Dáil Éireann debate -
Thursday, 4 Jul 1974

Vol. 274 No. 3

Control of Importation, Sale and Manufacture of Contraceptives Bill, 1974: Second Stage.

Minister for Justice (Mr. Cooney)

I move: "That the Bill be now read a Second Time."

The Criminal Law Amendment Act, 1935, section 17, provided that it was an offence to sell, import or advertise for sale any contraceptives. This piece of legislation was challenged as to its constitutionality and in a recent Supreme Court case of McGee against the Attorney General the Supreme Court in a majority judgment, held in effect that the provision of section 17 (3) of the 1935 Act prohibiting the importation of contraceptives was contrary to the Constitution and hence not part of our law. The Supreme Court did not make any finding on whether the prohibition contained in the 1935 Act against the sale of contraceptives was or was not constitutional.

As a result of the Supreme Court decision the position now is that any person may purchase abroad and import contraceptives into this country for his own use or may freely distribute them but they may not be sold in the State.

We now have a rather anomalous situation that there is no restriction whatever on the importation of contraceptives but there is an absolute prohibition on their sale.

The rationale of the Supreme Court judgment was to the effect that married couples are entitled not to have reasonable access to contraceptives denied to them and that the ban on importation was such a denial. The court did not go on to decide whether the ban on sale constituted such a denial but, having regard to what was said in some of the judgments, I would have little doubt that if a case were shown to the court that the total ban on sale meant that reasonable availability was not possible then that ban too would be found unconstitutional.

The legal position at the moment, therefore, is that importation without restriction as to quantity or type and by any person is quite legal; that the ban on sale which continues to subsist would appear to be liable to be challenged successfully.

I considered that this anomalous position had to be rectified because an anomaly itself is unsatisfactory but, in addition, I have had clear evidence that as a result of it a black market exists and is growing in the illegal sale of contraceptives in this country. They can be imported as I have said without let or hindrance and this is being done. Orders for contraceptives are being solicited by mail order firms from outside the State and these orders are being solicited indiscriminately. The firms concerned apparently are using street or telephone directories. It has been rather irately brought to my notice that one firm is enclosing a sample of its wares with the order form.

For these reasons it was quite clear to me that the position consequent on the McGee case required to be regularised and that the unfettered importation should be controlled but, at the same time, having regard to the obiter dicta of the Supreme Court in that case the prohibition on sale should be eased. The Bill now before the House, I submit, meets these two requirements in a reasonably satisfactory manner.

The right to import is restricted to persons who will be selling by retail in this country and it is suggested in the Bill that the proper outlet is through pharmaceutical chemists shops as this is a retail trade with high ethical standards and contraceptives do have a medical connotation. The right to purchase will be confined to married persons and this restriction is an acknowledgement of the finding by the Supreme Court that the constitutional right to have reasonable access to contraceptives is a right of married couples. There was no finding as to whether a single person has such a constitutional right. As I am concerned only with the legal position as I now find it, this Bill does not go beyond the finding in the McGee case.

Reasonable availability for married couples has to be maintained. I quite appreciate that in parts of the country pharmaceutical chemists may not wish, for conscientious reasons, to sell contraceptives and, accordingly, there is provision for a licence to be granted to persons other than pharmaceutical chemists or, indeed, to individual persons and thus reasonable availability will be assured. Again, of course, because this availability is the legal right of married couples only there is a restriction on the purchase by single persons. There has been considerable misunderstanding in regard to this, some of it deliberate on the part of people who want to ridicule the restriction on sale to married persons. It has been asked if purchasers will be obliged to produce marriage certificates or other proof of marital status. The answer is no. Likewise there will be on requirement or obligation whatever on the vendor to inquire as to the marital status of the purchaser. Such a requirement would be intrinsically objectionable and, in addition, it would impose such an obligation on the vendor that in effect no person would stock and sell contraceptives.

The provision in the Bill is quite simple and unambiguous; it makes it unlawful for an unmarried person to purchase a contraceptive. No doubt it will be urgued that this prohibition is unenforceable and like any law I have no doubt that it will be breached. This does not, nevertheless, take from the validity of having the prohibition because laws essentially are obeyed because people want to obey them not because they are afraid of the sanction behind them or the threat of being detected in breach of them. Enforcement of any law can be a problem and there are other areas, notably in the intoxicating liquor code and the road traffic code, where we have this problem and one would hardly argue that because there are breaches in these two areas there is, therefore, a justification for relaxing or abolishing the prohibition on under age drinking or dangerous driving. It is the aim of any criminal law to prohibit undesired conduct and that law is not futile even if it does no more than mark society's values in a particular area. I have no doubt that the vast majority in the State are in favour of a law restricting sales of contraceptives to married couples.

It is a well recognised principle of jurisprudence that to set out a prohibition in a statute is in itself a deterrent notwithstanding difficulties of enforcing it or of adducing proof to enable the sanction behind the prohibition to be imposed. I am satisfied that it is right to impose this prohibition in this Bill and that it is in accord with popular opinion.

Those who oppose the Bill because they see it endangering public morality while they have proved their capacity to write letters are, I suspect, not numerically strong. For they have one thing in common and have communicated it to some Deputies in this House and that is a failure to see that, as a result of the McGee case, it is not possible to prohibit the availability of contraceptives. Our law henceforth must maintain such availability and it is futile for people to demand that contraceptives be absolutely prohibited. Such a law would be unconstitutional.

Likewise, it is futile to oppose this Bill on the grounds that it makes contraceptives available. It does no such thing. They are available as a constitutional right. What this Bill does is to regulate their availability. Those who oppose this Bill are in effect in favour of the availability of contraceptives without let or hindrance to all ages and groups without distinction of sex or marital status. Yet these same people pose and hold themselves out as the protectors of the morals of the nation. Surely they must see the contradiction of their position. I suspect some of them do and this is what inspires the calls we have seen more and more recently for a referendum on the subject.

The rights of an individual citizen in this country are given to him by the Constitution and guaranteed to him under it and our Supreme Court has the duty under that Constitution of defining what those rights may be from time to time. In this case the Supreme Court has found that a married person has a right to have reasonable access to contraceptives and those who call for a referendum, in effect want to take that right away from that individual. I cannot accept that this is a valid point of view and is, indeed, a dangerous doctrine. There will be no referendum on this issue. In any event, but this does not go to the merits of the argument, it would be impossible in practical terms to devise a suitable question to put to the people. Most people on conscientious grounds would not practise artificial contraception but at the same time would not deny to any person whose conscience permits him so to do, the right to so practise. The question, therefore, for Deputies is, do they want unfettered availability of contraceptives or do they want the supply regulated as is proposed in the Bill.

Those who oppose the Bill because it is too illiberal do so mainly on the ground that it seeks to restrict sales of contraceptives to married couples. They seek to argue that it is impractical to do so and any attempt to do so will bring the law into disrepute. I have already dealt with this argument when speaking of this restriction on sales to married persons only and the enforcing of it. They also argue however, that there is a right, a natural right in favour of single people to have access to contraceptives. I do not accept that there is any such right because that implies a right to fornicate and in my opinion there is no such natural right. I am well satisfied that the principle of restricting contraceptives to married persons is the proper one.

I will now deal with some of the particular proposals in the Bill. Section 2 provides that, subject to section 3, it shall be an offence to import contraceptives except under licence issued by the Minister under this section and, subject to section 4, it confines the right to sell contraceptives to persons who are licensed under this section to import them. A licence under this section may be subject to such conditions and may relate to such class or classes of contraceptives as may be specified therein. In general, licences may be issued only to chemists who are lawfully keeping open shop for dispensing medical prescriptions. Where, however, the Minister is satisfied that contraceptives are not reasonably available to married persons in any place because it is not within a reasonable distance of the premises of a licensed chemist, he may issue a licence under this section to some other person or persons carrying on a business in or near that place. The holder of a licence under this section may sell contraceptives only in or from his place of business and may not sell contraceptives for resale. The licence may be revoked by the Minister where the holder is in breach of a condition thereof and may be declared forfeit by the court where the holder is convicted on indictment of an offence under the section.

Section 3 provides that the Minister may issue a licence, subject to specified conditions, to a married person to import contraceptives where the Minister is satisfied that contraceptives are not reasonably available to the person by reason of the distance of the place in which he lives from the premises of a person licensed to sell them.

Section 4 makes it an offence to manufacture contraceptives except under licence granted by the Minister. The licence may contain such conditions as the Minister considers necessary to ensure that contraceptives are supplied for sale within the State only to persons licensed under section 2 to import them. A licence under this section may be revoked where the holder is in breach of a condition thereof.

Section 5 provides that it shall be an offence for a person who is unmarried to purchase a contraceptive. Section 6 provides that it shall be an offence to display contraceptives for sale. Section 7 provides that the Minister may appoint a committee of five persons, which shall include persons with medical qualifications, to advise him on whether a device or product is an abortifacient, whether or not the device or product is also a contraceptive, and it provides that he may not grant a licence for the importation or manufacture of a contraceptive which, in the opinion of the committee, is also an abortifacient.

Section 8 makes it an offence to sell or to display publicly any advertisement or any document containing an advertisement for contraceptives. It also provides that unsolicited advertisements and written material advocating the use of contraceptives may not be sent through the post or otherwise delivered to any premises. An exception is made for the display of a notice of availability of contraceptives for sale in premises in which contraceptives may lawfully be sold. An exception is also made in relation to the advertising of contraceptives in newspapers and periodical publications which does not extend beyond advertising the trade-name and type of contraceptives and indicating the premises from which they may be purchased. A further exception is made in respect of advertising in publications intended solely or mainly for chemists or doctors. The Minister may make regulations specifying the manner of the two latter kinds of advertising.

Section 9 provides that it shall be an offence to manufacture, import, sell, offer for sale or advertise an abortifacient.

Subsection (1) of section 10 provides that when a person is charged with an offence under section 9, which relates to abortifacients, and it is proved that the subject matter of the charge is a contraceptive, he may be convicted of any offence under the Act of which he is guilty by reason of the fact that the subject matter of the charge is a contraceptive. Subsection (2) has a similar provision to cover the case where the charge is in respect of a contraceptive but the subject matter thereof is proved to be an abortifacient.

Subsection (3) provides for the case where, irrespective of whether the charge is in respect of a contraceptive or an abortifacient, it is proved that the subject matter of the charge is either an abortifacient or a contraceptive, but it is not proved which it is: in such a case the person charged may be convicted of any offence under the Act of which he could be convicted if it were proved that the subject matter of the charge was, in fact, a contraceptive.

Section 11 provides that any person entitled to appeal against a prohibition order under the Censorship of Publications Acts may apply to the Censorship Board for a review of a decision, taken before the passing of the Bill, to ban a book or periodical on the ground that it advocated contraception or abortion. The section provides that the Board shall revoke the ban where satisfied that the book or periodical does not advocate abortion.

Section 15 provides that the Bill does not apply to contraceptives which may lawfully be supplied only on a doctor's prescription.

Sections 12, 13, 14 and 16 provide for repeals and expenses.

This then is the Bill. I look forward to the debate which I hope will take account of the realities of the legal situation consequent on the McGee case. I anticipate criticism of the Bill and will be interested in the views of Deputies who are critical as to how they would improve it. It is a subject which for many imposes conscientious difficulty. All I ask is that Deputies approach it from this point of view and not motivated by political expediency, looking over their shoulders wondering what the constituency will think.

Mr. O'Malley

On Wednesday, 13th February, 1974 the Government issued a statement which read:

The Government has decided, consequent on the recent Supreme Court decision in relation to the Criminal Law Amendment Act, 1935, to introduce a Bill to provide for the necessary change in legislation arising out of that decision. It is the Government's intention to provide for a free vote in relation to the passage of the Bill.

That is the end of the Government's statement. The first of the two sentences of that statement is, in my view, correct. The Government, as a Government, had a duty and have a duty to introduce legislation which is, to use the words of the Government, "necessary consequent on the decision of the Supreme Court" in the case of McGee against the Attorney General and the Revenue Commissioners. I, in common with a great number of other people, was taken aback, to say the least of it, when reading the second sentence, namely, the statement that it was the Government's intention to provide for a free vote in relation to the passage of the Bill.

If legislation is necessary, and there are very few of us in this House who, having studied this particular problem, do not agree that legislation is necessary, then it is the duty of the Government not alone to introduce it but to ensure, so far as they can, that it will be passed. If they do not ensure, in so far as they can, that it will be passed they are in breach of their duty and they are abdicating their primary responsibility as a Government.

Deputies

Hear, hear.

Mr. O'Malley

We have the situation now that we are six months after the decision of the Supreme Court which was given on the 20th December, 1973. The intention to introduce a Bill was announced on the 13th February and the Bill was given a First Reading on 21st March. The Bill was circulated sometime at the end of March or the beginning of April. We were led to believe during February and March that the matter was urgent but after the Bill was circulated we heard no more about it at all until very suddenly last Friday morning our Whip received a telephone call to the effect that the House was very short of Business for this week and it was decided to order the Second Reading of this Bill for Thursday, today.

One speculated as to why, at this very late stage of the Parliamentary year, this decision was so suddenly made. One's speculation could lead one to a number of conclusions. As always with speculation, one could not be certain that one's ideas were right but one certainly suspected that there might be a desire on the part of the Government to focus public attention on to a matter such as this and away from other matters, other matters that many people might consider were, in the last resort, a great deal more important than even this important topic. Nonetheless for whatever reason it may be we now have this Bill brought forward today.

I wonder have Members of the House adverted to the fact that on last Tuesday morning the newspapers carried the results of what is described as a survey of attitudes carried out in this State last summer by a University in Scotland. These results were published on Tuesday and I think it is not just coincidence that they appeared two days before Dáil Éireann was called on to debate this Bill in detail. Of course, the appearance of the results of this survey on last Tuesday was not the first that we heard of the survey. We heard of it in The Irish Times of the 18th February, 1974, four or five days after the announcement of the Government of their intention to promote legislation. At that time we will recall that in the other House a number of Independent Senators were endeavouring to promote a Bill the objects of which were not entirely dissimilar to this Bill at present before the House.

I, in common with a number of other Deputies, raised in the House at Question Time the propriety of the actions which were carried out at that time by a civil servant. The Chair allowed that matter to be thoroughly thrashed out at Question Time. In my view it is no harm, in view of the sinister reappearance of this survey again last Tuesday morning——

Dr. Cruise-O'Brien

What is sinister about it?

Mr. O'Malley

Why should the Minister inquire what is sinister?

Dr. Cruise-O'Brien

I am just asking the Deputy.

Mr. Tunney

For no obvious reason.

Mr. Coogan

Deputy O'Malley should give his views and not mind the Minister.

Mr. M.P. Dockrell

Deputy O'Malley should show us why it is sinister.

Mr. Coughlan

The Deputy should give us the views he expressed at the party meeting last night.

Mr. J. Lynch

The Deputy will hear enough of it to the shame of his so-called responsible Government.

Mr. Coughlan

We will not be streaking politically like what that side of the House have been doing.

Mr. Kelly

Document No. 2 all over again.

Mr. Wilson

A sound document.

Mr. Kelly

A "whip" with conscientious objections allowed.

Mr. Wilson

The Parliamentary Secretary pulled his head out of the past.

An Ceann Comhairle

The Chair desires that we should have an orderly debate.

(Interruptions.)

Mr. O'Malley

With the permission of the Chair I will quote from this survey which appeared in The Irish Times of 18th February, 1974:

The Department of Politics at Strathclyde University, Glasgow, is no academic ivory tower—certainly not for Mr. Keith Wilson-Davis, whose research into attitudes to family planning in Ireland are being given serious attention by the Irish Cabinet.

His survey, which was undertaken last summer, into the family patterns and fertility behaviour of Irish women has achieved political significance as a result of its timing.

The survey, which was financed by the Social Science Research Council in Britain, is based on a random sample of currently married women, aged 15 to 45 years, and it was carried out throughout the Republic. Besides interviewing 754 women, the survey also deals with replies from 200 husbands.

I should like to break into the quotation to comment on two facts. The first is that the survey was taken last summer. That is 12 months ago. It was only published officially last Tuesday. Twelve months ago our law in relation to this matter was totally different from what our law is now and what our law was as and from 20th December, 1974. Therefore, calls for change in the law made last summer bear no relation whatever to the present position as, indeed, the Minister for Justice has outlined it this morning and has no validity whatever in relation to this Bill or any other proposal at this time to change the law as it now stands after the Supreme Court decision of December 1973.

The second matter I should like to talk about in relation to this is that the survey was financed by an organisation which is described as the Social Science Research Council in Britain. It strikes me as strange that the Social Science Research Council in Britain does not have enough social problems in Britain to investigate that it must use its hard earned money to come over here for some reason to make these investigations. One is entitled to wonder why. The report I have referred to goes on to say:

Last Monday as the Dublin Cabinet was about to meet to discuss its position on contraception, prior to Senator Mary Robinson's attempt to have her Family Planning Bill receive a Second Reading, Mr. Wilson-Davis received a surprise phone call from Dublin.

The call was from Mr. Nicholas Simms, assistant on broadcasting to the Department of Posts and Telegraphs. He asked Mr. Wilson-Davis——

An Ceann Comhairle

I hesitate to interrupt the Deputy but the Chair is very anxious that there be no reference to and, certainly, no reflection on any civil servant.

Mr. J. Lynch

Is he not entitled to read a quotation from a publication, Sir?

An Ceann Comhairle

The Chair has an obligation to defend outsiders attacked in the House.

Mr. O'Kennedy

It is a factual quotation.

Mr. O'Malley

The Chair will recall that in March or at the end of February the Chair allowed four questions from Deputies on this very topic about the propriety or otherwise of the actions of this civil servant. I think we all sought at the time to avoid mentioning him by name. The only reason why he was mentioned by name here is that his name is, in fact, in the quotation but if it appears again I will endeavour simply to refer to "the said civil servant".

An Ceann Comhairle

The Chair asserts again the convention of this House that we do not reflect on or attack civil servants or, indeed, anyone outside the House who cannot defend himself.

Mr. O'Malley

I am well aware of that convention. It goes on:

He asked Mr. Wilson-Davis for answers to two questions related to the survey: Should the Government repeal the ban on contraceptives——

The strange thing is that there was no ban at the time that the phone call was made.

——and should contraceptives be made available?

Mr. Wilson-Davis got down to working on this part of the survey and phoned that day to Dublin giving the requested information. In particular he indicated that 57.1 per cent of the women thought that the Government should repeal the ban on contraceptives.

A ban, I repeat, that did not exist. It existed at the time that they answered the questions but it did not exist at the time that this information was given to a civil servant in the Department of Posts and Telegraphs, the assistant on broadcasting.

Mr. Keating

The Deputy can produce a more serious argument than that if he tries.

Mr. O'Malley

It goes on:

Later that same day the civil servant wrote to thank Mr. Wilson-Davis. The civil servant explained: "I was very glad to have such a quick response as it came at a relevant moment in the decision-making. However, the question is likely to be debated at various levels for some time and I would be very interested in further information from the survey as it becomes available."

On Tuesday, Mr. Wilson-Davis received a further request for further information as the Cabinet was again expected to meet to discuss the contraceptive issue. He forwarded further information.

At the Cabinet meeting that night, the Government decided to introduce its own Bill changing the anti-contraceptive laws. This Bill was predicted to be less radical than Mrs. Robinson's Bill, which on Wednesday failed to receive a Second Reading in the Senate.

On Thursday the civil servant again wrote to Mr. Wilson-Davis thanking him for the second instalment of data.

He added: "The politics are getting very confused now." There were two reasons for this confusion, he continued.

Firstly, he explained: "I passed a copy of the information you gave me to Brendan Halligan, the Labour Party Leader in the Senate, with the general aim of stiffening his resolve when Mary Robinson's Bill was due for Second Reading. I asked him not to use the figures in his speech which in the event he was not called on to deliver."

The second reason cited by the civil servant was that hopefully, a Government Bill would be introduced in the near future. The civil servant continued: "It ain't, as the song has it, necessarily so. In that case one can predict a free vote with a certain amount of desertion from the Government party. The Opposition show every sign of opposing, free vote or no free vote, and while this is mainly based on a natural desire to embarrass the Government (as is their duty), there are suggestions that they consider public opinion to be more conservative than your survey would indicate.

Fianna Fáil have, of course, an older age profile in their support and politics is notoriously male dominated. From the point of view of research, helping to inform political decisions it would, therefore, be desirable to have some form of publication of your results between the first and second readings of a Government Bill.

"It is unfortunately not possible to say when this might be, between March and June would be my bet."

The civil servant also indicated that there might be press interest in the preliminary results of the survey. Last Friday Mr. Wilson-Davis issued a press release to that effect.

Almost precisely what that civil servant predicted—he is only four days out—came to pass. The Bill came on for its Second Reading on 4th July. On 2nd July this unimportant survey, which is now totally out of date, was produced. It was produced presumably for the reasons which the civil servant in question gave at that time in that correspondence with the University of Strathclyde. It is disturbing that we have a situation in which a Bill on a matter such as this is being promoted in this kind of atmosphere.

Mr. M.E. Dockrell

On a point of order, may I ask the Deputy to name the document from which he has just quoted?

Mr. Wilson

He did so already.

Mr. J. Lynch

He did so. There is no obligation on him to repeat it.

Mr. O'Malley

It is a newspaper called The Irish Times published in Dublin. The date of it is 18th February, 1974.

Mr. Cluskey

Probably the only copy the Deputy ever bought of it.

Mr. Coughlan

Was there anything about the Littlejohns in it?

Mr. O'Malley

Go home and mind your grandchildren now.

Mr. Coughlan

You are a small boy now.

An Ceann Comhairle

Order, please.

Mr. O'Malley

This Bill which is described in the Government statement of a few days before all that happened as being necessary is now being brought forward. It is being brought forward we are led to believe on the basis that the members of the Government themselves are not agreed on it. Some of them are opposed to it and propose so to say if they get the opportunity and propose so to vote if they get the opportunity. I was rather taken aback in relation to this very important matter, which has got a good deal of public attention and which was brought on suddenly last week as being necessary, to find last night that we were told that the debate on it would have to cease at 2.30 today and the Taoiseach so ordered.

Mr. Kelly

You have only yourselves to blame for that and it suits you very well.

Mr. Brennan

We did not ask for that.

Mr. J. Lynch

If the Parliamentary Secretary makes a mess of the Order of Business it is not Deputy O'Malley's fault.

Mr. Kelly

It was your side that made a dog's dinner of the Order of Business.

An Ceann Comhairle

Interruptions must cease.

Mr. Kelly

And the reason was that you were cross with us for bringing this Bill in.

Mr. J. Lynch

If you are afraid of a vote, it is not our fault.

Mr. Brennan

You can have the vote any time.

An Ceann Comhairle

Deputy O'Malley without any further interruptions.

Mr. J. Lynch

There will be an interruption from 2.30 until October.

An Ceann Comhairle

The Chair is seeking to assert order.

Mr. O'Malley

This, whatever one may think of the merits or demerits of it, is an extraordinarily important topic. It is one that has got a great deal of public attention over the past 12 months or so and particularly over the last six months, since the decision in the McGee case. The Government's Bill has got a good deal of public attention. There has been a lot of criticism of it, much of it for valid reasons, but whether it is valid or not the fact is that public discussion has been very considerable. Public interest no doubt is equally considerable. That being the position, the Bill being ordered, we are then told on the night before that there are four hours to discuss it. I venture to say there are many Deputies on both sides of the House who want to express their views and one might well conclude that there are a number of Deputies on the Government side of the House who want to express contrary views to one another as, of course, they are perfectly entitled to do.

Mr. Kelly

Is that an Opposition request?

(Interruptions.)

Mr. J. Lynch

Will the Parliamentary Secretary deny that we asked that this debate be allowed continue to its conclusion?

Mr. Kelly

I absolutely deny that. I spoke to the Opposition Whip this morning and I asked if he wished the debate to continue after the other business, which should have been finished on Tuesday, was completed and he said: "No".

Mr. J. Lynch

Was the Parliamentary Secretary not asked last night?

Mr. Kelly

No.

An Ceann Comhairle

This is not quite relevant to the Bill under discussion. The Order of Business has been decided and we are now on the subject matter of the Bill.

(Interruptions.)

A Deputy

We can sit an extra week and take it.

Mr. O'Malley

The decision of the Government to curtail the debate on this Bill to four hours means not just that only a few Deputies in the House can speak but it also means— this is, perhaps, even more significant —that almost certainly no vote can be taken on the Bill. That is regrettable particularly if I were on the Government side and I had a free vote.

Mr. O.J. Flanagan

On a point of order——

An Ceann Comhairle

Is this a point of order?

Mr. O.J. Flanagan

Yes. May I ask the Chair if Deputy O'Malley is correct when he states that no Deputy can speak on this Bill after 2.30 p.m. today? That, to my knowledge, is not so. I have a contribution to make to this Bill and I intend to make it.

Mr. O'Kennedy

When?

A Deputy

Not after 2.30 today.

An Ceann Comhairle

I am sure Deputies will undoubtedly get an opportunity of speaking on this measure but the debate concludes at 2.30 p.m. today.

Mr. J. Lynch

When may it be resumed?

An Ceann Comhairle

When it is next taken. I do not know.

Mr. Kelly

It will be resumed as soon as other business allows. I hope next week but I am not promising.

Mr. J. Lynch

Now we get the ambivalence.

(Interruptions.)

An Ceann Comhairle

We cannot have a wrangle on procedure. Deputy O'Malley on the Bill.

Mr. Kelly

What have you been doing about this for the last 20 years?

(Interruptions.)

An Ceann Comhairle

Will Deputy O'Malley please resume the debate?

Mr. O'Malley

I will continue now with your permission and that of the Parliamentary Secretary. I want to come now to make some comment on the provisions of the Bill itself. In order to do that it is necessary to recount in a very brief, general way the findings of the Supreme Court because, with the greatest respect to him, I think that one statement of the Minister's this morning is not entirely on all fours with the facts. If one examines the individual judgments, as I have, of the Supreme Court one will find that the only finding of the court was a declaration that subsection (3) of section 17 of the Criminal Law (Amendment) Act, 1935 was contrary to the Constitution and, therefore, was of no effect. Three of the judges went out of their way to say that they were not making a finding of any kind on any other matter.

One of the judges dissented from the judgment of the court and held that in his opinion the provisions of the whole of section 17 were in accordance with the Constitution so his judgment can be disregarded for the purposes of examining the position as it now exists. Another judge, Mr. Justice Walsh, who gave a much more lengthy judgment than any of the other judges, went on to deal with other topics and appeared to indicate that if he were asked to decide it he might decide (a), (b) or (c)—in particular, he indicated that in relation to any possible prohibition on the sale of contraceptives or the importation of contraceptives by single people. It is not a correct reading of the collective judgments of the Supreme Court and of their collective decision to say, as the Minister has, in effect, said this morning, that it would almost certainly be held unconstitutional if there were a prohibition on the sale of contraceptives in this or any subsequent legislation.

The position as it exists post-McGee is that subsection (3) of section 17 is gone. That is the section which prohibited in effect the private, uncommercial, importation (1), which traceptives. Subsection (1), which prohibits their importation for sale has deliberately not been declared invalid. That was one of the reliefs which the plaintiff claimed in that case and she did not get it. The judges went out of their way to say that they were only declaring subsection (3), the ban on private, non-commercial importation, invalid.

The Government were faced with that situation and what most people would have done, if acting responsibly, in response to that situation, if you take up the clearly expressed invitation of the Supreme Court, was that while they could not totally prohibit the importation for personal use in an uncommercial fashion of contraceptives, they could control such importation in the national interests. There is not just a right in the Legislature to seek to exercise such control but, indeed, what one might feel is a duty, is made clear from a passage in the judgment of Mr. Justice Griffin at page 14 of the typescript, unapproved copy, of the judgment in which he says:

It was submitted on behalf of the plaintiff that the entire of section 17 is inconsistent with the Constitution and that section 17(1) and (3) should stand or fall together. One of the grounds advanced in support of the argument that the entire section should fall was that contraception is a matter of private morality not public morality. In my view, in any ordered society the protection of morals through the deterrence of fornication and promiscuity is a legitimate legislative aim and a matter not of private but of public morality.

I respectfully agree with that expression of view and I feel that our duty as a Legislature is, so far as we can within the confines of our Constitution, as interpreted for us by the Supreme Court, to deter fornication and promiscuity, to promote public morality and to prevent, in so far as we can—there are, of course, clear limitations on the practicability of that—public immorality.

The Government, instead of taking what to most people would have seemed to them the obvious course of limiting the now unlimited right of importation for non-commercial purposes, simply for personal use, did not do that at all. Instead, they propose in this Bill to turn the Supreme Court's decision right up on its head. They propose to prohibit importation almost entirely, except by people who have specialised licences under this Bill to import and instead to open up a series of retail outlets for the supply of contraceptives throughout the country.

All this is contained in section 2 which states:

A person shall not import, sell or offer for sale or invite offers to purchase contraceptives unless he is the holder of a licence to import granted under this section ...

The Minister may grant these licences to what are called authorised persons. Authorised persons are defined in section 1 as persons who under the Pharmacy Act, 1875 to 1962, are lawfully keeping open shop for dispensing prescriptions issued by registered medical practitioners, in other words, chemists. Licences can be granted by the Minister to chemists to import for the purpose of sale, and chemists can sell. I will come to this point later. One could well have reservations about a situation whereby perhaps 1,500—which I think is approximately the number of chemists' shops in the country—potential retail outlets are established. It does not stop at that.

Subsection (3) provides that the Minister for Justice can issue licences to people who are not chemists but who are carrying on what is called "business". Business is not defined and, therefore, it can reasonably be assumed that it is any kind of business. It could be a publichouse. It could be a grocery. It could be any type of business. Indeed, in the context of this particular thing, one could think of a few particularly incongruous types of businesses. The provision is there for the Minister to license these people where, apparently, there is no chemist selling contraceptives within a reasonable distance. One can assume, therefore, that this provision for licensing non-chemists would apply, for the most part, in the rural areas, because there would probably be enough chemists selling them in the cities if this provision were to go through.

One does not need a great deal of imagination to realise the difficulties that would arise in, say, a fairly remote and under-populated part of the west when a married person—it can be male or female—is forced, under the provisions of this Bill, if he wants contraceptives, to approach his near neighbour who deals in hardware, or groceries, or is fully licensed for seven days, or whatever. It will make a splendid addition to the already often charming notepaper of traders in the west to read that, as well as being licensed for all other things for which it is possible to be licensed in this country, they can proudly boast that they are also licensed under subsection (3) of section 2 of the Control of Importation, Sale and Manufacture of Contraceptives Act, 1974. I doubt if they will fit it all into one line.

I seriously ask Members of this House to ask themselves are we expected to allow that kind of situation to arise anywhere in the country? Do we seriously expect bona fide married couples who have a difficulty, and whose conscience allows them to consider the use of contraceptives, and who possibly are medically advised by their own doctor to use contraceptives, to approach, where there is no particular chemist, what, in many cases, will be the local gombeen man and ask him to sell them a packet or a bottle, or whatever it is, of some particular commodity? Are we not making the country into a total laughing-stock if we have such a situation?

(Interruptions.)

Mr. Kitt

You can expect anything from that crowd over there.

Mr. O'Malley

Is there anything in subsection (3) which would not allow that type of situation to arise?

(Interruptions.)

An Ceann Comhairle

Order. Deputies will be allowed an opportunity of speaking if they so desire.

Mr. O'Malley

The section goes further. It proposes to license chemists in the first instance. Where there are no chemists in a locality who are prepared to partake in the scheme, if one might call it that, non-chemist traders can be licensed. Where there are no non-chemist traders in a locality and, as a result, a married person cannot acquire contraceptives in his locality, he is still catered for by the Government. He is still catered for by this Bill. He can apply to the Minister for Justice for a licence to import contraceptives under section 3 of such class or classes as may be specified in the licence, subject to such conditions, including conditions as to quantity, as may be so specified.

That is a bit legalistic in its language. Let us, in all seriousness, look at what that means. It means that somebody in the west, or in some remote part of the country, who does not have a participating chemist near him, and who does not have a licensed non-chemist near him, and who is advised by his doctor that he and his wife should use contraceptives in some form or another for the sake of their health, has to sit down and write a letter to the Minister for Justice. The Minister has to consider the matter and decide to grant, or not to grant, a licence to him and, if he grants a licence, to grant it for a particular class of contraceptive and for a particular quantity of contraceptives. Will people in this country write to the Minister for Justice of the day on a topic such as that, with a request such as that? The short answer is that I believe they will not.

Mr. Kelly

Mrs. McGee would have done so if the opportunity had been open to her.

Mr. O'Malley

I believe they will not. Minister for Justice have rarely, if ever, been doctors. Perhaps one or two of them were. Even if they are, they are not in a position to decide what is a suitable class of contraceptive for any particular individual. They are not in a position to decide what is a suitable quantity for any particular individual. I was Minister for Justice and I certainly would not wish ever to have been called on to make decisions of that kind. If the Minister gives it a moment's thought I think he would not wish to find himself in that position either and I am sure that no successor of ours, whoever he might be, would ever wish to find himself in that situation.

Presumably the Minister, on getting such a request, as a matter of normal prudence would have to make some sort of local inquiries, because it could well be that some chancer would apply, not a bona fide married couple. The Minister for Justice conducts his necessary local inquiries, normally speaking, through the police. Applications, for example, for naturalisation have to be investigated carefully at local level and the police do that. Are the police to go out now on behalf of the Minister for Justice, under section 3 of this Bill, to Mrs. So-and-So, at such an address, and find out whether she is a married woman, whether her husband is living with her or whether he has gone to England, whether she has got medical advice from her doctor, and then report back to the Minister? If the Minister is not expected to make those kind of inquiries to find if the application is bona fide, he simply dishes out licences to everyone who applies.

The situation seems ridiculous but we did not, I did not, concoct section 2 or section 3. They are the Minister's and the Government's concoction. These are the kind of consequences which will flow from them. If the Minister, in his wisdom, were to decide that Mrs. So-and-So, or Mr. So-and-So, were to get 50 items of a particular device, and Mr. So-and-So felt that the 50 were inadequate, is he to approach his local Deputy and ask him to make representations to the Minister for Justice to get the amount increased? Has Deputy Oliver J. Flanagan to face the possible embarrassment of an approach from people with a predicament like that?

Mr. Kelly

It is a pleasant change to see Deputy O'Malley in a knock-about comedy act in this House instead of snarling.

Mr. O'Malley

While the Parliamentary Secretary may endeavour to show a grin on his face he would be better off to feel the concern that a lot of people on his own side of the House feel about the ridiculousness and the impracticability of so much of this Bill that is before us today.

There are many changes that one could ring on sections 2 and 3 of this Bill. I have not in any way attempted to exaggerate the stupidity of what would result from the enactment of this unhappy proposed legislation. There is much more in this Bill that one could go through but before I leave sections 2 and 3 I would refer to another aspect of the total prohibition in this Bill of importation except in these very limited circumstances of someone living in a remote part of the country; everybody else is prohibited from importing unless he has a licence from the Minister which can only be got if there is no local chemist or local licensed trader, non-chemist. The aspect is this: if a married couple arrive for two or three weeks holiday in this country at Dublin, Shannon Airport, Dún Laoghaire, or whatever and have in their personal baggage a reasonable quantity of contraceptives for their personal use during the period they might be in this country they will commit an offence under this Bill as it now stands because they will have contravened section 2 (1) which says that a person shall not import unless he has a licence. There is no provision in this Bill that a tourist coming from abroad with his wife can apply in advance from abroad for a licence to bring in any particular contraceptive. There is no provision for that and if they turn up at the customs shed——

Mr. Keating

A good suggestion. Amend it. Will you amend it?

Mr. O'Malley

I am not in Government just at the moment.

Mr. Keating

You are entitled to introduce amendments, though.

Mr. O'Malley

I can only introduce amendments if this Bill ever gets to a Committee Stage. I cannot otherwise.

Mr. J. Lynch

You can provide for that.

Mr. Keating

You can help.

Mr. G. Fitzgerald

Accept the responsibility you assumed.

Mr. O'Malley

I suggest that kind of situation will make this country a laughing-stock. Our pre-McGee contraception laws were a cause of some amusement it appears to some liberal thinkers abroad but the amusement must be very mild compared with the total circus that this Bill if it were ever enacted would be regarded as by people abroad. It would be a total circus from start to finish.

Mr. M.E. Dockrell

It has already happened at customs posts in this country during the regime of the Fianna Fáil Government that contraceptives were taken on many occasions.

Mr. O'Malley

Taken, yes, but nobody was prosecuted because no criminal offence was committed. A criminal offence would be committed under section 2(1).

Mr. Kelly

The less said about your time in that regard the better. I have not forgotten what happened Senator Robinson's Bill.

Mr. O'Malley

At least when we were in office we were able to make up our minds about matters such as this.

Mr. Kelly

We have made up our minds and so have you and I will explain the difference later.

Acting Chairman (Mr. Carter)

Order. The Deputies will have every opportunity of speaking later and I would ask that the Deputy in possession be allowed to continue.

Mr. J. Lynch

If the Parliamentary Secretary would show a good example there would be no problem.

Mr. O'Malley

I want to deal briefly with another matter referred to in this Bill, that is, the question of abortifacients. I cite this again as an example of the impracticability of this Bill. It is proposed to prohibit altogether abortifacients, a sentiment with which I and this party are in total agreement but, unfortunately, the way it goes about it is entirely useless in fact because abortifacients today can take either of two forms. They can be either a mechanical intra-uterine device which for the most part can only be fitted by a doctor and therefore would be fitted under medical prescription; or they can be one of the large variety of low-oestrogen pills which are now on the market and which it is believed, but it has not been proved conclusively, act as abortifacients. Abortifacients within the meaning of the sort of things we are talking about here can only be one or other of those two things but both of them can only be supplied on medical prescription and if you go to section 15 you find that the Act will not apply in relation to any substance, product or preparation the sale of which by retail, otherwise than in the dispensing, in accordance with law, of a prescription issued by a regisered medical practitioner, is unlawful. In other words, anything which is prescribed by a medical registered practitioner is not covered by the 1935 Act or the 1935 Act, as amended by this Bill, if this Bill were ever passed, and since abortifacients can only in effect or in practice be prescribed by a registered medical practitioner the purported prohibition of abortifacients is totally illusory and of no effect. This is just another one of the many difficulties that exist in this Bill that were not sorted out before the Bill was published.

A further difficulty, if that one were not enough, in relation to abortifacients and the commendable attempt to ban them altogether, is the definition of abortifacients which is almost the same as the definition of contraceptives. Very few words are changed. It is defined as:

any appliance, instrument, drug, preparation or thing designed, prepared or intended to terminate pregnancy which has resulted from sexual intercourse between human beings.

If that definition were to stand it would be necessary in order to prove that something was abortifacient that it was designed, prepared or intended to terminate pregnancy. There is none of these devices the manufacturers of which would admit that for one moment because the chemical abortifacients are all put on this market and sold and prescribed as contraceptives. It is thought now that their contraceptive effect derives from an abortifacient action rather than a contraceptive action but the manufacturers, of whom there are many, of such pills, would strenuously and vehemently deny that the intention was to abort an existing pregnancy.

If any case were taken based on that definition the company which manufactured the pill in question would produce 20 chemists from its factory in England to prove that there was no intention, design or preparation to terminate pregnancy which had resulted from sexual intercourse between human beings. They would go to great lengths to say that what they intended their pill to do was to inhibit ovulation or to do something else which would prevent pregnancy occurring but there now seems to be a belief that it is likely that the effect of the low-oestrogen pills is to cause chemical changes in the lining of the womb of the woman which prevent the implantation of the fertilised ovum in that lining. As a result of the prevention or inhibition of implantation, the ovum must of necessity die in a period of not less than 24 hours and not more than 48 hours after fertilisation.

There are two grounds, therefore, on which the proposed ban on abortifacients is totally useless. I agree with trying to ban them but I am afraid the Minister has approached the problem in a way that will be of no value and will have no effect. This serious anomaly—there are many more anomalies if I chose to go through them—arose not because the Bill was sloppily prepared in the Department of Justice. I do not think this is so. The sloppiness of the Bill arises from an effort on the part of the Government to suit many divergent points of view and that is why we end up with a compromise that suits nobody. We have an unhappy, sloppy piece of legislation that, if passed, would make this country a laughing-stock of the whole civilised world.

I am opposed to the Bill for the reasons I have given, and my party are opposed to it. It is not our duty in Opposition, neither is it our function, to place before this House an alternative Bill. It is the duty of the Government to produce legislation on matters such as this which, as the Government have said in their own statement, are necessary. In so far as we can, we will stop this Bill going through for the reasons we have given. We ask the Government to withdraw this silly Bill now because it is not capable of amendment on Committee Stage, if it ever gets there. We ask the Government to rethink the whole matter, not to allow the various conflicting interests within the Cabinet and the Government parties to have their say. Let officials of the Department of Justice and of the Attorney General's office draft the Bill and when the Minister for Justice is satisfied with it let him go to the Government and tell them that is the Bill.

There are various other ways of approaching the problems all of us want to solve in the post-McGee situation that the Government do not seem to have considered. While it is in no way my duty to throw these out to the Government, because of the mess that has been made of the Bill and the potential dangers to public morality in the country in the post-McGee situation, I consider I should refer to them in a vague and general way.

The more I think of the following approach the more attracted to it I become, namely, that instead of repealing section 17 as is provided by the Government it should be re-enacted in so far as it is possible to do that, with a proviso by adding a subsection at the end that the section shall not apply to health boards. Let the health boards under responsible public control deal with this problem—and undoubtedly it is a problem for a large number of individuals, particularly women. Let them deal with the matter in a responsible way, not with any profit motive built in as there is with the 1,500 or 2,000 retail outlets proposed in the Bill. Let the health boards deal with the matter in a non-commercial, responsible fashion. If they see fit to do so, let them set up clinics to supply contraceptives to people who are advised by their doctors or the health board doctors that it is necessary that they have them. They will ensure that only married people get them, something this Bill cannot ensure, notwithstanding its commendable effort—on the face of it—to confine the sale of contraceptives to married people.

If health board clinics operate a system, if they are exempted from a ban on importation, supply, distribution and sale if necessary at cost price, surely everyone can be happy. We can have much more effective control than is in this Bill and people who need contraceptives as a result of medical advice will not be denied them.

Mr. Cooney

Suppose they are not medically indicated?

Mr. O'Malley

They may be indicated for social reasons. It is already the practice in health board clinics that social workers take part in the advice and assistance that is given to people who have difficulties that are quasi-social and quasi-medical. I do not see any difficulty in that respect.

Another approach to this matter which I would have thought would in conjunction with the above have been the more obvious one for the Government to take but apparently they chose not to take it, is to keep close to the ruling of the Supreme Court, to do more or less what the Supreme Court invited them to do, not turn the Supreme Court decision on its head by prohibiting importation and introducing 1,500 or 2,000 retail outlets. Allow importation by individuals for their private use, preferably married individuals if that is possible to enforce, with the proviso that they must be in reasonable quantities so that clearly they would not be for sale or distribution. That is a feasible alternative but apparently the Government disregarded it completely. It is likely to be more workable and more effective than anything the Government have suggested.

I am not binding myself or this party to any one of these alternatives or to quite a number of other possible ways of approaching this difficulty. I am saying they are there and that the way the Government have sought to solve the problem is very unsatisfactory. As far as I can see, it is the most unsatisfactory of many different methods of solution.

My final words to the Minister are: this Bill is a joke. It is a bad Bill because it is being promoted for the wrong reasons by a group of people who are totally disunited in their approach to it. Take it out of the Government entirely; give it where it should be, to the Department of Justice or, more appropriately, the Department of Health, or a combination of both. Let officials of those two Departments, in conjunction with the draftsmen in the Attorney General's office, produce a Bill that will satisfy the Minister for Justice and the Minister for Health. Let them hand it to the Government and let the liberals, the conservatives, the free-thinkers and the other people in the Government keep quiet.

Let us solve the problem that exists today. One of the amazing things is that the total freedom to import which exists in the post-McGee situation has not been exploited to the extent one would have expected. I believe that one of the side effects of this debate will be to alert people to the reality of the post-McGee situation rather than to what they thought was the situation in relation to that decision and what they thought was the situation in relation to this Bill. When unscrupulous people get to realise that the situation is as it is, we may have efforts in the next few months to flood the country with contraceptives for sale to young people and unmarried people. There is a duty on the Government but they have neglected that duty in three ways. They have neglected it by not ensuring that they use their Whip to have necessary legislation brought through the House. They have neglected it also by bringing in a very inferior and totally unsatisfactory Bill. Thirdly they have further neglected their duty by not bringing the matter forward for discussion in this House until six months and two weeks after the decision of the Supreme Court in the McGee case.

The fact that the Government may have their internal difficulties about a matter such as this, within the Government and within the two parties that support them does not absolve them from their duty to the people of this country and, in particular, to the young people of this country. The sooner the Government forget about their internal differences and get down to doing their job, the better. And, if they feel they cannot do it, then I say to them: call an election, we will go in and we will do it.

Parliamentary Secretary to the Taoiseach (Mr. Kelly)

What I have got to say will be in two parts. Firstly, I want to offer the House my feelings about the Bill and about the situation which produced the Bill. Secondly I want to say something about the approach of the Government in regard to discipline among Government Deputies when this stage of the Bill comes to be voted on. That will involve me in contrasting the Government's approach with the approach of the Opposition which, by all accounts, it has decided to adopt.

Perhaps I might begin by commenting on two seriously intended suggestions made by Deputy O'Malley over the last ten minutes. He spoke for more than an hour, I think. We were all waiting to find the headlines in this morning's papers justified which promised us that Fianna Fáil had its own plan in regard to contraception and would, at the last moment—because there was obvious danger in disclosing it prematurely—in Deputy O'Malley's speech, give the Dáil the right to answer to this problem about which so many people are in difficulty. The suggestions which Deputy O'Malley made, I accept, were seriously intended but he threw around here this morning a lot of phrases like "laughing stock" and "joke". All I can say is that, if the Fianna Fáil approach to this problem is fairly represented by the two suggestions he has just thrown out, they ought to keep quiet about jokes let alone elections to get them back in government to settle this matter.

I do not want to make small beer of what I know are seriously intended suggestions but I will give the House my instant reactions to them. On reflection, I am certain Deputies would find other weaknesses in them but I shall give my instant reactions to them now. If I understood them—and I had to try and write them down as they were coming across the floor—the first one was that the whole question of supplying contraceptive facilities should be in the hands of the local health boards. Deputy O'Malley said that the health boards would, if they saw fit, set up clinics; if they saw fit! Apparently, therefore, there was to be a discretion in a particular health board—of which there are a number, as Deputies know—whether or not they would set up such clinics. What kind of a country would we have if the Eastern Health Board saw fit and set up a clinic, or series of clinics, but the Western Health Board did not? What kind of a country would that be? How could that be justified or stood over? Would not that only invite a constitutional action following warnings from another Mrs. McGee? It would have exactly the same result: humiliate and make a laughing stock of whatever Government had proposed such a thing. And what happens—and this was the same thought which prompted the only interruption by the Minister for Justice in the course of Deputy O'Malley's speech—I commend the self restraint which he has and of which I am short —but he did say quietly across the floor to Deputy O'Malley: "what if there is no medical indication? Is the health board in the East, in the West, or wherever it may be, to supply contraceptives or contraceptive advice where there is no medical indication in that direction at all?"

If I could go somewhat further than did the Minister in the course of his brief interruptions: what will be the situation, under Deputy O'Malley's suggestion, if a married couple decide for what is often called, in theological polemic, purely selfish reasons not to have any children? Suppose a married couple decide—and, mind you, that is at the core of the McGee judgment; the right of married people to decide for themselves without the State making up their minds on the morality or otherwise of their behaviour—for purely selfish reasons, not to have children is the Western Health Board—and Deputies here can well imagine the kind of board that would be adjudicating on this question—to have cognisance of the problem? Are Mr. and Mrs. X guilty of selfish conduct is not wishing to have any children? Is this seriously suggested?

Is this the best that Fianna Fáil and its publicly paid-for think tank can do —to suggest that a health board would be supplying contraceptives or advice only where it had come to the conclusion that there was either a medical reason or, as Deputy O'Malley said, as he tottered under the onslaught of the Minister's quiet interruption—a medico-social reason, or a socio-medical reason, what I presume he really meant was something like tension, or nerves, on the part of the wife or apprehension. Deputy O'Malley had his opportunity to make himself clear; he spoke here for an hour.

(Interruptions.)

Mr. Kelly

Apprehension on the part of the wife, a mordid apprehension of childbirth, something of that kind, or is it simply that the parents just do not like children. And there are adults who do not like children and do not want to have children and who would be classified—in the terms of the polemic I have described—as limiting their families, or not having a family, for purely selfish reasons. Are we to ask a board of doctors and politicians to investigate the circumstances of every family, to decide whether or not they are being selfish in not having children? My God Almighty. I have heard some mad things here in this House during the last 15 months, but that beats all.

Mr. Colley

The Parliamentary Secretary should not be so vehement yet when the Minister considers that he may change his mind. He should not put himself out on a limb.

Mr. Kelly

I know exactly what point of the limb we are on. I am not going to try and fool the House about the situation the Government is in in regard to this question I will speak quite frankly about it.

Mr. G. Fitzgerald

I think the Parliamentary Secretary is confused.

Mr. Kelly

Time will tell. The other suggestion Deputy O'Malley made— whether or not it was his own or the think tank's I cannot be sure—was that it was wrong to have, what he called, 1,500 or 2,000 retail outlets. We should simply stick to the McGee judgement and, if you like, let the Bill remain as it stands. This is an independent or a disjunctive suggestion, apart from his one about the health boards. Or, I should say, let the old Act stand with the implicit deletion of the last subsection which must fall as a result of the McGee judgement and allow, he says, married couples to import contraceptives provided they do so in substantial quantity.

Now, I may not be doing him justice here because he compressed this suggestion into very few words—probably because he was not able to expand it into anything meaningful—but are we really to take it that Fianna Fáil's best idea here is that the post office is going to be the judge of whether or not a particular importer is married or single; is living with his wife or not? Is the post office to have this burden thrust on it? Who is to check if I, or anyone else, import a parcelful of contraceptive devices is married or not? Is it seriously suggested that the post office should now have this task thrust on it? It is a suggestion. I realise that the Deputy meant it seriously. It is not quite as mad as the previous one but is running at a close second.

Mr. Colley

Of course, Deputy O'Malley did not say that.

Mr. Kelly

I will yield to Deputy Colley if he would like to explain what Deputy O'Malley meant, but he wasted very few words on Fianna Fáil policy. I am not quite clear that I have got it straight and, if Deputy Colley would like to explain it, I shall yield.

Mr. Colley

Perhaps the Parliamentary Secretary would like to read the record closely on what Deputy O'Malley said before he waxes eloquent on what Deputy O'Malley did not say.

Mr. Kelly

Does not the Deputy know the record is not there yet?

Mr. Colley

That is true but the Parliamentary Secretary should not go too far in his condemnation.

Mr. Kelly

I heard the Deputy with my own ears; I heard what he said. I made the best effort I could to write it down. What I understood him to say was that we should not go too far from the McGee judgment; we should accept it with its implications and simply allow importation by married couples through the post although I have no doubt that they could be imported personally as well but for most people a trip to the North of Ireland or Britain is not a practical suggestion. Therefore, it would have to be through the post. The Post Office, therefore, would have to be the authority to satisfy itself that the parcels were going, firstly, to a married couple and, secondly, to a married couple living together. That is what I understood the Deputy to say. Deputy Colley has the look of a man who is anxious to get into this debate and, perhaps, he will put a better face on Fianna Fáil policy in this regard. Before I leave the subject of Deputy O'Malley's suggestions which got the headlines this morning, but which, in my view, will get very few tomorrow, the idea that there will be as many as 1,500 or 2,000 retail outlets in this country for contraceptives is wrong.

That is my personal guess and I say it uncontentiously. If he equates the number of pharmaceutical chemists in this country with the number of prospective outlets for contraceptive devices he is showing himself to be a very unrealistic man. If there are 1,500 or 2,000 retail pharmaceutical chemists, I am positive that the majority of these will not wish to handle this business and they cannot be forced to handle it. I have heard chemists say that they will not handle it. I think the number will be very small, indeed, and that is the reason why the Minister has this provision on which Deputy O'Malley poured such scorn but for which he could suggest no alternative. That is the reason why in districts where there is no outlet somebody else may be licensed to supply these devices. We all know that there are small towns and villages throughout the country where it will be very hard to get one chemist, not alone all his competitors, to do this business. The idea that there will be anything approaching the number suggested by Deputy O'Malley is completely false. To me it seems a wildly unrealistic guess and, in my view, if there are 50 outlets it will be the height of it.

Passing from the Fianna Fáil policy which got the headlines this morning but which will barely merit a footnote in the moral history of this country to the principle of the Bill I should like to make my own position clear. I have done so before in the Oireachtas and outside and I am not ashamed of doing so again. I believe section 17 of the 1935 Act, in its entirety, to be an unwarranted intrusion on individual privacy. To me the fact that this Bill has been rendered necessary by the McGee judgment is entirely secondary. I think the McGee judgment, I say this with respect, was long delayed. I think it might have been obtained many years ago but the legislation which was in force and necessitated Mrs. McGee bringing her case never ought to have been enacted. It was enacted in 1935 with the minimum of discussion and the reason why it got such little discussion then, in spite of the fact that there were very well qualified people in both Houses, was that this section was, as it were, smuggled through both Houses masked by a large number of other sections dealing with matters of sexual morality but of much greater immediate concern at the time.

The raising of the so-called age of consent from 16 to 17, the intensification of penalties for assaults on feeble-minded girls and the creation of further penalties for offences connected with prostitution are matters which had preoccupied this Legislature and the British Legislature in previous decades and centuries. In the middle of this Act this particular section was smuggled through. I say that advisedly because it got next to no discussion in either House as the record shows. I hope that Deputies on either side who are unable to make up their minds about this will remember that what is being done here is to remove a criminal sanction. The 1935 Act imposed a criminal sanction on a particular action, or series of actions, in this sphere of sexual morality.

There are many fields of morality in which the State is not indifferent. A conspiracy, for example, to tell lies, if we can imagine such a thing, would not be, if it had a contractual dress, enforced by Irish courts. The courts here recognise such a thing as public morality and they will not enforce contracts which tend to undermine it. In various other ways they show their disapproval of it, but there is no attempt in many fields to enforce a particular code of morality by means of the criminal law and that is what we are talking about here. There are many transgressions of the accepted Christian moral code on sexual matters which are not punishable by the criminal law at all. It may come as a surprise to non-lawyer Deputies to know this but the act of prostitution is not a criminal offence. There are various activities connected with it which are criminal, living on immoral earnings, soliciting and so on, but the act itself is not a criminal offence. It may also come as a surprise to some Deputies to know that adultery is not a criminal offence. There are a whole range of what I might compendiously call sins which are not criminal offences.

We are not here to argue whether or not they should be categorised as sins. That does not enter into the argument. What we are arguing about is how far the criminal law should go in attaching sanctions: to what extent a particular moral code, to which no doubt most Deputies would subscribe, should be backed up by a penal sanction. My own belief is, and there is no infallible calculus for pointing out to an individual where his belief should lead him in this respect, that in this regard the criminal law goes too far. It is perfectly proper for the State to have a view about sexual morality even in regard to contraception but to penalise in the way the 1935 Act did the sale and advertisement of contraceptives and their importation even in a person's private baggage went too far. To me that is an intrusion. I instinctively see that as an excessive intrusion into the area of the individual's privacy where he must be allowed to make up his mind for himself between himself and his God whether he is going to do right or wrong.

I hope that will not shock Deputies. The reason I mentioned the other areas of morality in which the criminal law does not interfere was that I wanted to bring to the attention of Deputies the fact that the criminal law does not attempt, and never has attempted except in Puritan England, to enforce by criminal sanctions a particular scheme of morality. It will certainly, where it can usefully do so, enforce standards of public decency and the protection of people who are not able to protect themselves or who are in need of help if it can practicably be done. However, there are huge areas of morality which the criminal law does not attempt to enforce, and my belief is that this particular one is an extremely intimate one. Let me say bluntly because there has not been enough talk on this that it is an intimate one whether the persons concerned are married or not.

My belief, and I hope I will not shock anyone and I am sincerely sorry if I am disappointing the people who wrote to me telling me I had no mandate to support this Bill, is that to apply a penal sanction to this particular activity or to have the concomitance in this particular activity is wrong and always was wrong. It went too far in trying to enforce a particular form of morality which some may subscribe to and act upon but which ought not be backed up by the sanctions of the criminal law.

What I have to say about the Bill itself deals with the question of limited enforceability and connected with that is the allegation that there are things in the Bill which are illogical. I freely admit that there are things in this Bill which will not deliver up 100 per cent positive result if one applies strict logic to them. They will not deliver up 100 per cent positive result if one applies the test of strict practicality and enforceability but, as the Minister said, it would not be the first time that has been the case.

I could keep the House here until 2.30 with examples which would demonstrate clearly that we are surrounded by such laws but I will only take one example, that is the law regarding the sale and consumption of drink. How logical is it that it is an offence to serve drink to a person under 18 in a licensed premises but that that same 18-year-old, if he can lay his hands on drink through somebody else buying it can drink himself into a state of alcoholism and ruin his life without exposing himself or the person who has supplied him with the drink to any penalty at all? How is it that the sale of drink is governed by certain hours? It is an attempt to encourage people not to be always out drinking but where is the logic in a system which enforces the ejection of patrons from a public house at 11 or 11.30 p.m. but permits them then to go off to a suburban sitting room, if they live in comfortable conditions, or to a derelict site, if they do not, and drink themselves to death without incurring the penalty of the law at all? People who connive to get them to do that, who aid them and abet them to do it in spite of their known weakness and in spite of their responsibilities to their wives and families and to society generally are not subject to any penal sanction whatever.

That is an illogical system and it is one of only limited enforceability, as everybody here knows, but that does not deprive it of some usefulness. I believe that the licensing hours, irksome as they are when you feel you would like just one more, do fulfil some purpose. I may be wrong in thinking that but I am inclined to believe that they keep down the level of excessive drinking. The problem about where to draw the line in practical terms is inherent in any kind of legislation which contains a value judgment. It is inherent in anything which tries to enforce a particular moral idea.

The moral idea behind the drink law is that drink is a gift of God. Used in moderation to relax one or to enable one to celebrate or to enjoy oneself it is good but used in order to stun one out of one's wits, make one unable to do one's day's work, neglect one's duties to those who are depending on one, it is bad. That is a moral idea. There is a value judgment contained in that. But the State only goes a certain way in trying to enforce that moral idea and that value judgment. When it has gone that certain distance it stops and by so stopping it exposes itself to the charge of having only gone half the distance in logic, only gone half the distance in enforcing what it believes, but that is a necessary concomitant of any legislation which is based on a value judgment of a moral kind. Although the criticism may be well founded, I do not think it is an important criticism of this Bill that the logic of it is not complete. It is a good deal more complete than much legislation that we have had here for many years and which has been found reasonably adequate or as good as it can be made.

There is only a little over two hours left before the debate is adjourned. I want to refer to something about which the Opposition have been making great play and to great effect because, although we are popularly believed to have in our pockets not only the entire news and current affairs room of RTE but also every news editor and chief reporter in the national Press, the fact is that the Opposition line on our system of having a free vote here has travelled very well in the Press. They can be very satisfied with the success of their spokesmen in persuading the public that the Government have been in some way pusillanimous in permitting a free vote. I firmly believe, and I am not just making a case as a lawyer would to do the best for his client, that the Government in introducing this Bill are doing the right thing and by permitting a free vote. I believe they are doing the right thing in the right way because there are issues of conscience here that are well-known to Deputies on the far side. I will not mince words. Deputy Oiiver Flanagan was over there a few minutes ago waiting to speak. Everybody knows he is against this Bill. Everybody knows he will presumably vote against it although nobody can predict his inimitable eloquence and decide in advance just the form his speech is going to take. Deputy Flanagan believes he would be committing a sin if he were to vote for this Bill. I hope I am not annoying him by putting it that way but that is what I take to be the size of it. The same is true of the Leader of the Government side in the Seanad. I will betray a party secret to the House and I hope Senator O'Higgins will forgive me. I have heard him say that, in his view, if any change is necessitated by the McGee judgment it is the Constitution that should be changed and not the law.

I have heard him say, and that view is shared by others, that if the Constitution cannot accommodate the 1935 Act in its entirety the Constitution should be stretched so that it will accommodate it and that if any necessity for legislation has resulted from the McGee judgment that is where the change should come and not here. That is his point of view. He believes that with his heart and soul. He would sooner, I believe, leave politics altogether than be driven like a sheep into a dipping pond by me or by the whip or the Seanad to support a point of view which he sincerely in his heart thinks is pernicious and damnable.

I disagree with him. The Minister disagrees with him. Most of us, I hope, disagree with him. But I respect his sincerity in that and he is entitled to his point of view. Apart altogether from the impossibility of getting Deputy Flanagan to vote for this Bill, unless I were to carry him struggling and screaming past the gate, in which case the Clerk would very properly refuse to record his vote, apart from the impossibility of getting him to vote for it, would it be right to apply discipline to him for refusing to vote for it? I say no, it would not. Certainly if we, on this side, have anywhere some little lily liver who is afraid that he might offend the nuns here or the nuns there if he was to vote for this Bill but has no convictions in his heart about it one way or the other, if he stays out, I will lay the lash across him and I will try to discover beforehand how many of these there are and they certainly will get no mercy so far as I am concerned and I am able to do it. But a man who genuinely believes this Bill is wrong and that it would not be just mistaken for him to support it but wicked for him to support it, should not, apart from the fact that he cannot, be obliged to vote for it.

That is my honest belief. I have said it in public before and the Government are just going to have to go ahead, do their best, do what they think to be the right thing, and do it in the right way and if we go down and if the Bill is defeated on Second Stage so be it. We will, at least, have nothing to be ashamed of. I absolutely reject and am disgusted by the allegations of cowardice on the part of the Government in not applying a whip. What is the point of applying a whip to Deputy Flanagan? We know he will not obey it in this matter.

Mr. Tunney

He is not the only one. What about some of the Ministers?

Mr. Kelly

I have gone very far already in mentioning a Deputy on my own side by name.

Mr. Colley

You did not give away any secrets.

Mr. O'Kennedy

Why select Deputy Flanagan?

Mr. Kelly

Because Deputy Flanagan will not object to being selected because he has widely advertised his views about it.

Mr. O'Kennedy

You mean others would?

Mr. Kelly

Deputy Flanagan could not be made to vote for this. Even if he could he should not be made to vote for it because he believes in his heart that it is wrong. Where is the cowardice there? If there is cowardice there or if there is a failure to do one's duty there, which Deputy O'Malley spoke about, I would invite the House to consider the analogy of a conscientious objector in war time. There are people who believe that in all conditions it is wrong to take human life even if one's country is threatened with extinction and who cannot be got to pull a trigger and civilised countries treat these conscientious objectors in a quite different way from the way they treat deserters or the way they treat people who show cowardice in the face of the enemy. If we were to put Deputy Flanagan out of the Fine Gael Party, because he does not propose to follow the Government's line on this Bill, that would be an act equivalent to shooting a conscientious objector and I certainly would not be party to it. Any Deputy who has not got such a conscientious objection will be required by me to vote for this Bill. I now want to ask the House in what respect that position, which we perhaps mistakenly and prematurely describe as a free vote—it is not all that free, I described just how free it is—is different——

Mr. Meaney

Did the Parliamentary Secretary read what was said about Government policy and the decision not to take a majority vote?

Mr. Kelly

The short answer is I did not and the long answer is I did not and I do not care what is said about it. I am making my own speech.

Mr. O'Kennedy

Could I ask the Parliamentary Secretary, who introduced it himself, through the Chair, will he be the arbiter of who is or is not a conscientious objector?

Acting Chairman (Mr. Carter)

This debate cannot be conducted by question and answer. The debate must proceed with one speaker in possession.

Mr. Kelly

Thank you. I am not going to discuss the mechanics of my operation as Whip. I will decide myself how far I will go in explaining it.

Mr. Colley

Will the Parliamentary Secretary explain what he meant by saying it is not a free vote?

Mr. Kelly

I did not notice that Deputy O'Malley ran forward to contradict any of the stuff which appeared in this morning's papers in regard to Fianna Fáil's decision on this Bill but, if you will allow me, I will quote briefly from this morning's Irish Times from an article by Dick Walsh, political correspondent, on the front page:

Alternative Fianna Fáil move on contraception.

We have seen what that was. It goes on to say:

Fianna Fáil spokesmen explained last night that the party was not, in any event, insisting on a three-line Whip. In other words, pairing arrangements with Government Deputies would be respected. And the spokesman said that those who felt they ought to vote for change on conscientious grounds would not be disciplined for doing so.

Mr. Colley

Which spokesman would this be?

Mr. Kelly

Perhaps it was just an off the record briefing but is that correct?

Mr. O'Kennedy

We have not got the same facilities for that as the Government.

Mr. Kelly

Is that correct?

Mr. O'Kennedy

I have not seen the newspaper this morning. It is certainly news to me.

Mr. Kelly

That is a report of a political correspondent in The Irish Times. Now, let us go to The Irish Independent. This paper stated:

While Fianna Fáil are not allowing a free vote on the Contraceptives Bill to be produced in the Dáil today, they are, nevertheless, not imposing a three-line Whip— the mandatory summons to attend and vote. This provides an escape route for those who wish to abstain or who, in conscience, favour the Government's Bill.

This is the difference we have been hearing about between what we are doing and what the Opposition are doing.

Mr. Colley

Let the Parliamentary Secretary not attribute to us what appears in the newspapers.

Mr. Kelly

I am waiting for a Deputy over there to stand up and say that the newspapers have got it wrong.

A Deputy

Are we obliged to do so?

Mr. Kelly

No, you are not obliged but conclusions will be drawn from your silence. You are fast enough to interrupt when it suits you. I will yield if you like to make a statement about it. The Irish Press editorial this morning described the Government's attitude as slithery. What could be more slithery than what we have heard from Fianna Fáil? They have been sneering at us for the last 12 months about a free vote which I believe in my heart of hearts is the correct thing to do. Now, this is what they are doing. They are not putting on a three-line Whip. It will be a two and a half line Whip, a Document No. 2 Whip. It will be as good as a Whip except something a little different and only the man at the top will be able to tell the difference.

Mr. Colley

Could the Parliamentary Secretary explain what he meant by what he said earlier about his own party not having a free vote, that it was not quite a free vote?

Mr. Kelly

I will say it once more. The free vote on which the Government have decided is intended to allow Deputies who have conscientious objections to this Bill not to support it without fear of disciplinary reprisal. That is all. It still remains a Government measure and I intend, in my job as Whip, to make sure that a Deputy who has not got a conscientious objection, or does not claim such a thing, will support it.

Mr. O'Kennedy

The Parliamentary Secretary is the judge of who is a conscientious objector.

Ruairí Brugha

How do you define that?

Mr. Kelly

I hope I have demolished, and I hope I have got a bit of attention for having demolished, that particular myth about any difference in the Government's approach from the approach of Fianna Fáil. Before I leave the question I want to say this, and I hope it will bring some balm to the far side. I believe if Fianna Fáil are allowing conscientious objections, they are doing the right thing. I believe that is a wise and a correct decision. I believe if there are Deputies on the other side who think that the principle of this Bill is acceptable and that it is cowardly to pretend to oppose it on the grounds which Deputy O'Malley produced here this morning, or who believe it could be improved on Committee Stage, and that the Government should not be impeded on Second Stage, they also have a conscience and that conscience should be respected. If that is what Fianna Fáil have decided to do I commend them for it because they have done the right thing and they have shown responsibility in Opposition as I hope we have in Government.

I am sorry to get back to a rancorous note in order to have to say this. I want to demolish one more Fianna Fáil myth, although by the time you have finished demolishing them you have to go back and start all over again because a new crop have grown up. I refer to the myth that Fianna Fáil hate a free vote like the devil hates holy water. That myth has travelled and been canvassed up and down the country by newspapers for as long as I can remember and ever since this Bill was introduced. "It is not in the best traditions or indeed in any traditions of the party that we should allow a free vote." That has been the Fianna Fáil word. That has been the word given from the legion of the rearguard. They are all in step, shoulder to shoulder and they will go one way or the other but they will go together. That is the Fianna Fáil line and I am afraid that too has travelled very well.

At the risk of being disorderly, because I know that for some absurd convention, references in this House to the other House have to be vague, I would like to draw the attention of the House to what happened in the other House on July 7, 1971 when Senator Mrs. Robinson's Bill was refused a First Reading, after she was unmercifully trampled on, figuratively speaking, by Senator Ó Maoláin week in week out for months before that who would not even allow her to mention the thing or put it on the Order of Business. At the last moment, without even warning her that she would be called on to make the short statement which these refused introductions permit, he told her that "yes, it would be on today". She made a short speech and the Bill was then voted on.

When that Bill was voted on in the Seanad 25 Senators voted it down and 11 voted in favour of a First Reading. I was one of them. Of the 25 Senators, 24 were Fianna Fáil and one was the Leader of the Fine Gael group, as is well known. There were 32 Fianna Fáil Senators in the House. One was in the Chair. That was Senator Yeats and I am not being disorderly in mentioning him. I invite Deputies to consider whether Senator Yeats left to himself, would have collaborated in voting down Senator Robinson's Bill. Senators Brennan, Nash, Ryan, Ahern and Keegan did not show up at all for the vote. Senator Sheldon, who, although he did not take the Fianna Fáil Whip, always voted with Fianna Fáil, abstained and Senator Keery sat in his place, while his colleagues marched out. I can remember to this day the rather sheepish smile on his face as he exercised his perfect conscientious right to abstain and not go along with what the majority of his party were doing. So much for the tradition that there is no such thing as a free vote in Fianna Fáil. In case Deputies do not believe my recollection of that they will find it recorded in The Irish Times——

A Deputy

This is not in order.

Mr. Kelly

You want to stop the truth from getting out. You will find Senator Keery's abstention recorded in The Irish Times of Friday the 8th July.

Acting Chairman

Will the Parliamentary Secretary give way for a moment please? I permitted him to make a short statement. If he is pleased to continue on the subject before the House I would much prefer that he should do so rather than refer to the Seanad as, whether by convention or rules here it is not strictly allowable. Therefore I do not wish the Parliamentary Secretary to develop that point.

Mr. Kelly

I am grateful to you for letting me go on as long as I did, but it was essential, in the interests of the publice life of this country, that that myth should be exploded for good. On this very issue Fianna Fáil permitted a free vote not three years ago, and did so rightly. If they have now decided, in effect, to permit a free vote, although masked under a 2½-line whip, with room for conscientious objections on the model of Document No. 2, masked in traditional Fianna Fáil ambivalence though it may be, they have done the right thing and I commend them for it.

I hope that, when this Bill is voted on, we will all go into the lobby as our consciences direct us. I certainly believe that, for our part, the Government have nothing of which to be ashamed. I am not overly confident, but I strongly hope that this Bill will pass.

Mr. Colley

The amount of time and vehemence devoted by the Parliamentary Secretary to trying to explain away the decision by the Government side to have a free —question mark—vote is an indication of his concern, and concern rightly felt, for the Government's position on this issue. However, I will deal with that in a little more detail later.

The first thing I want to deal with is something on which I am in total agreement with the Minister in what he said. It may be one of the few points on which I am in total agreement with the Minister, but it is very important that it should be said, and said again. The Minister pointed out that there appears to be a very widespread misunderstanding of what the present position is. He spelled out correctly what the present position is, but it is worth saying it again.

Too many people seem to believe that, if this Bill or any other Bill on a similar subject is passed, it will have the effect of making contraceptives available and that, if this Bill is not passed, contraceptives will not be available. As the Minister correctly pointed out that, of course, is not the position. The position is that, consequent on the decision of the Supreme Court in the McGee case, at this very moment and since that decision, it has been lawful for people to import contraceptives. If this Bill does not pass that will continue to be the legal position.

It is grossly mistaken to imagine that the passing of this Bill will make contraceptives available, and that the rejection of this Bill will mean that contraceptives will not be available. It is vitally important that this should be understood throughout the country, because, clearly, too many people have misunderstood the position and have based their criticisms and advice to Deputies on that misunderstanding.

It is of some interest, and may be even of some importance, to examine, so far as one can, the reasons why we are having this debate now, and why it is being limited to four hours today. Of course I do not know what the real reasons are for bringing forward the Bill at this time, but I do know that the business for this sitting was communicated to the Whip on this side in writing, and that it contained no reference whatever to this Bill and that subsequently on Friday evening last, I think, it was communicated to us by the Government Whip that it was proposed to take this legislation this week. So, clearly, whatever the reason, the decision to take this legislation was a late and last minute one.

Mr. P. Belton

For variety.

Mr. Colley

It was not at all clear how much time it was intended to give to this Bill. Certain things have happened since which indicate what will happen to the time being devoted now to the Bill. It is quite true, as was claimed by the Parliamentary Secretary to the Taoiseach, that this side agreed to terminate the debate on this Bill at 2.30 p.m. today in order to dispose of certain other fairly small Bills and other business before the House at the moment. There was, on our side of the House, repeated insistence that we should complete the debate on this Bill before the Summer Recess.

Mr. Kelly

That will be done if it can be done.

Mr. Colley

The Parliamentary Secretary knows as well as I do that it simply is not possible to complete it unless the House sits quite late into the summer, an intention which the Parliamentary Secretary does not have. He knows very well of the other business that has to be passed and, in particular, he knows of the Finance Bill. He knows that, on any reasonable approach to the time he envisages being available, it simply is not possible to deal with this Bill, or even with the Second Stage, before the Summer Recess.

Mr. Kelly

I would not be too sure.

Mr. Colley

The Parliamentary Secretary is saying it is conceivable that that might not be true but I think he will agree that it is probable that what I have said is true.

Mr. Kelly

If we get co-operation, as the Taoiseach said the other day, it might be possible.

Mr. Colley

The Parliamentary Secretary's idea of co-operation is a strange one. What it amounts to is that, if the Government want to get any business through, the Opposition should just make some formal speech and let it go through. That is co-operation, apparently, in the mind of the Parliamentary Secretary and also in the minds of some of his colleagues.

He could not reasonably expect this Bill to go through without fairly detailed discussion, and not all from this side of the House as he well knows. To be anyway realistic about it, he must agree that it is more than probable that this Bill cannot be completed before the Summer Recess and, indeed, that the Second Stage which, presumably, could lead to a vote, cannot be completed before the Summer Recess. I would suggest to him that whatever he may intend, the Government intend to ensure that there is no vote on this Bill before the Summer Recess.

Mr. Kelly

That is not true.

Mr. Colley

We will find out from what happens.

Mr. Kelly

It may work out like that, but that is not the intention.

Mr. Colley

We want to complete at least the Second Stage and have a vote before the Summer Recess. I want to make that quite clear.

As to why this Bill was dragged out of nowhere on Friday evening last, one can only speculate. There are different theories on that. One of those most favoured is that it was done to divert attention from the failure of the Government's policy in regard to Northern Ireland. Naturally I do not know whether that is true. There are other theories. We would welcome some member on the opposite side, and particularly a member of the Government, indicating to us why the decision was taken late on Friday evening to bring forward this legislation, having already decided on the business for this week which omitted this Bill.

One of the consequences of what appears to be happening, that is, that we will have a four-hour debate today and very probably no resumption of that debate until after the Summer Recess—that is very probably the position; of course I am not certain— is very unfortunate and it was adverted to by Deputy O'Malley. He said that even the holding of this debate may well bring about a much greater flood of leaflets, and so on, from manufacturers of contraceptives abroad and particularly in Britain—there are some going around at the moment— and that it may well provoke a flood of them. If it does, that is very unfortunate. It is not something that this House can do anything about.

What the House can do is to ensure that the position is regularised one way or the other without delay. A situation in which we have a four hour debate which produces this result and then for many months this legislation is not disposed of, is one with which none of us can be happy and of which the Government cannot be proud and for which the Government are responsible since the Government order the business of the House. That that should result from the holding of this debate in this way, as ordered by the Government, is a very unfortunate consequence for which the Government will be responsible.

The Minister for Justice said that this legislation was necessary. I propose to show briefly that a number of the provisions in this Bill are not necessary consequent on the Supreme Court decision. But, let us assume that the Minister for Justice meant what he said, and that the legislation was necessary, then this brings us back to the question with which the Parliamentary Secretary has been dealing at some length. What is a Government's position where legislation is necessary? It seems to me to be quite clear that if legislation is necessary, and I accept that some form of legislation in this area is necessary, then the Government, and any Government in power, have the responsibility to introduce that legislation and to use their majority to have that legislation passed. That is a basic responsibility of government.

The Parliamentary Secretary to the Taoiseach may talk at considerable length about questions of freedom of conscience, draw analogies with conscientious objectors in war time, and otherwise try to confuse the issue but the basic issue is quite clear. The Government, on their own say so, are introducing legislation which is necessary and the Government are at the same time abdicating their responsibility and saying: "We are going to leave this to a free vote of both of the parties constituting the Coalition Government". I suppose one should not be too surprised at this. The Government have been running away from their responsibilities in other fields, in the economic field, in relation to policy on Northern Ireland and other areas. That is not, perhaps, quite so obvious to the ordinary man in the street but in this case there is highlighted for all to see the abdication of responsibility by this Government, the inherent weakness in this Coalition Government, who introduce legislation which the sponsoring Minister says is necessary and then say: "We will have a free vote and if it is not passed"—in the words of the Parliamentary Secretary to the Taoiseach —"so be it". These are his words, if the Bill is not passed.

But, this legislation is necessary according to the Minister for Justice and is this the attitude of this Government when they face the responsibilities which devolve on any Government, responsibilities which frequently involve a government in doing things which are not very popular? The Government are elected to do what is in their judgment best for the community and implicit in the mandate given to any Government is that they will in using their collective judgment, if it should be necessary, take actions which are unpopular. That is implicit in the mandate of any democratically elected Government. It is an implied term in the contract between the electors and the Government. This Government are trying to change the terms of that contract with the electors. This Government are saying: "Yes, here we have an issue where legislation is necessary and is clearly the responsibility of the Government but we are not going to push it through as we pushed through all the other legislation that was considered necessary or desirable and if it does not pass, then so be it." That is the Government's attitude to what they say is necessary legislation.

It is important that this should be clearly understood by everybody because it illustrates something very important about this Coalition Government. If the Parliamentary Secretary to the Taoiseach, as Chief Whip, finds himself in the position that he has people who in conscience cannot support this legislation then he describes the problem that arises there but it is his problem and it is the Government's problem. As far as the people are concerned, if this legislation is necessary, the Government and the Deputies supporting them have the responsibility of passing it and no amount of conscientious objection by Deputy Oliver J. Flanagan or anybody else can get the Government off that hook and it is only confusing the issue to pretend that what is involved is looking after the conscience of Deputies.

In fact, the Parliamentary Secretary indicated that he himself had certain doubts in this area when he said that it was only, as far as he was concerned, a free vote for members of his party who in conscience could not support the Bill but that if there were any members of his party who did not want to support it because they were afraid of a reaction in their constituencies he was going to force them through the lobby. It is a very interesting picture that he paints; the Parliamentary Secretary to the Taoiseach examining the mind and heart of each of his Deputies and deciding whether in conscience a Deputy objects or whether he is afraid of a reaction in his constituency. How he is going to do that he did not tell us. Nevertheless, he was at some pains to stress that it was only in the case of those who had a clear difficulty in conscience that the free vote applied and that for everybody else the Whip applied.

That is very interesting but it does not alter the fact that a Government have a responsibility to pass necessary legislation. Of course, the real answer to the dilemma in which the Government find themselves is that they apply the Whip to pass necessary legislation, to quote the Minister for Justice, or if they are unable to do that for any reason, then they acknowledge that they cannot discharge their duties as a Government and they get out.

Mr. White

Rubbish.

Mr. Colley

Does the Deputy think that his party and his Coalition colleagues can go on in office not doing their duty, publicly confessing that they are unable to do their duty to pass necessary legislation, depending on the Opposition to do the job for them or, if the Opposition does not do it, depending on the Supreme Court to lay down the law of this country, the Supreme Court itself having specified and made quite clear that it would not object and virtually encouraging the Legislature to apply limitations to the principle which it had laid down? There is a clear obligation on the Government acknowledged by the Minister for Justice. To suggest that the Government can run away from their responsibility by talking about Deputy Oliver J. Flanagan's conscience or anybody else's conscience is no answer. If the Government cannot get the support of their Deputies for the legislation which is necessary, their course is clear. If they fail to carry out that course, if they hang on unable to muster the support of their Deputies, then they are clearly in breach of any mandate they received from the electorate. The duty of a government is to govern but in this Bill and in their announcement about a free vote on it, the Government have clearly abdicated their responsibility. The weakness of coalitions is well known but there has seldom been a more clear example of that weakness than that displayed in the attitude of the Coalition Government to this legislation.

As was pointed out in considerable detail by Deputy O'Malley, this Bill is unworkable in many respects and it is illogical. Clearly, it is a poor compromise between diametrically opposed factions. Having compromised so as to produce what I am tempted to describe as an abortion of a Bill, the Government cannot carry it. They cannot get the support of their Deputies. They would have been better off not to compromise, to take a majority decision, to bring in the Bill and stand on that rather than produce this nonsense of compromise and then be unable to carry it with their own supporters. It is a sorry performance by the Government, and it is a particularly sorry performance by the self-styled liberals in, and supporting, the Government. None of them can be very proud of the Bill and they can be less proud of the performance of the Government parties in their attitude to the Bill in the House.

The consequence of the Supreme Court decision is that in the absence of legislation that decision constitutes the law and the consequence of that is unrestricted and unlimited right of importation of contraceptives. In the absence of a referendum to change the Constitution, that will continue to be the position unless this House alters it by legislation. The Minister for Justice has made it clear that the Government have no intention of promoting the necessary legislation to enable a referendum to be held on this issue. Even if he had indicated otherwise, we know a considerable length of time would elapse before it could take place and before any legal effect could be given to a decision of the people, whatever way this might go.

I do not disagree with the Minister for Justice in his approach to this matter but the practical effect is that we are now faced with a situation in which there is an unrestricted and unlimited right of importation of contraceptives. That is the legal position whether we like it or not. The issue before the House in present circumstances and in the absence of a referendum is whether we want that to continue to be the legal position or whether we think that legal position should be restricted in some, or any, way and, if so, what kind of approach we should take to the restrictions.

As I indicated earlier the Supreme Court in its judgment made it quite clear that while it was finding subsection (3) to be unconstitutional, it was not saying there was an unfettered right to import contraceptive with which the legislature could not interfere. It specifically spelled out that restrictions imposed by the Legislature on this right of importation would be constitutional and in order in accordance with the public good provided such restrictions did not take away the right of married couples to have contraceptives available if they decided they wanted them. Therefore, if we wish, there is nothing to prevent us limiting the effect of the Supreme Court decision.

It seems to me there is a very strong case for saying that we should limit the effect of the Supreme Court decision. I do not believe—I think few people believe—that it would be satisfactory to let the legal position continue to be that there would be an unrestricted and unlimited right of importation. As was pointed out by Deputy O'Malley, one of the things that has been happening—perhaps on a less widespread scale than might have been expected, but, nevertheless, it is happening—is the distribution of leaflets advertising the availability of contraceptives.

I have seen some of the leaflets that were delivered by hand to houses in Dublin and I have been told that they have been distributed also in public houses. I do not have any personal knowledge of that but I have personal Knowledge of distribution of leaflets by hand in Dublin. These leaflets wrongly state the legal consequences of the Supreme Court decision and they go on to invite people to order supplies of contraceptives from the particular manufacturers concerned. They will be supplied under plain cover, the subscriber being given a code number so that his or her name and address need not be used in further correspondence. To me the whole business has an unsavoury air about it and I do not think it is the kind of situation any of us want to see operating. Therefore, I am arguing that there is a very strong case for altering the legal position as it stands at the moment because of the Supreme Court judgment in the McGee case.

In the course of his speech the Minister said he believed that if one read the Supreme Court judgment one could get the message that a prohibition on the sale of contraceptives would be held to be unconstitutional— those were not his exact words but that was the import of what he said. With Deputy O'Malley, I would disagree with the Minister on that interpretation of the judgment. Furthermore, it seems to be that number of provisions in the Bill are far from being necessary in the sense that the Minister for Justice used the word originally. Far from being necessary, as a result of the Supreme Court decision, in some instances, as Deputy O'Malley pointed out, it really turns the Supreme Court decision on its head because that decision was to the effect that a prohibition on the right to import contraceptives for personal use was unconstitutional.

But this Bill virtually imposes a prohibition on the right to import contraceptives. It goes on then to provide for the setting up of retail outlets for contraceptives throughout the country. Nobody can argue seriously that it is necessary, as a result of the Supreme Court decision, to do that; there is nothing in the Supreme Court decision that obliges anybody to create that kind of network of retail outlets in this country. It is a point of view that this is the way the problem should be tackled but certainly it is not something that is necessary as a consequence of the Supreme Court decision.

In section 4 there is a provision prohibiting the manufacture of contraceptives except under licence. There is nothing in the Supreme Court decision which makes that necessary. Certainly one can argue— depending on what basic approach one takes to the kind of controls which ought to be introduced—very strongly that there ought not be any right to manufacture even under licence. But whatever argument one makes, one cannot say that that is necessary as a result of the Supreme Court decision.

There is also in section 5 a prohibition on the purchase of contraceptives by unmarried persons. I think that, by general consent, this is unenforceable and the Minister, I think, more or less admitted that in his speech but justified its inclusion on various grounds. For myself, I would make it clear that, if such a provision could be enforced, I would favour it. I certainly think—taking an overall view of the approach to public morality which is one of the obligations falling on us as legislators —it would be desirable that that prohibition be there. But I do not believe it is enforceable. There are grounds for believing that it may be unconstitutional. I would not accept the Minister's argument that, even though it is unenforceable, it is worth including as indicating the general attitude and approach on the part of the Legislature. It seems to me that to legislate deliberately for something one knows cannot be enforced is merely bringing the law into disrepute. It is a different thing if one enacts legislation one believes can be enforced and which one discovers afterwards cannot be enforced. Failure to repeal such legislation may be objectionable but, in my view, is by no means in the same category as deliberately enacting legislation which one knows, before one enacts it, cannot be enforced. I think that that is something that is not alone futile in itself but something which is almost bound to bring both the law and the Houses of the Oireachtas into disrepute.

Deputy O'Malley has pointed out, amongst other anomalies in this Bill as it has emerged, the problem of married tourists coming into the country bringing with them a supply of contraceptives and thereby committing an offence. Of course, under the provisions of the Bill, having committed the offence and paid whatever penalty was involved, then they can purchase contraceptives in the country. Surely that is not a position which the Minister thinks is either desirable or defensible. I would suggest that the whole approach to this problem on the part of the Government has been wrong and wrong for the reasons we have indicated. We believe it is a consequence of a series of compromises between diametrically opposed views.

I would suggest that there are other ways of dealing with this problem and, because the nature of the problem is as it is, no solution will be ideal. But at least it is possible to approach it on a logical basis. The start of one's topical approach to it is: what is the position now under the Supreme Court decision? How does one apply the Supreme Court decision to the legislation of this country? If one approaches it on that basis and does only such as is necessary or clearly consequential on that decision one will, I believe, end up with legislation which—while there will be objections to it from certain quarters—will be rational; will provide access to contraceptives for married couples, as is prescribed by the Supreme Court to be a constitutional right but which will, at the same time, safeguard—as far as it is possible so to do—the whole tenor of public morality in this country. We cannot deal with private morality in this Legislature.

But I am not satisfied that the setting up of a chain of retail outlets for the sale of contraceptives throughout the country, as I said earlier, is either necessary or desirable as a result of the Supreme Court decision. In fact, I think it is highly undesirable. It does not seem to me to be at all necessary or desirable in order to implement the Supreme Court decision—while on the one hand providing the access which is a constitutional right and on the other, having regard to the general approach to public morality, in that context— to cover the country with retail outlets for the sale of contraceptives. After all, what the Supreme Court has said —and this is the thing that one can be definite about whatever other nuances there may be in it on which one can express opinions—is this: that married couples have a constitutional right to reasonable access to contraceptives if, in conscience, they decide they want to exercise that right. That is all that the Supreme Court has found as a matter of positive fact. The only obligation on this House, in implementing that—if we decide that we should do something about not leaving it unrestricted and I believe we should take that decision—is to ensure that that right is available to those to whom the Supreme Court says it should be available. Any further extension of that to the extent of producing a whole new industry, a whole new retail distribution system, which has the consequence of almost a social revolution, or could have, in the general approach to this problem of contraception is unnecessary.

I believe the constitutional rights of the people concerned can be well served without our producing this whole paraphernalia that seems to be a consequence of this Bill. I believe also that the Parliamentary Secretary to the Taoiseach was mistaken in the kind of criticism he made. I know it was made quickly and without giving adequate thought to what Deputy O'Malley has said or, perhaps, without having fully taken in what Deputy O'Malley said in regard to the making available through health boards of contraceptives. The Parliamentary Secretary, I think, read into what Deputy O'Malley said, the making available of contraceptives through health boards to married couples and he read a lot into that. I do not think the Parliamentary Secretary will find when he looks at the record that Deputy O'Malley said that.

What Deputy O'Malley was doing, having spelled out that it is not our job to provide or draft legislation for the Government, a job we do not intend to do, was suggesting that the Government might look at the making available of contraceptives, through health boards to certain categories of persons. The drafting of legislation to do that is a matter for the Government but the point Deputy O'Malley is making is quite clear and it is a consequence of the Supreme Court decision. Accessibility to contraceptives for those entitled to them under the Supreme Court decision must be ensured. To do so almost of necessity involves the making available of contraceptives to people who would not otherwise have access to them. How is that done? Is it to be done through chemists' shops or as is proposed in the Bill? Is it possible that under the provisions of the Bill some of the family planning clinics which now exist might be licensees?

I would be unhappy about the latter prospect in regard to some of these clinics. Speaking only of some of them, they seem to be run by people who are operating on the proselytising basis propagating aims totally at variance with the ethics of the vast majority of the people of the country, north and south. A number of them are anxious to promote abortion and euthanasia, things which are abhorrent to most people. Therefore, I would be very concerned at the prospect of people like that being recipients of licences under this Bill.

Mr. O.J. Flanagan

Does the Deputy agree that they are the people who are getting the money from abroad, sex speculators?

Mr. Colley

I have heard that alleged but I have no personal knowledge of it.

Mr. O.J. Flanagan

I will give the Deputy and the House information about that.

Mr. Colley

The Deputy may take it that I have absolutely no sympathy with such people and I am anxious that they should not succeed under any provision of this Bill in getting a foot in the door.

Mr. O.J. Flanagan

And they could not satisfy a very outstanding firm of auditors who could not record a true picture of their accounts because they could not account for the money they got from abroad.

Mr. Colley

The Deputy, I am sure, will be telling the House about that. I have no knowledge of that myself.

It is clear that in so far as it is necessary for the State to make contraceptives available following on the Supreme Court decision to certain categories of persons it is desirable, and almost essential, that the machinery used to do that should be public machinery and not private. I also believe that for many people the making available of contraceptives to them, if they wish to use them in accordance with their constitutional right, can be achieved much more simply than is provided for in this Bill and that it can be left to themselves to make their own arrangements.

I firmly believe that an approach by the Government based on the logic of the Supreme Court decision enacting only such things as are necessary to implement that decision, and consequential on that decision, is the right approach and the one which, while it will have opposition from both sides, will appeal to most people as being reasonable and rational and will serve this community best. It will serve best to enable constitutional rights to be exercised on the one hand but not to have the exercise of that constitutional right used as an excuse to propagate ideas of the kind I have referred to earlier, used as the thin end of the wedge. Few of us in this House want to see that and we have an obligation to ensure that it does not happen. We can do so if we approach the problem quite differently from the way it is approached in this Bill.

For that reason I, like Deputy O'Malley, am opposed to this Bill and for the benefit of the Parliamentary Secretary to the Taoiseach I can tell him that the decision made by our party was that the Whip would be applied to whatever decision we took, and it will be applied. There would, perhaps, be more reason for an Opposition to give a free vote in this or any other circumstances but we do not think that is the right approach. In particular, we feel that the failure of the Government Parties to apply the Whip to implement the kind of legislation which the Minister for Justice says is necessary is a deplorable abdication of responsibility by the Government.

As far as we are concerned we believe that this Bill is unenforceable and illogical. We believe that it is such because of the series of unfortunate compromises in the Government and that, having achieved those compromises, it is even more deplorable that the Government cannot carry it amongst their own Deputies. The Bill, apart from what it illustrates about the Government approach, is not in the public interest. Indeed, it has elements in it which potentially could be very damaging to the public interest of this country. Alternative approaches are available, not necessarily the ones that we have touched on.

Mr. Desmond

Which the Deputy and his Party will make sure will never see the light of day.

Mr. Colley

Let me remind Deputy Desmond that he is supporting the Government and that the McGee decision was given by the Supreme Court while this Government were in Office. Deputy Desmond is the Whip of the Labour Party and he cannot, apparently, whip his Deputies in to support legislation which the Minister for Justice says is necessary. That being so, Deputy Desmond would be wise to keep his mouth shut in this debate because the whole situation is illustrating the ineptitude and the weakness of this Coalition and in particular is a black mark against Deputy Desmond, as Whip of the Labour Party.

(Interruptions.)

Mr. Colley

You have a duty, if you support the Government, to implement legislation which is necessary. If your conscience does not allow you to do that you know what the correct course is. Do not try to have it both ways. You have an obligation; discharge it. If you cannot discharge it, get out. That is clear. That is the obligation of every Government.

Mr. Coogan

Your party made a hames of the Constitution and left it wide open.

Mr. O'Malley

Does the Deputy want the Constitution changed?

Mr. Colley

We will look forward to Deputy Coogan's contribution with interest. We think this legislation is unworkable, illogical and in some areas potentially dangerous. We think that an alternative approach which would be far more satisfactory is available to the Government. We do not believe and we do not accept that we, on this side of the House, have any obligation whatever to discharge the Government's duty and we do not intend to do that.

Mr. Desmond

That is a courageous attitude.

Mr. Colley

We have gone further than we should have done in indicating to the Government a more rational approach to the problem but the obligation is that of the Government.

Mr. Desmond

You made sure you never reached the stage of putting down amendments.

Mr. Colley

Deputy Barry Desmond is really very foolish. I have warned him that he would be very unwise to open his mouth in this debate, in all the circumstances. The Coalition have necessary legislation and they run away. They say: "We cannot carry it, we are depending on Fianna Fáil to carry it." What kind of an exhibition do they think this is and what kind of fools do they think we are to do their dirty work for them?

Mr. Desmond

You are playing politics. Put down amendments.

Mr. Colley

The Deputy is so naïve that he expects us to put down amendments. Then the Minister for Justice will say: "Oh yes, we will accept them". Do your job. You are elected and paid to do your job as a government. Do it or get out.

Mr. Coogan

You are paid too.

Mr. Colley

We are doing our job. You do yours. We have indicated to you a possible line of approach which, incidentally, for technical reasons, is not possible on this Bill. It would not be possible to put down amendments of the kind we are indicating on this Bill.

Mr. Desmond

Of course it would.

Mr. Colley

That is not our obligation. The obligation is the Government's to bring in legislation they believe to be right and to pass it. The Government are failing in their duty and, if they are, it is for the people to pass judgment on the failure of the Government but when all of that has been said there is a serious problem facing the public in this country. It is not being discharged by this Bill and it is the Government's obligation to deal with the problem. If they think this is the right way to do it—we do not——

Dr. Cruise-O'Brien

Is it in order for the Deputy to repeat himself so frequently?

Mr. Colley

When the Deputy is interrupted by somebody who did not hear the debate it is understandable.

Mr. Desmond

I heard it. It was so miserable I had to come in to hear it properly.

Mr. Colley

I am glad I attracted the Deputy.

(Interruptions.)

Acting Chairman (Mrs. Desmond)

Deputy Colley, on the Bill.

Mr. Colley

It seems some Members opposite are a little unhappy——

Dr. Cruise-O'Brien

Just bored by repetition.

Mr. Colley

If the Minister for Posts and Telegraphs finds himself bored he has a very simple solution. He can get up, walk up those steps and get out. What he should be doing is doing his duty as a member of the Government or getting out completely, and he knows it. He knows very well he has an obligation as a Member of the Government to introduce the necessary legislation and this is what he produces and then he cannot pass it because his supporters behind him will not back him. Does the Minister for Posts and Telegraphs not know what his obligation is? We have had enough nonsense from the Minister for Posts and Telegraphs on other subjects and we have had a great deal of repetition. I hope that, for once, when he contributes, as I believe he will, to this debate——

Dr. Cruise-O'Brien

He will.

Mr. Colley

Good. I thought we might hear from him. I hope that, for once, he will deal with the real issue involved and will not try to dither and slither, as the Government have been doing since they were faced with this problem. They have then come in with this sorry spectacle of a hopeless Bill and even that, with all its compromises, cannot be passed. I hope he will deal with that situation, with the clear implications that arise from it and the course which the Government intend and which he personally intends to take.

Minister for Industry and Commerce (Mr. Keating)

I simply want to put certain things on the record because this is not a subject I have spoken on before. Perhaps we have a talent in this country for making enormous and at times ridiculous issues of things that are neither very big not inherently ridiculous. This is a serious issue. The private debate, inside people's own heads and inside families, about contraception is clearly and in a world wide sense a huge debate and one that concerns them very profoundly. I do not think, in the second half of the 20th century, that the matter of the reasonable availability in a mixed community of contraceptives should be a big issue at all in the legal sense—huge in the private sense obviously and in many places apart from Ireland. It is the tradition in a place like this that we debate and that means that we do not just fire off our own opinions but that we listen to what the other side says and try to react to that. Inevitably, because I have been in the House since the debate started, these reactions will be a little incoherent. Nonetheless, we ought at least try to talk to each other and listen to each other. We seem to have a consensus on both sides that some legislation is necessary. Deputy O'Malley opened for the Opposition and he spent a lot of time talking about a survey of public opinion which is not an issue of much moment either way, whatever the rights and wrongs of it, and I have not the least interest in pursuing it. Then he went on to talk about the responsibility of the Government, the matter of a free vote, why it was that the Bill was listed now. In fact, he talked about almost everything except the Bill itself. When he did get to the Bill he was extremely sneering. Perhaps it is a thing he finds easy to do, I do not know. The Bill, he said, is a joke. When it came to demonstrating why it was a joke there was tremendous silence. We heard from Deputy Colley afterwards that it had been given a detailed analysis and criticism by Deputy O'Malley who opened for the Opposition. Those of us who listened to him know that is not so. He was anxious to talk about a variety of things but not about the content of the Bill itself.

There is another point I would like to make in regard to what he said. He raised a point about the sort of availability which ought to exist, which I will come back on, although I disagree with him, and about the possibility of importation by tourists and private individuals for their own use being prohibited. I am not an expert on the law and I do not think that is the Bill's intention but if it is prohibited it clearly should not be. I do not think anyone who supports the passage of the Bill would object to an amendment on that. We could put down amendments ourselves if he has pinpointed a small defect in it. There are defects in many Bills and in many cases they are not matters of football between the two sides of the House. Many of them find consensus and do not have to be forced on the House or on the public at large by one side. Many of them commend themselves as reasonable things to do. If it is a defect it is a minor one and it is easy to deal with it.

The Deputy offered us, without reading from notes and without detailed notes that I could see—this is not criticism of him being a lawyer but he is a lawyer by training and not a scientist —in the area of abortifacients and the distinction between abortifacients and contraceptives, confident and rapid scientific opinion. I had better declare my own background in this to try to validate my criticism. I am originally a veterinarian, an academic, one all my life. I also have a Bachelor of Science degree in physiology and biochemistry in a British university, where I would claim in the course of that particular degree subject my study of human reproduction and the biochemistry of contraceptives and abortifacients was more detailed than in the normal medical course, the B.Sc. degree in medical science in the University of London. I am that; he is a lawyer; each of us is our own thing. The things he said rapidly and confidently are of a scientific kind in my view—I do not want to talk positive science without a good deal of detailed study—and, were tendentious and inaccurate in many respects. I do not think it is fair to the House for a lawyer, not reading from a prepared brief, to offer what purports to be hard scientific opinion when we could, with two minutes notice, get scientists of serious standing who would be prepared to say he is wrong.

That is not the way to conduct a debate. When you get into an area that appears to be technical then get technical but be sure that your technicalities are right and are not the use of big words to confuse people. I do not want to make too much of the Opposition's speeches because there was very little in them of discussion of the Bill. There was nothing of what we ought to do in a positive and constructive sense to get out of a difficulty. I am using the word "difficulty" because it is not a secret that there is a difficulty. I will not amplify on what Deputy John Kelly said because I do not think it is routine for Deputies on the same side of the House to compliment each other. However, I found him extremely effective. He made a devastating speech of criticism of the point of view of the Opposition. He dealt with a good deal of the difficulty both frankly and well.

We certainly have a difficulty and we have people on our side of the House who hold opinions different from the majority. The same is true of the Opposition. Why do we have to have this monolithic pretence when we know it does violence to the fact? I know members of the Opposition who in conversation very much agree with me—I am not going to name them—and I know Deputies on the Opposition side of this House, who, before the McGee judgment struck down bits of existing law, broke that law for many years as I did. We all know them. There is a difficulty for the whole of this country which has already brought us some ridicule and mockery around the world as well as very serious internal difficulties.

Let us talk a little about this concept of a free vote because it is not something this Government have invented and the Opposition are saying it is ridiculous and not permissible. The concept of a free vote is very deep in the whole history of Parliament, not just in this Parliament but in the Parliament of the United Kingdom, from which many Parliaments of the world are buds. There are issues which transcend the unity of parties. I do not mean the next thing abusively. I mean it totally seriously as I am not trying to score a point. The thought that parties have to be totally monolithic and that they must not admit divisions among themselves and, therefore, where real divisions exist, which cannot be resolved, you do nothing because you dare not admit they are there, strikes me as a carry-over from war and not from politics. I think that is a civil war carry-over. It is trying to force Irish political parties into a monolithic form which does violence to real democracy and which finds its roots in totally different parties. It is bad for democracy to propagate the idea that parties do not have wings, divisions, conflicts that they are monolithic, that in all circumstances if you cannot put the Whip on and deliver everyone of your votes you have lost your validity or lost your mandate. That is a bad argument which is bad for democracy. It does not correspond to the evaluation of political parties in many countries of the world.

Let us take the Japanese scene, where they are not strikingly unsuccessful in managing their affairs. They do not have that concept of political parties at all. Neither do the Italians nor does the USA. In Britain both parties can have their pressure groups and wings. Why should we do violence to the consciences either of this side of the House, which we are going to do, or why in the name of some monolithic thing and of a unity that was perhaps forged in much more bitter times, 50 years ago, coerce in public people we know dissent in private? We know that across the floor of this House there is enough human communication on a frank and blunt level between Government and Opposition, whoever is in and whoever is out. We like each other and trust each other enough to talk to each other freely. We know there are people now on the Opposition side who, when in Government would like to have changed the law and they were ashamed of it and now that they are in Opposition would like to change the law in a progressive, generous and liberal way. Why the myth? Why not talk about issues that are real difficulties for us? Why should we talk about them in the fictional way which some people have been doing?

We have a difficulty and a mess. I do not mean this abusively and I am not trying to score a point. We failed to take a stand on what I consider to be a basic civil right in a country that talked about bringing in the North of Ireland, that talked about national unity, that talked about 1,000,000 Protestants in the North who could trust us to build a milieu where they would not be coerced. The failure to face that, and having legislation which was never criticised by a Government party who were in power for a long time and the failure to raise a debate on it, there is the mess, there is the difficulty.

The state of our public opinion, the state of obscurantism, the state of ignorance about contraception, the false belief that it poses a threat to family life and to the fabric of society, the failure to tackle these things, is a failure over a very long period of the people now in Opposition, and they cannot escape it. We have been in power for nearly a year and a half. We have had this decision by the Supreme Court for a little while. The mess we are in nationally about legislating on contraception without great excitement and hoo-ha is a mess which all political parties made. I am not saying it is a mess the Fianna Fáil Government made. We all made it. We all failed to raise it as a debate and to educate public opinion, but the people who were in power have a greater failure than the people who were in Opposition. That is the reality of where we are at.

I am trying not to be politically abusive, but it seems to me that the statement that we have to whip our people and get this thing through and, if not, we ought to resign, makes a party football out of something which ought not to be a party football. It is moving the debate away from what it ought to be, which is how much contraception should you have in a pluralist society, to a debate about the validity of coalition. This is an argument we have had before and we will have it again. The electorate will deliberate on it many times, and sometimes they will be in favour of coalition, and sometimes against it. It is an on-going thing, but it is not the core of this matter.

The histrionics of Deputy Colley about this ring false to me because he appreciates the complexity of the situation as well as anybody on this side. In his personal capacity he is a humane and liberal person. I do not want to go on about the little issues, about the question of whether tourists, be they married or unmarried, can bring in packets of contraceptives for their own use. That is a piece of small print and, if the Bill is foolish about it nobody will object to changing it. That can be done perfectly easily. I do not think the Bill is wrong but I should like to hear the lawyers and the experts saying whether it is. Let us not have histrionics about something of that scale and magnitude. We have not had a serious critique of the Bill itself. We have not had a serious alternative to the Bill.

Let me now briefly put my own beliefs on the line and then say something about the Bill itself. I was interested to hear health mentioned. When Deputy O'Malley was walking this tightrope between knockabout farce and the spine-thrilling tragedy of the small gombeen man in the West of Ireland and whether he could sell contraceptives, we got ourselves into a ridiculous position. At this moment I do not want to talk about the Bill. I want to talk about my own convictions on the whole contraceptives issue. When we were told Deputies would be embarrassed by people coming to them for contraceptives and that people would be embarrassed to go to the gombeen man—I am not using that term abusively—or to a person who was not a chemist to get contraceptives, I wondered were we living in the same country and in the same century.

I heard health advocated as a basis for having the right of access to contraceptives. A wife's nerves might be gone because of the fear of getting pregnant again, or a man's nerves might be wrecked because he could not have intercourse with his wife because she was afraid of getting pregnant. Of course, those are grounds for contraception but the people who want availability of contraceptives want them for vastly more numerous and positive reasons than the ground of health. The ground of health is only a marginal reason so far as I am concerned.

I think that the right to knowledge about contraceptives and contraceptives themselves is a basic human right. The practice of contraception so far as I am concerned—and I want it on the record of the House—is a positive good. It is not something for patching up families under stress because they have too many children. Deciding the timing of children and the size of the family, separating the act of intercourse from size of family, is a liberation of mankind. It is progressive and desirable. I realise that is not the generality of opinion in this country but it is my opinion and it is well that it should be said clearly.

About that last sentence which I have just used, certainly there is disagreement on the Government side. Not too many people agree with me about that. That is not a secret. We are grown up and we can talk about the scales and nuances of this issue. I know from reasonably trusting and frank personal conversations that there is exactly the same thing on the opposite side. I want to see contraceptives and contraceptive knowledge widely available in this country. Not having any expert knowledge, but simply from reading about the controversy which exists in this and many other countries, I believe that inside Catholicism, as I understand it, there is a profound and genuine confusion. There are serious and expert people of great standing in the Catholic Church who differ. I think the desire for free availability of contraceptives is widespread among Catholics. I know it is widespread among Protestants North and South.

Mr. O.J. Flanagan

The Minister knows very well that it is the Pope who speaks for the Catholic Church and, when the Pope speaks on matters of this kind, what he says is accepted wholeheartedly and without question.

Mr. Desmond

This is Dáil Éireann.

Mr. O.J. Flanagan

The Minister raised that point and it is only right that somebody should answer him.

Mr. Keating

What I said was that, from reading about controversies I know that in Ireland and in other countries there are people of profound sincerity and great stature inside Catholicism who have differing opinions. I therefore conclude that the problem is complex and permits of a number of interpretations. That is all I am saying. I am not offering my own judgment. I am saying that is a matter of observation.

Mr. O.J. Flanagan

I accept that.

Mr. Keating

Therefore, there are many Catholics who consider that this is a right. In the case of Protestants, North and South, it is not a matter of making a territorial claim. It is a matter of saying that if you want to talk about unity at any stage and you want to build trust, you must not pass laws that exclude one million odd people in the North, anymore than you pass laws that pressurise Protestants down here, if they are 5 per cent, or whatever they are. There is a Jewish community in this country who have rights. When we talk about people's rights on the basis of religion, we assume that there are no people who have no religion. Even if people are embarrassed by writing down that they have no religion, in the census there is a section who have no religion. There are some of them among the young, if one talks to the young. There are many people who have no religion and they have rights, and morals, and attitudes, and rights to draw conclusions.

What made our difficulties, and what was so dangerous in our previous approach to contraception, was that there was a section of the community in the past—and I do not hear them shouting loudly for change at the moment; I wish I did—who were willing to use the law to force their moral judgments on people who were honourable, respected, valid citizens who the majority knew did not share their views. The Parliamentary Secretary to the Taoiseach said it was enforcing a code of morality by the criminal law.

The willingness to do that seems to me to be very much of a piece with attitudes of forcing people to change their religious beliefs by law and by the power of the whole State which produced immense destruction and damage in the history of Europe and of many other countries. This willingness to use the law against valid people whom you know disagree with you has been a source of terrible division and destruction. So also in this country. It is paternalistic. It is contemptuous of individual conscience, individual dignity, the individual right to make a decision. Therefore, what existed in the past and what was unchallenged by any of the major parties, including my own for a long time, was a fundamental denial of what I mean by democracy, and was profoundly damaging to something that I desire very much, which is national unity. The existence of such laws was fundamentally diversive and authoritarian, anti-democratic. I am profoundly happy that the Supreme Court struck down a piece of one of the things I find most offensive—not all of it, because the Supreme Court gave a bit of a judgment and other bits, as people in the Opposition said, were not final judgments, judgments that suggested we might have a challenge, we might get another answer. I would not read that Supreme Court judgment with the eye of a lawyer. Bits of it were clear, bits of it not clear, bits of it calling for action—not a final thing. But, because we have had this radiation from the major parties and from major religious opinion in the country which I have indicated I disapprove of and think mistaken and damaging to Ireland, because we have had that position and because we have now had a Supreme Court judgment, partial, not final—Supreme Court judgments are never as final and do not solve problems in the way we would like them to do—we got a bit of progress.

But we do have chaos and it is agreed that we have chaos. I have some evidence of advertising of the offering of contraceptives for door-to-door sale. We all agree that we have a position where you have to do something about it because you cannot leave it the way it is. I affirm, whether other people agree or not, that it is not easy because of our past and because of the extremist propaganda approach to the question of contraceptives from one side that has marked our country for many decades. Deputy Colley referred to a proselytising attitude of the people in favour of contraceptive clinics. There has been a misinformed extremist proselytising attitude on the part of the anti-contraceptive side. It has happened much more from the anti-contraceptive side than the pro-contraceptive side.

That is where we are at. What do we do? We have a Bill to try to make some sort of sense of the shambles. If you said about any Bill that ever was that it was not totally satisfactory everybody would answer yes. Anybody who tries as a Minister to set out the heads of what is wanted knows that it then goes off to the experts and then to the Parliamentary Draftsmen. Anybody who has looked at the process of generating a bit of legislation knows that it is temporary, partial, difficult, imprecise and that when you are finished you are not satisfied with it and you also know that its period of validity is temporary because things change. That is taken as read by the people in the Opposition who know that better than we do because their spokesmen have a lot more experience of being Ministers than we on this side have. That is known to everybody. OK, so, it is not perfect. So, it makes some sense of a shambles which has to be sorted out. There are bits of it that could be done better perhaps, in which case let us amend them and I would urge on the Minister for Justice that if real issues are uncovered in this debate, he should accept amendments and my guess is that he will do this if there seems to be anything emerging from the Fianna Fáil Opposition when it comes to the Bill itself as distinct from the inadequacies of the idea of coalition or the inadequacies of the idea of a free vote or things like that—fine general stuff—if there is anything in their opposition, if it should not be chemists' shops, should it be health clinics? I prefer chemists' shops because I am in favour of a wider rather than a narrower distribution. Unless there are tremendously good reasons for being restrictive on this sort of issue as we evolve into Europe it is better to be roughly comparable to other countries rather than to adopt very local attitudes.

If it was to be thought that we would use the structures of the health services through the country in a positive way to promote family planning knowledge and the availability of family planning equipment in family planning clinics for those who wanted it—nothing is being forced on those who do not want it—I would have thought that was progressive thinking. I do not think it is viewed by the Opposition in that sense. I think they view it in a restrictive sense. I prefer the chemists' shops. I know they will not all stock them.

The knock-about of Deputy O'Malley as regards people in the West of Ireland who would have to write to the Minister for Justice for permission to get contraceptives if there was no adjacent chemists' shop neither terrified nor persuaded anybody. The application to the Minister for Justice in cases like this will be used with the same sort of judgment and wit and restraint and common sense that Government Departments and Ministers use in adjudging all these things.

In the vast majority of cases the application never reaches the Minister. It will be adjudged by common sense, neutral, detached civil servants in a practical way. There is no terror there. When all the rodomontade is swept aside and the suggestion that we have somehow lost validity because we are not going to put a whip on and try to coerce people, the only thing left is should it be a health clinic or should it be a chemist's shop. Personally I prefer both. I would like to see the health clinic used in an active way.

What I am looking for is something which makes a little sense of the situation, which brings some legislation into existence where there is currently chaos. I accept that this Bill does not go as far as I want to go. I do not like the distinction between married and unmarried in this case, if people want an example of what I do not like.

Mr. O.J. Flanagan

Surely the Minister is not serious when he suggests that he wants single persons to have recourse to the purchase of contraceptives? Surely he cannot be serious in advocating that? Is that what he says?

Mr. Kitt

Of course he is serious. That is why he agreed to let the Minister get the thin end of the wedge in.

Acting Chairman (Mrs. Desmond)

The Minister, without interruption.

Mr. O.J. Flanagan

Did I misunderstand the Minister?

Mr. Keating

The Deputy did not misunderstand. I think the restriction on the sale of contraceptives to married people, as Deputy Colley said, is possibly unconstitutional. I think that. That is not the consensus of the advice of the Minister for Justice. His advice is that it is O.K. It may be that it is unconstitutional. That would be decided in due course, whether it is or not. I think that is a restriction which in certain instances is a denial of civil rights to people who are not married, who have a stable relationship and who want contraceptives. I believe they have that right and for what the Opposition or anybody else can make out of that I am quite happy to declare that publicly and have it on the record of the House.

Mr. G. Fitzgerald

It is the Minister's own Deputies who are questioning him. We are not opening our mouths.

Mr. Desmond

It would be hypocritical to do so.

Mr. Keating

I prefer this Bill to the suggestions about health clinics because they would be in my conviction used in the most restrictive possible way in some instances, in the areas of some health authorities, and it would be non-uniform in its application through the country and also since we will never have as many health clinics as we ought to have and we have chemist's shops it would be a restriction on easy availability to those married couples who want it. I, therefore, prefer our compromise. It is less than I want.

No Bill is ever exactly what every Deputy who votes for it wants. It is a reasonable compromise, a reasonable way out of a mess, which recognises the balance of opinion in the country and recognises that there is a strong hostile public, as I do. I do not want to carry out what I want because I realise that it does not have a balance of support in the country but in regard to getting a practical, sensible Bill like this that will solve the problem, I think there is a consensus in the country to do it. I think there is a majority in this House to do it if we put together the people on both sides who want it. I think that the denial of the carrying out of what I believe to be the public will and the majority will of this House by the trick of a party political kind of suggesting that no use of a free vote is permissible and suggesting that it is the duty at all times of an Opposition to be as destructive as possible and to fish in troubled waters as much as possible — I think that denial of the majority that could exist here in acknowledging the majority of opinion in the country as a political manoeuvre by Fianna Fáil will be so seen and so judged by the people. I believe that for the legislation now offered, giving the sort of controls now offered, though it is not perfect — and no legislation ever is — there is a majority of support in the country, and that were the real will of the elected Deputies of this House allowed to emerge there would be a majority here as well. The thwarting of that is the thwarting of democracy. It is the making of party issues more important than fundamental democratic issues, and it is on the way to a denial of democracy, and is anti-democratic.

Mr. O'Kennedy

Apart from the Minister himself, I think I am the first speaker in this debate to represent a predominantly rural constituency and I have no doubt that before the debate concludes many others will have the opportunity of contributing as well.

The Minister for Industry and Commerce seems to have presumed that the Fianna Fáil approach to this Bill is entirely a political manoeuvre. While I would hope he would be here to listen to what I have to say on the matter, he will have the opportunity of reading the record. I hope he will realise that we recognise the difficulties in this question, that we recognise there are matters of private conscience involved and that there are public attitudes of morality to be taken into account also, and that it is quite difficult to reconcile the protection and promotion of the private conscience with the public morality that may be current throughout the country.

Nonetheless it is our responsibility here to deal with society and the standards of society to promote the standards of that society, allowing for the right of individuals to adhere to their conscience and to avail themselves of what they regard as civil rights. It is particularly the obligation of the Government to introduce legislation in any area which will have desirable social effects. This is done every day in this House. It is our responsibility as the Opposition for the time being to look at the legislation which they introduce and to see whether or not, in our view, it conforms to those criteria as protecting the general standards of society whatever area it is in, whether it is social welfare or other legislation. If we feel that it has failed to do so, it is equally our responsibility to say so clearly. It is because we believe this legislation has failed to do so that we now say so clearly.

May I, in the first instance, deal with the matter that has been raised earlier but just from the point of view of clarifying some thoughts which seem to have been confused in the course of the debate. Deputy John Kelly expressed what I would accept as a sincere conviction as to the difficulty which a Government Whip would have in being placed in a position like that. In particular he referred to the difficulty of forcing Deputy Oliver Flanagan, or someone like that — he did name him so I am sure Deputy Flanagan will not mind if I repeat the name — to vote with him on a matter that he objects to.

Mr. O.J. Flanagan

Might I ask why the Deputy singled me out?

Mr. O'Kennedy

I am talking about the Parliamentary Secretary. He named the Deputy.

Mr. O.J. Flanagan

No. He did not name me.

Mr. O'Kennedy

He did, specifically — I think the Minister will confirm that — not once but maybe three times.

Mr. O.J. Flanagan

I am sorry.

Mr. O'Kennedy

I appreciate the Deputy's point. In fact I asked the Parliamentary Secretary why he should name the Deputy, but none the less he did. The decision of the Government for a free vote in this case was taken before this Bill was prepared and published. I want to ask the Government if they recognise that a Bill of this nature has significant social consequences for good or ill, and obviously the purposes of the Bill must be for good. Is it not recognised as important that the Bill as presented would be considered by the parties, that if it did not meet the wishes of the parties comprising the Government for the time being, that then they would come back and reconsider it, but that they would try to reach a consensus on a matter of such vital importance? However, this Government announced on 13th February in a statement from the Government Information Service:

"The Government has decided, consequent on the recent Supreme Court decision in relation to the Criminal Law (Amendment) Act, 1935, to introduce a Bill to provide for the necessary change in legislation arising out of that decision. It is the Government's intention to provide for a free vote in relation to the passage of the Bill."

Therefore the decision on the free vote was taken well in advance of the publication of the Bill, and any suggestion that it is on this Bill that the principle was determined is quite wrong and inaccurate. Is it suggested by the Government that in relation to a Bill of this nature which is dealing with a sensitive area the principle of a free vote is desirable and would be promoted by the Government? We on this side take the view that legislation dealing with sensitive areas like this are of such significance that they should be considered in great detail and should be promoted by the Government with all the authority that the Government have. After all the consultations the Government should have undertaken, it should be presented to this House as being the considered view of the Government and their supporters. There is obviously a great gap in the Government's thinking in this matter, because they seem to have come to the conclusion that any legislation dealing with this type of area should be dealt with under the free vote and that they can thereby relieve themselves of the responsibility of noting public standards of morality and, at the same time, taking into account the rights of the private individual in each particular case. I would be interested to hear, when the Minister replies, on what basis he can justify the decision of a free vote in these circumstances in advance of the publication and the study of any Bill.

Mr. O.J. Flanagan

Does the Deputy not agree that a free vote is the real essence of democracy?

Mr. White

Conscience before party.

Mr. O'Kennedy

It is not a question of conscience before party. Unless the Minister and the Deputies opposite, are prepared to say to me that this type of area is not something on which there should be full consultation in the party rooms, and on which there should not be full study before the Bill is introduced, to enable Deputies who disagree, allowing for the information which the Minister may give them, to express their views then or through their Government members, I could not accept that there should be a free vote on such legislation. We have an obligation placed on us here to legislate for society and we cannot run away from that in the areas that may be difficult or sensitive, which, I regret to say, seems to be the attitude of the Government in this case.

Mr. White

Legislation like this should be above politics.

Mr. O'Kennedy

There are, as the Minister for Industry and Commerce has pointed out, differences of opinion among many individuals here. What he has said is true, that there are many people here on opposite sides who share views which are different from those of other members of their own party. But there is and there must be a consensus about what public order is, and there is and should be also a consensus about what private conscience is, and it is because of the failure of this legislation here to cope with that that we are opposing it.

The Minister for Industry and Commerce complained at some length that we did not say very much about the Bill, that we spent most of the time trying to take political advantage from the Bill. The Minister for Industry and Commerce spent no time whatever dealing with the Bill, with the exception of saying that he preferred distribution through chemists' shops rather than our proposal. Therefore I do not think it is reasonable or fair to imply that we are the only ones expressing what he suggests are personal views or views attempting to win political favour.

We may have come a long way from the platonic notion of society where it was regarded as being the function of the legislator to promote virtue. We may not be — I am sure we are not—able to distinguish between what is virtuous and what is not, but we are at least capable, and must be capable, of acknowledging broadly what the standards of our society are and we must promote and direct those standards. That is our function in this legislature and that is our function in this legislation.

In discussing a Bill of this sort, therefore, there is great need to take a sympathetic and tolerant view of the differences of opinion that exist. Private behaviour varies from individual to individual. We all of us come from a single stream of tradition more or less and the private behaviour of many individuals will probably conform to a large extent. Public morality is a different matter entirely from private morality and, in that context, it is the function of the legislature to take account of the history and traditions of the State as a whole. That history and those traditions would include religion and other things.

To illustrate: what would be good law in Mohammedan society, where polygamy is traditional, would be bad law in a Christian society. All these aspects must, therefore, be taken into account when we come to introducing legislation in an area of this kind. Our Constitution provides for freedom of religious conscience and practice and our laws must respect that provision and we must, therefore, endeavour to implement that provision in our Constitution. The views of the minority creeds must, in other words, be respected and they must not be in any way obstructed or impeded by any legislation we may pass here. We are not the judges of right or wrong in this or any other legislation. Neither can we be the judges of who is or who is not a conscientious objector. I am not now trying to make it difficult for the Government in the stand they have taken. I believe they made a mistake months ago and the reaction has proved that. We have now reached the ludicrous point at which the Parliamentary Secretary to the Taoiseach says that only those who satisfy him they are conscientious objectors will be allowed to vote against the Bill. If the passage of legislation is to be dependent on the judgement, decision and tolerance of the Parliamentary Secretary to the Taoiseach we have indeed reached a pretty pass. If he is to decide who may or may not vote for or against a Bill that clearly indicates just how ambiguous and untenable is the approach of the Government.

Mr. M.E. Dockrell

The Parliamentary Secretary never said that.

Mr. O'Kennedy

The record will show that he said only conscientious objectors will be allowed to vote against the Bill.

Mr. M.E. Dockrell

That is a different thing from what the Deputy said first. It is the conscience of the person talking to him which will be the deciding factor, not the opinion of the Parliamentary Secretary.

Mr. O'Kennedy

Then the Parliamentary Secretary did not make himself clear. I do not want to delay on this. I am merely pointing out how anomalous the position is. If any Deputy goes to the Parliamentary Secretary and says he is a conscientious objector the Parliamentary Secretary will have to accept that.

Mr. M.E. Dockrell

The Parliamentary Secretary has to make decisions on matters like that every day.

Mr. O'Kennedy

And he has to decide whether or not Deputy Dockrell or any other Deputy has or has not a conscientious objection.

Mr. O.J. Flanagan

One does not have any difficulties with one's conscience except where there are moral issues involved.

Mr. O'Kennedy

I think Deputy Flanagan would definitely qualify within the particular category; in fact the Parliamentary Secretary stated so definitely. The Minister said we should make up our minds on the issues here, not by looking over our shoulders to find out what our constituents think, but by forming our own conclusions. It would be the function, then, of someone on the Government benches to decide whether or not a Deputy is voting against because he is a conscientious objector or because of his concern about his voting strength in his constituency. I do not think that sort of judgement is the function of any person here and we must, for good or ill, rely on the statements of the Members of this House as to their responsibilities.

Another statement of the Parliamentary Secretary's indicates the frustration he feels because the Government have to take this responsibility at this particular time. I recognise it is a difficult position. If we were in Government it would be a difficult position for us. The Parliamentary Secretary said we "sat on the damn thing for 20 years"—I am quoting him ipsissima verba—and that demonstrates not just a sense of appreciation of the difficulty but a sense of total frustration, almost of impatience, because the Government have now to deal with the matter.

There is such a thing, nebulous though it may be, of the quality of life. I am speaking now of social aspects. It is our function to find out what the quality of life represents and to promote the standards of our society to ensure the protection of that quality of life. There are people who will look at other countries and who will say that this is a happier country even though we may not have the same social advantages or the same resources available to us; this is a happier country because we have somehow adhered to principles, sometimes involving discipline and also involving a recognition of certain worthwhile aspects in our society. I have met many people outside of this country who say that the consistency of our attitudes towards social and moral principles is something they find unique and strangely attractive by comparison with other countries. I am not now making any value judgment between us and other countries. I am not arguing that we are holier or better than any other country because of higher standards of discipline and morality. I am merely pointing out these views are held and there may be some justification for them.

While it is the function of the Government to take all these things into account, because of the definite cleavage of opinion, and not just on this particular Bill, and because of a difference in attitudes within the Government as to what represent desirable social standards, a clash of almost, shall I say, ideologies has emerged, perhaps unfortunately, in this legislation. Because of that the Government have introduced what I know many members of the Opposition recognise to be a compromise. We all cherish the fact that we do not quote what is said in private in the House, but it is a widely recognised fact that this piece of legislation is a compromise.

Dr. Cruise-O'Brien

Of course, it is.

Mr. Cooney

I said that in my speech.

Mr. O'Kennedy

I agree that politics is a business of compromise. But this legislation is a compromise in many ways between what are irreconcilable views. That is why we have this hotch-potch which does not satisfy anybody. The Minister for Industry and Commerce said that he would prefer the distribution of contraceptives through the pharmaceutical outlets rather than through the health boards, the agencies of the State. He said that this would lead to a wider distribution through a wider variety of outlets.

The Parliamentary Secretary categorically stated that it was nonsense to suggest that all 1,500 registered chemists would seek licences under this legislation. He went so far as to say that in his view if 50 sought licences this would be the maximum. In other words, the Parliamentary Secretary thinks this is a way of restricting the sale of contraceptives. The Minister for Industry and Commerce thinks it is a way of widely promoting the sale of contraceptives. Each has come to a conclusion but for two different reasons. This is what I mean by the irreconcilable attitudes which exist in matters of this sort.

I will be very interested to hear what the Minister has to say when he replies. He may interpret what we say in a flippant manner. The Bill contains provision for licensing traders where no licensed chemist is available. That is a fact. The Bill also contains a right to get a licence from the Minister or to apply to the Minister for a licence where neither one nor the other is available. These are the facts and they can be interpreted as one wishes.

This Bill is not in the social interest. In small communities it will cause reactions between chemists, traders and others not only who will get business of this nature but because one — even though he may be a man of high standards — may deal in contraceptives, while another chemist stands firmly for what he recognises to be right. "It is good to have chemists who will not be used by any liberals to supply contraceptives to those who wish to have them." Does the Minister think that that reaction is possible in rural Ireland? If so, does he think it desirable to create that division between professional people, a division which the Parliamentary Secretary acknowledged must be there?

Mr. White

It is in operation in Northern Ireland also.

Mr. O'Kennedy

I will deal with Northern Ireland later, although it is not relevant here. It may be said that we raised this point simply for the sake of ridicule. I presume the Minister, if he is to act in accordance with the Bill, would have to seriously entertain an application for a licence from a trader in a remote part of Ireland. If there are two traders in a village and only one applied for a licence, is the Minister suggesting that there will not be a reaction in the community? That is why we think it is a State responsibility to introduce legislation of this sort. Equally it is a State responsibility to supervise and control the distribution of contraceptives and thereby ensure that there will be no division or reaction within society, particularly in the remote areas of rural Ireland. This is obviously what the Minister had in mind when framing certain sections in this Bill.

I agree with the Minister for Industry and Commerce. In a matter of this sort where people, for better or for worse, have strongly held convictions, it comes ill of any of us or anyone who talks about what we do here, to take a flippant attitude to this. I have often thought that it would benefit us if we travelled north more often. We would then recognise the different attitudes there, understand a little more what they think and recognise that what they think may be a carbon copy of what we think here, but for different reasons. We might even recognise in their prejudices a carbon copy of our prejudices, but for different reasons. It might be desirable that people from the North should travel to the South and talk to the people of rural Ireland to see just how sincerely they hold their views. In doing so, they would recognise that they should be sympathetic to their views while, at the same time having the obligation to correct the views if they are wrong or give a sense of leadership if such be their responsibility.

Many people hold a strong conviction that the dangers in the contraceptives laws will have serious consequences. Some might even go so far as to say that they will be a curse on the country.

I hope when the Minister says "not to look over our shoulders" that he is not suggesting we should not take into account the views of our constituents. I presume he means that we should not look to what their electoral support will be for us. As public representatives, one of our functions is to keep in contact with social attitudes through whatever channels are at our disposal and try to take account and give effect to the standards we meet in society at large in the legislation we introduce here. I hope he does not think we should ignore anything we heard in our constituencies. In fact, I believe that his speech would have been better for the omission of that particular reference, coming as it did at the very end.

I should like to discuss the options open to the Government as a consequence of the McGee decision. There were a number of options but not all of them were equally desirable. The first option was to do nothing, and allow the position as it stands at present—the free importation of contraceptives—to continue. That could have been done. Some people who opposed legislation in this area think that that is what they should do. They seem to think that by doing nothing the Government will be restricting the importation of contraceptives. Of course, the opposite is the case. Nevertheless it was an option which, quite rightly, the Government rejected. Another option which they had was one which has been promoted from time to time. It was to say: "Right; it is the function of the Supreme Court." They are not just lawyers who give an opinion, as was implied by someone here this morning. They are the judges established under our Constitution to interpret whether in this instance the laws we enact are in conformity with the Constitution. Their function is as important as ours. In so far as the judges have interpreted the present law as inconsistent with the Constitution, another way of approaching the matter would be to change the Constitution or to allow the people the possibility of doing so by way of referendum. The Government have clearly rejected that possibility. They might have said we would endeavour to conform with the general guidelines of the Supreme Court while recognising our obligation to introduce legislation consistent with that judgment. However they did not do so. Instead, they introduced the fourth alternative, namely, their own legislation which is a very unhappy and unworkable compromise.

Debate adjourned.