Last evening I was praising the Fine Gael spokesman on law reform for the idea of bringing forward a Private Member's Bill to have this matter aired where it should be aired, here in this House of the Oireachtas. Whilst I was saying that, although the idea was not new, nevertheless it was worth while bringing it forward and discussing it in the context of law reform generally. As the Minister pointed out last evening, this action, known as an action for criminal conversation, was not provided by any statute. It was, in fact, developed by the courts over the years. As I understand it, action for criminal conversation is a common law remedy which was developed either in the last century or in the late eighteenth century. It was abandoned in England when divorce was introduced but was carried on here. As was said last evening, the action in itself is not enshrined in a statute of the British Parliament, nor is it enshrined in an Act of the Oireachtas. Rather has it developed over the years through court usage or through court interpretation. Up to now, as has been stated, only a husband has been successful in such an action.
The Law Reform Commission have put forward arguments in favour of the proposition that, having regard to the provisions of the Constitution and to various legal developments, a wife could now, in fact, succeed in such an action. There is no gainsaying that fact. However, that has not yet been established by authoritative court decision. We in this House must act on the assumption that the law as at present constituted is quite clearly discriminatory. It is discriminatory of one sex as against another—in this instance discriminatory against the female of the species. If it is discriminatory, and it is, there can be no doubt that it would be struck down by the courts as unconstitutional if the matter were tested. Again, however, this House clearly ought not to ignore a law that we believe to be bad, just because we feel certain that it would be changed by challenge in the courts.
I do not wish to be too critical of the Bill before us but I am not in favour of the nature of the Bill. I am in favour of a specific legislation, but not of the type enshrined in this Bill no matter how well intentioned the Bill is, and it is a well-intentioned Bill. I believe that will hurry the day when this type of action will be abandoned altogether and/or something will be put in its place. Where a law has operated, as this law has on a clearly discriminatory basis it is understandable that there should be not only objection to it but a feeling of resentment, especially among women. For that reason it is particularly important that there should be no misunderstanding about what was said here last evening by the Minister for Justice. Some of the reports of what he said were very abbreviated—by definition they have to be abbreviated in the newspapers, which have only so many column inches in which to report the proceedings of the Houses of the Oireachtas and that is in no way criticism of the newspapers. Nevertheless, the reports were abbreviated and could perhaps be liable to some misunderstanding.
I go further and say that I know some people did get quite a wrong impression. There is no doubt that this debate in the House has created tremendous and widespread public interest and, for that reason alone, we should be grateful to the movers of the Bill before us. A number of people with whom I have discussed this matter during the course of the last 24 hours have indicated to me that they were somewhat concerned and probably did get the wrong impression of what, in fact, the Minister said. The Minister, in expressing his own attitude to this law, certainly did not confine himself to saying that he would like to see the present law changed. I believe he went much further than that, in fairness to him. He pointed out that, both in this House and outside it, he had already publicly committed himself to having amending legislation introduced. Last night, in my interpretation of what he said he went further than that, and on the basis that what he had heard from the Law Reform Commission was able to undertake that the legislation would be introduced and perhaps even enacted by the end of this year. It is not a question of his liking to see the law amended or the problem solved. He has undertaken, as far as I understand it from what he said last night, that it will be done.
Some reports said that the Minister asked the Dáil to keep an open mind. He did use that phrase, no doubt, but not about the question of abolishing the discrimination in the present law. The Minister himself obviously has not an open mind on that; he has already decided that it must be amended. The Minister made two points about the Bill, first that it dealt only with criminal conversation and not with other types of legal action such as enticement of a spouse. He said that all these actions should be dealt with at the same time and on the basis of the same principle. In that sense the Minister was clearly saying that the Bill was too narrow and ought not to be accepted purely on that basis only. It is a fair observation and it should not be suggested that there is an implied criticism in that observation, which is reasonable and constructive. Surely the movers of the Bill might accept that and there can be no argument about the wisdom of that point of view.
The Minister's second point was that it was one thing to abolish the present right of action—and I doubt if even one Member of the House would disagree with abolition—but it was, however, another matter to decide that it should be abolished with nothing put in its place, or whether it should be abolished and replaced by a new type of action actually open to both husband and wife and perhaps, indeed, to the issue of the marriage, the children themselves. It was on that matter, and only on that matter, that the Minister asked the House to postpone the decision until the final recommendation of the Law Reform Commission becomes available in the near future. That is clearly the right approach, as I stated in my opening remarks last evening. I am sure we are all agreed that we should move as soon as possible to get rid of the discriminatory element, but we have an equal duty to consider how best to do it and what way of doing it would best serve the interests of all concerned—husbands, wives and children. In doing so, we should pay particular attention to the question of what would be most likely to protect the interests of children of the marriage. Let us not forget them. Their interests might best be served by abolishing such actions altogether, but let us look at it carefully. The need to abolish this kind of discrimination does not relieve us of the duty to abolish it in a way that is most likely to do most good for the support of the family as a unit.
As we know, the Constitution has a lot to say about the family as a unit in this country. This constitutional guarantee is not a bad thing at all, in my opinion, and we should be very jealous of what it does say in regard to the family unit. We should try as best we can to protect the family against assaults from outside elements, whether it be elements like the other man or the other woman, or the other pressures that modern living brings to bear on that unit. We should guard very strongly against those attacks on it. While the Bill on the face of it reflects a widely held view, I believe that the wife herself if she took an action on her own right would undoubtedly succeed in an analogous situation to the husband at present.
The main burden of my argument is that if we abolish this common law right of action as it is do we just leave it abolished or do we put something else in its place? Do we, for example, consider that the children of the marriage have some right regarding the adulterous behaviour of one or other of their parents with another individual? Do we think they should have a remedy for the emotional wrong done to them as children of parents, one of whom errs in this case? Do we consider that they have a right to protect their reputation against attack by an outside element, in this instance, a man, as the criminal conversation action is presently constituted? Having decided there should be an alternative remedy, what type of compensation should we give to the wronged party or parties? The question then raises itself as to whether the State should arbitrate on the morals of the society over which it presides. Certainly, my first reaction to a question on those lines would be in the negative. The State as far as possible should remain outside the situation of setting itself up as moral arbiter of the community it governs.
There are certain instances—this may be one of them—where the State might have to take a part. It has an obligation under the Constitution to protect the family against outside attack. The family unit at present is under very great stress throughout the world because of all the elements that are attacking it. Should we leave the remedy to the religious beliefs of the persons concerned and to whatever God they pray to? Should it be left to the day of judgment—to God? This is a very difficult decision for the Minister to take and I do not think it can be taken today. That is why I say we have a very serious obligation to consider deeply what is contained in this Bill.
The Bill itself is extremely well-intentioned, brought forward in a bonafide manner and the arguments adduced by the Members who contributed have been sound, well-founded and wellresearched. That is as it should be on such a serious issue. Nevertheless, if we do as the Minister suggests and leave the matter until we have the final report from the Law Reform Commission we can then probably have another discussion in the House before the Minister finally decides what should be done. I would urge the Minister and his colleagues to give the matter very serious consideration. If somebody were to ask me as a backbench Dáil Deputy what my solution would be I would say now that the action itself should be abandoned simpliciter and nothing should be put in its place. I have a very strong feeling about the rights and entitlement of the State. I say this as a guide to the Minister as a backbencher in the party in which he is a Minister and it is a view that I shall be articulating in true, democratic Fianna Fáil fashion between now and whenever the Minister decides to bring it to the attention of the party at parliamentary party level. Nobody has to date convinced me that having abolished the criminal conversation action something should be put in its place.
One argument which would convince me that something should replace the abandoned discriminatory action as presently constituted would be the position of children in the family. That would convince me that there should be some alternative to the present action, that is the present action if the wife had the right on the same grounds as the husband has. That is one consideration which would lead me to support an alternative right of action—the position of the children. In a situation like this children are brought into a position not of their own making, by an outside person or persons and he or she should be asked to accept some responsibility for the harm done to the emotional make-up of the child or children and to the reputation of the child or children if they are old enough to appreciate what reputation is in the context of the community in which they live.
I am really in a dilemma and I say this frankly. I have not come to any personal decision in relation to the matter but at present I am of the mind which says that the right of action as at present operated by the courts should be abandoned and nothing put in its place. On the other hand, I am concerned about what happens to the children where adultery is committed by one or other of the parents. Have they any rights in this situation? I believe they may have. We have this anachronism before us. That is what it is, the right of the male of the species to go after the other man for interfering in some way with his wife where there is no right on the part of the wife to go after the other individual in similar circumstances. It is a total anachronism; it is discriminatory and an outrageous affront to women that this legal remedy is open to the male and not to the female. The sooner we in this House deal with it one way or another the better. That is the merit of Deputy Keating's Bill. He has given us an opportunity of airing this matter publicly. He has done a service to the community. He is dealing with a Minister who, I believe, is sympathetic to his point of view. He is dealing with a Minister who will listen to him and who, when he has given the undertaking he has given—I hope I put the record right in relation to what he said last night—will discharge it.
Taking those three elements in relation to the Minister into account, in addition to the fact that Deputy Keating has brought this matter to the attention of the House at this stage, he might do his own case a lot of good by withdrawing the Bill. It is entirely a matter for himself whether or not he withdraws it and leaves it to the Minister to conform with what he said yesterday evening. This is my first opportunity to say that I had a very pleasant association with the Minister for Justice and his Department. I have always found him to be a gentleman. That even strengthens my plea to Deputy Keating to withdraw the Bill in the interest of his case.
