both sides but also with reputations for integrity and competence.

Credibility

No one is querying either Ms O’Shea’s integrity or competence. Nonetheless, the fact that the Minister suddenly found an e-tender appointment surplus to requirements, did not issue any statements as to why, and chose instead from an unnamed handful of pre-selected people damages the credibility of the entire process.

Most people agree that Simon Coveney deserved the lumps he receives for the high-handed way he dealt with the botched appointment of Katherine Zappone. Yet to date, there has been virtually no scrutiny of Ms O’Shea’s appointment, which has been conducted in a similarly shambolic and opaque fashion by Mr Donnelly.

This double standard undermines and corrodes the democratic process. We shouldn’t tolerate it, no matter our views on abortion.