The Globalist

Normally a file containing a proposed piece of legislation, particularly one as contentious as the Eighth Amendment, would contain reams of analysis and legal opinion. There was nothing in the file bequeathed by the previous administration. ‘Except the little green words printed by Fianna Fáil, which said “to be included in the constitution”. It looked initially, my officials thought, that the words had been produced without analysis, but we found out subsequently that the words had been considered but there was no written analysis. It was produced outside the system,’ explains Noonan. It emerged that the wording of the amendment had not been prepared in consultation with any government department. It is the understanding of this book that the original proposal for the amendment was put together by Sutherland’s UCD lecturer in constitutional law, Justice John Blayney, a Supreme Court judge between 1992 and 1997. Blayney died in June 2018, aged ninety-three, one month after the Eighth Amendment was repealed through a referendum.

The wording of the amendment was as follows:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Noonan says that when the proposed legislation was published, it looked as if it would have a seamless passage through the Oireachtas. ‘Then there was speculation that there could be trouble over the wording. Peter [Sutherland] gave informal advice first that there were problems with the wording. Then it became very difficult to proceed. There were a number of problems with the wording but he focused on possible risks to the life of the mother.’

According to Noonan, his officials in the justice department also identified problems with the wording of the amendment. In particular they believed that it was ambiguous and that it would be challenged in the Supreme Court, which could potentially pave the way for the introduction of abortion in certain cases. ‘Both Peter and myself were telling the government there was a difficulty, there was a different emphasis. He said there was a risk to women and the risk I was bringing to cabinet was that the amendment was not fit for purpose and instead of closing out abortion, which was the intent, it would open the door to it.’

The following passage is taken from Sutherland’s private papers:

I had considered the proposed amendment carefully, over a number of months and had sought and consulted with a range of expert opinion (medical and legal) both in Ireland and further afield (principally from the US). The text of the proposed amendment presented a number of problems and these stemmed from a lack of precision in drafting. In my opinion, it was not a suitable implement with which to copper fasten the status quo. The language used, specifically around the notion of ‘unborn’ and of ‘equal right to life’, appeared to leave the matter open to interpretation in the (inevitable) event of a future appeal to the courts. This was precisely the outcome that those behind the proposal had intended to frustrate. The proposed amendment offered neither clarity nor closure on the issue. It was not fit for purpose. I presented my opinion on the wording by way of a memorandum to cabinet. The text of that opinion was subsequently released for publication.[1]

When it emerged that Sutherland had raised concerns about the amendment and its potential consequences, there was a furious backlash in the Dáil, and indeed on the part of the pro-life lobby groups. They interpreted it as an attempt by the government to renege on the pledge it had made during the election campaign. Fianna Fáil in particular had a sizeable contingent of ardent pro-lifers within its ranks, but Fine Gael also had a considerable number. FitzGerald was on the horns of a dilemma. Knowing that the wording was deeply flawed, but that politically the matter had become toxic, he took the unprecedented step of publishing Sutherland’s advice on the wording:

In summary: the wording is ambiguous and unsatisfactory. It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it.

Far from providing the protection and certainty which is sought by many of those who have advocated its adoption, it will have a contrary effect. In particular it is not clear as to what life is being protected; as to whether ‘the unborn’ is protected from the moment of fertilisation or alternatively is left unprotected until an independently viable human being exists at 25 to 28 weeks.

Further, having regard to the equal rights of the unborn and the mother, a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of ‘the unborn’ will be compelled by the wording to conclude that he can do nothing. Whatever his intention he will have to show equal regard for both lives, and his predominant intent will not be a factor.

In these circumstances I cannot approve of the wording proposed. [See Appendix 2 for Sutherland’s full advice.]

The most politically expedient thing for Sutherland to do would have been to put his conscience to one side and proceed with the proposed legislation as best he could. After all, opposing the pro-life lobby on this issue was a strategy freighted with risks – not least the very public backlash from SPUC and PLAC. Nicholas Kearns says it was a very traumatic time for Sutherland and his wife Maruja. ‘Things were arriving at home in the post, nasty letters and so on. I know he was more concerned about Maruja than himself. His warning on the Eighth was brushed aside at the time, but it subsequently came to pass.’ Sutherland was a practising Catholic, but events relating to the Eighth Amendment would suggest that he had great courage and his convictions were much more nuanced.

Dukes says that Sutherland was a man of deep faith ‘but he was a powerful thinker as well. I think what he proposed for that amendment in no way compromised his faith. I think Peter, as a lawyer and AG, would have been quite categoric about the need for separation of church and state, although I never discussed that with him.’

According to Gemma Hussey it was one of Sutherland’s ‘finest moments … He was very clear and despite his own inner convictions about abortion and everything, he was absolutely clear about it. Yes he was an extraordinary Christian in the best sense of the word.’

But then again, Hussey says, she didn’t know exactly what Sutherland’s views on abortion were. Neither did his close friends. He was a man of deep faith, but he certainly didn’t broadcast his beliefs. In this case, he was first and foremost the attorney general to the government and he saw it as a moral obligation to flag any potential legal problems with a piece of legislation.

Mary Robinson, who would become president of Ireland in 1990, was at the time a member of the Senate and one of the leading campaigners in the country against the Eighth Amendment. ‘Peter was trying to get Fine Gael to come out on the right side of the issue. I was actively warning in the Senate about the implications of equating the right to life of the mother with the unborn and that this proposal would be a terrible future for women. Peter was aware of these dangers. He was a very serious Catholic but in my view he wasn’t a conservative Catholic,’ she says.

Garret FitzGerald eventually announced that he was unhappy with the wording and that an alternative form of words would have to be found. The attorney general’s office said it would find words that would work. Sutherland consulted widely on the next course of action. It is understood he took soundings from Niall McCarthy, one of the leading members of the Law Library and another future Supreme Court judge. According to Garrett Sheehan, Sutherland had been very close to the Maynooth theologian Enda McDonagh, and had discussed the issue extensively with him.

Sutherland produced an alternative wording: ‘Nothing in this constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.’

The new wording was put in a memorandum, copies of which were made in the Irish Life building on Abbey Street where the Department of Justice had a sub-office. During the process, a copy was leaked to Oliver Flanagan, a Fine Gael TD who had a reputation as a fire-and-brimstone arch-conservative. When Flanagan brought up the memorandum at a Fine Gael parliamentary meeting, consternation ensued.

David Byrne says Sutherland’s performance as attorney general at the time was ‘masterful … His wording for the Eighth Amendment I thought was excellent. I agreed with him then and I still agree with him to this day.’ Byrne had campaigned against the original wording. At the time he was a member of Fianna Fáil, and among a very small minority of the party who opposed the Eighth Amendment. He initiated, together with Frank Clark (who is now the Chief Justice), a petition signed by one hundred barristers in the Four Courts which expressed dissatisfaction with the wording that was being advanced.

‘The reason why I got involved in that was because I was at home one day having my lunch, and I heard a leading member of the Bar express a view that all lawyers were in favour of this wording – that was the conservative wording – and I knew that wasn’t the case. I was so upset about it that I went back into the Law Library that afternoon and spoke to a number of friends and colleagues and said I believed this was wrong. I believed it should not be allowed to be expressed out there that we were in favour of it in this way. The petition did not expressly favour Peter’s wording, we just said that the wording that was chosen was inappropriate and we wanted to make it clear that it ought not to be sent, that lawyers take the view that this is the right way forward. If somebody had asked me at the time – I’m sure they did, also Adrian Hardiman was heavily involved in that as well – I would have said Peter’s wording. He was absolutely right about that.’

Byrne says he believed that Sutherland’s wording was better suited if there had to be a wording. ‘I believed that the wording that included a positive right to life or equal right to life would cause an enormous amount of trouble.’ He added that ‘it couldn’t possibly be properly adjudicated on by the courts; it put a very, very unfair burden on the judiciary if ever there was a dispute, which would be inevitable … I also felt that something like that would be better dealt with by statute rather than by constitution. I’m a great respecter of constitutions but you have to be very careful what you put into a constitution because you must remember that it is intended – and was in this instance intended – to fix the law into the future irrespective of the shifts or changes in public opinion. If you do things by statute rather than by constitution it allows for changes in the law to take place more easily, where the elected representatives of the people who make laws in parliament are the ones that can respond to the new changes or ideas that were there.

‘I believe that, as a matter of law and politics, is a better way to respond to things. That’s the very thing that the pro-life lobby did not want to happen. They wanted to lock this into the future and that’s what I felt was wrong. I felt at the time that Peter’s answer to that was a good one because it responded to the request of the pro-life lobby that the constitution should not be used to interpret in an unexpected way a right to abortion. Peter’s amendment would have dealt with that, but that wasn’t enough for the pro-life lobby, they wanted an expression of a positive right to life. As we know, that created so much trouble and Peter was absolutely right about that.’ David Byrne discussed the dilemma with Sutherland at the time. ‘He felt passionately about it.’

The task of going through with the proposal again fell to Michael Noonan. Many members of Fianna Fáil, unhappy that the original wording of the Eighth had been replaced by what they considered a watered-down version, decided to act. They enlisted the help of eight diehard pro-life members of Fine Gael, and between them they were able to get a parliamentary majority to reinstate the original wording of the amendment. Noonan and Fine Gael then had to steer through an amendment to which they were opposed.

On 7 September 1983, Ireland voted by a majority of 66.7 per cent to 33.3 per cent to adopt the Eighth Amendment. Over the next thirty-five years Ireland’s abortion laws were rarely out of the headlines, and usually for the wrong reasons. In particular, what became known as the X-case in 1992 (referred to as such as the girl involved could not be legally named) received widespread international condemnation. That year a fourteen-year-old girl reported to the Gardai that she had been raped and as a consequence was pregnant. When her parents informed the Gardai that the girl was travelling to the UK for an abortion, attorney general Harry Whelehan sought an injunction to prevent the girl, whose identity could not be revealed for legal reasons because she was a minor, from leaving the country (stridently pro-life civil servant Matt Russell played an active role in proceedings). Justice Costello, sitting in the High Court, granted the injunction, but the Supreme Court set aside the ruling and the girl was allowed to travel. Michael Noonan comments: ‘My senior officials thought the problem with the wording was subsequently what turned out to be the X-case. They actually thought it would go wider than the terms of the X-case. They were right in the sense that the wording gave rise to abortion in circumstances in line with the X-case. But they thought it would be a wider consequence arising from Supreme Court cases.’

Sutherland’s concerns about the Eighth Amendment, however, were most clearly illustrated in the tragic case of Dr Savita Halappanavar. The Indian-born dentist died in University Hospital Galway in October 2012, having developed a sepsis infection during a miscarriage. It subsequently emerged that she had requested an abortion when she began to miscarry, but she was denied the procedure on the grounds that it was illegal. If the abortion had been performed it would probably have saved her life.

When the story broke it hardened public opinion. The government pledged to hold a referendum on reforming Irish abortion laws; when it took place on 21 May 2018, 69 per cent of the Irish people voted in favour of repealing the amendment.

6

THE TROUBLES: NEGOTIATING THE ANGLO-IRISH AGREEMENT

ALONGSIDE DIVISIVE SOCIAL ISSUES SUCH AS THE Eighth Amendment, events in Northern Ireland formed a prominent backdrop to Sutherland’s time as attorney general. Ever since the foundation of the Irish state, relations between Dublin and London had been shaped by distrust and enmity. But the level of hostility escalated when the Troubles flared up in the late 1960s. There was a view in Dublin that the British government neither understood nor cared about the plight of the nationalist community in Northern Ireland. Allegations of collusion between security forces and loyalist paramilitaries, as well as evidence of a shoot-to-kill policy on the part of British armed forces based in Northern Ireland, deepened the level of antagonism in Irish government circles.

By the early 1980s, the IRA had extended its campaign of terror to mainland Britain. The assassination of Lord Mountbatten in Sligo in 1978 increased the level of distrust. Airey Neave, a Conservative MP who was close to British Prime Minister Margaret Thatcher, was killed by a car bomb planted by the Irish National Liberation Army (INLA), another Republican paramilitary organisation, outside the House of Commons. If anything, these events stiffened the resolve of the British government to take a yet more hard-line approach to Northern Ireland. Dáithí Ó Ceallaigh, one of Ireland’s most distinguished diplomats, served as ambassador to the UK between 2001 and 2007. In the late 1970s he was the press attaché at the Irish embassy in London. ‘I felt like I was in an enemy country,’ he says.

When Garret FitzGerald was elected Taoiseach in 1981, he set about changing the Irish government’s approach to Northern Ireland; by extension, he hoped that this would form the basis of some sort of rapprochement between Dublin and London. Among those FitzGerald selected to play a crucial role in the formulation of the Anglo-Irish Agreement was Michael Lillis.

FitzGerald had come across Lillis when he was based at the Irish embassy in Washington. Lillis had been very influential in getting senior Irish-American politicians such as Tip O’Neill to focus on Northern Ireland. He had helped prepare a speech for Jimmy Carter which for the first time didn’t by default side with the UK government in relation to Northern Ireland. In the short-lived 1981 government, Lillis was appointed diplomatic adviser to the Taoiseach, a post that had never existed before and has never existed since. He struck up an immediate relationship with Sutherland, who he says referred to the Fine Gael–Labour coalition as Camelot: ‘You didn’t know from one moment to the next if the government was going to fall.’

The attorney general’s office at the time was in the basement of the Department of An Taoiseach, with the Taoiseach’s office on the first floor. Lillis had an office next door to FitzGerald. Alexis FitzGerald, the Taoiseach’s special adviser (the two were unrelated), also had an office on the first floor. Liam Hourican, who would become Sutherland’s deputy chef de cabinet in Brussels, was at that stage the government press secretary. Declan Kelly, the Taoiseach’s private secretary, completed Garret FitzGerald’s inner circle.

Lillis and Sutherland would go for a coffee every day in a café across the road from Government Buildings. ‘There was a confectionery shop and a café. We would go there every morning about eleven. Peter was very fond of the cakes, but he was clearly under instructions not to be eating so many of the things. He used to hold them behind his back in case I would see them. And then he would gobble it. He had a weakness in that regard,’ Lillis recalls.

‘He had a very powerful personality, even at that stage. He was extremely good company. He was brilliant but somewhat downright in his views. When he was getting a bit tense about what Garret was up to, he would kick my door open and come in and utter a few very rude words and accuse me of screwing up. It was just a way of letting off steam. I always enjoyed it though.’

Lillis, Sutherland, the Taoiseach and Alexis FitzGerald would meet regularly to discuss the ongoing hunger strikes in Northern Ireland. IRA inmates in the Maze prison had stopped taking food in protest at the conditions in which Republican prisoners were held, their demands including the right to political prisoner status and to wear civilian clothing. The British government was implacable in its resistance, and when one prisoner, Bobby Sands, died on 5 May 1981, the already volatile situation in Northern Ireland deteriorated still further. The FitzGerald government developed a close relationship with John Hume, the leader of Northern Ireland’s Social Democratic and Labour Party (SDLP), the moderate nationalist party. Hume was a regular visitor to Government Buildings and to the Taoiseach’s private residence.

But FitzGerald wanted to give people in the South a perspective on Northern Ireland Unionism. Even though Ireland was a small country and it was only seventy-five miles between Dublin and Belfast, the border was to all intents and purposes hermetically sealed. Apart from the Troubles being broadcast on RTÉ, very little was known about daily life in the North, particularly among the Unionist community. Equally, people in the North knew very little about what was happening in the South, although where Unionists did have a view it was overwhelmingly negative. The South was seen as insular, economically underdeveloped and controlled by the Catholic Church. In other words, there was no compelling reason why Unionists should extend the hand of friendship south of the border.

Lillis was given the job of finding Unionists to come to Dublin to articulate issues from their viewpoint. ‘I found a group of them. They were barristers. There was a guy called Robert McCartney. He was a very brilliant man but very prejudiced. There was a man called Smith. Both of them were QCs.’ Sutherland, says Lillis, played an important role in persuading both men to come to meetings in Dublin. ‘Peter’s personality and reputation was such that they treated Peter with respect. He was one of the better-known barristers in Dublin.’ The meetings were private, although the government announced that they were taking place and explained what they were intended to achieve.

With the fall of the government in March 1982, Charlie Haughey, the leader of Fianna Fáil, formed the twenty-third Dáil, which lasted until December 1982. During this unstable period, the development was not lost on Margaret Thatcher, and it helped confirm her outlook on Anglo-Irish relations. Throughout 1982, relations between Dublin and London deteriorated further. Thatcher accused Haughey of treachery when in May 1982, he withdrew Irish support for the UK’s United Nations sponsored sanctions of Argentina over the Falklands war. The prospects of a breakthrough in relations with London looked remote when FitzGerald formed the twenty-fourth Dáil at the end of 1982. Sutherland was again appointed attorney general. By the time the new government was formed, Dáithí Ó Ceallaigh had been posted to the Anglo-Irish division of the Department of Foreign Affairs in Dublin. He got to know Sutherland well over this period.

Sutherland’s background and personality, Ó Ceallaigh explains, were very important factors in finding common ground with London: ‘Personalities play a huge role in complex and sensitive negotiations.’ Sutherland developed a close relationship with Sir Michael Havers, the UK attorney general (perhaps better known as the father of the actor, Nigel Havers), and their relationship provided an important axis in negotiations.

‘In the 1980s there was an instinctive dislike among the English of the Irish,’ Ó Ceallaigh says. ‘But equally there was a very simple nationalism in Ireland that was anti-English. Sutherland’s background, particularly his Jesuit education, was not like that. He didn’t have that innate dislike or mistrust of the English. He didn’t feel as if he had to bang on the table as many Fianna Fáil politicians did. It made it very difficult for them to engage with the British. There was a retreat into a green jacket by Irish politicians and the same on the other side. Sutherland was above that. He had an incredible intellectual capacity, a huge moral backbone.’ Sutherland’s attitude, says Ó Ceallaigh, enabled him to engage with the British and convince them not only that they could deal with the Irish, but that the Irish were not in favour of violence.

Lillis agrees with Ó Ceallaigh’s assessment: ‘The role of Sutherland was very important. Sutherland was the right sort of guy to deal with the Brits on these issues. He was never dismissive or hostile.’

FitzGerald instructed Lillis to take the first step in making a series of proposals to the British government. At the time, the main forum of discussion between the two governments was the co-ordinating committee of the Anglo-Irish intergovernmental council. Although it enabled senior officials to meet, in reality it was nothing more than a talking shop, focusing mainly on what the two governments could do together in uncontroversial areas such as agriculture and education.

‘I took an initiative with my opposite number, Sir David Goodall, who was number two in the Cabinet Office to Lord Armstrong. We got the ball rolling,’ Lillis says. ‘I made a bid which was considered to be outrageous by the British. I was setting the bar high. Things were in an appalling condition in Northern Ireland. The Provos’ – the Provisional IRA – ‘were recruiting. The Unionists would not give ground. The SDLP was under pressure. Loyalists were engaged in sectarian shootings. The UK had no idea what to do. I made a proposal that things were so bad there was nothing that the UK could do which would address the issues, or at least put the brakes on in terms of the alienation of the minority nationalist community. I proposed they needed our help. They needed the involvement of the Irish government through security and the court system, including the guards and the army. The idea was that the involvement of the Irish government would help the minority population accept the system of authority in the North. Behind that was our project, which was to have a system of the two governments involved in ruling or governing Northern Ireland.’