This is a very sensitive question and not an easy one for any Member of this House to address. The question of whether the Government may lose this referendum was raised a moment ago. Of course, it is not a matter of the Government losing the referendum or not. The people will have to make up their own minds on this question.
How do we proceed to make a decision on this question? Many citizens of this country were unhappy about being consulted on this matter in 1983 but they were consulted and they made a decision. As a result of that, any further approach we wish to take on the substantive issue which was discussed in the 1983 referendum campaign and by the Supreme Court in the X case must be submitted to the people for their decision. It is not politically practicable in this State to make any progress in one direction or the other without a referendum.
I appreciate the position the Labour Party canvassed at the hearings conducted by the all-party committee. That party's position has been consistent. It wishes to see legislation to implement the various aspects of the X case and to give concrete shape to it. However, when that option was canvassed at the all-party committee it did not find favour with either of the two major parties. The first approach penned by the Fine Gael Party indicated that that party does not favour such legislation. It took the view that the judgment involved in deciding whether a particular threat of suicide is real is a subjective one, that Irish medical personnel had not acted on the two judgments made by the courts in this area and showed no disposition to do so in the future. When the Labour Party option was canvassed at the all-party committee neither of the major parties supported it. I accept that the Labour Party position on this issue is a valid, political one. It is a compromise position between those who expressed a particular view at the Labour Party conference and those with a different view within the party. This is an issue which divides members of all political parties. Ultimately, the political parties will have to stand back from this debate and let the people decide the question on the basis of information submitted to them.
No one likes being asked the question but I cannot see how we can resolve a difficult philosophical question such as this without submitting it to the will of the people. There are those who have argued that it should be a right of choice for a woman to decide this question and there are those who argue, on the other hand, that unborn life is worthy of legal and constitutional protection and of moral respect. Between those positions it is very difficult to make a judgment and I do not know how parliamentarians can provide for legislation. We can, as the Minister has sought to do, remove the matter from vague constitutional formulae and try to find a workable legal solution in practical statutory terms. That is what this proposal entails. I welcome that aspect of the proposal. It is legislative in form.
I appreciate the understandable reservations that have been expressed about the mode of enactment of this proposal. It is proposed that the people will empower the Oireachtas to enact legislation which has been shown to the people in advance of the referendum. In the light of my conviction that we will not make any progress with this issue unless we are up front with the people, I am happy that the Government is telling the people exactly what is on offer. A clear proposal is being submitted to the people. In 1983 and 1992 vague and general constitutional formulae were submitted to the people and there were endless arguments and public debates about what the formulae meant, might mean or would mean. That approach has not been adopted on this occasion. The Government is giving the people clear sight of what is proposed.
No legal scholar or lawyer of note or repute has suggested any unconstitutionality or constitutional impropriety in the approach the Government has taken. Article 46 of the Constitution permits the people to amend their Constitution. This is a matter for the people. Some Fine Gael speakers have stressed the point that we cannot amend the Constitution in this way. In 1937 when the Constitution was brought in the same party said that Mr. de Valera did not have the right to go back to the people and get their judgment on it. This is what we are doing in this instance in the only practicable way we can do so.
If we were to implement the legislation in the form in which the Labour Party seeks to have it, with the suicide risk fully written into the legislation, I do not believe the Oireachtas would be able to enact such legislation without some reference back to the people. Such legislation would not have the communal sanction that a decision of that type would require.
We must learn from the experience of the United States. Different approaches were taken by different states of the United States on this question. The matter fell to be decided by the Supreme Court in the famous decision of Roe and Wade, when the United States Supreme Court decided, as a matter of constitutional law, that within the United States abortion facilities should be provided on a graded basis with abortion on request in the first trimester of pregnancy and a more restricted regime for the second trimester. That decision has caused immense political controversy in the United States. It has led to the politicisation of appointments to the judiciary and has never commanded the respect of the people of America. At each presidential election the issue comes up again and again. The reason for this is that the decision was not taken by the American people but by judges. People are unhappy with the idea of such a fundamental matter of life and death being decided by the courts without reference to the people.
The Supreme Court in the X case rightly criticised legislators for failing in our obligation to legislate. If we do not legislate it is inevitable that the courts will do so. It is not desirable, either for the courts or for our political system, that the courts are left in the position of having to legislate. Dr. T. K. Whitaker addressed this very issue before the all-party committee. It was put to him very strongly by the Fine Gael members that it should suffice to establish some form of agency and tackle the real problem of the large number of crisis pregnancies. I accept the real problem is the high number of crisis pregnancies, although no woman who had been through that experience appeared before the all-party committee and said she would like abortion facilities to be provided in the State. However, the committee had the benefit of the Trinity College study, referred to in this debate.
T. K. Whitaker was asked if a package to tackle the problem of crisis pregnancy would be adequate but he took the view that it would be an evasion of responsibility in that it would mean leaving to the courts awkward decisions, such as the X case. The public was not happy with that decision. The responsibility of Parliament is to set out the guidelines of laws as clearly as they can and not to leave deliberately to the courts the settlement of obscurities. That is what we will do if we do not legislate in this matter. By adopting the legislative approach I welcome the fact that the Minister has taken the opportunity to remove a number of obscurities.
One matter raised by many speakers is the question of when life begins. The legislation does not address that matter. It addresses the question of when the crime of abortion is committed. The questions raised by some speakers regarding in vitro fertilisation are being looked at by a separate commission dealing with assisted human reproduction. That issue must be looked at. I thank my colleagues from all parties for their magnificent work on the all party committee and I hope this commission will approach its work in a similar way and try to lay the foundation of a balanced debate. No decisions on that issue are being made in this legislation, which deals with another issue.
I have some sympathy with those who ask if it would be possible to repeal the provision inserted in the Constitution in 1983 and start again. That is not possible. We must deal with the current situation and decide on the best practicable solution. If the people decide not to favour this measure it may be because, as in 1992, a combination from both sides find the proposal unacceptable. However, I believe they will look on this proposal with care because it has been drafted with considerable care and is based on an extensive period of consultation conducted by the all-party committee.
I accept that when inferences are drawn from evidence many different conclusion can be reached. However, it is important that the Institute of Obstetricians and Gynaecologists, which was of considerable help to the all-party committee, has written an open letter to the Minister confirming its support for the Bill and wishing the Government every success in the implementation of the measure. The institute did not work with the interdepartmental committee which prepared the Green Paper but in evidence to the all-party committee, a number of witnesses from the institute, representing a spectrum of opinion, established in an authoritative way contemporary practices and perceptions. Medical and clinical practice can be a dynamic, evolving practice and is not necessarily fixed or rigid in its implications. The institute is satisfied the legislation meets its concerns.
Understandable concern has been expressed about the question of the suicide risk. In assessing evidence, different conclusions can be reached but an indisputable fact from the hearings we conducted is that no abortion, termination or procedure on that ground has ever been carried out in this jurisdiction. I do not want to beg the choice of words on this subject because words themselves can be lethal. As chairman of the all-party committee I was struck by the extent to which they can have an ideological rather than a practical significance. In view of this it is necessary to put side by side with the fears expressed, past practice and what doctors want to do in the future. This must be built in to current medical practice and that is the perception of the medical profession. Its endorsement of this proposal means we must consider it with great care.
The one great practical merit in the legislative approach is that it puts the question of the protection of the expectant mother in a maternity hospital beyond any legal doubt whatsoever. When we conducted our hearings there were considerable doubts about the precise legal position. There was a conflict between the guidelines outlined by the Medical Council, the constitutional position outlined in the X case and the Offences against the Person Act, 1861, the basic statutory provision under which we operate. The effect of the Government's proposals is to draw together all these elements.
The great merit of having a statutory position is that the legislation is laid out in black and white in accordance with the well established schemes of statutory construction and interpretation. We are not leaving the matter open, as would a constitutional formula, to vague general interpretation in the courts. A precise guideline is being laid down, which will benefit all concerned.
The point has been made that while we may settle that issue we are far from settling the far wider, deeper, human and emotional tragedy involved. The Government and all of the parties on the all-party committee pressed strongly for the establishment of an agency that would look at this problem in a realistic way, would take the subject of sexuality in Ireland away from the bar counter and the casual joke and consider it in a modern context to see how the issues of education, counselling, including counselling those who have had abortions, prevention, abstention, contraception and care could be drawn together in a compassionate, sympathetic and tolerant approach that would state where we stand today on all these issues. I welcome the fact that the Government has established the Crisis Pregnancy Agency and the impressive membership appointed to it. It is important for the agency to commence work. This Bill contains a precise proposal on which the people will have to decide but it is being submitted to them in the context of the establishment of an agency which looks at documents such as the Trinity College study and surveys, many of which have been haphazard in their approach and not fully thought out in terms of orientation and where they should be going. It will examine the problem as it stands and see what can be done about it. That is a practical way of making some progress on this issue.
On the wider constitutional issue posed by the legislation, there is no constitutional difficulty with the particular mode of enactment. Article 46 of the Constitution provides that a Bill containing a proposal or proposals for the amendment of the Constitution shall not contain any other proposal but I am satisfied this is not another proposal because it is open to the Oireachtas to enact this legislation afterwards. There is ample authority that the courts do not interfere with the sovereign right of the people to decide what should be in the Constitution.
This proposal has been thought through and the Government has carefully examined the report of the all-party committee. Different people have very different perceptions of this issue, but far from this being unique to Ireland, similar debates have taken place in other countries. Likewise, it will be asked why so many people travel to England and whether we are being hypocritical and failing to face up to our responsibilities. However, another feature of the abortion debate around the world is that there are many jurisdictions to and from which people come and go to avail of particular services. The UK has one of the most liberal abortion regimes in the world and we are in close proximity to it. I do not believe any abortion law ideally devised in the House would ever meet the requirement of those who seek to avail of services in England as the services there, as in some other jurisdictions, are available on a very liberal scale. There are many other European jurisdictions where there are regular movements of people and recourse to facilities available in other countries. Equally, it is clear that those countries which have introduced liberal, widely available abortion have had huge controversies within their medical profession and among the public regarding the morality of what they are doing.
This is a very difficult question and parties will have to draw back a bit from the debate. I welcome the fact this has, by and large, been the tone of the debate in the House and in the all-party committee. In terms of legislation on sexuality we have made fools of ourselves many times through the years, including on censorship, contraception and abortion, and I hope on this occasion we can conduct the debate in a civilised way, look at ourselves as a people and see if we can make a decision which addresses at least some of the problems we face on this issue. It is never possible to find an ideal solution to this problem. This can be one of the difficulties with the motivation of many who argue the points, but the Government has arrived at a conclusion on the matter and has submitted proposals to the people which are worthy of very serious consideration and give the people a real chance to find a workable solution to this problem for this generation at least.