The process to choose a chairperson to lead the three-year review of the Irish abortion law has been characterised by confusion, contradiction, and an overall lack of clarity. The contentious appointment has recently been filled by a barrister, appointed by Minister for Health Stephen Donnelly on 26 January. However, the Minister’s actions in appointing the chair have been marred by controversy due to the conflicting statements he made over the course of December and January on how the appointment would be made. This article sketches the meandering path taken by the government to arrive at the recent appointment and what this potentially reveals about the future of the review itself.
The Health (Regulation of Termination of Pregnancy) Act 2018 is the legislation which allows for and regulates the provision of legal abortion in the Republic of Ireland. Section 7 of the legislation mandates that a review of the operation of the Act must be carried out no later than three years after its commencement (1 January 2019).[1] As such, the Minister was legally required to evaluate the Act through a review process. There was some uncertainty throughout 2021 as to whether this required the Minister to complete his review within the three-year timeframe; however, the Minister has interpreted Section 7 to mean that the review must simply be initiated within the three-year timeframe.
In summer 2021, the Minister confirmed that the review process would commence in 2021 and that it would be led by an ‘independent expert’. The details of how the review would be structured were decided following Minister Donnelly’s consultation with unnamed stakeholder groups.[2] He later acknowledged these stakeholder groups consisted of an Oireachtas coalition of pro-choice politicians and representatives of several pro-choice campaigning organisations brought together by the National Women’s Council of Ireland.[3]
On 8th December 2021, the Minister met the Oireachtas Joint Health committee for what would be the official launch date of the three-year review. At this meeting, he announced that the process to select an independent chair required the position to be advertised on the government’s e-tenders website, in line with public procurement obligations. His accompanying Department of Health official added that this was necessary due to the sums involved exceeding €25,000.[4] At this meeting the Minister made a number of contradictory statements on when the e-tender would become publicly accessible; he claimed that the e-tender “would go up today” at some points, while at others claiming it would be issued “in the coming days”.[5] He also stressed that the chairperson would be independent, a quality repeated by the Minister in the lead up to the review and following the review’s 8th December commencement.
On 14th December the Minister acknowledged in reply to a parliamentary question that the person chosen to fill the role of independent chair would be undertaking work on a contract for the Department of Health and this would “be subject to public procurement rules.”[6] From 8th December onwards, no e-tender was issued for the role of independent chair. Whilst an e-tender was issued seeking applications for the research component of the three-year review, it was confirmed by the departmental official on 8th December that this was “a tender for the service providers strand and it is not for the chair.”[7] The failure to publicly advertise for the role of the chair has not been addressed by the Minister.
On 19th January 2022, Minister Donnelly acknowledged in reply to a parliamentary question that he had identified “a small number of candidates” whom he considered to possess “suitable experience for the position [of chair]”. They were then “contacted and invited to apply for the role of independent Chair”.[8] This marked a clear departure from the Minister’s promise to publicly advertise the role through the e-tender public procurement process.
On 26th January, barrister Marie O’Shea was announced as the appointed chair to lead the three-year review. Evidently this process happened outside the promised e-tendering process, which ensured the appointment was a closed process and sidestepped public expressions of interest and Oireachtas oversight. The Minister explained that the newly appointed chair will review the commissioned research led by Dr Catherine Conlon and the submissions received as part of public consultation before the deadline of 1 April. She will also draw on the findings of “relevant peer-reviewed research” and will “consult further” with stakeholders “as necessary”.[9] As we know, consultations with stakeholders have been limited to broadly pro-choice activist groups and partisan politicians.
The appointment of Ms O’Shea was welcomed by the National Women’s Council. Their director expressed pleasure that the appointment was made without “the complex and protracted process of a public tender”.[10] Clearly this indicates an understanding from the NWC that the tender process outlined by the Minister was departed from, and this was something they felt was a positive development.
On 27th January, in answer to a parliamentary question the Minister claimed the process to select a chair was “currently in train”, despite the fact the chair had been appointed the previous day.[11]
In reply to a parliamentary question on 1st February, the Minister appeared to alter his narrative to claim that the tender was in fact issued, insofar as the appointment process began, although he claims that “given the expertise required for the position, a small number of candidates, identified as having suitable experience, were contacted and invited to tender for the role of independent Chair”.[12] This is a departure from his statements to the 8th December Health Committee meeting that an e-tender would lay out “the specific selection criteria” for the appointment. His failure to follow through on this commitment undoubtedly precluded several potential eminently qualified candidates from applying for the role and restricted the process purely to the Minister’s own cohort of favoured candidates.
No public correction or clarification was issued by the Department which stated that the process would be different to that outlined in December, in an early press release (which was quietly altered that day) and during his Health Committee appearance. The sudden appointment of a chair on 26th January also appears to have been first reported by the Irish Times rather than in a public press release from the Department of Health (which was issued later that morning).[13]
There are several questions which Minister Donnelly urgently needs to address. Why did he depart from his repeated promises to appoint the chair by means of an e-tender public procurement process and instead hand-pick the eventual appointee behind closed doors? Did he receive different advice in this regard, and if so, why did he fail to issue a public clarification that the selection process would be different to the e-tender process which he outlined in December?
The overarching question is how the sudden imposition of a chair without the possibility of public competition, which contradicts the Minister’s own public statements and assurances, can be considered “independent”? The ramshackle handling of the selection of the chair coupled with several statements from the Minister and his Department which effectively pre-judged the findings of the review does not instil confidence amongst the pro-life public. The astounding lack of scrutiny and repeated instances of inconsistencies should be a cause for investigation by journalists and politicians.
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[1] Health (Regulation of Termination of Pregnancy) Act 2018, Section 7, Irish Statute Book.
[2] See PQ 468, 24 June 2021.
[3] See PQs 2191, 2536, & 3195, 27 July 2021.
[4] Geraldine Luddy, 8 December 2021, https://www.oireachtas.ie/en/debates/debate/joint_committee_on_health/2021-12-08/2/
[5] Stephen Donnelly, 8 December 2021, https://www.oireachtas.ie/en/debates/debate/joint_committee_on_health/2021-12-08/2/
[6] See PQ 634, 14 December 2021.
[7] Geraldine Luddy, 8 December 2021, https://www.oireachtas.ie/en/debates/debate/joint_committee_on_health/2021-12-08/2/
[8] See PQ 1877, 1840, & 1869, 19 January 2022.
[9] Department of Health, Review of the operation of the Health (Regulation of Termination of Pregnancy) Act 2018 Appointment of Independent Chair, 26 January 2022, https://www.gov.ie/en/press-release/e3510-review-of-the-operation-of-the-health-regulation-of-termination-of-pregnancy-act-2018-appointment-of-independent-chair/
[10] National Women’s Council of Ireland, National Women’s Council welcomes appointment of independent Chair of Abortion Review, 26 January 2022, https://www.nwci.ie/learn/article/national_womens_council_welcomes_appointment_of_independent_chair_of_aborti
[11] PQ ref. 3993/22, 27th January 2022.
[12] PQ ref(s). 5095/22, 5090/22, 5091/22, 1th February 2022.
[13] Review of the operation of the Health (Regulation of Termination of Pregnancy) Act 2018 Appointment of Independent Chair, 26th January 2022, https://www.gov.ie/en/press-release/e3510-review-of-the-operation-of-the-health-regulation-of-termination-of-pregnancy-act-2018-appointment-of-independent-chair/