Читать книгу The Globalist - John Walsh - Страница 13

SUTHERLAND’S CAREER CONSISTED OF TWO PARTS: the public servant and the businessman. His first public sector role, as attorney general in the 1981 Fine Gael–Labour Party coalition, was hardly the most auspicious beginning. The government lasted only 279 days. Against a highly unfavourable economic backdrop, it was a particularly turbulent time in Irish politics. The national debt was climbing to unsustainable levels. The unemployment rate was 15 per cent and rising. The lack of a coherent industrial strategy and short-sighted protectionist policies ensured that levels of economic activity remained anaemic at best. Hunger strikes among Republican prisoners in the Maze prison in Northern Ireland brought worldwide attention to the Troubles, and made the prospect of peace even more remote. IRA murders and loyalist reprisals became a depressing staple of the daily news cycle.

The minority coalition collapsed on 27 January 1982 when it failed to get its budget through the Oireachtas. John Bruton, then Minister for Finance, had attempted to put VAT on children’s shoes; it was a move that alienated the independent TDs propping up the administration. Another election in March returned Fianna Fáil to power.

Then, in the summer of 1982, a series of shocking and random murders convulsed the country when Malcolm MacArthur killed a nurse, Bridie Gargan, in Phoenix Park and a few days later took the life of Thomas Dunne, a farmer from County Offaly. MacArthur went on the run. In an effort to evade capture, he went to the house of an old acquaintance, Patrick Connolly, then attorney general. The two men attended a match in Croke Park, the headquarters of the Gaelic Athletic Association (GAA), and discussed the murder with Garda commissioner Paddy McLoughlin.

MacArthur was arrested at Connolly’s Dalkey home in August 1982. The attorney general immediately resigned and a very colourful description of events was given by the then Taoiseach Charlie Haughey. The episode seeped into popular culture through the acronym GUBU – grotesque, unbelievable, bizarre, unprecedented. (It was Sutherland’s former master, Harry Hill, who successfully prosecuted MacArthur for Gargan’s murder.) Later that year, the Fianna Fáil government itself fell over proposed budget cuts needed to stabilise the country’s fiscal position. An election was held in November 1982, and as a result Fine Gael and Labour formed another government.

Sutherland now began his second and much more eventful stint as attorney general alongside Michael Noonan, the newly installed justice minister. The two men would develop a close working relationship and a lifelong friendship; their earliest encounter, however, was the phone-tapping scandal. According to newspaper reports in December 1982, earlier that year the Fianna Fáil administration had ordered that the phones of two prominent political journalists – Geraldine Kennedy from the Irish Press and Bruce Arnold from the Irish Independent – should be tapped in an effort to detect the source of cabinet leaks. The phone tapping had been instigated by Sean Doherty, a Fianna Fáil TD for Roscommon and justice minister in 1982. At the time, the state could only sanction the phone tapping of persons suspected of subversive activity. Even though the work of Kennedy and Arnold had greatly upset the government of the day, under no circumstances could it be deemed a threat to the security of the state.

When the story broke it caused a political crisis that quickly embroiled the two most senior members of An Garda Síochána, the Irish police. As Michael Noonan explains: ‘I had to have conversations with Garda commissioner Paddy McLoughlin and deputy commissioner Joe Ainsworth. I was relying on Peter [Sutherland] for legal advice on what was appropriate and not appropriate to say. It was very good advice.’

In 1978, Gerry Collins, Fianna Fáil justice minister at the time, had dismissed Garda commissioner Ned Garvey when it emerged that Garvey had placed Eamonn Barnes, the director of public prosecutions, under surveillance. When Garvey initiated proceedings against the state on the basis that it had abrogated his constitutional rights, the case went all the way to the Supreme Court, with Garvey emerging victorious. ‘The essence of the advice he gave me,’ continued Noonan, ‘was that when Gerry Collins was justice minister and the government dismissed Ned Garvey, Garvey won his case in the Supreme Court on the grounds of inappropriate procedure. He went through Supreme Court judgment so that I didn’t make any legal errors in conversations with McLoughlin and Ainsworth.’ Sutherland’s advice to Noonan on how to deal with McLoughlin and Ainsworth was sound because he had represented Garvey. He knew what, and more importantly, what not to do in such circumstances. As a result, both McLoughlin and Ainsworth retired from the force.

*

The phone-tapping scandal was only a minor skirmish, however, compared with what was to come next. In the early 1980s, the Catholic right was uniting under a banner of implacable opposition to abortion. The broad aim of the two main groups, the Society for the Protection of Unborn Children (SPUC) and the Pro-Life Amendment Campaign (PLAC), was to insert an amendment into the constitution that would prohibit abortion in Ireland in all circumstances. Moreover, they wanted to ensure that no Irish woman could travel abroad for an abortion – and that meant removing access to information about abortion services in other jurisdictions. In many ways Ireland was starting to resemble a theocracy more than a fully functioning democracy. There were very few developed countries at that time where the forces of the church and religious groupings could shape society to such an extent through state legislation.

The Catholic right had such heft that politicians ran scared rather than confront them. Dr Julia Vaughan was the leading figure in the Pro-Life Amendment Campaign, while some PLAC members were very senior lawyers in the Four Courts. The religious right took the view that it was necessary to place in the constitution an amendment that would do two things.

First, they wanted to rule out any possibility that the constitution would be used in the future as a vehicle to identify an unremunerated right to abortion by an interpretation of the rights to privacy – in other words, the kind of thing that had happened in the Roe v. Wade case in the United States. Second, there was also an even more radical group who believed that there should be a positive expression of the right to life in the constitution. In that period there were three elections, so any powerful advocacy or lobby group would obviously get a keen hearing from the political leadership of both parties. As a result, both Fianna Fáil and Fine Gael gave commitments to include wording in the constitution that would have the desired effect for the pro-life groups.

The religious right occupied key positions across the state and in Irish society. The number two civil servant in the attorney general’s office when Sutherland took over, a colourful figure called Matt Russell, was closely associated with PLAC. Even by the conservative standards of the time, he occupied the outer fringes of the right wing. A prominent member of Opus Dei, Russell was also instrumental in the collapse of the Fianna Fáil–Labour coalition in 1994 when it emerged in November of that year that he had not processed nine warrants for arrest of paedophile priest Fr Brendan Smyth.

PLAC had lobbied all parties before the 1981 general election to insert an amendment in the constitution that would make Ireland’s abortion laws ironclad. Garret FitzGerald, as leader of Fine Gael, made such a commitment but failed to follow through in the short-lived government. When Charlie Haughey was in government in 1982, PLAC had again come up with the wording it wanted inserted into the constitution. Haughey promised that he would hold a referendum to honour his commitment to PLAC. The pledge followed Haughey on the campaign trail when the government collapsed in November of that year, but put Garret FitzGerald in an invidious position. If Fine Gael failed to match Haughey’s commitment then it risked incurring the wrath of – and electoral rejection by – social conservatives. They had mobilised in such large numbers that they could potentially sway the outcome of the election.

FitzGerald opted to take a conservative approach and matched Haughey’s pledge. According to Mark FitzGerald, his father made the judgement that if he hadn’t given such a commitment he wouldn’t have won the election. ‘If he hadn’t won the election, I don’t think personally it would have bothered him if he hadn’t become Taoiseach. But he was very interested in solving the problems in Northern Ireland. He made the gamble on the Eighth Amendment even though his heart wasn’t in it, because he knew that if he didn’t then between the Church and Haughey they would wipe the floor. Well, they nearly did, it was a very close election.’

Alan Dukes, finance minister in the Fine Gael–Labour government formed in December 1982, recalls a meeting held while the party was still in opposition. He and a few like-minded party members, he says, had taken to referring to the Society for the Protection of Unborn Children, after the abbreviation of their name, as ‘Spuccers’. ‘The Spuccers were invited to make a presentation to the Fine Gael parliamentary party in October 1982. I remember it well. It was a bright sunny morning. The Spuccers came in and made the presentation, which I found very unusual. They then said they would like the views of every Fine Gael member present, which they would faithfully report back to their constituents. I remember having to make a conscientious effort not to tell them that it was okay, I would tell my constituents myself. But anyway, I didn’t. Then we had the election in November ’82. Then we were in government and Peter [Sutherland] was faced with the task of steering this through.’

Somewhat unusually, Michael Noonan became the sponsoring minister to steer through the Eighth Amendment in 1983. It should have been the responsibility of the health minister; in 2018, Simon Harris, Minister for Health, would be given responsibility for managing the referendum that removed the Eighth Amendment, and it was assumed that in 1983, Barry Desmond, the Labour Party health minister, would take charge of the proposed legislation. But Desmond vehemently opposed the proposal and refused to have anything to do with it. That is why Noonan was asked to take charge. ‘So it was transferred to me, the file was transferred from health to justice. There was nothing in the file except the words,’ Noonan recalls.

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.