Dáil Éireann debate -
Wednesday, 20 Jun 1979

Vol. 315 No. 5

Health (Family Planning) Bill, 1978: Committee Stage (Resumed).

Debate resumed on amendment No. 29:

In page 7, line 5, after "contraceptives" to add "provided that in any legal proceedings the burden of proof of conscientious objection will rest on the person claiming to rely on it".

—(Deputy Browne).

Dr. Browne

In relation to conscientious objections, I was trying to establish that a conscientious objector had a genuine objection to involving himself in procedures under this Bill. The Minister suggested that it was impossible and undesirable and that a person need only say that he did not agree and opt out of a service and that there was no responsibility on anyone to see whether the objection was founded on a good premise and that it was something which could be established as a reasonable explanation for a person's refusal to take part in the service. I mentioned the possibility of the frivolous use of section 11 allowing a person to opt out of the service on frivolous grounds. The Minister also said, amongst other things, that my attitude to conscientious objections was surprising. I pointed out that the establishment of a board for the war time pacifists, non-violent people, was accepted and understood as being a reasonable precaution to take in times of war.

The Minister also said that this would be impracticable. However, it is practicable because it exists and works in the British Act on contraception from which this amendment is taken. This amendment is realistic and is particularly important because of the nature of the service and because of the deeply rooted conflicts of ideals, opinions and attitudes on foot of this whole question of family planning. We are now at the stage where we at least have a family planning service even though it is orientated towards natural rather than artificial family planning. We now begrudgingly have other kinds of family planning. There are still people in the medical professions and in the social services who will be involved in running the family planning clinics for the Minister who would consider it a conscientious decision as to whether they should run a service which the Minister tells us he will make sure caters for both artificial and natural family planning methods.

There will be many people in the medical and nursing professions opposed to natural family planning. The opposition to artificial family planning has been extremely effective. It is powerful and is based in the Catholic Church, some of whose militant organisations, the Knights of Columbanus and so on, are very powerful. As well as that, some months ago a document was circulated by the Catholic Archbishop of Dublin to the various hospitals under his jurisdiction, to the people involved in the health service, telling them that they should not take part in what could be considered services antagonistic or alien to the ones generally accepted by the Roman Catholic Church here.

The Minister has the right to do so if he wishes, but would he not consider that he is building into the Bill a section which is an incitement to sabotage the artificial contraceptive side of the scheme? Many people will be subjected to pressure as we here have been subjected to pressure, from sophisticated blandishment right round to common abuse. There will also be economic pressures which can be used subtly in the business of getting jobs or promotion in hospitals. We all know how this can be done. Many of the hospitals, indeed the vast majority of them, are controlled in some way to varying degrees by members of the various Orders of nuns. We have seen even in this House that the Fine Gael Party have had to allow Members to make their own decisions, and that Fianna Fáil——

An Leas-Cheann Comhairle

The Deputy is getting away from his amendment which deals only with conscientious objections when the Bill becomes an Act.

Dr. Browne

I am talking about the conscientious objections which those people will be faced with when they come to decide on the operation of section 11.

An Leas-Cheann Comhairle

The amendment provides for taking proceedings in court and the Deputy is now discussing the whole section. We must dispose of the amendment first.

Dr. Browne

The effect of the Minister's reply was to ask why we should go through the process of going to court or setting up arbitration machinery, and I am pointing out that pressures on such doctors and nurses will be considerable, and unless their objections are genuinely on grounds of conscience they could be from motives to sabotage the scheme. I am trying to insert a proviso to set up some arbitration machinery. Otherwise people who have objections to working within the scheme can take the line of least resistance and say they have conscientious objections, possibly because somebody outside has told them to do that. The Minister will find it hard enough to administer the scheme faced with the opposition he already has but there will be others genuinely opposed to the scheme. There will be people who will sort out the difference between artificial and natural family planning and there will be doctors and nurses in Catholic hospitals who will have genuine objections to participating in the scheme for artificial contraception.

An Leas-Cheann Comhairle

Is the amendment being pressed?

Dr. Browne

Is the Minister apprehensive about the possibilities I have been speaking about? Does he not see the need to bring in some safeguards? The Minister will be looking for Report Stage.

Minister for Health (Mr. Haughey)

I thought I had dealt as fully as I could with the Deputy's case. I have to stay here until the legislation goes through, and the Deputy obviously wants it to get through.

Dr. Browne

If a Deputy goes to the trouble of making a case——

Mr. Haughey

The Deputy put forward a case and I dealt with it. Does he want me to deal with it again and again, ad infinitum? I have nothing more to add. The Deputy has raised a number of issues on his opposition to a conscientious objection clause in the legislation. Of all the Deputies here I would have assumed that Deputy Browne would be first to allow that anyone with a conscientous objection is fully entitled to exercise it, and that is that. I did not think this innocuous, harmless section would incite all this attention. I have said that Deputy Browne's amendment is not a practical proposition, that there is no question of taking legal proceedings and therefore there is no question of the amendment being applied, that it is irrelevant, that it is absurd to think we should have to establish a board before which people would have to go to explain a conscientious objection to artificial contraception.

Do we not all know that people have been expressing their opinions on this ad nauseum? What is the purpose of going ahead with this charade of establishing a board before which people would have to go to explain their conscientious objections? It is a non-argument and if the Deputy wants to keep it going——

An Leas-Cheann Comhairle

Is the amendment being withdrawn?

Dr. Browne

Not yet. The Minister should have replied to the case I made in regard to the people involved, nurses and doctors. It is comparable to the existing situation in Great Britain where many nurses and doctors will not take part in the administration of the Abortion Act and the British Government have had to deal with it in their own way. Here, if a member of a health authority is faced with the problem of carrying out some part of the artificial contraception service and refuses to make it available, a legal action could fall in the High Court. A doctor or a nurse could say, "I do not agree with it; you can have natural family planning." Under this section a woman can be denied the right to have a free choice in regard to family planning and the Minister is deprived of the power to ensure that she gets the service unless in some way or another the matter is brought to court. Is that the situation the Minister will accept, a situation in which a constitutional action might arise from the denial to an individual of the right to make her choice of service?

The amendment is not an absurdity and the Minister's point therefore is not adequate. Without doubt there will be conscientious people and there will be privileged people refusing to implement the scheme. Knowing his strength, the Minister's attitude surprises me. Considering all the pressures of this kind that have been imposed here over the years, he has been subjected to enormous and practically unprecedented pressures and he is suffering possibly from the stress of that. But my fear in this is that unless he introduces some kind of safeguard he is providing the opposition, through a serious comprehensive family planning service comprising natural family planning and artificial family planning or contraception, with an ideal instrument for sabotaging the whole scheme. To that extent I am attempting to warn the Minister of the possible dangers which arise.

Amendment, by leave, withdrawn.

Question proposed: "That section 11 stand part of the Bill."

Dr. Browne

I feel that this is the section on which we can talk of the right of conscientious objection to the different kinds of family planning, as this right affected the decision of a Minister not to accept the decision of the Supreme Court. The provisions of this Bill, lame and inept though they may be, are the decision of the Minister and the Cabinet. The Minister made clear in his opening statement that this Bill was brought in in reply to the majority decision of the Supreme Court on the McGee case. Therefore, this decision was arrived at in order to put right an anomaly created by section 17 of the 1936 Act.

A Minister is bound by his constitutional responsibility to accept that "the Government shall and must act as a collective authority and shall be collectively responsible to the Departments of State administered by Members of the Government".

No more than anybody else can a Minister appear to take up a contrary position. Everybody would acclaim his decision to say that, because of his conscientious objection to the laws being proposed by his colleagues in relation to family planning, he could not agree with it and because he was dissenting he would withdraw from the Cabinet. That is the honourable position to take up and a number of us have done so over the years. It needs no defence. It may be right or wrong but it is an honourable position to take up. I cannot see how a person in this position who saw his own colleagues in Cabinet facing a decision which some of the others surely found as distasteful and certainly politically undesirable or unwelcome as he did, simply chose to walk away and appear to be the Simon Pure of the Cabinet.

An Leas-Cheann Comhairle

The Deputy is not discussing the section at all. The section deals with conscientious objectors in the operation of the Act once this Bill is passed. It has nothing to do with present-day objectors to the Bill.

Dr. Browne

The reason given by the conscientious objector, the Minister for Agriculture, Deputy Gibbons——

An Leas-Cheann Comhairle

Deputy Browne will not proceed on these lines. It is not in order under this section which deals only with conscientious objections that will arise when the Bill becomes an Act and in its operation then. Anything that has happened up to now, the conscientious objection of any Member of the House or anybody else, has nothing to do with this section. I ask Deputy Browne to get back to the section before the House.

Dr. Browne

The principle of conscientious objection will be used by people who say that they will not operate this Bill. My case against that position is that under the Constitution nobody can deny an individual, any other citizen in the State, his rights under the Constitution. That is what is being done. That is what is proposed under this section 11 and this is the position taken up by the Minister in his use of conscientious objection in refusing to play his part in collective responsibility in making his decision joint with that of the Government. Therefore, it is a completely false position, a cowardly position, and in his situation the correct thing for him to have done was to resign as a member of the Cabinet. I am sure the Minister present will agree with me.

Mr. O.J. Flanagan

I agree with the Chair when he says that we are dealing with conscientious objections after the Bill is passed. Now, is the important, desirable time for the conscientious objector to show his hand, to come forward and not be afraid to display courage. Reference has been made on section 11 to the conscientious objector, but we seem to forget the most important fact that the conscience must be a well-informed conscience. If we feed a computer with a variety of types of information, unless the computer is fed with the truth the truth will not be revealed from the computer. Those who will be administering this Bill when it is an Act will have an extremely tough struggle with their consciences. Numerous people in the medical and nursing profession up and down the country will be associated with the main purpose of the Bill and chemists will be involved seriously in its administration. Here section 11 will have to be examined very closely lest in administering this Bill there may be people of materialistic or atheistic mind who will be pushing their views down the necks of others who will be administering the Act without due regard to the conscience and judgment of others. There may be conscientious objectors who object on principle to the giving and fulfilling of prescriptions. Principle is extremely scarce commodity in this country and an extremely scarce commodity in this House when compared with the situation 25 or 30 years ago. There are some rich people who have not yet sold their principles. Principles will be involved in the administration of this legislation. What will happen to the conscientious objector employed in the Minister's Department? How will he or she stand for promotion? Will such an objector be covered by the legislation dealing with unfair dismissal and discrimination in employment? There are many who profess allegiance to the Protestant churches who take an equally serious view of contraception and abortion. What guarantees are available that conscientious objectors will not be the subject of dismissals or discrimination in regard to promotion? Such guarantees are vital.

From the practical intellect we can form our own conscience. No amount of pressure can alter the formation of conscience. Deputy Browne referred with a degree of sincerity to the circular sent recently by the Archbishop of Dublin to hospitals. This was not an effort to intimidate. It was a circular advising and informing Catholic workers of their duties as Catholics. Reference has been made to certain organisations who feel that it is right to enlighten the public. The Catholic Church can point out to legislators what is right and what is wrong, but they leave it to the legislator to make up his own mind. There is no question of pressure. Pressure groups have not succeeded in influencing the votes of legislators. Every legislator makes up his own own mind according to his own conscience and what he believes to be true. The same will apply to the doctor who will be asked to administer this legislation. He may well wash his hands completely of the Haughey contraception and abortion Act. Perhaps I should not have mentioned the Minister's name but he is responsible for every section.

An Leas-Cheann Comhairle

There is no such Act before the House. We are dealing with the Health (Family Planning) Bill, 1978.

Mr. O.J. Flanagan

We are now dealing with the conscience——

An Leas-Cheann Comhairle

——of the people who will be operating it.

Mr. O.J. Flanagan

We are dealing with doctors, nurses, health board staff, officers of the Minister's Department, chemists and a variety of other people. Someone has a duty to mould the conscience to ensure that it will be well-informed and that sound judgment will prevail. That is where the advice and guidance of people like the Archbishop of Dublin is desirable. He has a duty before God to speak courageously on health and hospital matters. The circular outlines the duties being performed by Catholic members of staff so that they will not be involved in the atheistic and materialistic work of destroying human life. It is vital that the conscience should be fed with the truth. If the conscience is to develop on the right lines the seeds of truth must be conveyed so that it is well-informed.

When this legislation comes into force the Minister will be shocked at the number of conscientious objectors. He will see the reaction of those who have an active and well-informed conscience. There is a solemn obligation on legislators who are familiar with every section of this Bill to endeavour to advise those who will be administering it of the moral and social dangers and of the harm and damage legislation of this kind will do to the quality of life in our society. When their consciences have been enlightened, by their sound judgment, this legislation will be put where it should be put, on the shelves in the Minister's Department to decay, be covered with dust, and surrounded by cobwebs.

Even the dumbest citizen, even the most unintellectual citizen, even the citizen who has the least education, has a natural insinct not to kill, not to harm, not to damage, not to raise an objection to the Divine law, the law of Providence, the law of God. That human instinct is there. Many thousands of people have not disclosed their intention to the Minister to object totally on grounds of conscience to this legislation. They will be correct in doing that. There is nothing worse for people than having to struggle with their consciences. That is disastrous physically and mentally.

The conscientious objector will come forward courageously. There is a great necessity to cultivate the conscience of those who may not fully understand the gravity and the seriousness of this legislation. I hope and trust that doctors, chemists, their assistants and everybody connected with them, will use sound judgment. Their consciences cannot be fully informed unless they see the truth. Ignorance is no excuse for not having a well-informed conscience. The work of spreading the truth and condemning heresy and wrong is beginning.

I trust that the conscientious objectors will not find themselves out of work or victimised. The Minister probably does not foresee any victimisation of the conscientious objector. The conscientious objector can be the subject of disastrous discrimination. We have seen this in other spheres. What an amount of evil and money is behind the pressure groups who are pressing for this legislation for contraception and providing the gateway to be opened completely for abortion. The conscientious person who makes himself heard against the administration of this Bill may find himself at the bottom of the rung for the promotion to which he would otherwise be entitled. I want an assurance from the Minister that that will not be the case— not that his assurance will be worth much, because there are evilly disposed people in high places who will use their evilly disposed methods in an endeavour to put evil above what is right.

I am glad this opportunity has arisen for me to speak well of those who have conscientious objections against working this Bill and to enlighten them on the grave dangers that will exist for them in the exercise of their consciences. I know I am being extremely helpful to them when I advise them not to struggle with their consciences. They are justified in their belief that to handle legislation of this kind is wrong in every aspect and to every degree. A great section of the Irish population will respond magnificently and will make known to the Minister their conscientious objections to this Bill.

Mr. Haughey

I would have thought that, in our public service whether at national or local level, if any man or woman came forward to his or her superiors and indicated that he or she did not wish to take on some duty or participate in some action because of a conscientious objection, that would have been acceptable. I think that is true. That would prevail normally and reasonably throughout the whole public service and, indeed, in the private sector as well.

Because of the sensitivity of this subject, family planning, and because of the conflicting views widely held about it, I deemed it expedient in this case to go further and to write into the Bill the right of any individual to refuse to take part in the implementation of the legislation if it is conscientiously objectionable to him or to her. I really think this is a sensible and wise section, a section which deals with what could be a difficulty for many people. As I say, normally in our society the rights of conscientious objectors are respected and upheld. In this case they will have a full statutory provision to protect their position.

I would not have thought it necessary to say this but Deputy Flanagan addressed the question to me specifically and I suppose if I did not answer it something might be read into that, so I must avail of this opportunity to state categorically that there is no intention whatever anywhere to penalise anyone in any way for availing of this section. In fact, the position of anybody is fully safeguarded constitutionally and legally. I could not possibly visualise any circumstances arising in which people would be penalised, or impeded, or inhibited in any way because of their wish conscientiously to object to having anything to do with artificial contraceptives. That is what we are really talking about. I would not think that would apply anyway, particularly in view of the fact that this section is there to which anybody can point in defence of their position. This debate has taken many a turn but the idea that, from any side of the House liberal or conservative, there would be objections to a simple straightforward conscientious objection clause surprises even me.

I recommend the section to the House because it is an important safeguard in this area. I do not think it is necessary. Normal civilised procedures would obtain in this matter as they do to other matters in our public service and elsewhere but, in case there is any doubt about it, there is specifically granted to people the right not to participate in the implementation of this legislation if they feel in conscience that they do not wish to do so.

Mr. Boland

I agree with the Minister. I accept there is a need and it would be right to include a clause dealing with persons who have a conscientious objection in any legislation of this kind. I would not agree with the remarks made earlier by Deputy Mitchell in relation to conscientious objections. It might be better to allow other people to express their views on matters of individual beliefs and personal conscience and we would more accurately reflect the differing views obtaining in the country.

While the marginal note describes the section as being one dealing with conscientious objections, there is no reference in the section to conscientious objection. Nowhere does it suggest that persons will not be proceeded against because they have decided not to participate in the implementation of this measure on grounds of conscience. People who, not for reasons of conscience but because they feel the provision is unpalatable or unacceptable or would not improve the other business they may be carrying on, would be entirely excluded by the manner in which this section is written.

I am surprised that the section does not specifically say that this clause is to be a saver in relation to people who genuinely have conscientious objections. The marginal note is not interpreted by the courts as being part of the statute. It is merely a guide. I am surprised that objection of conscience is not specifically written into the wording of the section.

There is merit in the case made by Deputy Browne when he was speaking on his amendment. It may not be so lightly dismissed as the Minister was inclined to do. There may be a situation where people in the medical or pharmaceutical profession could find themselves being challenged in the courts as to why they were not prepared to participate in the operation of the scheme. We have established that married people, whatever about others, by virtue of the McGee Supreme Court ruling, have a constitutional right of access to artificial contraceptives. If a doctor, without giving any reasons why, was to deny them the script or authorisation necessary to obtain artificial contraceptives, if those people lived in a remote rural area and had not easy access to another doctor or if the situation obtained in relation to a chemist, it is conceiveable in the case Deputy Browne makes that those people might feel that that chemist or doctor, through his refusal to participate, had been party to denying them the constitutional right which the Supreme Court has specifically made available to couples within marriage. From that point of view, one would have thought it would have been important that grounds of objections of conscience might have been written into section 11 rather than merely contained in the marginal note.

A medical card patient visiting his doctor may have contraceptives prescribed for him and, while he will have to pay for them in the chemist, his visit to the doctor will be deemed to be free of charge. That anomalous situation, if it is to obtain, would mean that a medical card patient, visiting the doctor with whom he is registered, who finds his doctor is refusing to implement the provisions of the Bill might feel he had a case against that doctor or might be so advised by other people. Any doctor or other professional person who, on genuine grounds of conscience, wants to opt out of the odious task this legislation purports to give them, should be safeguarded.

Before Report Stage I should like the Minister to consider whether objections on conscience grounds should be specified in the wording of the section. Will the Minister give any indication why it is not specified?

Mr. Haughey

The section deals with the legislation and states nothing in the legislation shall oblige anybody to comply with the legislation. It is a better way of dealing with it.

Mr. Boland

Does that not mean that people who do not comply with the legislation on grounds other than conscience are equally saved?

Mr. Haughey

Yes.

Mr. Boland

The marginal note which describes the section is——

Mr. Haughey

The marginal note is just to identify the section.

Question put and agreed to.

SECTION 12.

Mr. Haughey

I move amendment No. 30:

In page 7, line 28, to delete "section 2" and to substitute "section 3".

This is purely a drafting amendment. It is to correct a mistake in the original draft.

Mr. Boland

Last week, to prove a particular point, the draftsmen were perfect people who could not make a mistake.

Mr. Haughey

It is a printing error.

Amendment agreed to.

Section, as amended, agreed to.

Section 13 agreed to.

SECTION 14.

An Leas-Cheann Comhairle

Amendments Nos. 31 and 37 are cognate and may be discussed together.

Dr. Browne

I move amendment No. 31:

In page 8, subsection (1), line 21, to delete "£500" and substitute "£50".

I am concerned to discuss the question of the penalty clauses and what is involved in regard to the Bill. I have struggled to do so a few times. It is not possible to bring a Bill into the Dáil and implement it without some kind of penalties. If this absurd Bill has to be passed, it is logical to accept that some kind of penalties must be provided.

Is the Minister serious that a person guilty of a first offence under the Bill:

... shall be liable on summary conviction to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or to both the fine and the imprisonment.

And that:

A person guilty of a second or subsequent offence under this Act shall be liable, on conviction on indictment, of a fine not exceeding £5,000 together with, in the case of a continuing offence, a fine not exceeding £250 for each day or part of a day for which the offence is continued after the first such day or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fine or fines and the imprisonment.

We are discussing the question of family planning but on a number of occasions during the debate the Minister, throwing his hands in the air in the delicate and elegant way that is characteristic of him, chided us for our criticism of him and asked was it not a very good move to take this Bill from the Department of Justice to bring it within the ambit of the Department of Health. However, what is totally inexplicable to me is that the Minister considers it necessary to punish people in terms of penalties that are out of all proportion to what is regarded to be the offence. For instance, a person found in possession of an IUD or a condom, without having an authorised prescription for such device, is to be deemed to be guilty of an offence.

Mr. Haughey

That is not so. There is no offence by reason of possession of any such device. It is simply a matter of importing or selling contraceptive devices.

Dr. Browne

But will it not be an offence to be in possession of a contraceptive device without having the appropriate doctor's prescription?

Mr. Haughey

There is no such offence as the offence of possession in this legislation. In that regard the Bill differs very much from the Misuse of Drugs Act.

Mr. Boland

That is questionable in relation to subsection (4) of section 4.

Dr. Browne

It seems to me—and this is the kernal of the objection to the Bill —that one must go to a doctor and be given a prescription for contraceptive devices before being entitled to be in possession of such devices.

Mr. Haughey

On a point of information, the only offences that can be committed in terms of this legislation are the ones that are referred to specifically. Possession is not considered to be an offence in terms of this Bill and, consequently, does not attract court proceedings or penalties of any sort.

Dr. Browne

Let us discuss then the question of persons selling contraceptives. Are they to be subject to the penalties provided for in section 4, for instance? That section provides that a person shall not sell contraceptives unless the sale is in accordance with the various conditions laid down but if these conditions are not present anybody selling contraceptives will be guilty of an offence and the question of an offence brings us to the question of a penalty. The penalty in this case is extravagant. It is out of proportion to the nature of the offence. The penalty should fit the crime. Why should there be this provision for excessive penalties in respect of somebody who, for instance, sells a dozen contraceptives? It would seem that the Minister has over-reacted throughout this Bill to what is after all a health measure, a provision which hopefully will improve the living standards of our people, stemming from the capacity to make available to people a comprehensive family planning service. Therefore, I would consider it very wrong that a Minister for Health should undertake this criminalising process in relation to something that is intended to help the community by way of improving their living standards and welfare. The penalties provided for in the Misuse of Drugs Act, 1977, were designed for the protection of people against drug pushers. We all agreed with such provisions because they related to the misuse of a number of serious addictive drugs.

Mr. Haughey

Perhaps I could help the Deputy by way of explaining a few points. When the Deputy says that I am criminalising this area, he is not correct. He must realise that when we pass legislation here, we intend it to be enforced and the only way in which we can ensure its enforcement is by providing for certain penalties. The Deputy could make the same criticism in regard to the Misuse of Drugs Act whereby, according to the Deputy, the Minister for Health could be said also to have engaged in criminalising activity, but that is not the issue. All that is involved either in that Act or in this Bill is the provision for penalties in respect of offences that are created in the interest of the protection of the general public. In the Misuse of Drugs Act pushers are dealt with separately. There is no first offence so far as they are concerned. The only reason for a mitigated penalty appearing in the Misuse of Drugs Act in respect of a first offence is that in that Act possession is an offence.

That is why we on the special committee which dealt with the Act, decided in our wisdom that for a first offence possession would be deemed to be an offence carrying a nominal penalty. The situation is different in respect of this legislation because we are dealing only with people who for commercial reasons break the law deliberately. Therefore, it is legitimate that the normal District Court penalties should apply to them. There is nothing savage or penal about what is proposed here. These are the levels of penalties now regarded as appropriate for summary conviction in the District Court and that is why they are fixed at £500 or six months in prison. These are maximum penalties.

Dr. Browne

I appreciate the Minister's intervention. It was very helpful but I would distinguish between the possession of dangerous addictive drugs and the possession of items relating to a family planning scheme. My difficulty here is that I do not believe in the concept of criminality. However, that is not a matter for discussion now. There are two different situations involved, rather like the situation in advertising. The Minister would say that I say we should not advertise tobacco and we should advertise contraceptives and so on. One has to take up a position where one can defend the fact that in one set of circumstances one can behave in one way and justify it, and in another set of circumstances that one can reserve for the District Court the power to inflict penalties but that those powers would be fitting to the crime of selling a dozen contraceptives. It seems to me that the fine of up to £500 is something that, if I were Minister for Health, I would not care to be associated with.

Mr. Boland

Whatever about the level of fines, I suppose they are an improvement on the situation last week where somebody would have been taken out and shot. The Minister should sit down and take a look at this matter. I am not certain that he is absolutely correct in saying that possession is not an offence under this Bill. Section 4(4) states that a person who contravenes this section or regulation for the purpose of this section shall be guilty of an offence. This deals with the provisions concerning how a person shall not sell contraceptives unless the sale is in accordance with the regulations and the person is the servant or agent of a pharmaceutical chemist. Section 4(1) (b) (ii) states that a person shall not sell contraceptives unless the person to whom the contraceptives are sold is named in the prescription or authorisation in writing.

There are two sets of people mentioned there. The first is the person who shall not sell. If that person sells to somebody other than the person named in writing on the prescription he is, by definition in subsection (4), guilty of an offence. We would all accept that. There is also the person to whom the contraceptives are sold.

Mr. Haughey

There is no offence there.

Mr. Boland

It states that a person shall not sell contraceptives unless the person to whom the contraceptives are sold is named in the prescription. The section goes on to say, in subsection (4), that a person who contravenes this section shall be guilty of an offence. Either person may have contravened the provision of this section. We dealt, not as extensively as we might have done otherwise, during the discussion on section 4 with the situation where the spouse of the person to whom the prescription has been issued would not technically be entitled to go to a chemist and have contraceptives sold to him. If Mrs. Haughey or Mrs. Boland went to a chemist and a prescription was made out in Mr. Haughey's or Mr. Boland's name and the chemist dispensed the prescription, then not only has the chemist violated the provisions of section 4 but it could equally be argued that the person who went with the prescription, which was not in her name, had also violated it. That seems to be further proved by the provisions of section 8, which we discussed earlier today, which relate to forged or fraudulently altered prescriptions or authorisations. It seems that a person who had contraceptives dispensed by tendering a prescription which was not in his name could be deemed to be in violation of section 4. The Minister seems to be very adamant that that is not the position.

Mr. Haughey

There is no such thing as an implied offence. You can only have an offence which it is specifically stated is an offence.

Mr. Boland

It says here that a person shall not sell contraceptives unless the person to whom the contraceptives are sold is named in the prescription or authorisation. The section goes on to state that a person who contravenes this section shall be guilty of an offence. It is questionable whether either person may not have contravened this section and it is also questionable whether the spouse could be represented as having fraudulently presented the prescription to the chemist. The Minister should make it crystal clear who is or who is not liable to be prosecuted.

Mr. Haughey

I am satisfied that it is clear, but if there is any doubt about it I will make sure that it is made clear. It must be specifically stated that the offence is an offence before it can be an offence.

Mr. Boland

If one friend supplies contraceptives to another because chemist shops are closed over a weekend and that person is recompensed for his or her trouble are not both of them outside of the law?

Mr. Haughey

It is an offence if it is a sale.

Mr. Boland

Is the person who paid for the contraceptives also committing an offence?

Mr. Haughey

No. I said to Deputy Browne, and I repeat it again, that there is no offence in that case.

Mr. Boland

Is there an offence of purchase without a prescription?

Mr. Haughey

No.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendment No. 32 in the name of Deputy Browne. Amendment Nos. 35 and 38 are cognate and we will discuss amendment Nos. 32, 35, and 38 together.

Dr. Browne

I move amendment No. 32:

In page 8, subsection (1), lines 21 to 23, to delete all words from and including "or," in line 21 to the end of the subsection.

Mr. Haughey

Perhaps I could short-circuit this discussion by indicating that these are not my offences. I did not decide on those level of offences. These are matters which were worked out between the draftsman, the Public Prosecutor's office, the Attorney General's office and so on. These are just the level of offences which are regarded now as normal, appropriate offences for legislation of this sort. There is nothing intentionally punitive about them. They are just put in for the simple reason that, if one makes laws and one wishes to have them enforced, the only way they can be really enforced is by having some reasonably adequate level of penalties.

Dr. Browne

I have to accept the Minister's assurance about the kind of penalties and the reason for the penalties he is introducing in this Bill. It seems to me that, even accepting the £5,000 and so on, to send anybody to jail or even the Minister for Health being party to accepting that penalty is a disgrace. Why could he not have said that he can see it in relation to all the drugs we have been talking about, heroin and so on, and the damage they can do, but what damage can it do to sell contraceptives to somebody? As the Minister knows, it is either preventive or somebody planning their family. Even if they do it without being in accordance with the Minister's laws surely it is not justified——

Mr. Haughey

The Deputy does not accept the Bill and, therefore, he does not accept that there should be any penalties.

Dr. Browne

I have not said that, I have said "Accept the Minister's draconian £5,000 or £50,000, but sending somebody to jail is something which a Minister for Health should not be party to". If we were talking to the Minister for Justice we could not very well appeal to him because that is his job. A Minister for Health should not be sending people to jail.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendments Nos. 33 and 34 are related and may be discussed together.

Dr. Browne

I accept the Minister's explanation.

Amendments Nos. 33 to 35, inclusive, not moved.

Mr. Haughey

I move amendment No. 36.

In page 8, subsection (3), line 31, to delete "District Justice" and to substitute "Justice of the District Court".

This is another drafting amendment. It is just to substitute "Justice of the District Court" for "District Justice".

Amendment agreed to.

Amendments No. 37 and 38 not moved.

An Leas-Cheann Comhairle

Amendment No. 38a in the name of the Minister is on today's Order Paper.

Mr. Haughey

I move amendment No. 38a:

In page 8, subsection (3), line 43, to delete "or fines".

Amendment agreed to.

Mr. Haughey

I move amendment No. 39:

In page 8, lines 44 to 48, to delete subsection (4) and to substitute the following subsection:

"(4) Section 13 of the Criminal Procedure Act, 1967, shall apply in relation to a second or subsequent offence under this Act as if, in lieu of the penalties specified in subsection (3) of that section, there were specified therein the penalties provided for by subsection (3) of this section, and the reference in subsection (2) (a) of that section to the penalties provided for by subsection (3) of that section shall be construed accordingly."

This is purely a drafting amendment.

Amendment agreed to.

Section 14, as amended, agreed to.

SECTION 15.

An Leas-Cheann Comhairle

Will Deputy Browne move amendment No. 40?

Dr. Browne

I am not moving it on the same grounds as the Minister.

Amendment No. 40 not moved.

Section 15 agreed to.

SECTION 16.

Dr. Browne

I move amendment No. 41:

In page 9, subsection (2), line 13, after "fees" to insert "in respect of licences".

Is what the Minister has in mind that the fees shall only be fees in respect of licences in relation to the right to import and so on? I am not sure what kind of fees the Minister is referring to.

Mr. Haughey

My advice is that these are the only fees mentioned.

Dr. Browne

Therefore, they would only be in respect of that?

Mr. Haughey

Yes.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendments Nos. 41a and 41b are related and can be discussed together.

Mr. O.J. Flanagan

I move amendment No. 41a:

In page 9, subsection (3), after "Act" to insert:

"with the exception of regulations made under section 3 (3) and section 10 of this Act".

Mr. Haughey

I would suggest that both of those amendments have fallen as they were consequential on amendment No. 28a, which has not been——

Mr. Boland

They also relate to regulations under section 3 (3) apart from relating to section 10, which Deputy Flanagan's earlier amendment would have the effect of amending.

An Ceann Comhairle

They are treated as separate amendments by the Chair.

Mr. Haughey

All right.

Mr. O.J. Flanagan

Does the Minister agree that my amendments would be a considerable improvement?

Mr. Haughey

No, I am afraid I do not.

Mr. Boland

Is it not the point of Deputy Flanagan's amendment that the regulations under section 3 (3) be presented to the House in draft form, rather than our having the continuing haste to have them discussed afterwards, by endeavouring to have time allocated to discuss the regulations? If the regulations came before the House in draft form they would not come into effect until the House had positively confirmed them.

Mr. O.J. Flanagan

I want every regulation to be laid before both Houses of the Oireachtas and to be approved by resolution before they come into force. We have no guarantee that the Minister will be Minister indefinitely and we could easily have a Minister for Health in the future who would make regulations which could be considered dangerous to the public welfare. Before any regulations come into operation the Dáil and the Seanad should have an opportunity to examine and discuss them. This type of legislation will affect the quality of life, and the elected representatives should have an opportunity to examine any regulations made before they come into effect. The Minister might tell us that no responsible Minister for Health would make hasty regulations, but the House should have an opportunity in the interests of the family, which is the fundamental unit of society, to examine regulations which could have a detrimental effect on society. For those reasons my amendment is desirable and I would ask the Minister to accept it.

Mr. Haughey

My original point is correct that both amendments Nos. 41a and 41b include regulations under section 10. As we already know amendment No. 28a relating to section 10 fell, so both those amendments should fall with it. However, that is only perhaps a committee debating point.

An Leas-Cheann Comhairle

I have not had an opportunity of going through them, but the instructions before me say that the amendments stand on their own.

Mr. Haughey

Because they are before us we might as well talk about them. What is involved is the net issue of whether we have regulations and follow the normal course of laying them before the Oireachtas, giving Members an opportunity to discuss them and to annul them, if necessary. That procedure has been followed for good and sufficient reasons. There would be a disadvantage in adopting the first procedure, which suggests that the regulations would become effective only when they had been passed by both Houses. That could involve long delays: the House might not be sitting or the pressure of Parliamentary time might be such that there would be a delay of many months before the regulations could become effective. I do not think that would be desirable.

Amendment put and declared lost.

Amendment No. 41b not moved.

Section agreed to.

Section 17 agreed to.

TITLE.

An Leas-Cheann Comhairle

Amendment No. 42 has been ruled out of order.

Dr. Browne

When was it ruled out of order?

An Leas-Cheann Comhairle

By letter dated 9 May, the Deputy was informed that amendment No. 42 had been ruled out of order. The Leas-Cheann Comhairle does not make these decisions, but Deputy Browne was informed in a letter he received from the Ceann Comhairle on 9 May 1979——

Dr. Browne

Were any reasons given?

An Leas-Cheann Comhairle

The letter expresses regret that amendments Nos. so-and-so and amendment No. 42 tabled by Deputy Browne for Committee Stage had been adjudged out of order. The reason for the ruling out of order of the amendment was given in a letter to the Deputy, that it would enlarge the scope of the Bill and would effect a fundamental change in the principles of the Bill as read a Second Time—the usual reasons.

Question proposed: "That the Title be the Title to the Bill."

Dr. Browne

I do not agree with it.

An Leas-Cheann Comhairle

Is the Title being agreed to?

Mr. Boland

No.

Question put and declared carried.

An Leas-Cheann Comhairle

Next Stage?

Mr. Boland

First sitting day after the summer recess.

Mr. Haughey

Do the Opposition wish to have a Report Stage? I have given an undertaking to table one or two small amendments. I can easily introduce them in the Seanad and then, of course, they will have to come back here. Will the Deputies accept that procedure?

Mr. O.J. Flanagan

We must have a Report Stage on a serious Bill of this kind. Parliament cannot be used as a rubber stamp.

Mr. Haughey

I do not think anybody could suggest that this Bill has been rubber stamped.

Mr. Boland

I thought the Minister might suggest that the Report Stage would be taken on the first sitting day after the recess.

Mr. Haughey

One amendment I propose to make relates to the standards of the manufactured contraceptive, but there is no reason why I could not make that in the Seanad. We can have the Report Stage here now.

Mr. O.J. Flanagan

We wish to think about the alterations the Minister proposes to make.

Mr. Boland

In view of what happened in relation to section 4 in Committee I am sure Deputies will wish to discuss it on Report Stage.

Mr. Haughey

I will be proposing that we take the next Stage next Tuesday, subject to agreement between the Whips.

Mr. O.J. Flanagan

I strongly object to that. All I ask is that the Minister be reasonable. As he knows, there is a postal strike and Deputies cannot receive their mail. I was caught in a traffic jam today and was not here to move amendment No. 28a and with the permission of the Chair I should like an opportunity to discuss it on Report Stage.

An Leas-Cheann Comhairle

The Minister has suggested next Tuesday and I understood Deputy Boland had accepted it, subject to agreement between the Whips.

Mr. Haughey

The Bill has been on the stocks since Christmas. I do not think anybody can suggest seriously that more time is needed to consider any other aspect of the Bill. The Committee Stage has been exhaustive, detailed and prolonged, and Deputies have until Tuesday to put down any amendments they wish.

Mr. O.J. Flanagan

With the Chair's permission, I ask Deputy Boland what is the difference between now and next Tuesday. There will not be any post coming to any of us before then. Many Deputies would like to have a further word on the Bill before it is passed.

Mr. Haughey

I am prepared to take Fifth Stage now.

Mr. Boland

I have suggested to the Minister that Report Stage be taken on the first sitting day after the summer recess. I thought that would be most appropriate for us all because it would allow all the Members of the House the benefit of the summer to consider the points made by various speakers and the Minister. That is the time the Bill might best next come before the House. I understand that there is a considerable volume of business to be disposed of before the summer recess, including some Bills that are not published yet. I would have thought that the processing of this Bill would inhibit seriously the processing of the other legislation.

Mr. O.J. Flanagan

I, and I am sure Deputy Browne and Deputy Boland likewise, have a special interest in this Bill. The Minister also is aware that there is a session of the Council of Europe next week which will render it impossible for me to be here. I cannot be in both places at once. In my opinion next Tuesday is not a suitable day to take the final stages of the Bill.

Mr. Haughey

There is an important health conference in Stockholm this week and I am here to attend to my parliamentary business. I did not go to the conference in Stockholm.

Question put: "That Report Stage of the Bill be taken on Tuesday, 26 June 1979.

The Dáil divided: Tá, 56; Níl, 36.

Tá

• Ahern, Bertie.
• Allen, Lorcan.
• Andrews, David.
• Aylward, Liam.
• Brady, Gerard.
• Brady, Vincent.
• Briscoe, Ben.
• Browne, Seán.
• Callanan, John.
• Calleary, Seán.
• Colley, George.
• Collins, Gerard.
• Conaghan, Hugh.
• Connolly, Gerard.
• Cowen, Bernard.
• Cronin, Jerry.
• Daly, Brendan.
• Davern, Noel.
• de Valera, Síle.
• Doherty, Seán.
• Fahey, Jackie.
• Farrell, Joe.
• Filgate, Eddie.
• Fitzpatrick, Tom. (Dublin South-Central).
• Fitzsimons, James N.
• French, Seán.
• Haughey, Charles J.
• Herbert, Michael.
• Keegan, Seán.
• Kenneally, William.
• Killeen, Tim.
• Killilea, Mark.
• Lalor, Patrick J.
• Lawlor, Liam.
• Lemass, Eileen.
• Leonard, Jimmy.
• Leonard, Tom.
• Leyden, Terry.
• McCreevy, Charlie.
• MacSharry, Ray.
• Meaney, Tom.
• Morley, P.J.
• Murphy, Ciarán P.
• Noonan, Michael.
• O'Connor, Timothy C.
• O'Donoghue, Martin.
• O'Hanlon, Rory.
• O'Leary, John.
• O'Malley, Desmond.
• Power, Paddy.
• Reynolds, Albert.
• Smith, Michael.
• Tunney, Jim.
• Walsh, Seán.
• Woods, Michael J.
• Wyse, Pearse.

Níl

• Barry, Peter.
• Barry, Richard.
• Belton, Luke.
• Bermingham, Joseph.
• Boland, John.
• Browne, Noel.
• Bruton, John.
• Burke, Joan.
• Byrne, Hugh.
• Collins, Edward.
• Gilhawley, Eugene.
• Griffin, Brendan.
• Harte, Patrick D.
• Keating, Michael.
• L'Estrange, Gerry.
• Lipper, Mick.
• McMahon, Larry.
• Mitchell, Jim.
• Conlan, John F.
• Cosgrave, Liam.
• Cosgrave, Michael J.
• Crotty, Kieran.
• D'Arcy, Michael J.
• Deasy, Martin A.
• Desmond, Barry.
• Enright, Thomas W.
• Fitzpatrick, Tom. (Cavan-Monaghan).
• Flanagan, Oliver J.
• O'Brien, Fergus.
• O'Brien, William.
• O'Connell, John.
• O'Keeffe, Jim.
• Ryan, John J.
• Taylor, Frank.
• Timmins, Godfrey.
• Tully, James.

Tellers: Tá, Deputies P. Lalor and Briscoe; Níl, Deputies L'Estrange and B. Desmond.

Question declared carried.

Report Stage ordered for Tuesday, 26 June 1979.