ON THE FACE of it, Leo Varadkar has a decent point.
He says the government can't accept legislation to allow abortion in cases of fatal foetal abnormality (FFA) because it's in breach of the constitution, and because it has no mandate to change that constitution.
And, of course, he's right - neither Fine Gael nor Labour ran for office on the basis of wanting to expand Ireland's abortion laws. Labour ran with the intent of legislating for the X case, but no further; Fine Gael didn't even go that far, and offered voters an assurance that it would not permit abortion under any circumstances.
But circumstances changed. Fine Gael's promise not to legislate for abortion came a few months after the European Court of Human Rights found that Ireland was in breach of human rights laws by not offering clear guidance to its citizens on when they could, and couldn't, terminate their pregnancies. Ireland, as a party to the European Convention of Human Rights, was therefore obliged to respond.
Other cases have arisen too. Fine Gael and Labour did not run with a platform of permanently enforcing more harsh budgetary discipline - but yet, when the EU culture determined that a Fiscal Compact was necessary, the Government had no issue in saying, "We support this, and we'll ask the public for permission to adopt it."
Circumstances arise, and when they do, the whole point of having an executive-led government is to ensure that leaders are sufficiently empowered to respond as they see fit.
Even the much-vaunted Eighth Amendment in 1983 - which led us to the current constitutional malaise, where (depending on your viewpoint) it offers either too much latitude or not enough - was, arguably, adopted without a mandate.
The wording was drafted with the input of the pro-life lobby and adopted by Fianna Fáil, originally with Fine Gael's support. But the there was a change of government, and Fine Gael found itself responsible for wording which then turned out to be legally dubious and far less water-tight than intended.
Such was the crisis about the wording that Fine Gael introduced its own alternative format, which was voted down by the Oireachtas, leaving the original words in place. Garret FitzGerald's government ended up holding a referendum on a constitutional amendment that the Taoiseach was openly opposed to.
In Ireland, that same constitution tells us, the people are sovereign. Laws passed by our legislators can only be adopted if they're in keeping with the constitution that we set for ourselves; if they want to legislate beyond those limits, we need to vote to change the limits in the first place.
Referendums themselves, therefore, are the point at which the public gives a mandate to governments. The idea that a government would need to first get the approval of electorate, in order to put another question to the electorate, is almost derisory.
Governments in Ireland have now conflated the ideas of holding a referendum and supporting it. There is a difference - and there's no better example than the abortion laws we already have.
There is a habit in Ireland of not wanting to push the limits of the Constitution - and that's understandable. Ireland guards its codified Constitution with zeal, and any attempt by the Oireachtas to nudge the boundaries without the required referendum would meet with justified hostility.
But in this case, a government need not run the risk of pushing the limits beyond what is permissible. It should instead do exactly what a constitutional republic expects it to - and ask the people if they'd like to move those limits in the first place.
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Postscript: Why would so many Labour TDs have called for FFA in 2012, when it was not only 'beyond their mandate', but also unconstitutional in the eyes of their own government?
The only legitimate answer can be because, at the time, they thought it was neither.
