I am not casting doubt on the bona fides of anybody. It is not a question of fides, it is a question of ingrained paddyism, the instinct to throw away and abandon what the people two generations ago fought for, to run our own affairs as we saw fit according to our own criteria. That instinct has become ingrained in us in the last generation and we are running back to the English, not further away from them. This is a small Bill to get into a heat about on a theme like this and I am not going to pursue that any futher. However, I am not convinced that even the well-intentioned reasons behind this general proposal are adequate to justify it.
We all know that the purpose of such a thing as an age of majority, 21 years or whatever it is, is to protect young people against themselves, against the consequences of improvident conduct whether in the doing of business or anything else, and to put others on notice that they are dealing with young people who could not be held to the letter of a contract they might purport to make. Since we seem to be heavily into historical references here — the Minister for Justice mentioned the age at which the capacity to don a heavy suit of armour could be imputed to a young man — as far as I am aware, the word "minor" has a Roman rather than common law origin and in the Roman setting meant minor than 25 years of age. The Romans, as businesslike a people as ever were on the earth, regarded somebody up to the age of 25 as being perhaps in some respects insufficiently mature to carry out transactions without the agreement of a tutor. I do not mean a tutor in the modern sense but usually a member of his own family who were there to protect him against the consequences of folly.
I do not know that a case has been made that there is any grievous necessity for reducing this age. Perhaps there is such a case. There is no question but that the Law Reform Commission have gone to a great deal of trouble. They have invited evidence and so on. I did not listen to the evidence and I am not sure how far I would have been convinced by it had I heard it. All I can say from my experience as a Deputy for almost 12 years and a Senator for three and a half years before that is that I do not remember having once had a single representation from a constituent of any age group citing as a grievance the fact that 21 was the age of majority. I do not recall ever having had a representation from a mortgage institution, a bank or a financial institution urging me to get the law changed so that they might now be able to lend money to people to whom they were not now safe in lending it or being able to recoup it from them if they lent it. I have had many odd representations in my time, as all Deputies have. I do not mean to hold this one up to ridicule; far from it. Perhaps I had better not give instances because one never knows whom one will hurt. In the entire gamut of eccentricity which burdens a Deputy's postbag I do not think I have ever had a single letter or telephone call from anyone urging that the existing law needed to be changed in this direction. That leads me to believe that the reason we are doing it is the old "Paddy" reason. That remark may be superficial or hurtful although that is not intended, and it may be grounded in ignorance. There may be a crying need to reduce the age of majority to 18 in the interests of the 18 year olds themselves, but I do not know where that need arises or how pressing it is. A large part of the Minister's speech and of other contributions centred on the problems of people who at the age of 18 are married. The Minister in his speech said and I quote from the Official Report of 8 November 1984, column 1564, Volume 353:
The principal areas of law that will be affected are contract, property and guardianship. Full contractual capacity will now be acquired at 18 or, if a person marries before that age, at the date of marriage. I am glad to say that one effect of this will be to remove an obstacle in the way of many young married couples seeking to buy a home.
No matter what I say here, someone will be malicious or dim enough to put an unintended slant on it. I do not want to be accused of lack of sympathy for young married people whether they have a home, have not got a home, want to buy a home or whatever, but it would be a pity if this Bill passed the House without at least one Deputy saying that perhaps the more obstacles there are in the way of people getting married at 18 the better. I am quite aware that that is a square opinion, but I have teenage children. Two of my children are over 18 and the other three are below it. Many Deputies here are in a similar situation, and we cannot be accused of not having some instinctive appreciation of maturity at least in the sense that we would expect to see it in our own children. I think that 18 years is too young for marriage and it was a scandal that for many years the law of this country permitted, in theory, girls to get married at 12 years of age and boys at 14 years of age. If I may lecture the House for a moment about the origins of that, that law goes back through canon law to the Emperor Justinian and beyond him to the Roman jurists of the second century AD, a school of jurists who believed that the appropriate age to permit people to get married at was the average age at which puberty might be imputed to either sex. That was the law of a school of Roman jurists which had come up through Justinian and canon law and was still the law in this country when I came into the Seanad in 1969. How could one stand over that type of thing? I can recall complaining about it at the time. Finally the law, not in consequence of my complaints but because of the inherent absurdity of it which began to get people by the throat, raised the age to 16; but is 16 an appropriate age for marriage?
I hope it will not be thought that this is simply a square prejudice of a notoriously square Deputy. I have only to turn to one of the less square Deputies, my own respected and admired colleague, Deputy Shatter, who is reported in the same volume of the Official Report — if any Deputy was likely to play down such a thing, and I do not mean to dishonestly play it down, if any Deputy were more likely than another to put this in what might be called some humanistic perspective it would be Deputy Shatter — as drawing attention to the fact that Dr. Helen Burke in a working paper printed as an appendix to the work of the Law Reform Commission makes well the point that research has established that marriages of very young people are more at risk than marriages between people in an older age group. Dr. Helen Burke is a nationally respected figure and it is important to have the authentication of a very distinguished sociologist for a point like this, but it scarcely was needed because we all know that marriages contracted at a very young age are marriages which are heavily at risk.
I find it hard to swallow — it very likely is ignorance — the fact that in one part of the House, methaphorically speaking, there is a committee which is scratching its head over problems of marital breakdown whereas in the Chamber we are using the fact that people are getting married at a younger age, notwithstanding the fact that that is at the root of perhaps the majority of breakdowns, as a ground for changing the law on the age of majority. I wish somebody would explain to me the logic of that proceeding. I do not wish to make a party political point about this. I know Deputies opposite are as anxious as any Member on this side to make the law right, but I am defeated by the logic of the Dáil's concern as a body. In one breath it sets up a committee to investigate marital breakdown, the major factor in which, as I understand it, is the marriage of people who are inherently immature because of their age. I accept that there are other factors such as alcoholism and so on. In the next breath the House, in its plenitude, is enacting something which is intended to facilitate extra young marriage.
So far from being callous about young people in their situation I should like to give the House some examples, and I am not saying that every Member could replicate one hundred times over. I had coming to my clinic, when I had a clinic, young people looking for houses on the Dublin Corporation list or the Dublin County Council list. It would break one's heart to see a young couple coming in looking for a house, the girl not out of her teens and the boy barely out of his teens; the girl with a crying infant by the hand and expecting another or, perhaps, two infants by the hand and expecting a third and the boy in despair. Both of them with their youth still ahead of them but shackled for life to a situation which, perhaps, they may have already regretted entering into. Naturally, I am not pretending that the presence of the children does not complicate the matter. I accept that it complicates it and it makes it horrifically difficult to answer, but I have found that very young people, having got married, decided they had made a mistake after realising that they were barely 20 and had their youth ahead of them. Youth is there to be enjoyed as much as a single person as as a married person. I cannot see anything disreputable, sinful orlibertinist in saying that the twenties for a single person can be marvellous years. I say that without any double entendre or anything of that type. They can be marvellous years and one can have marvellous freedom as a single person then. Any person who throws them away without the most serious reasons of absolutely indelible attachment to another human being is taking a very heavy gamble in the stakes of life. That person is putting a great part of his or her life on a square which rarely comes up on the roulette table.
I am in favour of people remaining single for a long time. I am not trying to lay down a rule. I do not want to propose a rule about this but the idea that people ought to be encouraged to hustle into marriage, the idea that the House is trying to remove an obstacle from their doing so while in another part of the House some other Members are beating their brains out trying to solve the mess which this creates seems to be an illogical proceeding. I wish I could be persuaded otherwise. I have very few clear ideas on this subject. I would be in despair if I was asked to draft a law of this type. I do not know how to go about reforming family law; but this proposal has not, perhaps, been sufficiently considered — Deputy O'Dea pointed that out in a fine speech — perhaps in relation to some of the contiguous areas of law. My objection to it is that it does not seem to have been sufficiently considered in relation to the very fact that it purports to remove an obstacle from extremely young marriages.
I should like to say something about the Minister's point that an obstacle was being removed in regard to loans and so on. He said that this was removing an obstacle in the way of many young married people seeking to buy a home. I should like to ask the Minister if he has received a guarantee from the Irish banks that they, and their hard-headed business people whose money is on the line, are going to reduce the age of majority. There is no legal compulsion that I know of on a bank to lend money to anybody if the bank decides he or she is not a good risk. If banks and loan institutions are of the view that 21 years of age is the absolute minimum age at which they are going to take somebody on their books the mere fact that the Oireachtas decides to sink the age to 18 is not going to make them change their minds. Perhaps, the Minister has an undertaking from the joint standing committee of the Irish banks in his pocket that they will revise their guidelines downwards. I am not trying to make a sarcastic point at the Minister's expense because he may have such an assurance. However, I should like to know if we are removing this obstacle, which I have grave doubts we ought to be trying to remove, that at the very least it will confer the benefit the Minister thinks it will.
If I were a bank director — they do not come much squarer than that; the people who have to make money for themselves and their shareholders out of bank profits — and I was living in a period of recession, when notoriously a lot of people find it hard to meet their payments and a large provision has to be made for bad debts and so on, I would say to myself; "It is absolutely sweet that the Dáil should be giving these young people a present of majority three years earlier but they are still gormless 18 year olds as far as I am concerned. They are, as far as I am concerned, people that are not safe risks for lending money to".
The Minister cannot control what private lending institutions do. I do not know that they have decided to follow the Minister three years downdate with this Bill. We will all look proper fools if not only are we removing an obstacle from early marriage which, perhaps, we ought not to be removing at all but if the obstacle we are removing does not have the effect of conferring the benefits which we are promising.
Another point I should like to make is a niggling lawyer's point. The Minister mentioned what the Law Reform Commission stated in their working paper, which they cite again in their report. They had cited an argument based on Article 41 of the Constitution. That Article states:
1. 1ºThe State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2º The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
I have great admiration for the Law Reform Commission and have on one or two occasions written to tell them that, that they do a great deal of extremely good work and do not receive much recognition from the Dáil for doing so.
The commission said that they noted from this that it could be argued that no legal impediments or obstructions should be placed in the way of young married persons solely on the ground of age and that such persons should have the legal capacity to acquire a home and to furnish it. If that Constitutional argument is true does it bind the banks, if they decide not to lend money to somebody under the age of 21? That is the practical question arising out of this proposition of the Law Reform Commission. But it is a very weak argument anyway. It could be argued — and this is the proposition the State is committed to — that if the family is the natural and primary fundamental unit group of society, if the State is committed to protecting the family in its Constitution and authority, surely an equally arguable corollary is that our laws — in so far as one can do such a thing with laws — ought to inhibit the contraction of marriage, which is the basis of the family, by people who are notoriously, not through their fault but because of their stage of maturity, likely to run that family on the rocks?
I know there are plenty of exceptions. I was speaking last week to my colleague, Deputy Joe Doyle. He makes his speech and I do not want to go over the ground for him. Deputy Doyle — because of his avocation in civil life, has had enormous experiences of marriages. He contradicted me in what I said about early marriage. He said he knew a very large number of extremely happy and successful marriages which had been contracted very early. Deputy Doyle knows this. That lends greater depth to his point of view than I could claim for mine. But, if there is an argument to be made in the opposite direction — and all the statistics seem to suggest that there is — that the younger the age group from which marriage partners come the greater the risk that the marriage will go on the rocks, then it could be argued that that very same constitutional article requires the State, in so far as it can, to inhibit the contraction of marriage among people who are very likely to make of that marriage, not something which will protect the family but something which will put it in peril. When I say "inhibit the marriage" I do not mean to forbid them to marry forever. Naturally, I just mean to apply a certain age limit which most certainly ought not to be 12, 14 or even 16.
A certain lack of logic in this area is displayed on the far side of the House as well. Naturally I do not mean this in a partisan way. I see that Deputy Woods in his speech — incidentally this is a very common feature of debate in an area like this — in the House on Thursday, 8 November, 1984, as reported at column 1571 of the Official Report, said:
... the Bill contains a specific element of exclusion. It does not include the commission's proposal that the free age for marriage should be the same as the age of majority. This will mean that it will continue to be necessary for people between the age of 18 and 21 to obtain the consent of parents, guardians or the court before being permitted to marry. It seems illogical that such an exception should be continued when it is accepted that a young adult has a right to acquire or to dispose of property or to enter into contractual arrangements with third parties and to be responsible for the legal obligations that arise therefrom. The same young adult, without reference to his parents, to his guardians or to the courts can enter into a contract with a building society in respect of a mortgage.
Where is the comparison, the logical parallel, or how am I forced into a logical dilemma by accepting one arm of the existing law but rejecting the other? Where is the comparison between the status of marriage, which is more than just a contract, and buying a second-hand motor vehicle? Where is the comparison? I am free to do one at age 21 but not at age 18. Where is the logic in suggesting that merely because one kind of function is permissible at a particular age every other kind of function should be permissible at that age also? I know that kind of argument is often heard but I simply cannot see the logic of it. What is so irrational about grading according to age, so far as imperfect reason can do so, the functions which a citizen is now free or still unfree to perform? At present we have such things in other departments of law, for example, specifying that somebody under 18 years of age cannot buy alcoholic drink or if a citizen is under the age of, I think, 16, he is not allowed to buy tobacco, although I do not think that law is ever enforced. Perhaps that age is 14 but, whether it is 14 or 16 does not matter, it is not enforced anyway; it might as well be two. The point I am trying to make is that here is a case in which the Legislature, some legislature, has said: all right, some children should be allowed to buy cigarettes at 16 but cannot be allowed to buy drink until 18. Where is the necessary connection between tobacco and drink that makes it essential to bring these ages into line with one another? Surely it is a defensible way of proceeding to say that one function is perhaps less injurious — and we know now that tobacco probably is more injurious — but in the days when that perception was not available there was nothing illogical in saying that one function was more injurious than the other and, accordingly, we will attach a slightly higher age to the exercise of that function by a young person than we do in the case of the other. What is illogical about that? Where is the logical necessity that compels me to equate, for the purposes of permitting someone to exercise a function, for example, buying a second-hand Anglia with taking on a partner for life? I had better not say anything offensive to Deputy Woods. This is not a partisan debate. Even if I did say something offensive here he would know that I would not mean it in a partisan way. But that is the kind of logic which has this whole area damned.
At the risk of boring the ears off the House let me repeat — so that I will not be misrepresented inside or outside it — that I am not taking up a line about this matter because I have not entirely made up my mind about it yet, nor have I seen the legislation promised. But the Government and the Minister might consider the implications of this proposal for whatever the Minister for Health proposes to bring forward in connection with changes in the law about the availability of contraceptives. One of the few things about which I am sure in all of this is that the 1935 Criminal Law (Amendment) Act was wrong in applying criminal law methods to the control of contraceptive devices. Ever since this matter was first debated in the second year I was in this House, in 1974, I have repeatedly stated my belief that, in general, contraception is a matter so private, so intimate, so little susceptible to the State probing its nose over one's shoulder, and so revolting if the State does attempt to do that, that it should be taken quite outside the criminal law altogether. I have never made a secret of my belief about that and I am not going to make pretences about it now.
I accept that the State, at the same time, has a right and a duty to exercise reasonable measures of protection for young people. I accept also the evidence which I seem to be getting in postal lobbying coming in every day, that excessively free access to contraceptives may, with very young people, lead not to fewer illegitimacies but to more, may lead them into situations — I am not going to go into great detail on this — may lead them prematurely into situations they are not able to handle.
If that is so there is a case for having a lower age limit — I am not even sure that it will be possible to enforce it; I do not believe that it is enforced even now — above which the State, in my opinion, should decriminalise the thing altogether, subject to reasonable precautions for public decency and the absence of advertising and at which all sorts of people can be genuinely and reasonably offended. I accept there is a case for protecting young people up to a certain age, but I have not made up my mind what that age should be and I am not sure what I will say if the matter is debated here.
The effect of this legislation will be to put an extra implement into the hands of those who say that age should be 18 years. Perhaps it should be 18 years but I am inclined to think that age is too low. I am not sure any age limit can be effectively enforced, but assuming in favour of such legislation that it can be enforced, in my view 18 years is a bit too low, although I may change my mind about that. If I am right in thinking 18 years is too low, this Bill will deliver an implement into the hands of those who think otherwise.
I am sorry to have struck a dissenting note. I know the Bill is very well intended and I would like to compliment the Law Reform Commission on their work and the Minister on having taken their work seriously, which is something too seldom done, but I do not think it would be right if the Bill passed through Second Stage before some general reservations were expressed about the principles behind it.