‘Nothing in the court’s judgment should be taken as necessarily implying that it would not be open to the State . . . to legislate to deal with a case such as that of Ms Fleming.”

These are the words of the Chief Justice, Mrs Justice Susan Denham, earlier this week in rejecting the case of Marie Fleming. The language is a bit convoluted but the message is clear. On the issue of assisted suicide, judges will not do the job politicians were elected to do.

So, what then are the chances that the Oireachtas will take up the challenge and legislate for assisted suicide? If our experience of similarly delicate issues is anything to go by, the chances are very slight, probably nonexistent.

The 31st Dáil is probably the most liberal-minded on moral and social issues in the history of the State. There are more than 60 members outside of Fine Gael and Fianna Fáil and most are social liberals. On the face of it, this Dáil should be more willing than any predecessor to deal with issues such as abortion, same-sex marriage, surrogacy and other sensitive issues dealing with life and death, and sexual mores. Yet there is little sign that this will happen.

Democracy distorted
The reason is simple. In these matters and others our democracy is stifled and distorted by a whip system that effectively excludes 90 per cent of TDs from the decision-making process. Almost all decisions are taken by a small number of TDs and their officials. Nobody else matters.

It is a long-established practice in parliaments throughout the world that issues of conscience are decided on free votes. The parliaments of France, the UK and New Zealand have voted to legalise gay marriage in recent weeks. All those decisions were taken by free vote. There is no good reason why Ireland should be different.

It is time for politicians to take responsibility for their individual decisions. It is time for the party bosses to let them do so. A free vote on matters of conscience would be good for politics; and it would be good for politicians. Most of all it would offer a chance of progress on issues that may not otherwise be addressed.

As things stand, the conservative element in Fine Gael has an effective veto on legislation. Enda Kenny will be slow to impose a whip on an issue of conscience unless he has a near-consensus in his parliamentary party. Such consensus can be a long time coming.

In all likelihood a majority in the current Dáil favours same-sex marriage. There are probably more TDs in the Dáil who believe that the proposed legislation on termination of pregnancy is too restrictive than those who think it goes too far. Many would like to move to repeal the eighth amendment and start over. But there is no chance of progress on any of this until Fine Gael decides to move, if it ever does.

This is not a sensible way to do business. Government backbenchers who are socially conservative should not be obliged to vote for something they believe is wrong. Equally, the liberal majority must be set free. This can best be done by a free vote.

But a free vote means a free vote of all members, not just a free vote for Government deputies. In 1974, on one of the few occasions when deputies had a free vote, Paddy Cooney’s Bill on contraception was defeated when Fianna Fáil whipped its members into the opposition lobby. Fianna Fáil today is a very different animal. Micheál Martin says he will not play politics with sensitive issues. Time will tell.

Resistance
Resistance to the free vote comes from two sources: from Ministers who find it much easier to govern when they don't have to persuade TDs on their own side of the House; and from backbenchers who prefer to hide behind the whip rather than defend their views in public. In short, the business of governing is a whole lot easier if backbenchers don't ask questions but instead turn up when required and vote as required.

It may be easier, and it may be cleaner, but it is no longer acceptable as a way of running our country.

The standing of politics and politicians is at an all-time low. Not all of this is the fault of politicians but some of it is. For years, politicians have acknowledged the need to change the whip system. Eoghan Murphy, Fine Gael TD for Dublin South East, recently published a set of proposals that draws heavily on previous work by John Bruton and Garret FitzGerald. The proposals should be taken seriously. The credibility of the Dáil depends on it.

Derek McDowell is a former Labour Party TD