Deputy Spring and I had tabled an amendment to section 1 which I think has been ruled out of order. Is that correct?
An Bille um an Triú Leasú Déag ar an mBunreacht, 1992: Céim an Choiste. Thirteenth Amendment of the Constitution Bill, 1992: Committee and Final Stages.
The import of the amendment which we had tabled was to establish in the Constitution an unambiguous and clearly stated right to travel. Clearly what is required is not the implicit right which the Minister says exists, but an explicit right. We agree that there is an implicit right to travel. Many of the Supreme Court justices said that existed, but there is not a clear explicit right to travel from this state to other states. Although the Minister laid great store on quoting the views of members of the Supreme Court, stating that such an implicit right existed, clearly the Supreme Court is not a fixed entity and the views of the five individuals or a majority of the five individuals could change at some future stage. We would be on much firmer ground if we stated not that nothing shall diminish the right, but established it clearly and explicitly in our Constitution. It is regrettable that the attitude of the Government to the amendment is simply not to prohibit or deny that right which does not exist explicitly. I would have preferred to have inserted our amendment.
On the question of the right to travel, on Second Stage I raised an issue which the Minister did not have time to deal with except in a general way. I would like to know if it is the Minister's intention in the wording he proposes to insert to provide for an absolute and unfettered right to travel free from any interference under any of the other subsections in Article 40 or by any interpretation that might be provided by the Supreme Court in attempting to give effect not only to this subsection with regard to travel but to the general propositons contained in Article 40.3.3º. On Second Stage I instanced a hypothetical case which I will again put to the Minister in the hope that he can throw some light on the extent to which the Government or indeed any Government can provide for the right of a pregnant women to travel from Ireland.
Supposing we have a healthy pregnant single or married woman who is pregnant against her will and she confides in her husband or boyfriend that she intends to leave Ireland to go to another country for an abortion, either because the pregnancy is unwanted or because she has been advised, for example, that the child were irreparably damaged in some way. If the husband or boyfriend is aggrieved and wishes the event not to occur, he can go to the court. The scenario I am suggesting is not such an unlikely one, because in the wake of the X case wider newspaper coverage was given to an incident involving a man from Derry city who presented himself at a city centre police station attempting to make a similar case. In any event the aggrieved man proceeds to court to try to stop the woman leaving. On the one hand he is seeking to prevent the termination of life in another State by preventing the women from leaving. On the other hand he is seeking an affirmation of his parental rights as provided for under the Constitution. Will that person be granted an injunction or not? I worry that the courts would have to deal with confliciting rights — the right to life of the foetus, the father's parental rights to the extent that these are provided for under Article 40.3.3º of the Constitution and the proposed Twelfth Amendment, and the right of the women to travel.
In the X case and in a number of other cases that have been quoted here, the Supreme Court indicated that the Constitution must be taken as a whole, that there is a hierarchy of rights with that Constitution and that the courts, in trying to balance one conflicting right against another, will simply weigh one against the other. It is clear that the courts would give priority to the right to life of the foetus and the parental right of a father as opposed to the mere right of the woman to travel. I believe that irrespective of the wording proposed by the Government there will not be an absolute gurantee of women's right to travel in all circumstances after the passing of this referendum. I would like to hear the Minister's view of this.
It is also important to put on record the position of the Attorney General as the custodian of the Constitution in discharging his functions in this regard. I would like the Minister to clarify whether or not the Attorney General would or would not take an active role, as he did in the X case, by going unilaterally of his own motion to court to seek an injunction. The Minister will recall that in the wake of the X case and in the context of the Protocol to the Maastricht Treaty the Attorney General seemed to give certain public assurances that his office would not again act in the way it did in the X case.
If there is substance in my concerns about this legislative proposal in the context of the Constitution, then the Attorney General will have a very real role to play. I wonder if the Minister in any way shares my concerns about the non-absoluteness of this provision and whether he intends to secure any further public commitments from the Attorney General with regard to his role in interpreting and implementing this provision.
I understand that the amendment was ruled out of order. However it might be useful if I were to make a few comments on the substance of that amendment. It might help to clarify matters because the suggested amendment seemed to assume that there was no general right to travel under the Constitution.
I am unable to agree with that point of view that there is no existing Constitutional right to travel. On a reading of the judgments of each of the five judges of the Supreme Court in the X case it is clear that such a right does exist.
Yes, and I would refer the Deputies to some of the following statements of the judges which might be useful. The Chief Justice, for instance, spoke of "the very fundamental nature of the right to travel and its particular importance in relation to the characteristics of a free society". That particular reference is important. He did so in the context of harmonising interacting constitutional rights. Judge Hederman referred to "the exercise of the Constitutional right to travel". That is pretty explicit too. Judge McCarthy referred to the right to travel having been identified as one of the unenumerated rights guaranteed under Article 40 of the Constitution and that would seem to be quite indicative in what it is attempting to convey. Judges Egan and O'Flaherty also referred to the right to travel.
In the face of those statements it seems unarguable that there is a right to travel under the Constitution. Moreover, the judge made those statements without reference to EC law. In fact it was made clear that no decision on any question of European law was necessary for the court to give its judgment. If EC law is taken into account in considering the travel issue, since travel is of fundamental importance under the EC Treaties and since those Treaties are part of our constitutional law, it is inconceivable that travel could be regarded as other than a fundamental right of persons in this country. In the circumstances I am satisfied that the wording of the Bill is correct. It is correct in assuming that there is an existing constitutional right to travel, and the Bill removes the restriction imposed in the X case by reference to Article 40.3.3º of the Constitution.
The amendment proposed by the Deputies has not been allowed but, at the same time, let me give an idea of what my thinking would be if it had been allowed. The exercise of the right to travel is, of necessity, subject to restrictions in certain circumstances, for example, if the law imposes conditions to be imposed by the court when granting bail, including a requirement that the person concerned would have to surrender his or her passport and report at frequent intervals to a Garda station. Persons who are wards of court as well cannot be taken out of the jurisdiction without the express permission of the court. If a positive affirmation of the right to travel were to be written into the Constitution as is suggested, that affirmation would have to be couched in such a way as to allow for the exceptions represented by the types of cases that I have just referred to, and the Deputy will appreciate that. That would take us into the area of addressing issues which there is no need for us to address under this Bill. All it is necessary for us to do is to remove the restriction on freedom to travel which was imposed by the decision in the X case by reason of Article 40.3.3º. That is what the proposed amendment to the Constitution does. It would be unnecessary and it would not be sensible to try to do any more.
Deputy McCartan spoke about a hypothetical case. I know that can be useful to try to establish a principle. At the same time the Deputy would not do well to pursue the Belfast case too far, not knowing the full details. Obviously we cannot talk about that case here but I can tell the Deputy that I have some extra information on that; it is not exactly as it was portrayed elsewhere. Perhaps we could leave it at that except to say that the amendment makes no exception and I cannot see how someone could be adjudged other than under the terms of the amendment we are discussing. As I have stated on previous occasions any pregnant woman, indeed anybody, has the fundamental right to go to any other country and it has been established and understood like that, not just by the Supreme Court judges but also under EC law. Obviously anybody can take a court action; people can go into court to seek a decision on any particular aspect of any law, be it constitutional or general law, but it is my understanding that the amendment makes no exceptions and this amendment could not and would not be used to stop someone leaving the country for whatever purpose they wish.
It is only right to say, as Deputies will remember, that the Attorney General made remarks about the question of injunctions following the Maastricht Treaty referendum result. That position still stands. I do not foresee any situation arising where the Attorney General, in the circumstances set out by the Deputy, will seek an injunction to stop anyone travelling for any particular purpose as contemplated by Article 40.3.3º, as it will be amended.
The Fine Gael Party are anxious to ensure that on this issue the imposition as regards the right of women to travel which was impeded by the judgment in the "X" case is removed. We are also anxious to ensure that when the referenda are held there will be minimal confusion. We have taken the view that the amendments relating to both travel and information are largely in order although we could engage in a degree of nit-picking in trying to take out one word and replacing it with another. However, we are of the view that it is of essential importance that the referenda on these two issues succeed. I am therefore anxious to ensure that I say nothing in this House which would give rise to confusion to raise doubts as to the desirability of these two referenda succeeding.
During this discussion I will raise certain questions in the context of the substance and it is important that the Minister's replies to those questions are put on the record of the House. In relation to the right to travel, I broadly agree with the Minister. We find ourselves in a rather unusual situation, Sir, because I recall that when I normally table an amendment to a Bill that is out of order I am shot down within ten seconds. I therefore appreciate the fact that you are allowing us some latitude because effectively we are discussing the broad sweep of the issue under the guise of this amendment.
I have no doubt that there is a constitutional right to travel. I suppose I should make a declaration of interest because I was one of the lawyers involved in the first case in which it was decided that such a right existed in a substantive way. That case was determined by the then President of the High Court, the present Chief Justice, in 1978, and it was related to the right of a child to get a passport. It is important to say that this right was given an implicit recognition by Mr. Justice Kenny as long ago as 1963 in the case of Ryanv. the Attorney General.
There is one quotation which is particularly apposite because it emphasises the need to ensure that the referendum on the right to travel is successful. I think there is a general consensus on all sides of the House that this issue must be addressed. Indeed, I raised a query about this issue in the 1983 debate whether a woman's right to travel would be impeded. To some extent the events of the X case could be described by me as fact following fiction, because in a novel I wrote which had some success in this country some years ago there was a TD, who happily never occupied the benches of this House, by the name of Brannigan—
Is the Deputy reissuing it for the Christmas trade because if he is I want a signed copy?
No, this is not a commercial. In the story that character pronounced himself, like so many people in this House, as pro-life. Of course we are all pro-life; I have yet to see anyone put their hand up in the air to say they are pro-death. This particular TD, the fictional Deputy Brannigan, was giving out about Irish women having abortions in England and rather than deciding that we should have proper counselling, family support and family planning services and all the other things that we need in the area of education so that people could come to terms with their own sexuality his proposal was that we should enact laws which would allow the Garda to stop pregnant women at exit points from the State and prevent them leaving the country. He argued that they should be restrained and prevented from leaving during the course of the pregnancy.
When I wrote that novel in 1988 some people might have thought that this was extreme until of course we saw what happened in the X case after proceedings had been initiated by the Attorney General. I do not want to see any more X cases nor I am sure does any other Member of this House. It is important therefore that I make the point that the right to travel in the X case was impeded by the Supreme Court on the idea that there is a hierarchy of rights and, in the context of protecting the life of the unborn where a mother's life was not at risk, that a pregnant woman could be injuncted and prevented from leaving the State.
This decision gave rise to a widespread outcry. Indeed, it is interesting to quote the words of Mr. Justice Finlay in the case of Mv. the Attorney General, in which I was involved, as reported at page 81 of the 1979 Irish Reports:
One of the hallmarks which is commonly accepted as dividing states which are categorised as authoritarian from those which are categorised as free and democratic is the inability of the citizens of or residents in the former to travel outside their country except at what is usually considered to be the whim of the Executive Power. Therefore I have no doubt that a right to travel outside the State exists.
He said that it existed in a limited form in the context of the State being entitled to restrain people who are awaiting trial on criminal charges from leaving the State and the right of the State in certain circumstances to withhold passports. In general, the right to travel was referred to as the right to freedom of movement by Mr. Justice Kenny in 1963, and in the case which came before the then President of the High Court in 1978, and to which I have referred, it was pronounced upon again. Passing references have been made to it in other cases. Indeed, the Supreme Court confirmed that the right exists, so the only difficulty that we have as a result of the X case arises from the Supreme Court judgment. The only way to deal with this issue is to make a specific amendment to Article 40.3.3º as suggested.
To be fair to Deputy Howlin, the purpose of his proposal in the House is to tease out a position where there would be a general explicit right to travel. He meant well by it but of course at this stage the courts have declared that more implicit rights than explicit rights exist in the Constitution and they are said to be based largely on Articles 40 and 41 and on the Christian and democratic nature of this State.
While I do not want to misrepresent what Deputy Howlin is proposing — he is not suggesting this — if we simply took on board a general right to travel as proposed in the amendment which has been ruled out of order and did not amend Article 40.3.3º, we would be back to the possibility of a hierarchy of rights and a differentiation between rights and a problem whereby pregnant women could be injuncted and prevented from leaving the country which is something I believe no one wants to see.
If we want to reduce the number of Irish women going to England for abortions, which should be one of the aims of our social policy; it is frequently genuflected to in rhetoric while absolutely nothing is done about it by way of social action or practice on the part of the Government — we should do so by way of social action and not by way of injuncting women at our borders, ports and airports and preventing them from leaving the country. It is important that the equal right of men and women to travel should not be impeded. It was probably worth while for Deputy Howlin to raise this issue but in the jurisprudence of our courts there can be no doubt that a right to travel exists and the problem we have to resolve arises directly from the decision in the X case. It has to be resolved in the context of the specific sub-Article of Article 40 which was inserted in the Constitution in 1983.
I will endeavour to stick to fact and not fiction and to refrain from nit-picking. The Labour Party's aim is to tease out the meaning of words and have clarity. That is why, unlike other parties, we did not seek to amend the Bill on Second Stage. We agreed with the principle discussed on Second Stage. However, we would like to tease out the implications of the enactment of this proposed legislation.
I am still not convinced by the Minister's case — although I accept his sincerity — in regard to the two points he put to me, that such a provision would not be explicitly stated. In relation to the declaration that such a right exists in EC law, I do not believe that case has yet been proven. What appears to exist in EC law is the right to travel for economic purposes, but the general right to travel will not be explicitly stated until such time as the Maastricht Treaty becomes operable and I assume that will be when all 12 EC states enact that Treaty which, at the earliest, will be next year. As of now, we have no guarantee that such a general EC right exists.
In regard to exceptions, to which the Minister referred, there are a number of rights specifically spelled out in Article 40.3.2º of the Constitution which do not spell out the exceptions to those fundamental principles of right. Those exceptions are inherent and I do not believe one needs at this stage to insert what would obviously be exceptions to the general principle of rights. The Constitution spells out fundamental rights and that is what is required in relation to this specific right, the right of citizens to travel from this State to others.
I was minded to raise this matter by the attitude of the Progressive Democrats, the Minister's partners in Government. They stated in their policy document that they sought to have these words included as a new Article 40.3.2º. They stated: "The State shall, in particular by its laws, protect as best it may from unjust attack and in the case of injustice done vindicate the life, good name and property rights and the right to travel both within and outside the State of every citizen". The form of words tabled in my name and that of Deputy Spring was sought to be inserted by the Progressive Democrats, the junior partners in Government. In their commentary which they attached to their policy statement requiring those words to be inserted in the Constitution they stated:
At present, the right to travel is not expressly protected by the Constitution. The right is, of course, implicitly protected by Article 40.3.1º (see The State (M) v. Minister for Foreign Affairs ), but we thought it desirable to take this opportunity to insert a general and express right to travel in Article 40.3.2º, along with the right to life, person, good name and property. Such a right is already recognised in the 4th Protocol to the European Convention on Human Rights which Ireland has ratified. It was also included in the Progressive Democrats' Draft Constitution for a New Republic in 1988.
Therefore, there is considerable support for the notion that an explicit right to travel should be numbered among those already specifically stated in the Constitution. It is spurious to suggest that once those explicit rights are inserted in the Constitution there would be a requirement to table exceptions and write those into the Constitution as well. It is equally spurious to suggest that EC law, as of now, absolutely and clearly vindicates the right of citizens to move between states. Of course, the other issue will be the right of citizens to move from this State to jurisdictions outside the European Community. For all those reasons I am not convinced by the Minister's assertion that there is no need for an explicit statement of the kind I seek.
I agree with other speakers that there is a fairly unanimous view on all sides in this House that the right to travel is most desirable. We want to put a form of words before the people that we can all wholeheartedly endorse and support. For that reason there is a Committee Stage of this Bill. As a legislator, I am required to enact to the best of my ability the best form of words to be put before the people, but I am still not convinced by the Minister's assertion that there is no need to expressly state this fundamental right.
I would like to elaborate on the communication which I conveyed to Deputies Spring and Howlin in regard to ruling their amendment out of order. Amendment No. 1 in the names of Deputies Spring and Howlin, was ruled out of order by the Chair as it contains a proposal which is outside the scope of the Bill. The Bill, as read a Second Time, addresses the issue of the right to travel in the context of the right to life as provided for in Article 40.3.3º of the Constitution. The amendment, however, seeks to include in Article 40.3.2º the issue of the right to travel in the more general sense. Accordingly, since it addresses the broader issue of the general right to travel the amendment is deemed outside the scope of the Bill and I had no option, therefore, but to rule it out of order.
I am not a lawyer and therefore I will attempt to address this issue from a lay person's point of view or, perhaps, more from a political point of view.
Is the Deputy a writer? Has he written any books?
I am not a writer either. I have written a few speeches but no novels, although some people might argue that there has been a fair amount of fiction in those arguments.
There might have been a degree of ideological fiction in some of those.
Perhaps the Deputy is correct. Although it is not specified in clear language in this amendment, what is being aimed at is to guarantee the right of women in Ireland to travel to Britain primarily for abortions. That is what the amendment seek to do, but it does not say that. The amendment states that this subsection shall not limit freedom to travel between the State and other State. It appears, therefore, that the amendment is deficient. My understanding — again in a lay person's terms — is that the Supreme Court decision in the X case found, that it was unlawful to go to Britain for an abortion except in a case where the woman concerned was shown to be suicidal. The other amendment here seeks to rule out that provision.
The Government's amendment in regard to abortion also seeks to provide for what is euphemistically described as direct abortion in circumstances where there is a real and substantive threat to the life of a woman. On the one hand, the amendment in regard to the substantive issue seeks to rule out suicide as a case for abortion, the grounds on which the Supreme Court found a young woman was entitled to an abortion and, on the other hand, it seeks to introduce new grounds for abortion in Irish law. This amendment seeks to guarantee women the right to travel to Britain for abortion, presumably in any other circumstances. The Supreme Court found that it is unlawful to travel to Britain for an abortion in any circumstances other than those which are lawful here. That is my understanding of the Supreme Court's findings in the X case, but if I am wrong I would like the Minister to clarify that. My understanding is that they found that it was unlawful to go to England for an abortion in circumstances which were unlawful here.
The point Deputy McCartan seeks to clarify regarding the concrete or hypothetical cases is how a woman who wishes to travel to Britain for an abortion which would be unlawful here — almost 5,000 women travelled to Britain last year for this purpose — can be guaranteed this right under the amendment when the Supreme Court in the X case found that it was unlawful, and that she could not travel to Britain for that purpose? Unless we explicitly write into this Article of the Constitution that women do have that right to travel for an abortion, I do not see how such a right can be established in the Supreme Court. The right of the foetus established in this Article will always be regarded as superior to that of the mother's right to travel. That is the situation as I understand it.
The discussion here clearly indicates that regardless of what is agreed by the Oireachtas and what the people subsequently decide in a referendum, it is as inevitable as day follows night that there will be a challenge in the Supreme Court at some stage to establish the points I am making today. That indicates that the approach of trying to deal with these matters by way of referendum is totally wrong and should be abandoned.
Before Deputy McCartan proceeds, I wish to say that we have allowed some considerable discussion on this amendment to section 1 which has been deemed out of order. It is not for the Chair to advise Deputies as to how they should utilise their time but I observe that the Deputies' amendments in the main refer to the Schedule and the debate in general concludes at 12.30 p.m. I wonder if we should move to the other amendments proper before us. I see Deputy Howlin nodding his head.
I agree that that would be sensible. I understood that we were speaking to section 1 rather than to an amendment that had been ruled out of order, that we were speaking on the general issue. I have no objection because I believe all the amendments are closely bound up.
Deputy McCartan, we will have to proceed section by section. I will have to dispose of sections 1 and 2 before I move to the Schedules which contain your amendments. I observe that Deputies Spring, Howlin and De Rossa have amendments to the Schedule.
On section 1, is it the Minister's intention to respond?
I will be brief. It is significant to acknowledge, and repeat for the record, that the Minister has said that he does not envisage the Attorney General playing any role in any injunction-type cases in the future once this referendum is passed. That is a significant acknowledgement, if I understood the Minister correctly, in respect of his interpretation of the effect of this legislation. The points I have raised with him — hypothetically but, I believe very realistically in view of the strong views of the community on this matter — need to be further addressed. I acknowledge that there is a general right to liberty contained in Article 40.4.1º. In that regard we can accommodate restrictions on persons charged with criminal offences or, indeed, persons of unsound mind or minors. A woman who is pregnant does not fit into any of those categories. It is regrettable that we would bring up issues relating to criminals or, indeed, lunatics in this context. I am concerned about the issue raised, by Mr. Hogan, a law lecturer in Trinity College, in his article inThe Irish Times on 8 August 1992, and I would like to hear the Minister's response to it. Mr. Hogan's article stated:
Even if the Attorney General still feels debarred by that undertaking from seeking a travel injunction, yesterday's events — this refers to the ruling of Mr. Justice Morris in the SPUCv. Grogan case — show that private citizens (such as, for example, a husband who sought to restrain his wife from having a “convenience” abortion) can still enforce Article 40.3.3º. When pressed on this very question at the launch of the Maastricht White Paper, the Taoiseach was quoted (The Irish Times April 24th 1992), as doubting whether any private injunction of this kind would succeed after June 18th adding that a “yes” vote would have to be taken into account by the courts. That assurance (such as it was) in relation to private enforcement actions has also been shown to have been based on fairly specious legal assumptions.
The event on 18 June was the affirmation by the Irish people of the Maastricht Treaty. There is an acknowledgment that a private citizen can bring an injunction or seek legal redress under the Constitution and I want to know the view of the Government, and their advisers, in regard to their interpretation of the workability of the sections. Does the Minister anticipate that a court could grant an injunction against a woman who may wish to travel to England for an abortion, whatever her reasons may be?
Will the Minister give an assurance regarding the scenario painted by the Deputy that a woman could be injuncted, perhaps on her way back from Britain? I would also like the Minister to clarify whether there is any risk of an injunction being taken out against a person who stays in Ireland but assists a girl or a woman to travel abroad to have an abortion? That person would not have left the jurisdiction, but would they be in breach of our Constitution by assisting in an act that is unlawful here but lawful elsewhere? Could a person who may have provided an airline ticket, the financial resources required, or the actual information be subject to criminal prosecution. The Minister used the words "referral information" as opposed to factual information, and there appears to be a distinction made in regard to these words by the Ministers for Justice and Health which we will try to tease out on the next Bill. I would like an assurance from the Minister that this amendment cannot be used as a backdoor method to prosecute a person who assists a woman to travel to England or elsewhere for an abortion.
I thank the Deputies, particularly Deputy Shatter, for their remarks on this matter. Deputy Shatter summarised the issue quite neatly at the start of his contribution when he stated we were all trying to establish the right to travel in all circumstances. That is what is being attempted here and we want the Irish people to support and endorse that on 3 December. I thought it was quite fair of Deputy Shatter to state that he did not wish to raise any doubts in regard to this issue, because we are all agreed on this and we all have the same objective. I do not believe that any doubts have been raised but some points may require further clarification and elaboration. It is important to remember that I answered some of the points made by Deputy Spring in this regard yesterday evening.
Yes. It is probably useful to refer back to them but I am not going to put them on the record again. I agree with Deputy Shatter in so far as the point was made some time ago, I think it was by Mr. Justice Kenny in a case in 1963.
In the case of Ryan and the Attorney General.
The question about the right to travel appears to have already been finally established there, and that is a reasonable comment to make. We certainly do not want to see any further X cases and I am sure that is the wish of all Members. It was regrettable that such a case occurred in the first instance. It was our wish that this decision would have been otherwise. This is a genuine attempt to put the matter right so that a further decision of that kind cannot be made by the Supreme Court.
Deputy Howlin referred to the whole question of the fundamental right to travel. That is relevant, but it must be remembered that this right is already well established in a European context and was agreed in the original founding Treaties of the EC. It is quite explicitly stated in the Maastricht Treaty on which we held a referendum earlier this year.
It is not law.
Not yet, but it reaffirms the existing position in so far as it deals with citizens of the Union. We voted for acceptance in that regard — that matter is dealt with explicitly in Article 8a, which states that every citizen of the Union shall have the right to move and reside freely within the territory of the member states. The Deputy is quite right in that it is not law until it is ratified, but at the same time that really only takes a step further what was already understood to be the position in the EC Treaties.
I like to have matters stated and understood.
The Maastricht Treaty reconfirms this matter as distinct from restating it, and it is important that that be made clear. What we are seeking to achieve here is to put beyond doubt the right to travel and to make it clear that it cannot be restricted by reason of Article 40.3.3º.
Deputy De Rossa made an interesting point, but maybe I mistook him, on the question of travel between Ireland and the UK. The amendment explicitly refers to travel to all states. We deliberately inserted this clause because we did no want a restriction applied in a subsequent Supreme Court case to travel to some other country that might not be incorported within the Community states — we are dealing with all states, not just member states of the EC.
I agree with Deputy De Rossa that, unfortunately, a number of people choose to go to the United Kingdom and other places for the purpose of terminating pregnancies, and certainly that is a challenge to us all. It is everybody's wish that very few people, if anyone at all, would go abroad for this purpose. There is much to be done in this regard, but we are not talking about that matter this morning. We are talking about the right of individuals to seek whatever service is lawfully available in any state to which they wish to travel. I take the Deputy's point that what we do here may be challenged at a future date. I do not foresee a challenge in the Supreme Court on what we are seeking to accomplish in this amendment, but it could happen. As the Deputy suggested, somebody may seek to have a matter clarified by way of an interpretative decision in the Supreme Court.
Freedom of travel cannot be achieved beyond doubt without having a referendum. What we were concerned about was to find the right words to put everything beyond doubt. We considered many words suggested by people in the past, but nobody said this is not a good wording. They just want to be absolutely sure that it achieves what everybody wishes it to achieve. We believe that we have done that in finding the simplest words possible, stating that freedom would not be restricted between the State and any other state by Article 40.3.3º. We must not forget that the Supreme Court decision and the interpretation given by the judges was based on Article 40.3.3º. The amendment states quite explicitly that Article 40.3.3º cannot be used to deny freedom to travel. That is the key point and it was on that ground that freedom was denied.
There is no other Article that can be evoked?
That is right. This is the Article that had to be addressed because, as Deputy Owen rightly says, it was the Article addressed by the Supreme Court. The right to travel was restricted because of a clause in Article 40.3.3º and we are now removing that clause.
Article 40.3.2º, which vindicates the right to life, could also be used.
Article 40.3.3º was addressed by the Supreme Court in the circumstances we are talking about and we wanted to put beyond doubt that that Article could not be used again by way of interpretation in the Supreme Court to deny a right or to allow an injunction to be placed.
Is the Minister satisfied that no other Article in the Constitution could be used?
Yes, we are satisfied that that will not arise. I do not have the details of the Hogan case referred to by Deputy McCartan, but the answer to his question is no. Deputy De Rossa also said that a matter can be referred for judicial consideration and I cannot deny that, but we do not foresee it happening. The wording is so tight that we feel that it could not be challenged again. If we had not felt strongly enough in that regard we would have had to consider an entirely different formula of words. Some time was spent considering that matter and our advice is that this wording will satisfy what we wish to achieve. I do not foresee any case going to the court on the basis of freedom to travel, and before the X case nobody contemplated that it was a possibility.
It was inevitable.
Maybe it was. The whole question of the 1983 amendment was argued yesterday, but nobody suggested that the whole amendment should be repealed in its entirety. The Irish people decided on the matter and in good faith they voted on a certain understanding. They never contemplated that somebody would be denied the right to travel out of the country. Neither did we contemplate that this would happen, and we certainly do not contemplate it now. We believe that this wording makes it abundantly clear that Article 40.3.3º cannot be used again in any circumstance to allow an injunction to be placed. Cases are sometimes referred to courts but we want to ensure that in regard to the element of travel the issue will be disposed of in a satisfactory way.
Deputy Owen raised the question of assisting a person. This is an important matter which I considered at some length. Once it has been agreed that there is a constitutional right to travel in any circumstance for a service that is available in another state, anybody who assists a person, in doing so cannot be judged as having committed a wrong. The whole question of freedom to travel relates to going abroad to seek a service that is lawfully available in another jurisdiction.
I would like to tease out this matter a little further.
Notwithstanding the interesting debate we are having. I suggest that we dispose of sections 1 and 2. The matter being discussed now would be more perfectly in order under the Schedule.
Curieadh agus aontaíodh an cheist.
Tairgim leasú a 2:
I gCuid I, leathanach 7, líne 4, "stát" a scriosadh agus "dlínse" a chur ina ionad,
I gCuid II, leathanach 7, líne 7, "state" a scriosadh, agus "jurisdiction" a chur ina ionad.
I gCuid I, leathanach 7, líne 4,, "nó saoirse chun seirbhís a fháil atá dleathach sa dlínse eile sin" a chur isteach tar éis "eile",
I gCuid II, leathanach 7, líne 7, "or freedom to receive a service lawful in such other jurisdiction" a chur isteach tar éis "state".
I move amendment No. 2:
In Part I, page 6, line 4, to delete "stát" and substitute "dlínse",
In Part II, page 6, line 7, to delete "state" and substitute "jurisdiction".
3. In Part I, page 6, line 4, after "eile" to insert "nó saoirse chun seirbhís a fháil atá dleathach sa dlínse eile sin",
In Part II, page 6, line 7, after "state" to insert "or freedom to receive a service lawful in such other jurisdiction."
I hope I will not be accused of nitpicking, but we are trying to devise a form of words which is suitable. As we have discovered, single words have great importance in this debate. The intention of the amendment to delete the word "state" and to insert "jurisdiction" is in the interests of clarity. I will be interested in hearing the Minister's view because I am advised that a great number of places are not states — they are territories, dependancies, colonies or jurisdictions. We are trying to confer a general right on people — women in particular — to move wheresoever they choose from this State. To ensure absolute clarity on this issue I am advised that the word "jurisdiction" is preferable to the word "state" so that there will not be any ambiguity about travelling to certain areas of the world. For example, Hong Kong is not a state, it is a crown colony, and numerous other places have a different legal status apart from being an independent state. We are trying to establish the right of free movement of Irish citizens in relation to where they wish to go.
I do not have any difficulty with the intent of the Schedule, that the subsection shall not limit freedom to travel between this and another state. However, I query its necessity, either arising from the decision of the Supreme Court or because of the fundamental rights which attach to any democratic state. The Minister said that there was a need for it on the basis that the Supreme Court had decided by a three-two majority that while an injunction will not be given to restrain a woman from travelling abroad to obtain an abortion where there is a real and substantial risk to her life, obviously such an injunction can be given to restrain travel abroad to obtain an abortion where there is no such risk.
I have copies of the judgment with me; they are the only copies available in the Houses of the Oireacthas. I want to quote from them because if we purport to amend our Constitution to include what has always been there — and what has not been changed by the Supreme Court decision — we are doing something unnecessary. I will start with the judgment of Chief Justice Finlay. He dealt first with what is called the substantive issue and he said at the end:
It is for this reason that, in my view, the defendants were entitled to succeed in this appeal and the orders made in the High Court—
Deputy Howlin rose.
I will anticipate the Deputy. I was about to suggest to Deputy O'Kennedy that, if we disposed of the amendment initially, we could then come to the subject proper.
The point I am making is valid and relevant when talking about a "jurisdiction" or the "state". It does not change my submission. The Supreme Court decided on the substantive issues and the Chief Justice said:
It is for this reason that, in my view, the defendants were entitled to succeed in this appeal and the orders made in the High Court have been set aside.
He went on to say that the remaining issues are matters of some considerable interest. He said:
These issues, however, having been fully argued and being matters of considerable public interest, it seems to me that I should express my views upon them even though those views may fall as a matter of law within the character ofObiter dicta.
In that case the Chief Justice did not make a judicial decision.
I do not want to lecture the House but anyone who has any legal experience knows thatobiter dicta, literally translated, means things said otherwise that are not related to the core of the judgment. Therefore, even taking the views expressed by the Chief Justice, which said that you could put the right to travel as a lower order than the right to life, it was just an opinion; he did not make a decision. Mr. Justice Egan followed that position. Each of the other three judges pointed out the opposite. I will quote from some of the judgments. The late Mr. Justice McCarthy said in relation to the right to travel:
Such a right has been identified inThe State v. the Minister for Foreign Affairs as one of the unenumerated rights, all of which enjoy the same guarantee as contained for those expressed in Article 40º. If the purpose of exercising the right to travel is to avail of a service lawful in its location but unlawful in Ireland, is the right curtailed or abolished because of that local illegality and/or because of the guarantee in the amendment?
This is where the question of jurisdiction comes in. He went to say:
In my view, it is not a question of balancing the right to travel against the right to life; it is a question as to whether or not an individual has a right to travel, which she has. It cannot be curtailed because of a particular intent.
He went on to give very graphic illustrations. He said:
If one travels from the jurisdiction of the State to another, one, temporarily, becomes subject to the laws of the other State. An agreement, commonly called a conspiracy, to go to another State to do something lawfully done there cannot, in my opinion, permit of a restraining order. Treason is thought to be the gravest of crimes. If I proclaim my intent to go to another country — there to plot against the Government here — I may, by some extension of the law against sedition, be prosecuted and, consequently, subject to detention here but I cannot be lawfully prevented from travelling to the other country, there to plot the overthrow, since that would not be a crime in the other country. I go further. Even if it were a crime in the other country, if I proclaim my intent to explode a bomb or to shoot an individual in another country. I cannot lawfully be prevented from leaving my own country for that purpose. The reality is that each nation governs itself and enforces its own criminal law. A court in one State cannot enjoin an individual leaving it from wrongdoing outside it in another state or states. It follows that I agree with Hederman, J. that, in so far as the order interferes with the right to travel, there is no jurisdiction to make such an order.
Therefore, Hederman J. clearly agrees with Mr. Justice McCarthy's interpretation.
I now turn to the judgment of Mr. Justice Hederman on this issue because it was said that it was a three-two majority decision in relation to restraining the right to travel. However, it is very clear from the copy I have, initialled by Hederman, J., that he upheld the order of the Court at paragraphs (a) and (c) and that he did not make an order in respect of paragraph (b), the part of the order relating to the right to travel. He said very specifically:
Therefore, this Court should not grant the injunction at (b) in the terms now sought by the Attorney General.
Whatever views we have on the Supreme Court, it is important that we at least deal with the matter on the basis of the reported judgments. It is clear that Judge O'Flaherty was of the same opinion:
Having regard to the principles of interpretation that in my judgment should apply, the further question to be asked is whether officers of the State are obliged to invoke what may be called the police power of the State to interfere with the freedom of the individual, especially the individual's freedom of movement in and out of the jurisdiction.
I leave aside the entitlement of the Oireachtas to enact legislation in regard to the provision and take it as self-executing in the absence of such legislation. I believe that its positive thrust is that the State should provide every practical assistance to pregnant women.
The judge went on to say:
The State's role in such a case should be a positive rather than a negative one. In particular, I do not believe that the Court should grant an injunction to interfere to this extraordinary degree with the individual's freedom of movement.
In this instance, a negative role would be restraint on the right to travel. He also pointed out——
Deputy O'Kennedy, I seek your co-operation. I am not questioning the relevance of the contribution, but there is a time limit on the debate. All must finish by 12.30 p.m. The specific amendment relates to State and jurisdiction.
I am just about finished. It is important that these matters be put on record. Judge O'Flaherty said:
In this case the injunction granted also involves, in my judgment, an unwarranted interference with the authority of the family.
The Supreme Court did not decide to interfere with the right to travel. Quite the opposite. There was one opinion from the Chief Justice, and he said it wasobiter dictum, and that was supported by Judge Egan. Unless my interpretation of words in their normal meaning is incorrect, the views of the other three judges as expressed in the judgments available in the Oireachtas Library are the opposite. I do not recognise the necessity for this amendment.
I said in the House last night, and I shall conclude on this point——
The Deputy was for it last night.
I am sorry, but I was not. I am not a parliamentary draftsman nor a constitutional draftsman but, as I said last night, I do not recognise the need for this measure. If others feel that this is——
Did the Deputy tell his Minister that four weeks ago?
There may be a legal view that I am not aware of. I am sorry, but the Deputy is not going to baffle me. I am about to conclude my contribution.
I do not recognise the need for this measure. If this measure were being introduced in a totalitarian state, in one of the former communist states in which the characteristic — as distinct from the characteristic of a democratic state — was that one was not free to travel, there would be good reason for introducing such an amendment. If this measure had been introduced in Russia, Bulgaria, East Germany, Yugoslavia, Hungary, Albania or China there would be good reason for introducing an amendment to whatever constitution they had, because the characteristic of those states was that people were literally imprisoned within them; there was no freedom of travel. We, however, live in a democracy and countless millions of Irish people have consistently exercised that right. It is for that reason that I do not acknowledge the necessity for this amendment. Neither do I consider that such necessity arises from the Supreme Court judgment.
The Minister is to speak now.
Is it I?
Yes. The Deputy is one of yours.
No, I am sorry. Without being facetious, I point out that I am an elected representative of this House who has an obligation, like anybody else, to express my views.
I apologise. I withdraw that statement. I said it the wrong way. Deputy O'Kennedy is a Government Deputy, so perhaps the Minister might like to answer him.
The Deputy is, and he is entitled to his opinion. He has made his comment on this matter in other places as well. One does not have to agree with every Deputy's point of view; many people disagreed with different points of view expressed in the House yesterday and the same could apply to today's debate.
I should, however, like to put it to Deputy O'Kennedy that the vast majority of those in the House wish to have this matter dealt with and dealt with in the only perfectly satisfactory and safe way, by referendum. The holding of a referendum will put beyond doubt any question in so far as the right of freedom to travel is concerned for pregnant women or for women or men in general who wish to leave this country under any circumstances. That is the reason that the matter is being pursued by way of referendum, and that was agreed earlier this year between the leaders of the parties, who recognised that the issue was one that should be attended to. It was unanimously agreed by them, and I think it is virtually unanimously agreed by everyone in the House, that the issue should be dealt with by way of referendum.
Clearly, it is not quite unanimous.
I am not so sure about that. Deputy O'Kennedy may feel that it is not as necessary to deal with the issue in this manner as Deputy Howlin feels or as I feel. Deputy O'Kennedy may feel that there is a grey area which might mean that the measure need not be attended to at all, and perhaps he would get support for that view if it were canvassed outside. However, that would certainly run counter to much of what has been said in the House in trying to reach a decision which would make sure that we did not face any further tests in the matter when somebody referred a case to the Supreme Court or to any other court or when an injunction was sought for any other reason.
That leads me back neatly to the point made by Deputy Owen. We are trying to establish that nobody can be injuncted from going to seek a service anywhere outside the State and that anybody who would assist that person in any regard could not be prevented from doing so. That is what the Government are seeking to achieve in the proposed wording. We are trying to put beyond any doubt that Article 40.3.3º or any other Article could be used to stop anybody from travelling in a free democratic way to avail of a service that is provided outside of the State.
Deputy Howlin moved an amendment in relation to the State. I am satisfied that the Bill as it stands will ensure that a woman who wishes to travel to another jurisdiction to avail of a service that is unlawful here but is lawful in the other jurisdiction will have the right to do so in the sure knowledge that an injunction may not be taken against her to stop her travelling. We unanimously agreed that that was the key objective we should seek to achieve.
Reference was also made to the fact that the courts have held that the unborn is implicitly protected by provisions of the Constitution apart from Article 40.3.3º so that those other provisions could be relied on in a travel injunction case since the proposed amendment relates only to the limiting of the scope of Article 40.3.3º. It is true that before the enactment of the Eighth Amendment to the Constitution, which inserted that Article in the Constitution, it had been pointed out by Judge Walshe in the Magee case that Article 40, Section 3, of the Constitution as it then stood, could be invoked to protect unborn life. However, as was stated by Judge Hederman in the X case, the Eighth Amendment to the Constitution was quite clearly designed to prevent any dispute or confusion about the application to unborn life of Article 40 as it stood before the passage of the Eighth Amendment, under which unborn life had a guarantee of protection and which went further and expressly guaranteed equal protection to the life of the mother of the unborn life. The right to life of the unborn is now explicitly recognised and guaranteed by Article 40.3.3º and that explicit guarantee has been held to take precedence over the right of a mother to travel when she intends to leave the State to have an abortion and there is not a real and substantial risk to her life.
If the people, by referendum, now decide that that express guarantee is not to limit freedom to travel outside the State, surely it is fanciful to suggest that the courts would circumvent that expression of the will of the people by reverting to a possible implicit guarantee of the right to life of the unborn that has been referred to in a case prior to the creation of the express guarantee of Article 40.3.3º. I am advised that reference to Article 40.3.3º in the proposed Thirteenth Amendment of the Constitution Bill is sufficient to achieve the aims of that Bill. Deputy Howlin referred to the question of the State as against jurisdiction. We do not see any difficulty there, so far as matters referred to in the Constitution would refer to the word "State" in the circumstances of our arrangements internationally on behalf of the State. Article 29 refers to the executive power of the State. We do not see that it would cause any difficulty.
We do not see that it would cause a difficulty.
I am not talking about this State but rather travel to another jurisdiction. Can the Minister give a clear assurance that the word "State" in relation to the country which is being travelled to would encompass every possible jurisdiction including Hong Kong, the eastern bloc countries Gibraltar, etc., that are not actually states?
I should like to make a further point about Article 29. Article 29.3 states:
Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.
We are satisfied that that does not cause any difficulty in so far as the jurisdictions are concerned. It seems to me to be explicitly stated in Article 29.3 and we rely on it.
I should like to refer back to one of the points I made earlier. The Minister is beginning to satisfy me that there is no other Article under which somebody can assist a person to travel to have an abortion which is illegal in this country but which would be legal in the state to which they are travelling. He said that under Article 40.3.3º we are giving precedence to the Thirteenth Amendment of the Constitution Bill which will supersede the right to life if somebody claims that a person cannot travel for an abortion. The right to travel would be the overriding principle on which somebody would be able to travel and not the fact that they were going to have an abortion. Am I correct in that assessment?
Under Article 40.3.2º what is the position of the boyfriend, husband or father of a potential child who decides to vindicate the right to life of the unborn in this State by saying that he is convinced that the woman carrying the child is going to abort that child? That is what happened after the X case where a man was known to have sought an injunction to prevent his girlfriend from having an abortion — she wanted it but he did not. We do not know what happened in that case because publicity about it faded away and we do not know whether it was pursued. That is another scenario where we could end up in court. I should like to read a comment fromThe Cork Examiner of 19 October 1992 by a senior lecturer, Mr. J. Paul McCutcheon of the University of Limerick in which he stated:
Ultimately, the authoritative interpretation of constitutional provisions is that of the courts and any attempt to explain the meaning of the proposals is an exercise in legal futurology.
Obviously, even in what we are doing today we have to be careful not to use words such as "certain", "certitude" and "absolute", etc.
Only in so far as we can.
Can the Minister tell me whether he has examined the scenario where the father of the potential child tries to use some other article in the Constitution to supersede the right to travel?
We did in fact consider that issue. The idea of futurology comes down to the fact that any citizen can take himself or herself off to the courts and seek to get an interpretation on any aspect attached to this legislation whether in ordinary legislation or constitutional law. Without seeking to be short with the Deputy, we did discuss this issue and considered the very points the Deputy has raised, where there was a question of assistance for somebody seeking to prevent somebody from doing something they wanted to do. That is the whole purpose of the amendment as it is now framed. The amendment makes no exception — that is the key phrase. In other words, as the Deputy suggested, if somebody wishes to travel abroad for whatever service is lawfully available they are free to do so irrespective of what anybody else would wish the person to do. We are satisfied about that. As I said previously, if that had not been the case it would have required an enormously different type of amendment and I would not have shirked from it if I felt that was the case. We feel this covers it neatly and we have been so advised.
Are we still dealing with the question of jurisdiction or have we moved on?
We are on amendment No. 2 in the names of Deputy Spring and Howlin.
My point is that my amendment relates to this issue.
I would prefer if we stayed with the amendment and disposed of it. Shall I put the question on amendment No. 2?
I would like to restate my question to the Minister as I am not satisfied with the answer he has given me. The question is very simple because we are trying to achieve the same objective. Can the Minister assure us that every Irish citizen, male and female, has the right to travel to any jurisdiction in the world that they so choose?
People are asserting fundamental truths with great clarity. Not many months ago the Attorney General of this State sought to injunct an Irish citizen from travelling abroad. That is what has us where we are. As the Deputy mentioned, we are not talking about Albania or the eastern bloc countries; it happened in this State and we want to make sure it never happens again. I want that assurance from the Minister as I believe we all share that objective. It is not good enough for anybody to either shout from the backbenches or state from the Front Benches that that is a fundamental truth——
Who is shouting?
——because we heard assertions of fundamental truth in 1983 which were not proven to be accurate and we should now strive for accuracy and clarity in a calm and rational way.
That is a fair comment.
May I please ask one question? I accept there has to be many legal gymnastics attached to the Committee Stage of this Bill. Can the Minister assure me in plain simple terms, in so far as he can, that when we vote on the referendum and have this wording inserted in the Constitution that if a third party such as that suggested by my colleague Deputy Owen — a father — wanted to injunct a woman who was pregnant and who had expressed the clear wish and intention to go away, could she be arrested or stopped in the interim — cases take some time to come to court — from going off on the plane immediately or how would she be affected until the case is heard?
It might be too late for her then to have the abortion.
I would think in those circumstances as there are no restrictions that she would be entitled to go and could only be restrained in a physical way by somebody who would be acting illegally.
What the Minister is saying in effect is that if somebody does make an application to the courts it would have absolutely no effect on her right to travel.
They could go to court but it would not affect her right to travel if she wished to go at that minute.
That is what most women out there will want to know.
Basically, it comes back to Deputy Owen's point——
She could be detained if the courts were not satisfied.
——which was good in so far as the person was being assisted as distinct from the other way around. There will be no restriction on that. The amendment does not seek to tolerate any interference in that regard and it supports Deputy O'Kennedy's point of view. It cannot be achieved in any event. He sees it from a different angle but it is already there as something fundamental one way or the other. His point is that this amendment is not necessary at all. What I am saying is that agreed wisdom and virtually the unanimous position of the House is that this amendment is necessary to put the matter beyond doubt. As Deputy Fennell said, people cannot and will not be restricted in any way. Deputy Howlin's point is well taken. This situation did not happen before. This is the reason we are here, regrettably, and let us hope we have it right this time.
Is Deputy Howlin pressing his amendment?
Tarraingíodh siar an leasú, faoi chead.
Deputy Howlin has withdrawn his amendment. Therefore, I suggest that we move on to the next amendment. When we dispose of that amendment there will be a question on the Schedule where anything that is related to the Schedule will be appropriate.
I seek the indulgence of the House. I do not know whether Standing Orders provide for this, but I have had the good news conveyed to me that the wife of our colleague, Deputy Enda Kenny, Fionnuala, has had a baby girl. I thought the House would wish to join with me in sending him our best wishes and telling him that we excuse his absence.
In those circumstances, and as I share a constituency with Deputy Kenny, let me be the first to congratulate him and his wife, Fionnuala.
There will be another Fine Gaeler in the constituency.
The Minister will be the proxy godfather.
I am sure the House will be interested to know that Deputy Kenny and his wife live down the road from me so I will probably have an opportunity to personally convey my good wishes to them in future.
So say all of us.
I am not convinced it is another number one vote for Pádraig Flynn, but one never knows.
We now come to amendment No. 3.
Perhaps we can take amendments Nos. 3 and 4 together.
Is that agreed? Agreed.
Tairgim leasú a 3:
I gCuid I, leathanach 7, líne 4, "nó saoirse chun seirbhís a fháil atá dleathach sa dlínse eile sin" a chur isteach tar éis "eile",
I gCuid II, leathanach 7, líne 7, "or freedom to receive a service lawful in such other jurisdiction" a chur isteach tar éis "state".
I move amendment No. 3:
In Part I, page 6, line 4, after "eile" to insert "nó saoirse chun seirbhís a fháil atá dleathach sa dlínse eile sin",
In Part II, page 6, line 7, after "state" to insert "or freedom to receive a service lawful in such other jurisdiction".
This amendment relates very much to the point made by Deputy O'Kennedy. As he rightly said in the essence of his contribution, only two judges would have been prepared to give an injunction in relation to travel. If one reads the judgments in detail, that seems to be the import of them. Only two judges out of the five, a minority, would have been prepared to give an injunction against travel while three judges would have made an order to prevent the woman or girl from having an abortion. This amendment seeks to clarify a very important point. Characteristic of the debate which has been taking place outside this House for a long time are the euphemisms used — we speak about "the right to travel" when we mean the right of women to travel abroad for abortions and "the substantive issue" when we mean abortion. We should talk in specifics, not generalities.
It should be clear at the end of this debate that there is no possibility of an injunction being taken against somebody who travels abroad for the purpose of procuring an abortion which is lawful in another member state. That is the import of this amendment. It seeks to include the words "or freedom to receive a service lawful in such other jurisdiction" in Part II of the Schedule. There has been much comment about this issue. The essential point in the original judgment in the X case, is that Mr. Justice Costello granted an order giving an injunction against the person concerned leaving the State and also against the person procuring an abortion.
That judgment is dead; it has no relevance.
Let me deal with the issue step by step. That is the case which initiated these amendments. There is every possibility that that injunction could still be made under the wording before us. I am afraid that this might be the case. I am not sure that the Supreme Court set aside every aspect of the Costello judgment. I wish to have the position clearly stated so that people who vote on the issue of travel will be clear in their minds that no Irish woman or girl who travels abroad for the purpose of obtaining a legal abortion in another jurisdiction can be injuncted or prosecuted for doing that.
In this regard it is salient to quote the comments made by Mr. Anthony Whelan, a senior Trinity College law lecturer, in an article inThe Sunday Business Post on 11 October. The article states:
Whelan said that part of the Supreme Court's ruling in the X case was that under Irish law a woman was only permitted to terminate her pregnancy outside of the jurisdiction, where it did not conflict with Article 40.3.3 of the Constitution guaranteeing the equal right to life of the mother and unborn child.
This means that abortions in England are lawful only in circumstances which would be deemed lawful in this country, rendering the right-to-travel amendment irrelevant to the legality of foreign abortions.
"By travelling abroad to have an abortion which you weren't entitled to get here, you will still be committing an unlawful act," said Whelan.
Those are the comments made by a senior law lecturer on the wording before us. The Labour Party are seeking in this amendment to remove any ambiguity in relation to this matter so that we can state explicitly that the right exists for any Irish woman to travel abroad to avail of abortion services which are lawful in another member state. I am anxious to hear the Minister's comments on this amendment.
I wish to address my remarks to amendment No. 4, the intent of which is the same as amendment No. 3. To a significant extent we have already referred to the issues we want to raise under this amendment and the protections we are seeking. We are seeking to guarantee women living in Ireland, whether they are Irish women or foreign women — many women living in Ireland are not citizens of this State — the right to travel to Britain primarily. I take the Minister's point that the amendment provides for travel to any other state, but it has to be acknowledged that the vast bulk, if not all, of women who travel abroad for an abortion go to Britain. We are seeking to guarantee women the right to travel for an abortion. However, the Minister's amendment does not specify this.
We are afraid that Article 40.3.3º could be read as giving a superior right to the foetus over that of the right to travel. As Deputy McCartan said, Article 40.3.2º has a relevance in this case. Article 40.3.3º gives the foetus an equal right to the right of the woman. The right of the woman derives from Article 40.3.2º which states:
The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
Article 40.3.3º gives the foetus an equal right to the woman in relation to that Article. It seems to me that the right to travel could be regarded as less important to that right. It is for that reason we are seeking to incorporate wording which says that the right should be specifically for an abortion, for the services — the euphemism being used in the debate and the amendments — of abortion in another state. Despite the wishes the Minister and we may have, unless we copperfasten our intention the wording will be open to challenge and different interpretations.
The Minister does not believe that after a referendum a woman against whom an injunction would be sought could be legally restrained from travelling from the State. I wonder on what he bases that assurance. If a person goes to court and obtains an injuction, temporary or otherwise, against a person travelling to Britain for an abortion, surely the State has an obligation to restrain that person from travelling and to take whatever steps are necessary, particularly if the person who obtained the injunction has made it clear to the court that the person against whom the injunction is granted intends to travel on the 8 a.m. flight to Heathrow the following morning. In such circumstances the State would have an obligation to enforce the court's injunction by restraining that person. I question the Minister's categorical assurance that persons could not be interfered with in that way. Regardless of the final outcome of the court case, a person could be restrained on an interim basis.
We are seeking to guarantee the right of women to go to Britain to seek an abortion even where that abortion may be unlawful in this State. That is the crux of the matter. The reason we are here is that the Supreme Court found that they could in certain circumstances prevent a person from travelling to another jurisdiction.
They did not.
The Deputy will have his opportunity to repeat the point that in his reading of the judgment the Supreme Court have not made a ruling, but the Attorney General did bring a case and the persons concerned returned to this country on being assured that if they did not they would be liable to penalties for being in breach of an injunction. We are trying to rule out that risk. On that basis the Minister should consider the wording we are putting forward.
One other reason we are here is that the Government, in their wisdom or otherwise, incorporated a Protocol to the Maastricht Treaty which sought to exclude Article 40.3.3º from the consideration of the European Court. That also has a bearing on the case we are making. Even still it is not clear what effect that Protocol will have on what we are doing and on the outcome of the referendum. Regardless of our decision, will women not have recourse to the European Court because of the Protocol? It is another angle of the uncertainty that surrounds this issue.
Deputy Howlin has reservations as to whether the judgment of Mr. Justice Costello was set aside entirely. That would be a matter of reasonable concern. The Chief Justice clearly states at the end of his decision that the orders made in the High Court have been set aside.
What about the reasoning?
We are dealing with law, not opinions.
That was a specific case.
Deputy O'Kennedy will get a much more receptive audience if he addresses the Chair.
My concern has been heightened by the discussion which has taken place. Of course nobody anywhere in this jurisdiction, least of all me, would attempt to prevent any woman from going anywhere for any purpose. There is nothing in our law or Constitution or court decisions that would justify any such attempt. The law and the Constitution are clear, yet we are raising a doubt that is not even there.
The Attorney General took a case.
The Attorney General is not the court.
Was he wrong?
The court held that he was wrong in this instance.
Every judge of the Supreme Court said that the Attorney General was right to do what he did but that it was wrong in principle.
That is what I am saying. If we want to generate confusion in the House we can do so.
That is the Deputy's function.
I am making the position quite clear. Under the law and the Constitution, the lady about whom Deputy Owen was so concerned could proclaim from the rooftops that she intends to go to England with her boyfriend to procure an abortion, leaving on the boat from Dún Laoghaire at 8 p.m. There is no law or power that could prevent her.
Somebody could start proceedings.
We are putting in a constitutional amendment to put beyond doubt what in my view is already beyond doubt. This is not good practice. When we debate the need for introducing something that is already quite clear, we are raising a doubt that is not there. I gave my reasons earlier. I have heard allegations of ambiguity and requests for the Minister to clarify. It is clear that he does not need to. Anything he or any other Minister says will not change the law, regardless of the best intentions.
I do not want to confuse matters. An injunction was taken and that injunction arose out of Article 40.3.3º and an interpretation thereof. This amendment simply provides that Article 40.3.3º cannot be used to pursue an injunction again. That is important. The general understanding is that to prevent such a thing happening again in any circumstances it should be specifically laid down. The best way to do that is to put a provision into the Constitution in a simple way providing that the Constitution gives unrestricted freedom to travel in any and every circumstances. That will achieve what Deputy O'Kennedy says is already there. The people are anxious to have it stated in that way.
The specific question is: can some woman be injuncted, not from travelling subsequent to the enactment of this but from having an abortion?
No. The subcommittee considered the subject of the amendment in that regard. We recommended to the Government in that regard that it was not necessary. It seemed inconceivable to us that a court would give an injunction against a woman having an abortion when it cannot prevent her from travelling by invoking Article 40.3.3º. Why would anybody be injuncted when nothing can take precedence over the right to travel as laid down in this amendment? It is not a question of being beyond reasonable doubt. We are simply satisfied that the right to travel supersedes everything in so far as Article 40.3.3º or any other Articles of our Constitution are concerned. It is a good reassurance to be able to give.
Sorry, Minister, I must intervene now and explain the position of the Chair. Where it is indicated that a question be put at 12.30 p.m. it must be put. There are people who are not present who are waiting the outcome of the question and they will have a very justifiable cause for complaint if I do not put the question at 12.30 p.m. It cannot be changed here. That is the order of the House and I must put the question. It is now 12.30 p.m. I am required to put the following question in accordance with the resolution of the Dáil on 21 October:
Is í an cheist: "Leis seo go n-aontáitear an Sceideal, an Réamhrá agus an Teideal agus dá réir sin go dtuairiscítear an Bille don Teach gan leasú, leis seo go gcríochnaítear Céim na Tuarascála agus leis seo go ritear an Bille."
The question is: "That the Schedule, the Preamble and the Title are hereby agreed to and that the Bill is accordingly reported to the House without amendment, that Fourth Stage is hereby completed and that the Bill is hereby passed".
Cuireadh agus aontaíodh an cheist.
We will now move on to Item No. 16.