Private Members' Business. - Criminal Law Amendment Bill, 1972: First Stage (Resumed).

Question again proposed:
That leave be granted to introduce a Bill entitled an Act to amend section 17 of the Criminal Law Amendment Act, 1935, and consequentially to repeal section 16 and amend section 17 of the Censorship of Publications Act, 1929, and to amend section 7 and section 9 of the Censorship of Publications Act, 1946.
—(Deputy N. Browne.)

I want to be quite clear in introducing this Bill. I introduce it as a politician and not as a doctor.

On a point of order, could we have order, please?

I introduce this as a politician and not as a doctor. To me this particular Bill represents the rights of the minority in a pluralist society, a society such as ours. It is a right which I believe should be accorded to the religious minority living in our society here as well as those Catholics who feel that they conscientiously have a right to use contraceptive methods if they wish to do so.

I want to show beyond any doubt that this Parliament, predominantly, is opposed to the giving of minority rights to a religious minority in a pluralist society whether it is a 5 per cent or a 25 per cent minority. The issue of contraception to me is a part of the issue of the Ne Temere decree, Article 4 of the Constitution, Article 41 of the Constitution in relation to divorce, censorship of publications, the right of community schools, representation of all or no religion preferably, as far as I am concerned, secular schools, a non-sectarian attitude towards legal adoption. All of these issues are being decided here tonight because they all have the same content.

What astonishes me is that we are not even allowed to print this Bill. The Minister for Health recently gave me authority to print and circulate a Bill about tobacco. I have been forbidden to print and circulate, with Deputy O'Connell, this Bill about the issue of contraception. It is a simple Bill. All it does is to allow for the sale under certain protection of contraceptive devices. That is one part. The second part is the repeal of the law which prevents the circulation of responsible advice on family planning.

These facilities have been asked for by the Protestant minority down here and by the Catholic minority who do not share the general view on this matter. For that reason we introduced this Bill.

I consider it to be extraordinary that the Minister for Foreign Affairs, Deputy Hillery, is at present touring the world, begging for help from Canada, America, France a Common Market country, to get minority rights in the North of Ireland. The Taoiseach has said that he himself is anxious to help win for the minority in the North of Ireland their rights there under the Orange, Unionist Government. We have been refused permission even to circulate this Bill so that people will know what is in it and will not be frightened by it, and that it will not be misrepresented. The damage done to us by that misrepresentation shows that the only equal for sectarian bigotry in this country to the present Fianna Fáil Government are the Unionist bigots in the North who perpetrate the same kind of sectarian discrimination against the minority in the North. I believe that that is disclosed today, is shown today without question. But there is this difference between the North and the South. At least in the North they make no pretence of wanting a united Ireland. We do.

In all of the items I have mentioned we have shown the religious minority here that they are to be discriminated against because they are a religious minority and because we allow ourselves in relation to our social teaching, economic teaching and in matters of conscience such as this to be dictated to by the majority church in this country. This is now being demonstrated beyond any doubt whatsoever. There is no use in the Minister pleading that he is setting up a commission. This Parliament has been here for nearly 50 years. The Government have been in office for 40 years. An all-party committee recommended five or six years ago that most of these disabilities on the minority in this part of the country should be removed and none of the parties—the Government, Fine Gael or the Labour Party—have taken the initiative to remove the disabilities which at present affect minorities here.

In the Seanad this was introduced by Senators Mary Robinson, John Horgan and West and they also were refused permission to print or circulate the Bill. One of the most pathetic examples of the position of the Protestants here, I felt, was shown up in a request by one of the Protestant Senators, Senator Jessop. He asked: "May I ask a question?". A Protestant Cathaoirleach replied to him: "Yes, as long as you make it a very short one". That was two Protestants talking to each other in a Catholic Parliament. They were not allowed to consider or seriously debate this very serious and important issue. The 1937 Constitution established what I have described before as a symbolic relationship between the Church and State, each furthering the interests of the other. The Government appear to feel that since 1937 all this was carried out in a vacuum. How can this Government continue to behave in this way in the light of the present circumstances, with the enormously increased seriousness of these issues? They were always serious but they are very much more serious now because the unfortunate, wonderful people who are fighting for civil rights in the North know quite well that the most eloquent, the most telling, the most damning case against a united Ireland has been made by successive Governments down here.

I must now call on the second spokesman for the Labour Party.

I am concluding, a Cheann Comhairle. Not only are conditions here far inferior in health, education, the care of the aged, housing and social services but, in relation to minority rights, they are also far inferior to those in Northern Ireland.

The Deputy would want to go to Derry and see what is happening there.

In conclusion, I should like to make it clear that, if I were a Northern Protestant, or if I were a Northern Catholic, the only way you could get me into our Catholic sectarian united Ireland would be at the point of a gun. I understand the Unionist position and why they refuse to have any part in the kind of Ireland the people on those benches opposite have created.

Go to the ghettos in Derry and Belfast and see the way the people are treated.

Order. I must now call on the second speaker for the Labour Party.

This Bill adumbrates the one change in our Constitution which is absolutely vital if we are to show the minority here and the majority in Northern Ireland that we are sincere in our attempts to eliminate any discrimination. This Bill, and I speak now as a doctor and a politician, provides the right of private family planning. This right was guaranteed at the United Nations Convention in Teheran in 1968, a Convention to which Ireland was a signatory, and that Convention provided that couples had a basic human right to family planning. It also provided that the right to education should be guaranteed as a basic human right. We, the Irish delegates, subscribed to this Convention and supported it. Because of that I am more than surprised that we still have here laws which discriminate against people, against the minority and others, who want to go by their own consciences in the matter of family planning. The Criminal Justice (Amendment) Act of 1935 and the Censorship of Publications Act are discriminatory.

We are asking here for the right to have this Bill published. This is a very important right. Any political party here should have the right to publish this Bill so that it can be discussed by the public and by the Members of this House. The Taoiseach has been pleading for help in the solution of the problem of Partition. If he is sincere in that then let him prove his sincerity and the sincerity of his Government by allowing this Bill to be published and by not voting against it. That would prove that the Government are anxious for a 32-county, non-sectarian State. This is vital because in a 32-county State we must include the Northern Protestants and we must guarantee their rights to them.

I do not accept the statement of the Taoiseach that the matter is Sub judice and he and his Government cannot, therefore, support this Bill. Sub judice implies that a man is on trial anything we might say here might pre- judice his case. But that does not arise in this. We, the Parliament, have the right to change the laws, laws which are not in the interests of our people. I cannot understand how the Taoiseach could argue, with sincerity, that the matter is sub judice. This is a matter for this Dáil to decide. It is for this Dáil to remove from the Statute Book discriminatory legislation.

Unless in the Bogside and Ardoyne.

Would the Deputy please stop interrupting?

My apologies.

Do two wrongs make a right?

I am sorry the interruptions are continuing. I would hope we could appeal to reason on the Government benches and that we would not see on those benches the bigotry, the hatred and the sectarianism we see in the North. I would hope we would extend the hand of friendship and that we would not have to suffer this kind of thing. I would hope that the leaders of our society would not speak with this kind of sectarianism and this kind of bigotry.

There is no sectarianism.

I would like now to quote something the Taoiseach said last week at column 914 of volume 258 of the Official Report:

The right to freedom of conscience was a fundamental of the Reformation. The practices of Government in Northern Ireland are certainly not in accord with these principles of Protestantism.

I would say that this is more applicable here than it is in Northern Ireland at the moment.

There is a lot of justice in Derry and the Bogside.

The Taoiseach also said:

If we are expecting moves or sacrifices from the Unionist majority in the North we, too, will have to face up to some change from our present stance and policy.

This Bill presents us with an opportunity of doing exactly that. The fact that the Criminal Justice (Amendment) Act is being tested and may be proved unconstitutional is not a sufficient answer and will not provide the safeguards we ask for in this Bill. Proving that Act unconstitutional will not eliminate the discrimination or the prohibition of education on family planning. I appeal to Deputies on the Government benches to support this Bill and give us the right to publish so that there can be free discussion. That is all we ask in all sincerity. We ask for a free vote on the Government benches so that there can be free discussion and it cannot be said in the North that we practice the same sectarianism, bigotry and hatred that they practice.

(Cavan): As spokesman for this party on Justice it falls to me to speak on this Bill. First of all, I should like to outline very briefly what is involved here. The procedure under Standing Orders in relation to the introduction of a Private Members' Bill, unlike a Government Bill, lays it down that the Bill cannot be printed and circulated to Members until a Resolution of the House directing that it be printed and circulated has been passed. Many people think that is a denial of the rights of Opposition parties. Many people think that that Standing Order should be amended and, perhaps, before very long it will be amended so that a Private Members' Bill like an ordinary Government Bill can be introduced, printed and circulated and discussed on its merits.

This Bill deals with a delicate personal problem, a problem that was first highlighted by the Taoiseach in the last couple of years and by the present Minister for Foreign Affairs. Earlier this evening the Fine Gael Party sought to introduce a Bill dealing with the problem of drugs among young people in an effort to curtail and control drug taking and drug pushing. We wanted to get that Bill printed and circulated so that it could be discussed on its merits. We did not succeed because, under Standing Orders, the Government opposed the Bill and denied us the right to circulate it.

I very seldom find myself in agreement with the sentiments expressed by Deputy Browne. I do not know whether or not I am in agreement with the proposals contained in this Bill because I have not seen those proposals. Deputy Browne in the short time he devoted to the Bill talked about certain conditions, about ministerial control, about responsible advice. I do not know what all that means. I believe, as this party have always believed, that we should have an opportunity of reading the Bill, seeing what is in it and making up our minds on its merits or demerits and voting on it in the light of that.

This subject was first introduced by no less a person than the Taoiseach followed up, I think, at the Fianna Fáil Ard-Fheis or shortly after it, by the Minister for Foreign Affairs, Deputy Hillery. It is time it was discussed and put out of our minds one way or another. I want to make it perfectly clear that I am not committing this party, myself or any other member of it either to supporting or opposing the Bill because we do not know what is in it. When the party see the Bill, if the Government agree to publish it, we shall make up our minds on it and either support or oppose it. As the principal Opposition party, we should take the stand of supporting discussion and supporting the right of the Opposition parties to have a Bill or a motion fully discussed. There is a large volume of opinion in the House that the Standing Orders in relation to Private Members' Bills are unjust and unfair to the Opposition and I hope that within the lifetime of this Dáil they will be changed. I support the printing and circulation of this Bill. I say nothing about its merits or demerits because of them I know nothing. I shall make up my mind when I see the Bill.

I should like to say something——

There can be no further discussion——

I am in favour of the Bill, anyway.

(Interruptions.)

The Minister to conclude.

It should be mentioned in any debate or discussions we may have about the matters with which the Bill deals that they are matters outside the scope of and separate from any question of sectarianism or any question of Irish unity. Irish unity is a separate matter with which we will deal in our time and which is being dealt with at the present time in so far as——

(Interruptions.)

——this sovereign Government can deal with this problem. The problem of Irish unity is being dealt with——

I wish to emphasise that the important aspect of the matter raised by Deputy Dr. Browne —I am very glad he raised it so that we can discuss it in a rational way— is separate and apart from the question of Irish unity which stands as a major national problem on its own. The Government are opposing this Bill for certain very practical reasons which, if I am allowed to give them here——

F—e—a—r.

I shall give them. First, the Government accept and believe that there are people genuinely dissatisfied with the present law in relation to contraceptives and the advocacy of contraception. It is the Government's view that the simple amendment of section 17 of the Criminal Law (Amendment) Act, 1935, would effect a substantially greater change than has been advocated by the vast majority of those who have expressed themselves as being in favour of some change. That includes representatives of many religious denominations.

You do not know what the changes are; you have not seen the Bill.

Let the Deputy not indulge in the habit of interrupting. I want to explain the difficulties and problems that arise in framing proper legislation to deal with this matter. The strongest argument that has been advanced by those in favour of some change has been that the law should not deny to any married couple the means to acquire contraceptives if they so wish and that, in regard to the use of contraceptives, the State should not interfere in a matter of private morality. This question is one of private morality. This is the real issue and it should not be confused with the other issue of Irish unity.

I wish to emphasise here that considerations other than the consideration of private morality are involved in this area. The free availability of contraceptives and literature advocating contraception and advertising contraceptives could have significant social implications. Deputy Dr. Browne is well known for his advocacy of countering the social evils that flow from unrestricted and unrestrained advertising in regard to any matter. There would be, of course, serious practical difficulties—and this is our problem at present—in evolving an effective method of limiting the availability of contraceptives to any particular category or categories of persons.

One would think we were the first country in the world to do it.

This aspect is being thoroughly examined by the Government at present. The effect of the enactment of the proposed Bill or any measure which would deal simpliciter with, as is suggested in the title of the Bill, the deletion of section 17 of the Criminal Law (Amendment) Act, would be that anybody who wanted contraceptives could get them lawfully either by purchasing them in this State or by importing them in person or through the post. In addition, the title of the Bill proposes the consequential deletions of sections in the Censorship of Publications Acts.

(Interruptions.)

It proposes amendment, not deletion.

These are the sections that deal with advertising publicity and sale of contraceptives. The point I am emphasising is that a simple amendment of the Acts relating to this matter, deleting section 17 from the Criminal Law (Amendment) Act, deleting sections 16 and 17, as suggested in the title of the Bill, of the Censorship of Publications Act, 1929, and amending sections 7 and 9 of the Censorship of Publications Act, 1946—the effect of implementing these amendments and deletions would be unrestrained and unrestricted sale, publicity and advertising.

(Interruptions.)

That is not true.

It says amendment, not deletion. The Minister is not telling the truth. He should read the Order Paper. He is misleading the people.

This is misrepresentation.

This is where the area of difficulty arises. I want to make clear here that the Government fully realise that there are sincerely held views, held by many people, that the present law represents an undue restriction on people's liberty and an undue instrusion in the field of private morality——

And the Government do damn all about it.

We are, therefore, at present considering ways and means of surmounting the difficulties that I have mentioned and which are not solved by a too simplistic approach in dealing with this problem.

The difficulties and problems involved are being fully explored at present. We believe that the Private Member sponsors of this measure are not sufficiently aware of the deep and complex problems involved in drafting a measure which can have regard to the private morality aspect and, at the same time, deal with the very practical and real difficulties that are involved in preventing undue advertising, undue publicity or undue sale or an approach to contraceptives that is completely unrestricted and unrestrained. This is a very difficult area.

(Interruptions.)

The Minister has not seen the Bill.

(Interruptions.)

This is a difficult area. It is difficult to devise a measure that will meet the point I have mentioned while, at the same time, preserving restrictions that are compatible with a proper social order and with good government.

Is the Minister entitled to tell the House that this proposed Bill proposes to repeal the law while the motion on the Order Paper tells us that it is to amend the law and not to repeal it?

The Deputy cannot make a speech in this manner at this stage.

Question put.
The Dáil divided: Tá, 44; Níl, 75.

  • Barry, Peter.
  • Belton, Luke.
  • Belton, Paddy.
  • Browne, Noel.
  • Bruton, John.
  • Burke, Liam.
  • Cluskey, Frank.
  • Collins, Edward.
  • Cooney, Patrick M.
  • Corish, Brendan.
  • Cott, Gerard.
  • Creed, Donal.
  • Crotty, Kieran.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Dockrell, Henry P.
  • Dockrell, Maurice E.
  • Donegan, Patrick S.
  • Dunne, Thomas.
  • Enright, Thomas W.
  • FitzGerald, Garret.
  • Fitzpatrick, Tom (Cavan).
  • Fox, Billy.
  • Harte, Patrick D.
  • Hogan, Patrick.
  • Hogan O'Higgins, Brigid.
  • Kavanagh, Liam.
  • Keating, Justin.
  • L'Estrange, Gerald.
  • McMahon, Lawrence.
  • Malone, Patrick.
  • O'Connell, John F.
  • O'Donnell, Tom.
  • O'Donovan, John.
  • O'Hara, Thomas.
  • O'Higgins, Thomas F.
  • O'Leary, Michael.
  • O'Reilly, Paddy.
  • Pattison, Séamus.
  • Ryan, Richie.
  • Thornley, David.
  • Timmins, Godfrey.
  • Treacy, Seán.
  • Tully, James.

Níl

  • Allen, Lorcan.
  • Andrews, David.
  • Barret, Sylvester.
  • Boylan, Terence.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Briscoe, Ben.
  • Brosnan, Seán.
  • Browne, Patrick.
  • Browne, Seán.
  • Burke, Joan.
  • Burke, Patrick J.
  • Burton, Philip.
  • Carter, Frank.
  • Carty, Michael.
  • Childers, Erskine.
  • Clinton, Mark A.
  • Colley, George.
  • Collins, Gerard.
  • Connolly, Gerard C.
  • Coogan, Fintan.
  • Coughlan, Stephen.
  • Hilliard, Michael.
  • Hussey, Thomas.
  • Kenneally, William.
  • Kitt, Michael F.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Lenihan, Brian.
  • Loughnane, William A.
  • Lynch, Celia.
  • Lynch, John.
  • McEllistrim, Thomas.
  • McLaughlin, Joseph.
  • MacSharry, Ray.
  • Meaney, Thomas.
  • Molloy, Robert.
  • Cowen, Bernard.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Davern, Noel.
  • Delap, Patrick.
  • de Valera, Vivion.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Faulkner, Pádraig.
  • Fitzpatrick, Tom (Dublin Central)
  • Flanagan, Oliver J.
  • Foley, Desmond.
  • Forde, Paddy.
  • French, Seán.
  • Gallagher, James.
  • Geoghegan, John.
  • Gibbons, Hugh.
  • Gibbons, James.
  • Governey, Desmond.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hillery, Patrick J.
  • Moore, Seán.
  • Murphy, Michael P.
  • Nolan, Thomas.
  • Noonan, Michael.
  • O'Connor, Timothy.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • Power, Patrick.
  • Smith, Michael.
  • Spring, Dan.
  • Taylor, Francis.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Wyse, Pearse.
Tellers: Tá, Deputies Cluskey and M. O'Leary; Níl, Deputies Andrews and Meaney.
Question declared lost.