Private Members' Business. - Law Reform (Abolition of Criminal Conversation) Bill, 1980: Second Stage.

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

It is an honour and privilege for me to have the opportunity of introducing, on behalf of our party, a Bill which, if approved by the Government, would mark a significant step forward in recognition by all sides of this House of the need for a new status and indeed recognition of the rights of Irish women. The Bill itself is a simple one. I believe there is substantial sympathy on the part of the Government to its general tone. In regard to its detailed content and actual expression we are open to suggestion or consideration of amendment. I have no doubt that the Minister will have something to say about that later. But there are certain things we are not open to and I hope to spell these out.

The reason for the introduction of this Bill is simple: in the situation obtaining, statutorily speaking, affecting this issue of criminal conversation, we recognise what is now widely perceived to be an affront to equality of human rights for Irish women. I do not think anybody seriously contests that any longer. The time is now opportune to grant Irish women the dignity and status of full equality in law and in all the social and economic implications arising therefrom. There are many of these areas. The growing concern expressed by organisations, or women's groups, by concerned citizens and individuals everywhere testifies to the fact that action is needed now and that the time for words is past. I am struck also by the fact that there is not really any excuse for action being deferred any longer in an area such as this. Often we are told that economic considerations, lack of resources and so on may defer or postpone indefinitely much needed and desirable innovation. This is not the case here. This Bill does not involve any extra charge on public funds. It is essentially a commitment to rid our Statute Book, our way of thinking and our way of life of an Act which deems a woman to be the property of her husband and which places her in a position of inferior status and restricted dignity relevant to her husband. That situation is no longer tolerable.

I feel there is substantial support throughout this House, and certainly throughout the country, for the ideal contained in this Bill. If we are now of the view, almost unanimously, that action needs to be taken to ensure that there will no longer be these discriminatory elements in our legislation, then not merely the criminal conservation tort should be abolished but a systematic, urgent analysis should be made of all legislation in this area with a view to ridding our legislative framework and all that it contains once and for all, of any nuance or discrimination against people because of their sex.

I appeal to the Minister to consider embarking on a new, dynamic drive to achieve that modest goal, a goal which is decreed to us, not merely by bodies such as the European Court of Human Rights but by our own innate sense of the Christian dignity of women. Sadly, the record of Irish Governments in relation to progress in law for Irish women is not good. Surely in 1980 there should be no need for this country, once again, to be dragged into the European forum to have extorted from it, usually from an apparently unwilling Government, a Government who ultimately grant, with some begrudging, new legislation, new attitudes or innovations which have to be forced on them by a more enlightened international process than we have managed to cobble together in this Chamber.

We are told this is a time of tight resources. If so, there is an obligation on the Government and on the Minister, particularly in this area, to embark urgently on the introduction of legislation which in many cases requires not financial resources, or major infrastructural rearrangement of the way in which we do things in society, but perhaps the most difficult of all commitments, the enactment of sometimes courageous, often difficult, but essentially just, equitable and necessary legislative innovations, now timely and essential if justice is to be seen to be done to Irish women.

Our basic thesis—and I should like to know if the Minister is willing to concur with us—is that the present position relating to the entitlement of a husband to take an action, the action of criminal conversation, against another male is no longer acceptable to anybody. Such an action has been discredited all over the world. Our Law Reform Commission, in their extremely comprehensive and very helpful paper on this and related subjects, dated 1977, clearly said also that the present situation was not tolerable any longer. I was pleased to hear the Taoiseach say, in his presidential address to the Fianna Fáil Ard-Fheis on 16 February 1980:

There are, however, still areas of discrimination and difficulty for women. Full equality is the aim of Fianna Fáil.

He further said:

...I would like to give this Ard-Fheis an assurance that we intend to proceed as rapidly as circumstances and resources permit and that we will not be satisfied until women enjoy a status in our society equal in every way to that of men.

That is a enlightened, constructive and helpful sentiment. If the Government propose to bear it out in reality surely it will mean that this universally accepted wrong, at present being perpetrated in Irish law in relation to criminal conversation must go. Otherwise those words are shallow and have no meaning. The Taoiseach said as soon as circumstances and resources permit. Resources are not at issue in this. I am not sure how flexible the definition of "circumstances" may be but I should like to hear the Minister say what circumstances could possibly inhibit the Government in a commitment at this time to ridding our Statute Book of the anomaly which treats people, because of their sex, as being different in relation to their legal rights.

The Bill before the House may not be perfect. Indeed, I consider it wrong that in the constructive working out of this type of proposal, the research facilities available to members of the Opposition are negligible beyond the minimum assistance available to anybody in the House, of the most routine and mundane, secretarial nature. Therefore I do not put this Bill forward on behalf of our party as if it was the last word in this area, or as if it was the ultimate say in relation to criminal conversation. It might very well be, in its technical detail, open to amendment, it may not be the ideal Bill with which the Minister, with his presumed legions of back-up and research assistance, would be able to come up—those good people in the Department of Justice and others who can help him draft into law the commitment, promise and, hopefully, vision of the kind of Ireland he wants, particularly one in which men and women are treated equally.

The Bill may not be perfect. I have no reason to consider it imperfect, but I enter the caveat that there might be technical aspects which need tidying up. Some interpretations of the Bill have lent themselves to unhelpful interpretations and extrapolations. I suspect there may be Members who are not totally zealous to ridding our Statute Book of this tort. Behind it all there is a commitment by everyone to ensure equality of access to law and the ideal of treating everyone equally in law.

Regardless of whether or not the answer now before the House is the right one, the mere voting down of this proposal is not adequate because it is widely recognised and accepted that the implication in the present situation, which, loosely interpreted, denies to a wife a reciprocal right to take action open to her husband, is not acceptable in constitutional terms—this is under article 40, which guarantees equality of rights under the law—and would not be acceptable in the European Court of Human Rights to which, very sadly, a number of Irish women have had to go to gain justice from an often begrudging Government. I hope this will not occur in this case. If the Bill is unacceptable in its present form it should not be deemed so by its mere voting down. I want a firm commitment this evening from the Government—whether or not they propose to introduce their own Bill and, if so, when and what kind of Bill it will be.

It would be remiss of me, a mere male who is not as au fait as many people are with criminal conversation implications and with understanding the affront which it is clearly seen to constitute to Irish women, if I did not mention the debt which Irish society. I and my predecessor, Deputy O'Keeffe, who embarked initially on the work in this area, owe to the women's organisations. Our concern in this area commenced when my predecessor in this spokesmanship, Deputy O'Keeffe, drafted the outlines of the Bill before us, researched the background to it, consulted widely and took every reasonable step to ensure that this proposed legislation was appropriate, fitting and met the objections of women in our community. These women's groups are numerous and include many who have clearly spelled out their opposition to the present situation and others who have been less vocal but who have indicated, directly or indirectly, that they would support the kind of progressive, enlightened, reformist attitude to legislation in this area now demanded.

They include Adapt, Aim, Ally, the Association of Widows of Civil Servants, the National Federation of Business and Professional Widows Clubs, Catholic Protection and Rescue Society of Ireland, Cherish, Cork Federation of Women's Organisations, Council for the Status of Women, Irish Countrywomen's Association, Irish Federation of Women's Clubs, National Association of Widows of Ireland, Irish Housewives Association, Irish Women's Aid Society, Joint Committee of Women's Society and Social Workers, the National Council for Single Women, Single Women's Association, Women Elect and Women's Political Association. I am sure there are others and I hope I do not cause offence by not referring to them. All of these in their various ways have expressed the view, some more strongly than others, that reform in relation to legislation affecting women is long overdue.

We are affording the Government this evening the opportunity of saying what their intentions are in this regard. I was pleased by the effort of many of these organisations to try and encourage the more reticent of our politicians to take the first timorous steps along the road of enlightened reform in this area. I am impressed that the Irish Country women's Association have time and again referred to the need for the abolition of criminal conversation. It is an organisation which, I am sure we all agree, does marvellous work for women and can hardly be said to be in the forefont of legislative demand or other proposals which would be open to the accusation that they were not helpful, for example, to the stability of marriage or moral standards in the country. This demand spread through women's organisations all of whom have shown a serious, studied, constructive socially conscious approach to this issue. I believe they represent the feelings of the overwhelming majority of Irish women. In a Parliament largely dominated by men it is important that this voice be represented. There are others in all parties better able to represent that voice than I and I hope they will participate in the discussion.

The situation we want to change is the capacity of a husband to take an action for damages against a person who has had sexual relations with his wife. This is the action of criminal conversation. The consent of a wife to the relation does not affect the entitlement to sue. It is not necessary that the adulterous conduct should result in the separation of the spouses. Conduct by the husband, however disgraceful it may be in itself, can only affect the question of damages and not the basic right to take the action. The view and experience to date has been that this right of action is unhelpful for a number of reasons and does not achieve the ideals which I presume those opposing change would seek to pretend it does.

I am sure we are all concerned about the question of marriage breakdown and marriage stability, If we are, let us have the wisdom and courage to discuss the issues which are germane to that problem. This legislation, rooted back in the mists of time somewhere in the middle of the 19th century, cannot be seriously argued to be in any way essential to any issue relating to the stability of marriage. On the contrary, the few cases that have been taken have largely served only to assuage a sense of perceived outrage, perhaps vindictiveness in many cases, on behalf of the individual and, on the other hand, the casual interest of the readers of some Sunday newspapers.

I have never yet seen a shred of evidence, and I would like those who seek to oppose this Bill to produce it if it exists, that the present legal situation has ever helped to heal one marriage, has ever helped to do justice to the children involved, has ever helped to do anything but hammer the final nail in an already dying or dead human relationship, and surely marriage is primarily a human relationship. None of us would seek to bludgeon our way into having changes enacted in areas of intimate, stable relationships between man and wife. It is no harm that the State should, particularly if there is evidence that legislation is, in fact, pointless and irrelevant and not achieving the ends, presumably, for which it was designed, withdraw gracefully, if possible, from that area. This is one such area. A marriage is fundamentally about human relationships. If the State wants to help marriages, let it do so by giving all the professional, counselling, financial and other aids necessary to build and maintain stable and happy marriages in these times of difficult economic and other pressures. Negative, divisive legislation, such as this, does not help to do so. This is not the view merely of this speaker, but of law reform commissions around the world.

A number of arguments can be advanced against the present situation. Most of them have been quite admirably dealt with in the Law Reform Commission's report to which I have already referred. These arguments are central to our opposition to the present situation and our request for enlightened change in that area. The most fundamental objection, of course, must be one of two very central arguments: the implicit inequality in relation to equal human rights for women involved in an action which allows a man to take a court action and not to grant his wife a reciprocal advantage. It is fair to say that there are some who say that such an action is open to a women. If it is, then women are not aware if it, nor have they ever undertaken such an action, presumably because they have been wisely advised that such an action is not, in fact, open to them. There is, therefore, at the very least a very substantial burden of evidence and argument to indicate that this is an action for a man against another man and is not open to the first man's wife.

The other essential argument, apart from the question of equality of human rights, is the notion of ownership, of subjugation, of proprietary interest to which women are subjected in the context of this action. The implication is that the woman is, as the almost medieval expression has it, the chattel of her husband. I do not think that anybody in this House, and, I hope, very few outside it, would testify that that attitude is sustainable today, if it ever was sustainable. If it is not sustainable and is not acceptable in this House, then we must do something about it. The "we" this evening can be either side of the House. The acceptance of this Bill would mark a major step forward in this area and would serve perhaps above all, to highlight the need for reform throughout this area of legislation affecting women. Failing that, the Government have an obligation to spell out clearly what precisely they are going to do, how they are going to do it and, most importantly of all, in view of these hazardous and difficult political times, when they are going to do it. There is no guarantee that any of us will be around for too long and I want any commitment in this area to be one that is enacted very soon.

The proprietary notion, the notion that a man somehow owns his wife more than she owns him—if ownership, indeed, is an acceptable expression in this context at all—is also repugnant. Some describe it as being barbaric and we would agree with that. Surely we cannot sustain the idea that two human beings, equal in the eyes of our Constitution, somehow differ when it comes to their rights in law in marriage. The rather bar barous theoretical basis of the action, savouring a proprietary interest in one's spouse, offends against not just what the Law Reform Commission, slightly quaintly, puts it "modern notions," but also offends against a deeply ingrained sense of justice in the equality of human rights for all people, regardless of their sex. This argument has won wide judicial support throughout the world and I have no doubt would, if contested here. Let us hope that an enlightened Government and an enlightened Minister will not wait for such time as we have to have the unseemly, unnecessary, prurient exhibition of a sordid case passing through the courts, before whoever is in Government at the time is dragged into the eighties, even if not kicking and screaming, even if objecting slightly.

Would it not be nice for a change for this House not to react to groups outside, to the loudest lobby, but saying, in principle, because we believe it in our hearts that here is a wrong and we are going to introduce the reforms necessary to correct that wrong? Would it not be wonderful for the Taoiseach and the Minister for Finance to recognise that it does not cost a great deal of money for a change and that here is a way we can make progress, where the quality of life will improve for people. Women, many of them never directly affected, but indirectly affected, nevertheless because of their fellow feeling for women who are in their position or who are in their neighbourhood or in their community, will appreciate that things are improving, that a parliamentary system works and that it does not have to depend on people beating down the doors outside. To do that, all that is necessary is to accept a modest Bill which is already the law in many countries in the European context and also, indeed, in Northern Ireland, where, no doubt, we would be very keen to make a good impression in this area as, I hope, in every other area. We have particular cause to be sensitive in relation to this or any other legislation.

There are other arguments made against this Bill, some stronger than others. One says that the action no longer transfers any ulterior legal benefit upon the plaintiff. Formerly, the action would have been a prerequisite to his entitlement to a parliamentary divorce, but that does not arise here. Therefore, this necessary prerequisite action, preliminary to divorce, because we do not have divorce, is not an argument or another reason for the dropping of this legislation, unless, of course, the Government propose to introduce divorce. I am not aware that that is the case at present.

Another argument says that perhaps, even in this context, the wrong person is being penalised. The Law Reform Commission refers to this argument. I am not sure that penalising anybody in this situation is the right answer. At best, and at heart, the essential argument to retain this legislation is our concern surely with trying to heal a marriage in difficulty and knitting together the strands of the lives of two people, whose co-existence has been sundered or shattered. If that is the case, public punishment and assessment and awarding of damages and all of the scandal that goes with them are hardly the cornerstone of a new day for the people involved. A much more human, intimate, sensitive, compassionate approach is necessary. There is no harm, in passing, to refer to something else. These are the eighties and the response of society—which is at the kernel of any legislation and our attitude to it—must also bear in mind trends as they evolve, trends in values and in the norms of society. What was perceived to be an outrage and a wrong in the nineteenth century may no longer be perceived to be the same kind of outrage or the same kind of wrong. What could be deemed, on one hand, to be an irrevocable step towards damaging fundamentally a marriage in, say, the twenties may no longer be that today when men and women have a new understanding of sexuality, of human relations and, perhaps, in some cases new attitudes to the confines which traditionally have been accepted in these areas. So, legislation of all kinds should be open to regular review particularly if it is legislation affecting an intimate human relationship such as we are talking about here.

Another argument—and this is the experience of people in law—is that the primary use of this legislation as at present enacted—and it has not been carried out very often—is in relation to its usefulness as a weapon for blackmail. Clearly, there is not much point in taking an action unless the person against whom you take it has substantial funds so that you can get substantial damages. That does not seem to be very good law because the wives of the poor— because poverty and beauty and physical attraction or whatever motivates people in this area are not intrinsically related and the husbands involved should surely be treated the same way in law as anybody else. But in fact there would not be much use in taking action here in this area. Therefore, I presume the actions are not taken. Accordingly, we have another anomaly because this is an action which is useful only if one happens to be able to sue a wealthy person. I suppose it is not outside the bounds of human ingenuity to contrive a situation where the person against whom an action—in some cases deliberately constructed—might ultimately be taken would be a person of substantial means because the scandal, defamation of character involved and even the unproven allegation would be such as to encourage a person to settle very rapidly before any court case. Accordingly, it appears to be the learned experience of eminent legal and other minds here and in other countries that there is a particular opportunity for blackmailing here. If this is the case and if the advantages to be gained from retention of this action are no longer valid, clearly we have another argument for getting rid of it in its present form.

It might be helpful to glance briefly at the situation in regard to this type of legislation in neighbouring and other countries, not because it is necessary for us to follow slavishly whatever happens in Britain or Northern Ireland— although we seem to do that commonly in any case—but because the basic body of legislation which we have here is similar in many respects and very much so in this case.

I want to make a further point about the essential kernel of the action of criminal conversation. The assessment of damages involved and the notion on which damages are assessed is unseemly, to use an inadequate word. In awarding compensatory damages we are told that regard should be had to (a) the actual value of the wife to the husband and (b) the need properly to compensate the husband for the injury to his feelings, the blow to his marital honour and the hurt to his matrimonial and family life. When I tried to grasp how one could assess the value of one's wife I found difficulty but the Law Reform Commission sought to advance my knowledge by saying that the value of the wife may be considered from two points of view, the pecuniary aspect in relation to which her future and her assistance in her husband's business and such allied matters are relevant and the consortium aspect, that is in relation to which the wife's general qualities as a wife and mother and her conduct and general character are relevant.

The very assessment of the damages is done on a basis which degrades. Without saying much more on that aspect, it is time that we were men enough to say, "Let us have the courage to change things that clearly need changing". I could develop that at some length but time and perhaps inclination do not allow it. The idea that this action is not reciprocal while not being completely unanimous is very strongly in favour of the view that this action is only for men. This is founded on the argument that historically the action has been based on the servile position of the wife relative to her husband and, according to the Law Reform Commission, the tendency in English decisions relating to negligently caused loss of consortium and the harbouring of a spouse has been to deny a right of action to a wife on the basis that these actions are anomalous and that it is better to confine the anomaly as far as possible rather than extend it further. That is an extraordinary statement which says that actions on this basis are essentially anomalous and therefore rather than extend them to women they should be restricted to men instead of admitting the anomaly, doing the right thing and getting rid of it.

It has been frequently brought to our attention that this is one area in the many areas where women are increasingly demanding equality of treatment in social, economic, cultural and educational matters and every other matter which can be changed literally almost by a nod of the head of the appropriate Minister. Therefore, we deliberately brought before the House this evening a Bill which is not complex, not enormously expensive, not designed to create any political or financial embarrassment for the Government but simply to afford them an opportunity of saying with us and with the Labour Party "This House is able to say, yes, there is a wrong here and we are going to change it".

The situation in Britain and Northern Ireland is that the tort of criminal conversation has been abolished for over a century. A replacement action there is now deemed to be no longer any use and the Law Reform Commission in Britain has, as recently as 1977, said that it, too, felt that the action involved in actions for adultry was no longer useful and that in the thousands of cases of divorce which come before it something like four cases had been raised in relation to pursuit of damages in this area.

If we are really concerned about marriage, this legislation has nothing to do with it. It is not worth the defence which may be made for it. Perhaps at one stage when people were different, when there was less emphasis on human relationships, when it was not as open to people as it is now to change their attitudes to the social norms and values of society, when a more restricted attitude was the norm, perhaps then that legislation had some value. I do not know, but I know that in 1980 in does not and we would like to change it.

A number of arguments have been put forward to retain the action and to these I want to refer briefly. In doing so I must omit, because time does not allow, any survey of similar legislation in other countries but those interested will see that the essence of what I am saying is correct, that this particular legislation is not on the statute books of other countries and that where a replacement action was introduced, it is not effective if by effective we mean helping to create the harmony and quality of human relationships essential to a marriage if it is to be a good marriage. The arguments against removing this legislation are something like these. We are told that the former concept of the action in which a wife was supposedly akin to a chattel of a husband has been replaced by the view that the action protects the stability of the marriage relationship and that this view could clearly involve a right of action for each spouse. I would find it anomalous if a statute, a Bill or a ministerial regulation enacted to do one thing by some mechanism in it or by the passage of time had come to be construed as something else. It is a very dubious argument and, as far as I am concerned, it is not acceptable because that is not what the initial intention was. The passage of time surely does not erode the principle of an enactment set out a long time ago.

The second point is that the legal position of married women has changed radically from the time when the action for criminal conversation originated. They now have certain advantages which they did not have then, like equal succession rights, equal rights to guardianship and so on, and therefore the action for criminal conversation should not be allowed to remain frozen in its historical condition.

Advances have been made in those areas, small in some cases and large in others, and this is another area where we should be willing to have the courage to make similar advances. Article 40 of the Constitution apparently tells us that the woman may have the reciprocal right here if she contests it. Allowing for the fact that this is a possibility, I believe that the essential tort does not help marriage, that a vague reference to the rights of women under the Constitution does not help women who in many cases are economically disenfranchised and that failure to amend this law is cowardice on the part of the Legislature.

There are other points as well but in my view they are spurious and have not at their core the concern or the commitment which I believe this House has in the eighties to enact legislation and to have attitudes and innovations fashioned in the belief that men and women in this country are equal in human rights and all that follows therefrom. I appeal to the Minister to give a sympathetic hearing to the Bill to do everything possible to introduce the spirit of this Bill and to co-operate with the House in doing this at the earliest possible date.

It is obvious that Deputy Keating has been using Working Paper No. 5 of the Law Reform Commission quite a lot. He has quoted reasons from it for total abolition and then reasons for its retention and simply disagreed with the latter. It is fair to say that he was unintentionally picking and choosing. He should point to their conclusions. The particular working paper is a working paper. The Law Reform Commission report makes recommendations which are totally at variance with the Bill which the Deputy is proposing to the House.

Deputy Keating's Bill proposes to abolish the right of action known in law as an action for criminal conversation. Despite the description of the action it is not of course a criminal procedure but a civil and a non-legal action: it is a civil action for adultery. Before the Deputy was reported in the newspapers to be planning to present this Bill I had answered a parliamentary question by Deputy Eileen Desmond as to whether I proposed to introduce legislation to abolish this right of action. This was a written question and was answered by me on 22 November last. It is reported at column 240 of the Official Report. The answer was in the following terms:

I have already publicly stated that I am in no doubt that, in so far as the law in this matter applies differently to men and to women it should be changed. Equality of treatment may, however, be provided for in a number of different ways. The provisional recommendation of the law Reform Commission—I assume that the Deputy is aware that it was a provisional recommendation on which comment was invited—does of course involve the ending of the present legal action and the introduction of a new type of action which, apart from being non-discriminatory as between the spouses would also be available for the benefit of children of the marriage. The final recommendation of the Commission is not yet available and I am not in a position to indicate what the Government's intention may be.

It will be clearly seen from the terms of that reply that as far as the action of criminal conversation involved discrimination against one of the spouses in marriage I had already indicated that it should be changed and that the only issue was whether it should simply be abolished or whether some other non-discriminatory right of action should be substituted.

That was not the first time that I had publicly adverted to the matter. I publicly indicated my view that the law must and would be changed to cater for the discriminatory aspect of the criminal conversation action in the course of a speech I made on 26 September 1978, when I think Deputy Desmond was present, to the AIM group. That speech was widely publicised. In it I adverted to another very relevant point, that there are certain other legal actions that obviously ought to be dealt with at the same time and on similar principles. However, I make clear that the necessary changes, as far as I am concerned, would be part of my plans during the life of the present Dáil.

It can be seen, therefore, that the Deputy has presented this Bill with the purpose of securing my agreement and that of the Government for the removal of the discriminatory aspect of this kind of action. My views on that are well and truly known. As I have said, however, there are two further basic questions to be faced. The first is that we should deal at the same time and on similar principles with certain other types of action, such as an action known as enticement of the spouse. Secondly, we must ask if we should simply abolish all such legal actions, or do we substitute something for them? In this connection it is important that we should bear in mind that although the right to take an action for criminal conversation appears to be vested in one spouse only, it is distinctly possible that the courts might nowadays decide otherwise if the matter were raised.

The Law Reform Commission in Working Paper No. 5, at pages 6 to 10, set out a number of arguments in support of the proposition, that even under the law as it stands a wife has a right of action for criminal conversation. Be that as it may, there seems to be no doubt that some other legal actions, including in particular that of enticement of a spouse, are equally open to both spouses. The Law Reform Commission, incidentally, dealt with the legal action of enticement and harbouring of a spouse in the working paper which dealt with criminal conversation. If, therefore, the Oireachtas were to opt for simple abolition of criminal conversation and in accordance with the same underlying principle were to do the same with the other actions, as in logic it ought to do, then we ought to be quite clear in our minds about one thing, that is, that we would not just be abolishing a right of action that may discriminate as between the two spouses—it is not certain that it does—but also abolishing another type of legal action to which the issue of nondiscrimination does not apply at all. There are of course several arguments in favour of simple abolition of the right of action called criminal conversation and indeed, of some other actions as well but at this point I shall concentrate on criminal conversation.

On a point of order, in fairness, there is not anything else before the House except criminal conversation. Enticement and harbouring do not enter into it.

If the Deputy would just have a little patience he would see that it is not just something——


The Minister is quite in order in the statement he is making.

When the Deputy has a chance to read what he said he will agree with me that there was a certain confusion in his mind. I would hope to clear that up in a reasonable way.

The school master attitude of the Minister is very noticeable in the last fortnight.

The Minister is entitled to make a speech without any interruptions. If there is anything to be teased out it can be teased out on Committee Stage.

I just do not want any confusion.

When dealing with this Bill the Minister is entitled to mention other relevant matters which might need to be dealt with in the same fashion. The Deputy on many occasions is as well able as the Minister to introduce a lot of other aspects into his speeches.

That is an unfair remark.

There were several parts of the Deputy's speech that I did not accept and I did not interrupt the Deputy. I allowed him the normal courtesy of the House to make his case.

It is not helpful for the Minister to talk down to people.

The Minister should cut the waffle and get on with it.

Let the Deputy wait a few seconds. I think he has out-distanced himself on this. There are several arguments in favour of the simple abolition of the right of action called criminal conversation and some other actions as well but I shall concentrate here on criminal conversation. The Law Reform Commission lists six separate arguments for simple abolition in chapter 5 of the Working Paper No. 5 but they also list five arguments in favour of retaining the principle of the right of action by means of a new non-discriminatory right of action. On balance the commission came down provisionally on the side of providing such a new right of action for the benefit of the family. I say provisionally because this was not the final recommendation but one made as a basis for comment. It was, however, similar in its thinking to recommendations made in their subsequent Working Paper No. 6 relating to seduction and the enticement and harbouring of a child and their Working Paper No. 7 relating to loss of consortium and loss of services of a child.

For reasons I shall mention in a few moments I do not intend to repeat at this stage the various arguments either for or against complete abolition as set out by the commission as might occur to me, nor do I think it right at this stage to argue where the balance of argument lies. I take this view for two reasons. First, the president of the commission, being appraised of the fact that I would be called on to contribute to this debate, has been good enough to let me know that the commission expect to be able in the immediate future to secure the services of a professional draftsman. They have every hope of being about to present their recommendations on all these legal actions quite soon and on that basis I am satisfied that it would be possible to await the commission's final recommendations, to give them due consideration, and yet have legislation not only introduced, if both Houses are so disposed, but actually enacted before the end of this year.

Let me say in passing that I received this information about the commission's expectations because of the particular circumstances of my having to speak in this debate. This does not imply any change in the statutory position relating to the presentation of reports by the commission, which is a matter in which I have no function.

My second reason for not seeking to reach a decision at this stage is that there are valid arguments on both sides and they need to be carefully weighed. On the one hand there are undoubtedly cogent arguments in favour of total abolition of such actions even on the assumption that they would be non-discriminatory, including an argument centering on the fact that they involve, unnecessarily it would be said, the parading of marital discord in public.

But there are strong counter arguments that cannot be ignored of which the central one is the argument that the provision of a right of action provided that it is non-discriminatory is an expression, and perhaps a necessary expression, of the State's constitutional guarantee to protect the family and to guard with special care the institution of marriage. There is little point in looking to what has been done elsewhere if only because of the availability of civil divorce in most countries and divorce on what is called a no fault basis. In this State, however, we must assess the situation in the context of our own basic law on marriage. Moreover it is more useful to bear in mind that such actions are heard before a jury and that juries nowadays represent a fair cross-section of the community and they represent women equally with men. Accordingly, if the jury gives an award of substantial damages it does so not because it is obliged to but because, on all the facts of a particular case, this cross-section of citizens think it right to do so. They are free to award contentious damages if they wish——

Not to a woman though.

——and legal actions of the kind we are referring to are very few; there probably have not been half a dozen in the last ten years. But it is important to recognise that in the small number of cases which have arisen juries have tended to award significant damages. The advent of more women on juries does not seem to have altered this attitude. This seems to reflect a conviction on the part of the ordinary members of a jury that there are cases where a serious injury has been done and where it is right that the law should provide for the award for damages.

Against that background we must consider whether the abolition of all right of action in this area could be interpreted as a declaration by the Oireachtas that these matters are no longer of any significance. I would emphasise again that I am not trying to weigh the arguments on one side as against the other but only asking the Dáil to keep an open mind for the time being on the basis that legislation, with the support of the Government, should not only be ready to be introduced but, I hope, will be enacted before the end of this year.

I would like to compliment Deputy Keating on bringing this measure before the House. He has brought a concise but very significant Bill to our attention and in doing so he has done a great service to the cause of Irish women. I pledge the support of the Labour Party for this Bill should Deputy Keating decide not to accept the Minister's case for doing absolutely nothing for some time yet and to go ahead to put this Bill to a vote.

The existence of this action of criminal conversation more than any other, or perhaps taken together with those actions of harbouring and enticing, have served to infuriate those women who have had any consciousness of themselves as full human beings, with full intellectual capacity, with legal personalities in their own right. Its existence has been extremely offensive to the dignity of women as persons. It is very difficult for women who are the victims of an action such as this to maintain what the Minister asks for, an open mind on the subject. It is an act so obnoxious and archaic in concept that one wonders how it has survived into the 1980s. I am disappointed by the lack of urgency in the Minister's speech this evening. His attitude seems to be that we must proceed very slowly and carefully in this area. There seems to be no cognisance of the sensibilities of people who have been so offended by the presence of this action in our laws.

As Deputy Keating pointed out, there is general acceptance in this House that change is warranted in this area. However, there are those among us, possibly even in this House, who consider that we should give priority to other measures that, in their view, merit immediate attention. They accept that the subject matter of this debate may be offensive to the sensibilities of some people but they think it has little relevance in practice. It is no harm to remind the House that since 1972 there have been some notable actions for criminal conversation. I can recall immediately four such cases. There was the Braun and Roche case in 1972 where £12,000 damages were awarded; there was the Maher and Collins case in 1976; the McNally and Anderson case in 1976, and there was the Mulraney case as late as 1979 where £1,500 was awarded. It is no harm to remind the House that these and other actions for criminal conversation have been taken in the recent past.

The incredible rationale behind the action for criminal conversation is that a person having sexual relations with a married woman is violating a property right of her husband. She is a mere chattel of her husband. Whatever the Minister may say about a corresponding right being available to a woman, in practice this is the way it has worked in this State and elsewhere. The woman is regarded as a property right and her standing in the matter of criminal conversation is akin to any other piece of property the husband may possess. As Deputy Keating pointed out, in giving a man a right of action for damages against a person who has had sexual relations with his wife the consent of the wife is not a relevant issue.

A matter that is very hurtful to the women's lobby and the thinking female population generally is that the conduct of the husband however disgraceful it may be does not constitute a bar to an action although it may have some relevance in the matter of assessing damages. Whatever might be the conduct of the husband, he is quite entitled to go ahead with the action for criminal conversation. This is a particularly offensive anomaly in an area where discrimination against women is so shamelessly blatant. The husband can condone the adulterous conduct but yet he can have a right to action. The wife may even have died but yet the husband can still go ahead with the action. In law the wife is regarded as a mindless piece of property of which her husband has been deprived and for which deprivation he must be compensated adequately.

I should like to refer the House to a decision made by Chief Justice O'Higgins in the Maher and Collins case of 1975, to which Deputy Keating referred in his speech. In considering what would be taken into account in awarding damages, the Chief Justice said it would be as follows: (a) the actual value of the wife to her husband and (b) the compensation necessary for the injury to the husband's feelings and the blow to his marital honour.

There are two separate aspects of the value of a wife. The first is the pecuniary aspect in relation to her assistance to her husband, to his business and so on and secondly, the consortium aspect in relation to which her qualities as a wife and mother, her conduct and general character, are relevant. In a case in England in 1920—the Butterworth case—in relation to the assessment of damages, the Judge felt that the wealth of the person against whom the husband was taking the action could be a relevant factor in ascertaining the value of the wife. In other words, if it takes a man of wealth to seduce her she can be taken to be worth more to her husband. What an attitude towards women.

It is horrifying to reflect on the existence of such a concept of human beings as chattels still existing in our laws in 1980. Even the judges who are required to apply the law as they found it existing are on record as having found that law repugnant. For instance, Lord Chief Justice Diplock in the English case of Pritchard in 1967 said: "I confess I find it repugnant to modern and sensible ideas". The Minister has said that there is a case perhaps for the wife to have a right to take an action in this area but that has never been exercised. It is very doubtful if it would succeed but even if such an option existed the concept is still a shameful one.

It is worth summarising the position obtaining in other countries, particularly those countries with whom we compare ourselves and with whom we have contact. In England the action for criminal conversation was abolished by the Matrimonial Causes Act, 1857. That Act substituted a power in the divorce courts to award damages for adultery to petitioning husbands. Even that latter right was abolished in England in 1970. That country dealt effectively with the matter a considerable time ago. In Northern Ireland the action for criminal conversation was abolished in 1939 and it was replaced by a measure more or less on the same lines as the later English law. This was abolished in 1978 on the recommendation of the Office of Law Reform in Northern Ireland which stated that the action was based on an outmoded view of marriage in that it gave the husband a proprietary right over the wife. It was abolished in Scotland in January 1971 following the report of the law commission that the human degradation of the wife which such action entailed was not acceptable. In all of these cases and in the case that we fought the wife had a similar right in action. She was the victim, the inanimate object, the matter over which two contending males fought in all these cases and it was found to be unacceptable to human dignity and degrading for the women concerned. No action such as I have mentioned applies in countries like France and Germany with which we have a lot of contact today.

If we go across the Atlantic we find that a very interesting attitude obtains in the state of Ontario, Canada. The Ontario Law Reform Commission recommended the abolition of criminal conversation in 1969. The Ontario Supreme Court held that the action was abolished implicitly by their 1975 Law Reform Act which stated that parties to a marriage should have legal personalities that are independent, separate and distinct from each other. That is a very good concept on which to work. Several states of the USA abolished the action in the early thirties and since then it has ceased to be an action in the majority of the other states of the USA as a result of either judicial decision or statutory intervention. It has ceased even in places like the West Indies.

One could continue to quote cases of other countries and the action they have taken to rid their laws of this shameful concept, but one does not need to reach for further examples to come to the conclusion that we are one of the last bastions of this outmoded, archaic, totally degrading action. We cannot dally much longer about it. People feel very strongly that a change is much overdue. We are indebted to Deputy Keating for giving it great urgency and bringing it on to the floor of the House for consideration in a manner in which otherwise it possibly would not have been brought, and for giving us the opportunity to debate it tonight.

The Minister quoted the Law Reform Commission and I suppose we are all quoting them to some extent. The case is made that the action as it stands might not be constitutional. That is the general attitude. Like other constitutional cases possibly it would take people of means to contest it in the courts. There are several constitutional test cases which would be interesting if it were possible to try them but in this situation we are probably more advanced in our thinking, as everybody agrees, and there should be no need for such action.

This matter should be dealt with on the floor of this House by amending legislation such as this Bill seeks to provide. This can and should be done with very little delay. The Law Reform Commission recommend that the action be replaced by a new action. There will be a general feeling that we may consider replacing the action by a new section for adultery to be taken by either spouse. We are all entitled to our own views on this. My view is that this recommendation would seem to be at variance with the provision which obtains in most of these enlightened countries to which I have referred. It seems to be at variance also with the policy contained in some of our recent legislation, for instance, the Family Law (Maintenance of Spouses and Children) Act, 1976 which provides that adultery is not an absolute bar to maintenance. The courts have also adopted such an enlightened view by holding that it is the welfare of the children of the marriage which is paramount under the Guardianship of Infants Act and accordingly do not automatically bar an adultrous parent from being granted custody of children.

The principal reason put forward for extending the action for adultery to both partners is that an action of this nature would protect the integrity of the family. Here I agree totally with Deputy Keating when he talks about the interest of the family and the much needed contribution that an action such as this has made to the interest of the family. The Law Reform Commission have a special job to do but it would be spurious for the Members of this House to advance the interest of the family as the reason for not taking action in this matter while so many other matters of real concern to the interests of the family are left unattended. If we want to keep families united, prospering and happy and whatever else is desirable, there are things we can do. You can ensure that each family has proper housing, proper recreation for the children and wages, social welfare or income from whatever source to enable them to have the basic necessities of life. We can have proper counselling and a basic education. All these things combine to make for family happiness and give all families the opportunity of staying together and of enjoying the benefits of the more fortunate. A number of reasons can be advanced for the disintegration of families but I agree with Deputy Keating that this is not one of them. There is no point in trying to suggest to any thinking person that it has any effect whatsoever when there are so many obvious reasons to which we could address our minds.

I want to return to the narrow concept we are debating at the moment. In Scotland, where some consideration of this matter has taken place, it has been found that the existence of the right to damages has not in any way prevented an increase in the number of divorce decrees in Scotland arising from cases of adultery. Therefore, it seems to be established that there is no connection whatsoever between this and the integrity or interest of the family, and our experience is that that is so. Our experience as public representatives with the problems of families generally is that there are many aspects of family life to which we could be addressing ourselves if we were really concerned about keeping families together, and this is not one of them. The approach in the case of Ontario in which each partner is seen as a separate, distinct, independent, legal personality, provides the very best foundation upon which to base human rights and to build reformative legislation. If we treat individuals as equals, as independent, legal personalities with separate rights, we will be more enlightened in the reforming legislation that we hope to have. We have had a glut of it before this House in recent times in the area of women's rights.

Before I conclude I would like to say a few words about the women's rights movement. That movement in this country has had generally very considerable success in focusing public attention on the injustices perpetrated against women in Irish society. We owe a debt of gratitude to Deputy Keating for listing the organisations concerned. Those of us who seek to reform society and to rid it of some if not all of the more blatant discriminations that exist are indebted to the women's movement for the manner in which they have guided us as to the priorities and the more keenly conceived injustices as far as they are concerned. We are grateful to them for the pressure of public opinion which they have whipped up and also for the implementation of the EEC Directives in the area of women's rights. This has brought a measure of legislative reform in recent years although there has been a dearth of reform since 1977. The past two years have been pretty barren so far as any reforming legislation is concerned but particularly in the area of women's rights, and I would appeal to the Minister to make up for those two years during the rest of his term of office. I hope that all the ideas and views in relation to reforms in this area will shortly be incorporated in legislation introduced by the Minister, such as the Bill produced here tonight by Deputy Keating.

We are still awaiting action in several areas of women's rights, in family law and so on. The question of joint ownership of the family home, which was discussed thoroughly here recently, the question of community property and the question of legal aid, are all very complicated matters. The scheme for free legal aid is very slow in getting off the ground and this is very important in the area of women's rights because here we are talking about women many of whom do not have independent incomes and whose only hopes lies in getting free legal aid to obtain redress. There is a limited form of legal aid with which neither we nor women are satisfied. While all these matters have complications, there is no doubt but that the abolition of this glaring inequity in the law is not a complicated matter. We must take the Minister's word for it that he is near a conclusion in this matter but I am apprehensive about the conclusion the Minister would reach. I prefer Deputy Keating's conclusion as set out in his Bill.

The reform working paper was published in 1978 and observations were invited up to 1979. The Minister now says that he will have a measure before us in a very short time. Almost one year has elapsed since observations were invited and the measure should be on the floor of the House shortly.

Whatever action the Minister takes, the debate this evening has served a useful purpose and I hope it has convinced the Minister that the sensibilities of women have been offended regardless of the Minister's plea that they should keep an open mind. I do not blame the Minister for this offence; we all share a certain amount of the blame, as this is something that should have been attended to a long time ago. However, this Government have been particularly tardy in bringing forward legislation in this area. This Bill has certainly hastened some form of legislation. The Minister said that he will not accept this Bill but that he intends to bring in a Bill in the near future, the contents of which he cannot tell us, but it appears that it will be along the lines of the suggestion put forward in the law reform report. Should Deputy Keating proceed with this Bill he will certainly have the support of the Members on these benches, and should he decide to await the Minister's pleasure I sincerely hope the Minister will ensure that there is legislation on this subject before the House within a short time.

I concede that this Bill gives the House an opportunity to discuss a very important aspect of law reform. In that context the Bill as a discussion document is to be welcomed. Whilst the Bill itself is new, what it ennunciates is not new. During the term of the last Government between 1973 and 1977 whilst addressing a number of women's organisations, I condemned outright the civil wrong of criminal conversation. I based my views on the fact that the action itself discriminated against women and that that is completely wrong. I have no hesitation in supporting the principle enshrined in the Bill, but I would ask the House to wait until the end of the year to see what the Government have in mind in this context and in relation to other matters which the Minister will bring to the attention of the House. Having waited so long I am prepared to accept the Minister's request to wait until the end of the year to see what will come before us. If the action of criminal conversation were tested under the Constitution by way of a constitutional action it would be found to be unconstitutional because it discriminates against women. On the other hand, an anomaly arises where if a woman decided to proceed against another woman for her adulterous behaviour with her husband, she would succeed. On the one hand, we have a situation where if the action was tested constitutionally it would be found to be unconstitutional and, on the other hand, if the woman took the action against the other woman she would probably succeed.

Debate adjourned.
The Dáil adjourned at 8.30 p.m. until 10.30 a.m. on Wednesday, 5 March 1980.