Taoiseach Enda Kenny has said he can not impose a whip on members of the Independent Alliance in a vote on legislation that would allow for abortions in cases of fatal foetal abnormality.

Mr Kenny and a number of his Fine Gael Ministers have said that issues linked to the Eighth Amendment to the Constitution on abortion should only be voted on after being considered by a citizen’s assembly.

However, Independent Alliance Minister Shane Ross on Monday said he and two of his colleagues, who are members of the Government, would be supporting a Bill by Mick Wallace on the issue.

Speaking on Monday, Mr Kenny said he could not impose a whip on the five Independent Alliance TDs. He said they were not bound by the Fine Gael whip, which is an indication he will allow the Alliance members a free vote.

Earlier, Minister for Social Protection Leo Varadkar said allowing a free vote on a Bill allowing for abortions in cases of fatal foetal abnormalities could set a “difficult precedent” for the Government.

Mr Varadkar insisted the decision of three Independent Alliance Ministers to support the Wallace Bill would not destabilise the Government. He said it was not right to support legislation that is unconstitutional, which the Attorney General has said of Mr Wallace’s legislation.

“There are times when as a Minister you can’t do things because they are against legal advice and are unconstitutional,” he said. “If you are willing to disregard or go against the advice of the Attorney General on one thing inevitably you will come under pressure on other things to do the same.”

Mr Varadkar said he was in favour of changing the legislation in these cases but this Bill would not solve the difficulties women face. He said it is always right to be compassionate but never right to be false.

The Cabinet has not agreed a position on the Bill. It was due to decide on one at Tuesday’s meeting.

Legal test

Mr Ross said the Bill allowing abortion in cases of fatal foetal abnormality should be tested in court. He said two other fellow Independent Alliance TDs - Kevin ‘Boxer’ Moran and Sean Canney - will be voting against it but John Halligan and Finian McGrath, both Ministers of State, would be.

“We believe this is a vote of conscience,” he told RTÉ’s Morning Ireland.

Mr Ross said he had seen the Attorney General’s advice and he took it seriously. His understanding was that the Attorney General had not said the Bill was unconstitutional, but that the Supreme Court would find it unconstitutional.

“I think it should be tested in court. I don’t see anything wrong with it going to Second Stage and if there are constitutional difficulties they can be dealt with then.”

He said there were precedents for government not taking the advice of the Attorney General and of the government allowing a free vote.

The repeal of the Eighth Amendment was not included in the Programme for Government, Mr Ross said.

“I don’t see this is as an issue of defying anyone. It is not binding us in the Programme for Government…I believe there are issues when collective Cabinet responsibility is important, but not on this issue.”

Mr Ross said Ministers did not “put our consciences in the deep freezer when we walk into the Cabinet room” and that this issue “should not be forced through the Dáil”.

“We want the freedom and liberty to vote according our consciences. Eighteen months ago Finian McGarth and John Halligan and I voted in favour of a similar bill, it would be hypocrisy to change it this time,” he added.

Minister for Finance Michael Noonan said he expected the issue would be a once-off.

Mr Noonan said it was up to the Alliance to make a decision on how to vote and insisted it would not threaten the stability of the Government.

Free vote

Minister for Public Expenditure Pachal Donohoe insisted there would be a free vote on the Eighth Amendment but only after it has been considered by a Constitutional assembly.

He said the Government recognised that there were very different views on this sensitive matter and would respect the position of some members of the Independent Alliance.

“The most important thing is to do the right thing by women coping with fatal foetal abnormality. I feel very strongly that this is an issue that we need to respond to,” he told RTÉ’s Today with Seán O’Rourke.

“Constitutional change will be required. This method worked with the marriage equality referendum and that’s why the Constitutional Assembly is important.”