TDs well within rights to vote against holding of referendum
Noel Whelan: Oireachtas has constitutional duty to decide on referendums for citizens
The suggestion, popular in some quarters in recent days, that TDs who voted against the holding of the referendum to repeal the Eighth Amendment acted undemocratically is absurd.
They in fact were exercising the function which the Constitution expressly gives TDs and Senators in the referendum process. In our legal and political system, the Constitution states it can only be amended if a majority of TDs and Senators support a Bill to allow for the holding of the referendum.
Article 46 provides that for a constitutional referendum to be called, a proposal to amend the Constitution must be introduced in the Dáil as a Bill. The provision requires that, if and when that Bill is passed by both houses of the Oireachtas, it must then be submitted to the people for approval at a referendum.
The people, when they enacted the Constitution, approved this parliamentary filter on whether amending referendums should be held.
There are numerous provisions of the Constitution which many feel should be amended. We could have many, many referendums on any amount of constitutional issues. That is why the Constitution has a parliamentary filter on whether a particular referendum is to be held.
The fact that the Constitution gives the first decision on whether a referendum will be held to our TDs and Senators is just another way in which ours is a representative democracy rather than a direct democracy.
It ill-behoves those who are about to ask the people to trust the Oireachtas on enacting abortion legislation to sneer at some members of the same Oireachtas for performing their parliamentary function in a manner they choose.
Many would disagree with the stance taken by those TD and Senators who opposed the holding of a referendum because they oppose changing the Constitution, but there is a logic to that position.
Indeed, the alternative position of those who voted to allow a referendum which they then say they will campaign against is the illogical one.
I remember many Fine Gael senators, for example in hiding behind the later device in relation to the Seanad referendum in 2013 . They were required by the party whip to vote to hold the referendum to abolish the Seanad which, for obvious reasons, most of them opposed. Indeed, even some independent senators, suspecting perhaps that Seanad abolition would be popular but opposed to it themselves, argued they were merely “facilitating democracy” by allowing the referendum to happen.
Instead of slagging off deputies who oppose them, those who welcome the holding of the forthcoming referendum should pause to enjoy and appreciate this week’s parliamentary proceedings for the historic moment it was.
It is, indeed, impressive that campaigners for repealing the Eighth Amendment have managed to secure such overwhelming parliamentary support for the holding of this referendum. It is significant, too, that the leaders of all the political parties in the Dáil were persuaded to support both the holding of the referendum and the proposal to repeal. It says a lot about how much opinion on this issue has shifted in recent years.
It is also significant that this is the first occasion in which the Oireachtas enabled a referendum in circumstances where most deputies and Senators had a free vote. The decision by both Fine Gael and Fianna Fáil to allow a free vote was, of course, in part designed to avoid internal party convulsions on the issue. It is important all the same. It brings parliamentary procedure in Ireland more in accordance with the practice in many modern parliaments where members have long been permitted by their party to exercise a vote of conscience on sensitive social issues.
The Sinn Féin position on this remains peculiar. This week they suspended another deputy who voted against the referendum Bill. It is wrong to insist on imposing a whip on TDs and Senators on such issues. The practice is outdated and dictatorial. The Sinn Féin version of it is all the more curious because parliamentarians are bound by some earlier decision by a party ardfheis rather than by a parliamentary party decision on the specific piece of legislation.
Those who have expressed surprise or annoyance that half of Fianna Fáil’s deputies opposed the holding of the referendum were clearly not paying attention to the workings of the party of late. If anything, it is surprising that even more Fianna Fáil deputies did not oppose the proposal. It illustrates how dramatic and significant Micheál Martin’s decision was to come out in favour of the referendum months ago.