Options for Constitutional Change

We are now in public session. We have discussed in private session over the last while the the issue of how to best proceed. The committee has taken evidence in public session from constitutional law and human rights experts and will review the six options open to us in with regard to constitutional change. Our legal adviser has outlined in a paper to this committee these six options to appeal or to amend Article 40.3.3° Members will all be familiar with the recommendations from the Citizens' Assembly. Deputy O'Brien has indicated that he has a proposal as to how to proceed.

In order to allow the committee to examine all of the options outlined to us by the legal adviser I propose that Article 40.3.3° should not be retained in full.

In view of the fact that that would give us the flexibility to discuss all the options put to us by legal advisers, I second the proposal.

We have discussed this already, but I see that Senator Mullen has indicated.

I oppose the taking of this vote.

That is interesting. Senator Mullen and Deputy McGrath could have let us know of this beforehand.

Members are quite free to vote for or against any proposal of the committee, or indeed to abstain from the vote. Because all members are present there is no requirement to ring the bells for a vote. The question is:"That Article 40.3.3° should not be retained in full." Members who are in favour say "Tá"-----

Before the Chairman puts this to a vote, is it open to members to propose an amendment to that motion?

The vote has been called.

I am asking whether I can propose an amendment that this be deferred until all witnesses have been heard by the committee.

That was the subject of our discussion for the past hour in private session. Senator Buttimer wishes to raise a point of order.

I thought that a roadmap for this public meeting had been agreed in private session. There was no dissenting voice at that meeting.

I did not agree. It is open to me to reserve my position until we are in public session and I can air it in a fully transparent way. I do not agree with anything that has gone on here or with the way in which the one motion we had down today was withdrawn in favour of a completely different motion. I believe that I am entitled to oppose the taking of this vote, though I am open to correction on the procedure here. I believe I am also entitled to propose an amendment. Further to that, should my amendment not succeed, I believe I am then entitled to oppose the vote. I will accept the ruling of the Chairman, of course.

I will have to defer to the clerk on this matter.

Clerk to the Committee

Members of the committee are entitled to vote against the question.

I am aware of that.

We agreed in private session that I would put the question that Article 40.3.3° should not be retained in full. Every member is entitled to vote against that.

What about my proposed amendment to the motion? Is it not normally the procedure that we start with the amendment and work back?

There is a proposal here; there is no motion. The Senator was here for the private meeting. Many different things were discussed and various people submitted motions. There was a counter-motion and then a proposal was made. We are taking a vote on a proposal suggested by Deputy O'Brien. Senator Mullen knows why we reached this point as we have been discussing this for the past hour.

I do, but I am entitled to reserve my approach until the public session in the presence of the media and so that the public can know what is going on. I have already stated that this is a farcical process and people know my view on this. We have not had enough time to question witnesses and there has been a whole range of problems. I think I am entitled to ask whether I am at this point entitled to propose an amendment to the motion, which is that the matter be deferred until all witnesses have been heard.

Is the Senator proposing an alternative vote?

My understanding from the clerk is that the question has been put and that, in line with procedure, we must now take a vote on it. I do not think we should even be having this debate.

I second Senator Mullen's proposal. What are we hiding here? Why have we been in private session for the last hour?

We are not hiding anything.

The Chairman has said that we cannot speak on this matter now. Senator Mullen and I did not take part in the discussion over the past hour because it was farcical in the extreme. This now is an even bigger farce. He wants to propose an amendment which I am seconding. We want a discussion on this in public, not behind closed doors.

I do not understand what Senator Mullen and Deputy McGrath are proposing and seconding. The question has already been put.

We want to propose an amendment to the proposal.

It is very regrettable that the members who chose not to take part in the debate before this now want to indulge in a bit of grandstanding. It is regrettable but not surprising. We have a proposal and it should be put. My understanding is that the Chairman is perfectly entitled to go through with this vote and I think we should just do this and then move on.

We agreed as a committee that we would give notice of any motions so that they be submitted in advance.

No notice was given of this motion.

This is not a motion. It is a proposal.

This is a vote and I am proposing an amendment to it.

And I am seconding it.

You cannot do that.

The question has been put so in terms of procedure I am correct in saying that-----

Is the clerk-----

I am telling the committee what the clerk has told me. He has a very good knowledge of procedure and both he and the legal adviser have informed me that the question, "That Article 40.3.3° should not be retained in full", has been put and that we are now to vote on it. We discussed this for the past hour and this is how we came to this point.

It is usual in committees that we have a discussion in private before we go into public session. It went on a little longer than I would have liked but the reality is that is normal.

The Chairman is entitled to have whatever discussion she wants in private if that is the will of the committee but other members of the committee who might believe that everything should be carried out in public are entitled to seek to transact the business of the committee in public. I certainly want to make it clear that I did not agree, privately or otherwise, to our progressing to this point.

Okay. To be fair, before I let other members in, many members had indicated early on that they wanted to go into public session early and Senator Mullen is not alone there.

Yes, I suggested it. Why did we not?

Because we needed legal advice on the conversation we were having and one is not entitled to have legal advice while in public session. That is the reason we were in private session. Let there be no ambiguity about that.

What legal advice did we get during it?

The members have said their piece.

Excuse me, members.

Deputy Mattie McGrath indicated.

I did, I thank the Chair. I will not hog it at all. I am just saying that I do not agree either that we should move in this direction this evening. I discussed it with the clerk to the committee. I am not trying to interfere with the clerk to the committee's business. I sought clarification during the break. It was not my understanding that we were going to decide something in private and then put it to a vote in public. That was not my understanding.

What is wrong with us, if we come to the impasse-----

Deputy Mattie McGrath is making his views known now, that is fine.

If we come to the impasse - sorry, Chair, I am nearly finished - here-----

Order, respect the Chair, please. Respect the Chair.

I am respecting the Chair.

Deputy Mattie McGrath did not.

How dare Senator Buttimer? Excuse me, Chair. Can I finish, Chair?

Please finish.

I will be very brief.

Thank you, please finish.

I do not want any sideshows. This is terrible. Thankfully, it is public and the public can see the tempers of members and what we have to put up with.

I would have thought, if we needed legal advice here in the committee in public, that we could adjourn and get the legal advice in private, and go back again. That is often done in procedural committees.

We can do that.

But sure, we can do that.

We can do that at any stage.

Chair, members, such as Deputy Clare Daly, have their hands up.

Deputy Mattie McGrath has spoken three times.

We have Senator Ruane. It is just there is a-----

Exactly, sorry. Senator Ruane had indicated.

I suppose-----

Sorry, will members who have indicated please raise their hands again?

Up until this point we were all following procedures that we laid down. The first one of those was that it would be 24 hours before we had any sort of motion, and that is why Deputy Jonathan O'Brien has put a proposal.

The fact that we were in private or public session does not matter. What matters is that Senator Mullen is not taking on board what has been arranged and agreed every week. The Chairman asked two weeks ago. If members felt so strongly about having a motion in, they should respect the fact that we are all putting time and effort into submitting our motions in time. If they want to submit motions, they need to abide by the rules. It is not about being in public or private session. They are coming up with solutions and suggestions while they are sitting there now in public session but they did not have a solution while we were in private session. Why could they not have suggested, as Deputy Mattie McGrath said, going on and off into private session if necessary? Why could the Deputy not say that four minutes into the meeting?

There is a proposal before the committee.

Exactly, I have to put the question. Sorry, I have indulged members here now. We have also had an hour of discussion before we came into public session. I am not having any more discussion about it. The Question is, "That Article 40.3.3° should not be retained in full."

Question put: "That Article 40.3.3° should not be retained in full."
The Committee divided: Tá, 15; Níl, 3.

  • Buttimer, Jerry.
  • Chambers, Lisa.
  • Coppinger, Ruth.
  • Daly, Clare.
  • Durkan, Bernard J.
  • Gavan, Paul.
  • Kelleher, Billy.
  • Murphy, Catherine.
  • Naughton, Hildegarde.
  • Noone, Catherine.
  • O'Brien, Jonathan.
  • O'Connell, Kate.
  • O'Reilly, Louise.
  • O'Sullivan, Jan.
  • Ruane, Lynn.

Níl

  • Fitzpatrick, Peter.
  • McGrath, Mattie.
  • Mullen, Rónán.
Question declared carried.
Staon: Deputies James Browne and Anne Rabbitte.

We will now move to the discussion, as we agreed to last week and as we discussed earlier, with regard to the advices that have been received and discussed by the committee. I will go through the six options. Of course, it is not an exhaustive list of options. Option 1 is repeal simpliciter. Option 2 is repeal based on published legislation entrenched in the Constitution. Option 3 is repeal based on legislation published in tandem with a referendum. Option 4 is repeal and replacement on specific grounds. Option 5 is repeal and replace on broad grounds and-or expressing a rebalancing of rights.

Option No. 6 is repeal and replacement with provision conferring exclusive power on the Oireachtas to regulate. I will allow members approximately five minutes each. They should indicate if they would like to speak. The first speaker is Deputy Lisa Chambers.

I welcome the fact that the committee has deliberated at some length and we have reached a broad consensus that the status quo cannot pertain and that at least some change will be made. We have not discussed what those changes will be yet and we are about to deliberate on those options now, but there appears to be broad consensus that the status quo cannot be maintained. That is progress at the end of a number of weeks of very hard work on behalf of each member of this committee.

We discussed at length with our legal advisers the options available to us. The first option was repeal simpliciter. The difficulties posed by that potentially are that it may be considered in conflict with the Citizens' Assembly but we are open to reporting in our own right as a committee and that is an option we will consider very carefully.

I propose to discuss option No. 2, which is repeal based on published legislation entrenched in the Constitution in that the legislation would be drafted and then it would be given a constitutional status. The difficulties were outlined very clearly to us on that particular option by our legal advisers and the challenges that would present. The advice to us was that it would be impractical to say the least to have option No. 2 in place because minor amendments or even procedural amendments would require a constitutional referendum, which appears to almost take that option off the floor but we will make a call on that as a group.

Option No. 3 is repeal based on legislation published in tandem with a referendum. It does appear that this is certainly one option that is quite viable as it does provide a reasonable approach in that I think it is reasonable to say a lot of people, perhaps the majority, will want to know what will be in place after a potential repeal. If legislation is to be published, it does make sense that citizens would know what the legislation would be and what the intention of the Government would be in terms of drafting it. That makes sense.

Option No. 4 is repeal and replacement on specific grounds. That would be a situation whereby we would repeal the eight amendment and we would replace it with another constitutional article which would then detail the specific grounds on which an abortion could be obtained. I believe the intention under that option is that the grounds would be quite restricted. Again, that posed challenges in some ways. There would be an interpretation then by the courts in terms of how that would operate and it would require legislation as well. That option is, again, not without its challenges.

Option No. 5 is quite similar to option No. 4. It is repeal and replace on broader grounds, providing a greater degree of flexibility to legislators and to the medical profession. That is an option we would have to consider in more detail.

Option No. 6 is repeal and replace with a provision conferring exclusive power on the Oireachtas to regulate. That would repeal the current Article 40.3.3° and replace it with another constitutional article dictating that the Oireachtas would have the sole power to legislate. This, technically, is what the Citizens' Assembly called for, but again we have the option to discuss that further as a possible outcome.

What is very clear is that there are a number of outcomes and options available to us as a committee. They will be available to the Dáil to adjudicate on and ultimately to the people. That is the point to be made. We are doing a lot of work here in terms of trying to compile a report and have the greatest degree of consensus that we can, although I believe there is an acceptance that we will probably not have full consensus among every committee member, and that is reflective of Parliament and the country. This is not a decision that will be agreed upon by everybody. In the context of the legal options available to us, it is incumbent upon us as legislators to discuss in detail how each of those options could be catered for, and that will require us then to look at the possible ways we could legislate for each and every eventual outcome.

In terms of the proposal that was put to the committee today not to retain Article 40.3.3° in full, what that allows us to do is to explore all six options and to decide how best to proceed, but I think there is an acceptance on the part of the majority of members that the status quo cannot be maintained.

I acknowledge that we have made some progress in terms of the vote we have taken tonight, and at least it means that we can now proceed to look at what possibly might be in legislation and the further recommendations of the Citizens' Assembly. I was the first person to propose that we should go into public session when we assembled here this evening. I think we have seen evidence of why it would have been desirable to go into public session sooner because many members of the committee did not engage in the discussion we had previously. My understanding is that the Chairman put a proposal that we generally agreed with regard to procedure before we went into public session but we had the opportunity to not agree to that procedure. The Chairman asked us, and it is disingenuous then to come along in public session and have the opportunity to say why one does not agree with it.

On a point of order.

Unless it is a point of order, I do not wish to hear it. I am making a general point not directed specifically at Senator Mullen. Unless it is a point of order or a point of clarification, Deputy O'Sullivan has the floor and the same applies to every other member.

The reason I say that is that a number of us here have engaged in discussion in private in good faith to get to a position where we could go into public session. There are many things that I would have liked to have said in public session that we did agree in private session but I do want to put on the record that I did submit a motion that the committee recommend the holding of a referendum to repeal Article 40.3.3° of Bunreacht na hÉireann, as did other members of the committee who may wish to state that on the public record. We recognise that there were other members of the committee who in good faith did not want to have to vote on the issue this evening or this week. In good faith we accepted that because we do want to reach as much consensus as we can in the committee. That does not change my position, which is expressed in my motion, but it does mean that we are giving the time we have been asked to give. That now has to go on the public record because, effectively, there is so much going out in public anyway that we are talking about in private that I do think it is important that we are all able to put our positions. Clearly, I am not going to push that motion today and we have agreed a procedure. However, I wish to address the issue of the various options that are before us.

There are three that deserve consideration, one being repeal simpliciter, which is the first option, and the second being No. 3, which is repeal with accompanying legislation, although I do have a bit of a problem with the title of that which is "repeal based on legislation published in tandem with the referendum", because the legal advice in private indicates that there would be no legal obligation on the Oireachtas to enact that legislation. However, I think it is helpful to the public politically if people have some idea what legislation the Government is proposing side by side with putting the question to the people by way of referendum. The third option which I consider to be worth considering is the sixth option, namely, repeal and replace with a provision conferring exclusive power on the Oireachtas to regulate, but I do have a difficulty with that one because there would be an issue with the public because we would be seen to be taking away the power of the Judiciary and taking the power exclusively into the hands of the Oireachtas. It is a simpler way to accept what is the constitutional convention anyway that the Oireachtas has the power to legislate once it is within the various articles of the Constitution. While that is technically the recommendation of the Citizens' Assembly, I do think there might be an issue with it. That is something we teased out in private and I am happy to put that much on the record.

We have six options and I think we have made a decision. I was one of the people who campaigned in 1983 against putting Article 40.3.3° into the Constitution, or at least the original amendment which has subsequently been changed slightly.

I wish to record my satisfaction that, as a committee, we have at least voted to recommend that it should no longer stand as is. As soon as possible, we should move to make a recommendation on what would be put to the people and, side by side with that, consider the Citizens' Assembly's various recommendations.

The Deputy was bang on five minutes. I thank her. Senator Mullen has five minutes.

I believed that I was coming to consider a procedural vote on what was then Deputy Kelleher's proposal that there be a deferral of any consideration of questions of a more substantial nature until the second module was out of the way. I understand why it can be necessary to have meetings in private session to allow people to, for example, avail of legal advice. Not everyone has the same legal background or knowledge or people may need issues clarified. Being able to do that in private session is every member's right. However, I do not feel in any way bound to communicate my views on procedures or otherwise in private session when those procedures are material to what is going on at this committee.

I have put it on the record in public, and will happily say it again now, that what has gone on here has been a farcical and cynical process for many reasons: a thorough preponderance of witnesses-invitees in favour of abortion; no time to question people properly; and no distinction in practice between supposed experts and advocates for abortion. To put the tin hat on it, we have moved to vote on proposing that the rights of the unborn be taken away to some extent or completely. That is the implication of what was voted for today. Not only did we do that without a debate among ourselves on its merits, but we did so without even listening to all of the invitees who were supposed to appear before us. That illustrates just how cynical what is happening is and it makes a nonsense of the Chairman's protestations in private and public that she would be open to considering inviting more witnesses. Presumably, there are people who may yet appear before the committee who propose that the retention of the status quo is the only thing that would not substract from some people's human rights. All of that has been set at nought by the pre-emptive decision of this committee without a debate of the merits among ourselves - our only debates have been on procedures - and without hearing from other witnesses. It would be laughable if what was at stake was not the denial of the human rights of a whole section of our community.

I am disappointed by the two mainstream centrist parties in particular. In the case of Fianna Fáil, two members voted to take away in some shape or form the eighth amendment, which protects the human rights of the unborn as well as the mother, and two abstained. That is a million miles away from what the ordinary members of that party decided at their own Ard-Fheis last Saturday. In the case of Fine Gael, only one of its five committee members voted against substracting from the human rights of the unborn. That is a million miles away from where so many of the ordinary membership of that party is. It reminds me of the famous line from William Butler Yeats:

The best lack all conviction, while the worst

Are full of passionate intensity.

What is at stake is unprecedented, namely, the denial of human dignity, or respect for same, for a whole section of our community. We had a great tradition in this country. Please God, and regardless of whether people are persons of faith, I hope that the Irish people will vote to protect and include everyone in our society. What has been decided by the committee's majority tonight is a repudiation of that. It is shameful in terms of human rights and human dignity. This is a bad moment for respect for human dignity in these Houses. It may be happening downstairs in a quiet chamber with not many people listening in, but human rights are being denied in these Houses. Consider what those who fought for independence for and that the 1983 amendment was a beacon to the world. To have a denial of all of that without even a debate on the merits among members or hearing from all of the witnesses is cynical and tragic.

I do not know what we can do now. What the committee has done is create a situation in which every proposal is bad because it takes away respect for some people's human dignity and implies that some people will no longer have the protection of the law - vulnerable young babies, sick young babies, disabled young babies or perhaps just every young baby who is not wanted or for whom an abortion is sought. That is a tragic situation and a bad pass for the committee to have arrived at tonight. I deeply regret it. Many people in this country will regret what the committee has decided. Thankfully, the committee will not have the final say. Nor will the Dáil and Seanad. The great achievement of the eighth amendment was to take this issue away from judicial and parliamentary elites and give it to the people of Ireland. I hope that the Irish people will decide to be inclusive rather than exclusive of human dignity if and when this comes to a vote.

I welcome the opportunity to speak in public on this matter. The purpose of the motion that I tabled was to arrive at a situation where we could consider the Citizens' Assembly's recommendations. Tabling it was important because we were asked to consider those recommendations as part of our terms of reference. If we had just opted for a repeal simpliciter, we would have had parked the substantive recommendations of the Citizens' Assembly, namely, that Article 40.3.3o should not be retained in full, it should be replaced or amended or it should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman. These were the three substantive issues on which the Citizens' Assembly voted. Had we supported a repeal simpliciter, we effectively would not have been debating those recommendations anymore and it would have been difficult to move on to its following recommendations in view of the fact that we had rejected them without consideration.

This is a compromise. We can still debate the substantive issues and all of the legal advice and options that have been placed before us. Deputy Chambers and others have gone through them. Some of them sit uncomfortably with me not only in the context of what they propose, but predominantly on legal grounds. Entrenching legislation in the Constitution, which was recommended in option No. 2 on a repeal based on published legislation entrenched in the Constitution, would be a dangerous road to take. While it might give certainty, it gives no flexibility. We could be tying the hands of legislators and others for many years to come if we opted for the entrenchment proposal. Even if people just wanted to change a comma, we would have to hold another constitutional referendum. That option should be parked fairly soon in our deliberations.

On the broader issue of repeal simpliciter, it allows for the Oireachtas to legislate in its own right and within the confines of judicial oversight. This might affect the rights of the unborn that are already recognised without being explicit in the Constitution, but we would not know what the effect might be until after the legislation was enacted and subjected to constitutional challenge on grounds of expressed or inherent rights in the Constitution for the unborn, bodily integrity, privacy or the other areas stated in the legal opinion.

This is probably the option that many people believe would give the Oireachtas the most flexibility to legislate but, once the repeal simpliciter is passed by the people, what do those who are currently proposing it propose in terms of legislation? This is an important question and people need to be up front about it. Have they in mind a restrictive proposal in terms of fatal foetal abnormalities, incest, rape or something else? Will it relate to the health of the woman? Where do they sit in this regard?

That is an issue the committee will have to tease out if there is a recommendation for a repeal simpliciter. It would be disingenuous to propose a repeal simpliciter without setting out in a broad legislative format what one will recommend in the context of a referendum. The publication of legislation in tandem has been proposed before and tried before. There is no legal framework that underpins it other than that it would be a political intention to pass legislation if the public changed the Constitution or repealed Article 40.3.3o. That is probably just a political possibility whereby there would be broad consensus as to what would be put before the people by political parties or broad opinion in the Houses of the Oireachtas. There could be no legislative guarantee in view of the fact that very soon after the referendum, there could be an election, a change of opinion or proposed amending legislation. As such, the draft legislation might be substantially changed. However, it might give comfort to some individuals to have an opinion as to what they are voting on in the context of repeal. People should be upfront and honest, individually and politically as parties, if they have an opinion or a policy as to what should be in that legislation.

We have been discussing this issue for quite some time over the past couple of weeks. We should not be complaining about that, however, because we are charged with a fundamental issue and should take our deliberations very seriously, as all members are doing. We have a deadline by which we must report. Whether we make a decision today, tomorrow or next week, we ultimately must report by mid-December. There is no prevarication on my part. The motion I tabled was never intended to delay decisions. All decisions must be made within three months of our first public meeting, which took place in mid-September. Regardless of whether motions are put down to delay a decision in the context of the modular process, my motion was not put down to delay the final decision, which will be made when the committee has completed its full deliberations. Some people seem to suggest the motions were put down for prevaricative or even provocative reasons, which was certainly not my intention. I have never tried to make political capital out of this particular issue since I was appointed spokesperson by Fianna Fáil six years ago. I wish that to be clear to everybody in the room. People can look at the views I have expressed publicly in the Dáil and in committees in previous times. They will see that I have never tried to put other political parties under pressure in this context. It is too serious and emotive and it deserves that respect from others as well.

I am one of a handful of people in the room who got to vote on this in 1983. I voted not to amend the Constitution because it is not the place to legislate. That is what is being done. One is legislating in the Constitution if one includes something in the Constitution. That has coloured my opinion in respect of the view I have taken. Like Deputy Jan O'Sullivan, I tabled a motion for a straightforward repeal and that is how we should proceed. We were told by our legal adviser that there is no such thing as legal certainty, which we all accept. However, the more legal certainty there is, the less flexibility there is. We have been cursed by the fact that there has been no legal flexibility by virtue of the fact that we tied ourselves into an article in the Constitution that requires change even for the most extreme situations. That eliminates for me a number of the options that are put in front of us, which are based on entrenching legislation in the Constitution. There is nothing else entrenched in the Constitution. It would be a new departure and it would be the wrong way to go.

While I accept some of the points which have been made, my concern about repeal based on legislation published in tandem is that if it is overly restrictive, the courts may interpret it in an overly restrictive way. I have no problem specifying that this is an issue that should be embedded in health care. I will have no problem specifying that when we come to the last phase of the process when we deal with the individual items we recommend be included in legislation. Option No. 5 on "broad grounds" does exactly the same thing, in that it takes away flexibility.

Option No. 6 is the provision of exclusive powers to the Oireachtas, which is what the Citizens' Assembly recommended. I note the previous referendum result where it was sought to give more powers to Oireachtas committees. Changing the balance between the courts and the Oireachtas is not necessarily favoured by citizens. They like to have that balance and this option is, therefore, not a good way to go. I am firmly of the opinion that to repeal or not is the option that should be put to the citizens. That comes down to who one trusts. We are asking citizens to make this decision. I certainly am willing to trust women and doctors. I certainly am willing to accept the decision the citizens will make. However, we have to be clear and coherent with the question we put to them. The more straightforward question is the one which is largely expected. It is open to people to vote "Yes" or "No" to that. Those are the reasons I came to the conclusions I did on the options.

We decided on a modular approach in July and some of us expected there would be decisions after each one. I am perfectly willing to accept the honestly-held position of many members that they want more time. For that reason, I will certainly not be pressing my particular proposal until people feel comfortable with us discussing that. If that takes another few weeks, so be it. However, there are people in the room who do not want this put and who want to retain Article 40.3.3o in the Constitution. I believe they are frustrating the process and that should be called out. It is not about being in here and being disingenuous. It is fundamentally about not wanting a repeal or a discussion on it; it is about retention. Let us just say what it is. We have heard some discussion of human rights. Health is a human right and women have a right to have their human rights respected in the context of health. That is part of the reason I have taken the position I have.

It is very unfair to say we are making decisions before all of the evidence has been heard and without fully debating the issues. Most members have engaged very frankly, wholeheartedly and sincerely. For weeks, we have been listening to the very real difficulties with the current arrangement.

Dr. Peter Boylan said today that grave harm was done to women, including death. We know the present arrangement is hugely problematic for women in respect of their lives and health. The top echelons of the medical profession have told us week after week that they need flexibility and capacity to respond in terms of best practice in medicine in respect of maternity and foetal care. They claim the present constitutional arrangement does not give them such flexibility and capacity. The decision we made earlier was not to retain the present constitutional arrangement; that is all that was decided. Many members are in different places on that issue, which is absolutely fine, but to say we have not debated enough to get to that position is very disingenuous.

We have had much discussion on the intention of the Citizens' Assembly. We debated it yesterday with our legal adviser and with Ms Justice Laffoy. Anybody who reads the transcripts of the proceedings of the Citizens' Assembly and accounts for the voting process will realise it was very clear that the citizens wanted to take this issue out of the Constitution. There was an overwhelming vote for repeal and a little complication about something being replaced, but we teased that out and it was very clear that the citizens were afraid that the courts might try to tie the hands of the Oireachtas so it would be limited in its capacity to legislate for abortion provision. We had a discussion on these issues.

Arising today and every week was the idea that putting anything in the Constitution on such an intimate, private, individual health matter is very problematic in any of its formats. In that sense, option No. 2, which involves putting specific legislation into our Constitution, is the worst. In no other case is such an arrangement at play. If there were technical changes, or otherwise, the provision could not be changed. The legal adviser said it is completely impractical and without precedent. On that basis, option No. 2 is really a non-runner.

We were told option No. 4 would be incredibly legally difficult. I agree. It would not be so totally impractical as option No. 2 but near enough. It would put down woolly grounds in the Constitution. Again, it is open to wide interpretation. Option No. 5, which would put in broader grounds, was a little bit more problematic.

We did make a comparison with the divorce referendum and tease it out. Regarding divorce, some criteria were put into the Constitution in this regard. We said in private session yesterday that we have to take into account that the Oireachtas and Attorney General are now considering taking all that out of the Constitution because it proved cumbersome. The idea of a constitutional referendum to change this is not really practical. These matters of personal decision-making are really best left out of the Constitution. That issue was dealt with in terms of options Nos. 2, 4 and 5.

I agree with the points made that, although option No. 6 was the one chosen by the Citizens' Assembly, it is putting something in the Constitution and is writing out a role for the Judiciary that I do not believe would be welcome . It is not something that exists in other scenarios. Generally speaking, the interaction between the Constitution, the Houses of the Oireachtas and the legislation is fairly flexible. It has worked pretty well. The courts have been pretty good at interpreting matters when given space in this regard. Including in the Constitution something that, in effect, is trying to diminish the role of the Judiciary is not a good thing. It means one is left with options Nos. 1 and 3 as runners. My belief is that option No. 1, a simple repeal, is the best. Option No. 3 is repeal while publishing some sort of legislation in order that people might have an idea as to what legislation might look like. Our legal adviser told us that is really a political matter rather than a legal matter. It would not necessarily have any legal status but might be a little reassuring.

A constant theme in all this is that no matter what option we pick, criminalising women who have abortions is completely unacceptable to people. It arose again today. I believe the professor put it very well when he turned it the other way and said that, while many people have different opinions on abortion, they would give a very different answer if asked whether they wanted women to go to prison for abortion. Decriminalisation is an issue we have to address. It will deal with many of the issues.

We have made good progress. There was really genuine engagement by most members of the committee. I have seen games, however. Deputy Catherine Murphy is correct that there are games being played here. We have heard the opening salvos of the referendum campaign in some of the speeches tonight. It is not something to look forward to. There are also elements of the media playing games with this issue. Perhaps, through creating a big, cut-and-thrust divisive debate bringing us back to 1983, it is an attempt to halt flagging newspapers sales. People are not in 1983. The committee has demonstrated an ability to listen to impartial evidence-based advice. We can be adamant enough in making decisions on that basis without other people, inside or outside, trying to goad us on these matters.

Those who fought for Irish freedom will celebrate tonight that Oireachtas Members can make a decision and ultimately allow the people to vote in a free democratic decision-making process to amend or not the Constitution of our country. I will always stand for the right of both sides in an argument but we are legislators.

I was in favour of Deputy Kelleher's motion and accepted it in the spirit of where we are going tonight. This is a very emotional issue for many people. I was two pounds when I was born. To me, life is precious, including the life of the mother and the unborn child, but we are not in 1983. When we examine the evidence of Drs. Boylan, Malone and Mahony, we note a gargantuan question must be put in the minds of all of us: do we keep the status quo, stand still or change?

Are the eminent medics who were before us all wrong and all saying one thing by way of groupthink? I do not believe so. The eighth amendment is a testament to a different era. It is also about the fact that people can afford to go to England. Dr. Boylan put across very clearly today that people can afford to go abroad. A generation of people are looking to us, as politicians, to be leaders. The human rights bodies have made a decision and rulings on us in respect of the eighth amendment being too inflexible. Dr. Boylan made it quite clear that Savita Halappanavar, whose anniversary is approaching, would have been alive today but for the eighth amendment to our Constitution. We may quote the Mellet case, where the State had to make a payment because of the eighth amendment but I fundamentally believe there is no such thing as legal certainty, as Deputy Murphy said and as we heard from the evidence. Whatever we do as a committee, we should travel with haste in arriving at whatever outcome we come to. We have a once-in-a-generation opportunity. The Irish people will decide. I am sorry Senator Mullen is not present to hear this. Men and women fought for all of us to vote. There was a very genuine work ethic in private session and a business-like arrangement.

The Chairman has been fair, diligent and courteous. She has pulled us up and has been assertive when she had to be. In no way was she unfair to members. She was impartial and offered all of us an opportunity to put forward witnesses. Anybody who tries to discredit her or all of us in this room is doing the Oireachtas a disservice. One of the good things about the Houses of the Oireachtas is the integrity of the public servants, men and women, who work alongside the Chairman. They do their job to advise us. The Chairman has been very fair to all of us. I am glad Senator Mullen is back because I would not want him to believe I was giving out about him in his absence.

It is unfair to blame the Chair or to be unfair to her because she has been very fair to all of us. I would like to say that on the record. We may disagree and I respect Senator Mullen's right to have a different viewpoint from any of the 20 of us in this room. However, the Chair of our committee has reached out to all of us in a very fair and non-partisan way and in a manner that behoves the Chair. I would hate for people to think she has not done that.

I thank the Senator.

I do not know whether to offer-----

Senator Mullen can indicate and come in later.

I have to go to Galway. I will at some point check what Senator Buttimer said. I hope the Chairman does not think I have ever been unfair to her. I think this process is a disgrace. The Chairman is presiding over it but she is nonetheless a very courteous person.

Sorry-----

It seems some people do not have to put up their hands. They flit in and out and then get to make a speech if somebody mentions them.

I suppose the only point-----

The Deputy is in something of a glasshouse in regard to that procedure.

Excuse me.

I have not flitted out.

I have the floor now because I am chairing this meeting. Senator Buttimer was making a point while Senator Mullen was not here. In fairness to Senator Mullen, he walked in the door as his name was being mentioned. There was nothing negative being said about him. Senator Buttimer was defending me. I appreciate that because I will not defend myself as Chair. I will act and let people judge how I behave as Chair. The next speaker is Senator Ruane who has five minutes.

I echo what other people have said on the process before we came in today. I found it very fair and productive. When I tabled the motion on repealing the eighth amendment and the amendment on the modular process, I had not yet witnessed transformations before my eyes. I can see when people are honestly and actively engaging with information and witnesses. I am watching that journey and I recognise it because it was a journey I took not too long ago in coming to a certain position. It happens especially when one is faced with the mountain of evidence and clear literature such as in the presentations we have seen. I commend that process no matter how much people who are not in the room right now want to undermine it. It is amazing what people will say when they come to realise they no longer have a monopoly on setting the moral standard or agenda.

Deputy Daly spoke about the legal evidence and went through each option. I am conscious that people at home are not privy to what we are looking at. We are talking in abstract ways about options one, two and three, for example, so five minutes is not sufficient for those to translate in such a way that people watching proceedings at home will understand. Now that the evidence has been given and discussed in public, will that legal advice become part of the Official Report in order that people can check what we were referring to when we talk about options?

I accept we cannot jump straight into the issue of whether people want to repeal, replace or repeal in tandem with drafted legislation. It has become very clear what is off the table and what is not workable or practical. Much of the evidence in the beginning was on certainty. The further we went along, it became evident that certainty is not the most important thing to look at. We are looking at what is workable and flexible. Based on what has been said about option two and entrenched legislation and option four which is repeal and replace on certain grounds - I could be referring to the wrong option numbers - it is very clear they do not work. Whatever we do after today, we should definitely work towards narrowing the legal advice in order that everything is not still floating around in the ether as something that needs to be discussed. We have already figured out that retain in full is off the table and we do not need to discuss it. I propose that, going forward, we narrow down the choices in terms of what is practical and flexible in order we are not rehashing this over and over again. I will not go back into everything that has been mentioned because Deputy Daly summarised the options very well. I want clarification on whether people who are watching proceedings will have access to the options. They were in The Irish Times at one stage but I am sure it was a paraphrased version.

It is up to the committee to waive privilege when it comes to our legal advice, but I do not think it is necessary because it was in The Irish Times. The six options are out there. The Senator made a good point. If the committee wishes to address it formally, it is an issue for another day. We should get through everybody's contribution first.

There is no point in me going through each option because Deputy Daly has done that. The only point I want to make is that we should narrow down the options in order that when we come back to this, we are not going back over old ground which we all agree should not be discussed any more.

Points have been made about the committee being farcical and pro-abortion. One member referred to 1916 and asked if it is what our forefathers gave their lives for. The people who fought in 1916, certainly in the case of James Connolly, were advocates of women's rights and I assume would have been open to women having bodily autonomy. The sands have shifted in society. People who had a hegemony in the past are now struggling to find anyone in authority who will back up their desire to retain the eighth amendment. That is the real problem. We have had a vote on not maintaining the eighth amendment in full and the public should be apprised of the words in full. That was the wording that was given to the Citizens' Assembly and is quite pointed. It was not just about retaining the eighth amendment. One can see how the Citizens' Assembly would have arrived at the decision it arrived at. It is fine to vote for that but we cannot leave it at that. We now have to go on to look at the options. It would be a bit ridiculous to make that decision and then tell the public we will come back and review what we do with the eighth amendment and the Constitution in five weeks. People are saying we have made a decision but to the public it would be seen as though it were a snail's pace decision. Why are we here? We are here because there is a problem with the eighth amendment. We all knew this was a forward-only process. It was not a backward process. Let us not try to pretend this is earth shattering.

I want to deal with some of the options that have been put forward and then some of the motions. Six options have been suggested by the legal adviser. Three or four of them are similar in that they still envisage some kind of amendment or replacement of the eighth amendment that would either entrench legislation in the Constitution or list grounds that would be in the Constitution. There is no legal certainty with those because any of them could be challenged by a woman whose rights are being violated and she could take a case. The United Nations would continue to challenge it. It would also be politically unacceptable to most people for us to deal with this issue in the Constitution in a restrictive way when most people see there is a reality we are meant to be dealing with.

The Citizens' Assembly took option six and it was said either in this session or during the private session that we would be going against the Citizens' Assembly if we went for a simple repeal. That is not the case because the intent of the Citizens' Assembly was clearly to repeal the eighth amendment to allow abortion legislation to be introduced on a very widespread basis judging by the vote it took the following day. It received legal advice that convinced 53% of the assembly to go in one direction which was that some kind of clause was needed to make sure there would not be a challenge to that legislation. It went with that advice. When Ms Justice Laffoy attended the committee, it could have been put to her there was an overemphasis on the dangers of a simple repeal and not enough consideration in the Citizens' Assembly because it is dangerous to put any wording into the Constitution.

Unfortunately, the option suggested in the wording, although the Citizens' Assembly did not write it, politically would be quite dangerous. It would mean that any legislation could be immune to challenge by an individual in the courts. If that were to be put to a referendum, I do not believe that it would be acceptable to people. Therefore, a simple repeal would be best.

My motion is still on the table because we need the eighth amendment to be repealed. I do not think this discussion will be concluded tonight. I do not know how many people have indicated.

Seven more members have indicated, so I think it probably will if we stick to the five minutes each. Some people may take less than five minutes.

By the way, it is not satisfactory to do this in the evening after a long session.

The Deputy knows the situation in terms of the amount of time we have. We agreed it last week.

My point is that we may need to return to this next week. I want to make another point. We heard a lot about Savita Halappanavar today. It would have been good if this committee made the decision that the eighth amendment would be repealed before the anniversary of her death. The Oireachtas has had five years to deal with this. Although some people say they are not ready, we agreed on 11 July to have a modular structure. It is a pity that that is not being adhered to, but this is not about procedure. The first question is why people are not ready. This has been known about for years and the Citizens' Assembly reported in April, so people had ample time to get legal advice and to consider the issues. My fear, however, is that those who are saying they are not ready but in private session are saying that they are in favour of repeal will use the repeal vote to bargain against other things being agreed. It is not my fault they are gone, but everyone noticed the vote that was taken at the Fianna Fáil Ard-Fheis three days ago, which might have had a bearing on people over the last day. However, I do not think those people are representative, given opinion polls have shown that 10% of people oppose changing the eighth amendment. Therefore, most people realise that there has to be change.

The Deputy is now over time. I have to get everyone in.

Delegates representing the World Health Organization, general practitioners, etc., have all testified already. I do not really understand why people would not be capable of making a decision on this now unless they wanted it to be linked to some restriction which they think will make their vote more palatable. There are dangers in that. We should agree on module 1 that there should be a repeal. Then we should discuss the legislation.

I thank the Deputy and call Senator Gavan.

I welcome the decision not to retain Article 40.3.3°. I am particularly proud that it was Sinn Féin's Deputy Jonathan O'Brien who made the proposal this evening. It is fitting because I think the republican position would be to repeal Article 40.3.3°. Unfortunately, I am old enough to remember the original amendment. I was 17, it was my first vote and I voted against the proposal. I campaigned against it too and I remember how divisive it was at the time. I was accosted on a train because I was wearing a "Vote No" badge. The local postmaster, God bless him, a man in his 80s, chased me with a stick because I left leaflets campaigning for a "No" vote. I hope the votes next year will not be as divisive. Despite having a range of different opinions in the room, I am encouraged that most of us have decided genuinely to try to work towards consensus, to build towards the best decision we can make and to work constructively. That applies to almost all the members here today.

I also recognise that people are on a journey. Having listened to the evidence over the past number of weeks, there are two possibilities. One - the outlandish possibility - is that there is a giant medical conspiracy and that all these people got together somehow in a darkened room and decided to unleash abortion on us. The other is that these medical professionals, whose jobs are to care for women and babies, are telling us the truth, which is that there is a major problem with this amendment. Senator Mullen referred to a denial of human rights to a whole section of our society. We had that denial for 34 years. This amendment was always wrong. Thankfully, we now live in a changed time. All of us have to have the courage to continue to work constructively together and to listen to the evidence, which is so clear.

Sinn Féin also put forward a motion for straight repeal. That is our position. Again, as we understand and everyone is in the same place we are, we are happy to work constructively with the rest of our colleagues to try to reach the best decision possible. Let us be proud of taking one small step today. This committee is not a farce. Most of us are working constructively. I compliment the Chair on the work she is doing. Those making a farce of it are those dancing outside the gates of Leinster House when they should have been in here listening to evidence. Let us try to work together constructively. Let us accept that we will not agree on everything. Our position is clear. We believe in a straight repeal. We have heard enough already in terms of the various options, so I will not repeat those comments. Today is a good day. Let us try to make further progress.

I thank the Senator and call Deputy Durkan, who has five minutes.

We have all had a lot of tedious discussions on this subject for the past few days and weeks, and there is still a lot to go. As the committee is aware, I was one of the people who preferred to have a vote on any procedural changes at the end, when we had discussed the entire issue, as the Citizens' Assembly did. However, in order to facilitate the ongoing cohesive nature of the discussion so far, I decided on balance that it was better to do so.

I do not accept Senator Mullen's criticism at all. In fact, he had an opportunity himself to raise all of the issues that he complained other people did not raise but he did not. For instance, he could have invoked the UN Convention on the Rights of the Child, which is not at all silent of the subject and gives myriad areas for him to pursue. Perhaps he will do that, and I hope he will, to ensure that the committee is not skewed, as he suggested. He could have invoked the charter for fundamental rights, which refers in a particular way to the issues under discussion here, and he did not. I would have thought that he would have done it as a matter of course in order to strengthen the case. He then would not have to accuse everyone else of being pro-abortion or whatever it was that he was suggesting. Incidentally, I am not in favour of abortion and have never been in favour of it but I realise that certain things have to be done from time to time to address the issues that have become contentious in our society. I have spoken about them many times in the past. I know that some people got very excited when I referred to some of those subjects but I assure the committee that I will continue to speak on those subjects, as is my right.

We have not decided to change the Constitution. We have decided to refer a question to the people. It is a decision that they alone must make. The decision we made tonight was to refer to the people a proposal not to retain it in full. The people can retain it in part or a replica thereof, whatever the case may be. That is their decision, not ours. The people will make the decision, presumably, on the basis of having heard all the evidence that is being made available. Our job is to test the evidence adduced at the Citizens' Assembly and to try to identify the basis on which the assembly came to its conclusions. Most if not all of the options have been discussed by others so far, and I do not propose to go through them all-----

-----other than to suggest that I would have doubts about the first option, which is to repeal simpliciter. I have doubts about that because it is loaded with options, trip wires and challenges and I think that will emerge ultimately. The second option is to repeal based on published legislation entrenched in the Constitution. There will be a lot of discussion about certain subjects not being suitable for entrenchment in the Constitution. I hear another debate at the present time in which it is stated that the ownership of the country's water supply should be entrenched in the Constitution. I find that conflicting. On the one hand it is a good thing, but on the other it is a bad thing. Suffice it to say, if we are going to be legislators, we should be legislators and do the job that must be done.

We must do so having taken into account all the issues concerned and avoid, in so far as we can, anything that is propaganda or what might be politically advantageous at a particular time. That is not what the people want.

I am keeping an eye on the clock.

I am watching the clock very carefully myself, even if the Chairman might not think so.

I am trying to be helpful.

I know. The Chairman is trying to hurry me and I am not in a condition to be hurried at this time of the night.

Option 4, the repeal or replacement on specific grounds, could be a possibility, but I am not so sure. Repeal or replace on specified grounds and-or explicit rebalancing, the fifth option, has possibilities. It is something that might meet the requirements of all sides. Option 6 is to replace the provision conferring exclusive power on the Oireachtas to regulate. I am concerned about that one, and have expressed that concern previously. The separation of powers allows for the courts to operate alongside the legislature. To have a referendum which places a particular piece of legislation outside the reach of the courts, to be entrenched in the Constitution is something I have doubts about. I do not think that the public would be happy about that either. Those are the points that I would make at this stage. I will have more than five minutes to speak in the future, although my five minutes have not been fully used yet, the Chairman will be delighted to know.

The Deputy has used his time.

I am watching the clock.

The Deputy has gone over time. We must be in different time zones.

I am watching the clock over there, Chairman.

I am watching the one in front of me.

That is modern technology, I do not go along with that at all. I am looking at the old fashioned timepiece over here and in the old days we always went by the clock on the wall.

I have given the Deputy some indulgence but he has still had six minutes and five seconds. I call Deputy Jonathan O'Brien who has five minutes.

To begin, my proposal was not in any way trying to back anyone in this committee into a corner to make a decision tonight. We had a very frank discussion in private session on how we should proceed and everyone who expressed a view was respected and listened to, regardless of their position. It is very unfortunate that some people chose not to express any opinion in private, as is their right.

The reason I put the proposal forward was because I felt that in order to deal with the options available to us - the very varying options which range from straight-up repeal to putting in a replacement on specific or broad grounds or legislation to be entrenched in the Constitution - it needed further, detailed discussion by this committee in public. I believe the only way we could have that public discussion on the options was to make a decision not to retain Article 40.3.3° in full. I am very glad that the committee has done that. I recognise that does not tie the hands of anyone on the committee to any particular option which is being discussed. If we can have that discussion in the same comradely and open manner in which we have had all our discussions to date, in which we have been very respectful of each others views, then this committee will be going in the right direction.

Whatever the outcome at the end of this process, people can say that this committee was not a farce and we listened to all the opinions. Even today, we had an opinion from Professor Peter Boylan when he discussed the issue of rape and how we could address that. I made a note of what he said which was that there was a straightforward way of legislating for cases involving rape which was the legal prescription of the abortion pill. Other witnesses who have told the committee that it would be very difficult to legislate on the grounds of rape. It is important that we continue to hear the testimony from our witnesses which will frame any decision that we will make on the options. In order to get there, we had to have that vote earlier this evening. Senator Mullen knows my position on this. He talks about democracy but what he tried to do tonight was deny democracy to the Irish people to make a decision on this. If someone wants to vote in a referendum to retain the status quo, that is their right. We are giving them that opportunity by making a decision not to retain it in full and to look at the options.

I look forward to the committee continuing its work in the same manner as it has done to date. It is important that we try to reach a decision as quickly as possible now that we have decided that we are not going to retain Article 40.3.3° in the Constitution. We have the different options before us, my view being that option 1, of straight-up repeal, is the best. Options 2, 4 and 5 include some form of replacement to be inserted into the Constitution; I do not believe that is where we should deal with women's health issues so for that reason I do not support them.

Option 6, to insert a provision that the legislature would have to legislate for it, taking it outside the scope of the Judiciary which I feel would be a mistake. We need to retain that separation of power between the Legislature and the Judiciary. Option 6 would not be a good option.

Option 3 is to have published legislation in tandem. The difficulty with that is there is no guarantee that the published legislation would be passed by the Oireachtas and I would not like to put any published legislation as part of the referendum when there is no guarantee that it would pass through the Houses of the Oireachtas. The best option is straight-up repeal, it is the one that I favour. I respect that others have not come to that conclusion and they may never come to that conclusion; they may favour another option and that is their right but it is was important to make that decision this evening.

I thank Deputy O'Brien. The next speaker is Deputy Kate O'Connell who has five minutes.

Earlier someone said this was a very bad moment. I think it is a great moment for Ireland, for all the people of Ireland. One of the members spoke of the denial of dignity for a whole section of the community, I believe they were referring to unborn children. Women in Ireland have been denied dignity for years now. I spoke earlier about abstract women, but these are our neighbours, the person serving us in a shop, they are colleagues, nieces, aunts and daughters. From the outset, in the Citizens' Assembly, there were sections which spoke of it being a predetermined process. When the result of the assembly came out, they said its recommendations were said to be far broader than anyone could accept, the process was wrong, the way its members were chosen was wrong. There were arguments put forward, with people asking why there were no people from certain counties when, if one read the process, it was very clear why the process of picking the 99 citizens did not operate on the basis of county boundaries. Then their arguments moved on to accusations that the committee is biased when things are not going right, and then the witnesses are biased. Here we are now, we have come to this moment and I commend Deputy Jonathan O'Brien for putting the proposal forward. Now that we are over that, which is a good thing, we can move on to where we need to be.

Where do we need to be? The lack of certainty is the issue. One thing the committee has learned is that there is no such thing as certainty in any of the options put before us; none of them are iron-clad. Then we must ask which of the uncertainties that may emerge is most readily rectified so that we could ask how we might fix it.

There are six options and I do not want to repeat everything that has been said already but three, that is options two, four and five, are off the table. This is because they have legislation entrenched in the Constitution, meaning if there ever was a change there would have to be another referendum. This is a fluid process and I felt one way last week but another way today but I rule those three options out. Option three involves legislation and I do not know if we will publish the legal advice but this is a political solution. We might never put legislation before the people which details what we will do if the amendment is repealed. Any such legislation could be amended so we have to ask if we would be acting honestly with the people and we would have to be very careful about it. People could ask if we pulled the wool over the eyes of the people of Ireland in such a context so there remain two options for me, numbers one and six. I dealt with number one last week but I have thought about it a lot since and I believe option six is still an option. I have to consider where it came from and we have to tease it out a bit more. There is a high degree of flexibility with this option and it will come down to whether the people of Ireland trust the Oireachtas to do their will during the legislative process. In the next couple of months, the importance of who the people put in these Houses will be highlighted. It is not just about the lad who fixed the road - this is about fundamental human rights, women's rights in Ireland. It is so important that a person who puts his or her X in the box for their No. 1 choice knows who they are getting if that person is elected.

I oppose the vote on removing Article 40.3.3°. I have always had my suspicions about bias in this committee. The overwhelming vote in favour of removing Article 40.3.3° means the genie is out of the bottle. It is an insult to some of the eminent people who are due to come in and make a presentation to us that we have already decided to do this. We have dismissed some of the reports of the Citizens' Assembly. There was a huge geographical area of 11 counties, of which mine was one, which were not represented. If that is fair you can call me Davy.

The recent Fianna Fáil Ard-Fheis brought a new low in cynicism. The ink is not dry on the motion to retain the eighth amendment but two of that party's Deputies have voted to remove it tonight, or abstained. The public, however, can see what is going on in the committee and that it is not a question of Senator Mullen and me whingeing. I wish to defend Senator Mullen's reputation. He is not in any way trying to subvert democracy. Many members called for us to go into public session while we were in private session. We kept our counsel until the public session but why bother? We knew the outcome. Deputy O'Connell mentioned the bias and the numbers show this, with 20 out of 26 witnesses to the committee being on one side of the argument. Up to 16 have come in so far and given their views. I respect their professional advice but they were all in favour of legalising abortion and removing the eighth amendment.

The question of human rights was raised. I have just come from the Dáil, where I spoke on the pensions issue. The Fine Gael Government talks about an Ireland of equal opportunities but mothers who were forced to give up work when they got married and raised their families are being punished. The Minister for Finance says it is bonkers but he has just delivered the budget, which was supported by Fianna Fáil.

I ask the Deputy to stick to the issue.

I ask the Chair to allow me to speak without interruption. I am depending on her to defend me, not to interrupt. She did not interrupt anybody else.

I have interrupted a few people.

Not while I was here.

It would be good to stick to the point.

I am sticking to the point of equal rights for all people, which applies to both mother and baby.

If somebody is elected by the people, whether it is to fix potholes in roads or not, they are entitled to be here. Just because somebody dispenses tablets, or something else, to people it does not mean they have a better right to be here. The people decide and they will decide in a referendum, if it comes. As far as I am concerned, the sooner it comes the better and I look forward to it.

The genie is out of the bottle as regards this committee because it is clearly biased. It shuts out women who have been hurt by abortion and it has shut out advocates whom we wanted to come before the committee. People have been bullied and harassed to prevent them from speaking on the subject at events in hotels. I came in here with a three-minute animated video of what an abortion entailed but the committee did not want it. It is all one-way traffic and our future participation will be limited because there is no point in being part of the committee. The committee was to be fair and have representatives from all sides and this was its badge of honour but, as I said, the genie is out of the bottle now.

I do not have much interest in the six options that have been put forward but I want to defend Senator Mullen. He did not want to stop democracy. We can decide if we do not want to meet in private session. I appealed for the meeting to be public but the media were locked out. The media contribute to transparency and openness so why should we do business behind closed doors?

The denial of human dignity to unborn children is anathema to what I stand for. I am proud of what I stand for and I have plenty of support for it. We have deadlines and we have said we must finish by Christmas but what is the indecent haste? We should listen to all the experts. The Chair said other people could come in but why would they? We have made the decision to repeal Article 40.3.3° so it is a charade. There was hostility towards us - it has been a better today - just because we were asking questions to which we needed answers. When it did not suit certain people in this committee, we were treated like pariahs. That is no way to run a committee in this House. I sit on several committees and this does not happen on any of them. I would love to know why this has to be so different. Human rights for the unborn have to be protected and I believe they will be protected.

On the distinction between private and public, it is normal to have a short private meeting before going into public session. It went on a little longer than we intended because we needed to get some legal advice.

It went on for an hour.

In addition, the clerk is not entitled to speak in public session so a private meeting was necessary. In any event, all the issues have been discussed in public.

I understood that we had to get legal advice. Other committees go into private session when they need advice so why could we have not done that?

We could have done that. It is a good suggestion and we will bear it in mind in the future.

It is standard practice.

I commend the Chair on her role in this committee. She has been very fair and it is not easy.

This is a very complex and divisive issue, we have a large body of work to do by mid-December and there are differing views among the members of this committee. I will take this opportunity to say there is great value in holding private session meetings. Some may dispute this, but I think there has been good value in them because there has been consensus and respect for those who spoke on motions to be put forward, for example, to repeal the eighth amendment. I am not in favour of that at this point because we have a process in which we need to engage and more witnesses to meet. The vote we took allows us to debate the substantive issues surrounding the eighth amendment, which is crucial. That is the work we need to do over the next few weeks and the witnesses who will come before us will help us. It was very interesting to hear members who had views already formed coming into this committee saying they had changed their minds on different issues. That is very healthy and just shows the importance of this process. Members feel they might understand a particular area and then they hear from witnesses and, through questioning them, open themselves up and learn more about that area. That is what is important about this process. We all have something to learn, and that is the importance of being here and engaging.

We have received legal advice in private session on the six options we have, and members have outlined a number of issues in this regard. Regarding the sixth option, when Ms Justice Laffoy was before the committee, she said her view was that the eighth amendment should be repealed and replaced with a provision conferring exclusive power on the Oireachtas to regulate the law in this area. In layman's language, this would involve repeal of the eighth amendment and the insertion of text into the Constitution stating that the Oireachtas shall have exclusive power to legislate in this area. As has been highlighted here - and it is very important to say this - members of the Citizens' Assembly looking at these proceedings will ask why we are not taking their views on board. The removal of judicial oversight would have many implications, and the only other precedent for it would be in times of war or armed rebellion. We need to look at our three branches of government: the Legislature, the Executive and the Judiciary. The intention is that they are all interdependent and that there is a balance of power. I do not know whether we need to write to Ms Justice Laffoy asking her whether that is her intention. I think she was seeking some kind of legal clarity whereby the law could not be challenged but I do not think there can be a situation whereby there will not be a challenge-----

Yes, I think that is impossible.

-----so perhaps we need to get further clarification in that regard.

In the case of repeal simpliciter, the Protection of Life During Pregnancy Act 2013 then becomes the law of the land. These are all issues we need to discuss over the next few weeks. Is that what people want when the eighth amendment is repealed? We have much work to do, we have the substantive issues to debate and it is very important we work as we did this evening. That mixture of private sessions before going into public session has worked. I thank the Chairman for her work.

I thank the Chairman for the opportunity to speak. I will not rehash everything everyone has already said. I am one of the two members who abstained earlier. I thank all the members who came to the table in private session to discuss the options we have. They tried to be flexible, to engage with everyone and to listen to everyone's viewpoint. All the various private sessions have been very helpful to me. In fairness to Senator Ruane, when she put down her first motion and all that followed, Deputy Kelleher then put down his counter-motion but a compromise was reached this evening to allow the process to move along. That is thanks to Deputy Jonathan O'Brien for coming forward. The matter was teased out at length in order to move it forward. What I will say to the dissenting voices in the room is that it was such a pity they did not engage because there was an opportunity there for their voices to be heard, as opposed to their sitting on their hands and not engaging. The whole reason of having a private session was that we could have heard all the voices present. That is what happened during the private session and for that I thank members.

I will be open and honest. I would have preferred not to have had a vote until the end of module 2 for the simple reason that I wanted as many people to come before me as possible. I was playing a listening exercise while participating. Some people have very well-formed opinions, whereas my opinion was not the most well-formed. At the same time, I have learned an awful lot as the committee's work has come along. This is why I would have preferred us not to have had a vote this evening. In fairness to all the 22 members here, we want to see progress. I want to be part of that progress and feed into it because we need to move forward and know what we are about. A lot of hard work goes on at this committee. Many people come with an awful lot of work done in advance, which needs to be acknowledged. It is unfair to say it is a skewed process and that people have very determined views. Everyone has a determined view. Let us be under no illusion. We all have a well-formed opinion but we must engage in our well-formed opinion and tease it out in order that we have a good result at the end. Ultimately, the people of Ireland will make a decision as to what option to take, and I look forward to that.

Deputy Rabbitte has said much of what I had intended to say. I have full faith in Senator Noone as Chairman. She is doing a very good job in what is probably the most difficult committee, in terms of topic at least, to be established in a long time. We will have a referendum next year, and that is right and proper. We now have pretty much three generations of people who have not had a say on this matter. The last time there was a fundamental decision on it was in 1983, and it is only right that people have a say. We need to remind ourselves that we are not changing the law here. We are going through the recommendations of the Citizens' Assembly and we will make a recommendation to the Dáil, which in turn will ultimately make a decision on the question that will go before the people, and the people will make the final decision. All we are doing is making a recommendation as to the question that should be put. I abstained because there is still evidence to be given that will help to inform my decision. The proposal put by Deputy Jonathan O'Brien was timely. It was not divisive in any way, and this was proven by the fact that 18 out of 20 people were able to take a position on it. I have not been able to do so yet but I reserve my right effectively to change my vote as time moves on if I so decide.

I will make a few points about my position. The criminalisation of someone who has an abortion is fundamentally wrong. I know this is not part of the referendum per se but I think it is wrong. I will answer the question put earlier: no one should be imprisoned for having an abortion. Decriminalisation is different from legalisation, and that is an important point. I will make an observation on the evidence surrounding use of the abortion pill. It is effectively freely available. The safety of it is questionable only because of how it is sourced. It is effectively a disruptor, and people will have to consider that the evidence appears to show that one cannot enforce regulation to prevent an abortion at ten weeks' gestation or earlier. Everyone, no matter what side he or she is on, will have to take that into consideration because a law that is unenforceable needs to be very seriously considered.

I will make just one other observation. It concerns the second option, which is repeal based on published legislation entrenched in the Constitution. I practised law in the courts for 11 years. I have sat in on debates and legal argument that has lasted over an hour on the meaning of a comma, semicolon or colon and how it changes the meaning of a sentence. It is simply not practical to put detailed legislation into the Constitution. I think the unintended consequences to come out of that would be phenomenal. For this reason it is simply not practical. As I said, I reserve my position in respect of the actual question but that is where I am at present.

Last but not least, I call on Deputy O'Reilly.

I will be very brief. My preference is for the motion that we had tabled but which we did not discuss. It calls for a straightforward repeal of Article 40.3.3°. Accusations of bias have been levelled at the level of this committee.

That is what people say when democracy is exercised but they do not get the result they want. Those interested in getting the most out of the committee should make themselves available and vocalise their opinions for the benefit not just of the cameras and the media but to help other members to learn, to share opinions and come to a collective decision. The opportunity for people to thrash out any issues they had was in private session this afternoon and most did so. Those that did do so not chose to air their opinions and I think the word used was "shenanigans". I would definitely use that word to describe what went on.

The committee has a job to do. It made some progress today and made a bold statement that the status quo cannot continue. During every moment I sit on the committee I become more proud of my parents for campaigning against the insertion of the eighth amendment into the Constitution. I am resolved to thank them for the work they did, albeit it was unsuccessful but they knew that at the time. We need to take our steer not from cartoons but from people such as Dr. Peter Boylan who are eminent in their profession and have given their entire careers and most of their adult lives to caring for women. When Dr. Peter Boylan, as a professional, says the eighth amendment needs to be repealed, we need to listen and start working with those responsible for delivering care to women and trying to make it a bit easier for them. It is regrettable that those who say they favour repeal were not in a position to support repeal. However, it is also important that we get an opportunity to ask all the questions that need to be asked. We will do as much of that as possible in public session and that is important because people are watching what the committee does. We made a good statement this evening and decided the status quo cannot pertain. The only way now is forward.

I thank all members for their kind comments directed at me. The majority of members still being here is testament to the fact that the committee is working so well. Those who left had to do so for different reasons but that many waited to hear everybody out is a very good indication of the work we are doing. We will adjourn until------

We have made one decision but when will the process be continued? The public will want to know that. The clerk has circulated a proposal and it would be good if we agreed to consider when we are going to continue with these options or------

There was consensus that is a good approach.

When is the next session on this issue?

The next session on module 2 will be next Wednesday at 1.30 p.m. and another session will have to be scheduled. That session was in the work plan and we will have to schedule another, perhaps the week after, with regard to the decision. This week has been very intensive and-------

The Oireachtas is in recess the following week so it would be another two weeks------

I am in the hands of the committee in terms of when we meet on this issue. The point was made that it is not a good idea to have meetings so late on a Wednesday. Equally there are various------

It is better than not having them.

One cannot have it every way. Plenty of members have clashes on Tuesday. Deputy Naughton chairs a committee on Tuesday evenings. If members leave it with me, they will be contacted by email in that regard. Members will have the opportunity to raise the issue in private session in advance of the public meeting on Wednesday 25 October at 1.30 p.m. and to reiterate their points. A plan can then be made on the decision-making process.

It will be too late then. Members will not be able to meet later that day if they have not been informed in advance.

The committee is continuing with module 2 and it is important that we move that along and meet next Wednesday. We can discuss it then when more members are present if that is necessary. It is important that we move through the modules.

We spent enough time in private session today talking about that decision. As there are not very many members now present, we should make those decisions next week.

The points raised are valid but at this hour of the evening and considering we have been here since lunchtime------

We should think it over.

------it would be reasonable to take a break, think about everything that occurred today, meet in public session next Wednesday and take it from there.

Okay. However, there are still motions tabled and------

There are and that has been acknowledged------

------people should not be surprised if, following discussion, members say we should go on to consider motions or if other people------

That is the Deputy's right as a member of the committee .

The joint committee adjourned at 9.05 p.m until 1.30 p.m. on Wednesday, 25 October 2017.