Seanad Éireann debate -
Wednesday, 6 Feb 1935

Vol. 19 No. 15

Criminal Law Amendment Bill, 1934—Report Stage.

Minister for Justice (Mr. Ruttledge)

I beg to move amendment No. 1:—

Section 1, sub-section (1). To delete the word "sixteen" inserted in line 14 in Special Committee and to substitute therefor the word "fifteen".

What applies here will also cover amendments Nos. 2, 5, 6, 7, 8, 12, 13, 14, 15, 16, 17 and 19. As I think I pointed out when the Second Reading of this Bill was before the House, the Bill originated on the recommendations of a private committee that was set up by the then Minister for Justice, to go into the Report which was known as the Carrigan Report. That committee considered all aspects of the case. There were legal men on that committee who had experience of the difficulties that had to be contended with in cases that were likely to arise under this Bill. The Bill went before the Dáil as an agreed measure. Certain amendments were moved by various Deputies but when the position was examined these amendments were withdrawn, and none were insisted on other than those that were agreed on by the joint committee.

I do not think it is desirable to have any very long discussion upon a Bill of this sort, and I hope I shall be forgiven by the House for not going into details as to the reasons that prompted the Committee in arriving at the conclusions they did. I suggest that this Bill is, to some extent, an experimental measure. It is only when it has been in operation for some time that we will be in the position, perhaps, to see its defects, if there are such defects, and to provide remedies if remedies are required.

Mr. Blythe

I should like to support the point of view put forward by the Minister in this matter. This is not a political Bill and, therefore, we do not need to bring any political considerations into it. The Government has the means of studying these matters, getting information and reports that Private Deputies and Senators have not. Personally my view is that as the Bill cannot be discussed in detail, the wisest course that Deputies and Senators could take in the matter would be to accept the view that the measure will be carefully considered by the Government and that they will do what is best with it having regard to all the considerations that arise.

Mr. Douglas

I accept in spirit the general lines taken up by the Minister, but while accepting the spirit of what the Minister said I do not think that the course he proposes is necessary having regard to the circumstances. This is not a Party measure. It is not a measure on which there is any strong difference of opinion. It originated as a result of joint action, by agreement. When this House received the measure it appointed a committee. The Minister did not then put forward the views that he has stated now. The committee discussed the matter and with one exception they were unanimous in making certain suggestions. These were agreed just as the original proposal came before the House. I am not at all satisfied that some measure of agreement with regard to some of the suggestions made by the committee would not be found in the Dáil if this measure was sent back to them. I do not want a lot of discussion but I, for one, though strongly in favour of some of these proposals, would not for a moment think of holding up the Bill or going in for anything in the nature of public discussion or wrangling over any of the amendments. For instance, I mentioned amendment No. 20. I think there is good reason for its wording. I think the non-Party committee in the Dáil that originated it ought to have an opportunity of considering the amended wording suggested for Section 16. The proposal to amend that as I understood came from an eminent lawyer, Senator Lynch. The amendment was proposed by me, Senator Lynch accepted it and we agreed. My point is, there is a suggestion that met with approval of all Parties in this House. It seems to me, if you send it back that there are one or two matters which, without unnecessary discussion, might be dealt with by the Dáil. We want this Bill, which to a large extent is experimental, passed.

Miss Browne

I agree very largely with Senator Douglas, but although we are discussing amendment No. 1, there is also No. 14.

Cathaoirleach

We will come to that later on, Senator.

Miss Browne

Well, it is one that I could not agree with and I think that it ought to be discussed. However, I think that even in No. 1 the age of 16 is by no means unreasonable. Every woman knows that there is a great difference between the mind of a girl of 16 and that of a girl of 15, and I do not think that it was unreasonable. I, more than anybody else probably, do not wish to see this Bill held up. I congratulate the Minister and the Government on bringing it forward. I believe that it has been too long delayed, and anything we can do to hasten its passing into law we certainly shall do. However, when we come to No. 14 I shall have something to say.

Mr. Farren

I should like to join Senator Blythe in asking the House to take the long view with regard to this particular measure. It has been stated by the Minister that this Bill is the result of the deliberations of a representative committee of all parties that was set up in the Dáil to consider a question of great urgency and of great importance in this country. The committee was presided over by the Minister for Justice in the last Government and there were representatives of all Parties on the committee. They had before them the report of the Carrigan Commission and they went very fully into all the particulars with regard to the matters that have to be considered under this Bill. That committee, after an exchange of views, an examination of important witnesses, and an examination of all the documents and reports dealing with the particular matters contained in and dealt with in this Bill, arrived at a unanimous decision. The unanimous decision was what is contained in this Bill.

The committee's recommendation was sent to the Government and the Government produced this Bill. The Bill went before the Dáil, and the members of the Dáil, to their credit, decided to accept the Bill that had been drafted and prepared in the committee as a unanimous decision of this very representative committee of the members of the Dáil. The present Minister for Justice considered, and the Government considered, and I think rightly, that in the public interest and in the interest of all concerned it would not be advisable to have a public discussion on the details of this Bill if it could be avoided. The members of the Dáil agreed to that and the Bill was passed through all its stages without any amendment whatever. The Bill has now come to this House and, as the Minister says, it is an experimental measure. If, after the Bill becomes law and when it comes into operation, any amendments are found necessary, then the Oireachtas can amend the legislation. I join with Senator Blythe in asking the members of the House to accept the Bill in the same spirit in which the members of the Dáil accepted it. There were members of all parties and all persuasions in the Dáil who considered this Bill in committee, and all the matters that can be dealt with here were considered in committee with expert advice on them. The result of their deliberations was this particular Bill, and I do not think that the Minister or the Government are asking too much of this House in asking that this Bill be accepted as an experimental Bill. When the Bill becomes law and has been in operation for some time, if any defects are discovered it would then be very easy to amend the Bill at a later stage. I, therefore, join with Senator Blythe in asking the House to accept this Bill and pass it.

Mr. O'Connor

I wish to join with Senator Blythe and Senator Farren in an appeal to have the Bill passed without any further discussion. I believe that we should not interfere any further or bring any such thing as dissension or discussion into the matter. I appeal strongly to the members of the House to pass the Bill as introduced.

Mr. Johnson

I have no objection to following the advice of the members concerned so far as this Bill is before us, but I think we have to face the fact that the Seanad is one House of the legislature and that, in effect, we are asked to say that whatever the Government brings forward in matters of this kind ought to be passed without discussion or examination.

Cathaoirleach

That is hardly what is suggested, Senator.

Mr. Johnson

That is the effect of this argument. This Bill has been referred to as an experimental Bill, but every Bill or every Act is experimental. I am concerned, in this case, with the method of asking the House to say "ditto" to what the Government said on the advice of a committee of members of the Dáil. Apparently, this House has been entirely ignored and it is assumed that the House will do whatever the Government said. Of course, it was under the regime of the last Government that the Committee of members of the Dáil was formed. All the information may have been before that committee, but no information is before this House. That aspect of it, I think, is important, because we are really dealing with a social evil of enormous importance—probably, from the way the matter is talked about, of very much greater importance than some of us imagine. Yet, we are asked to deal with such a subject without any information whatever. That is to say, the Government, in the words of Senator Blythe, are in a better position to know the facts than any private member, and, therefore, they come along and say "Do this", and we do it without question.

Mr. Comyn

I do not know that what Senator Johnson has said is exactly a just representation of the case. I am in favour of this measure on its merits. I think that the terms of the Bill are better than the terms of the amendments, and that is the reason I am in favour of passing the proposal now before the House without further discussion.

Mr. Brown

As Chairman of the Special Committee appointed by this House, I think it is right that I should say a few words, because I feel that the Minister has put the House and the committee that was appointed by this House in a very false position. Neither the House nor the committee had any idea of the attitude which the Minister has assumed here to-day and which has been backed up by Senators on this side of the House. We had no idea of the attitude that the Government were going to take about this Bill and that this House was not to be allowed to consider a single amendment.

I venture to say that if that had been known when the Second Reading of this Bill was under consideration here and was passed, the House would never have thought of appointing a committee. Why, it would have been merely a farce, and the members of the committee itself—speaking for myself, and I am sure I am also speaking for every other member of the committee—would have declined to act on a committee of that kind and with those limitations. I think that this is not the way that the House ought to be treated in connection with this matter.

Mr. Ruttledge

I would like to say in that connection that I thought I conveyed to the House as clearly as I possibly could at the time of the Second Reading the circumstances under which this Bill was framed. Surely it is not suggested that I could have exercised control in any way to prevent the House from going into that matter. It was a matter entirely for the members of the House.

Mr. Brown

There was no statement on the Second Reading that no amendment whatever would be accepted by the Government—no statement either here or in the Dáil.

Mr. Jameson

I was ordered abroad and I was abroad when the Second Reading of this Bill came before the House and when the Committee was appointed. It does seem a most extraordinary thing that at that time the Government did not say what they intended to do. Apparently a great deal is being made in the whole of this discussion of the constitution of the Dáil committee. They represented every section of political and religious feeling, etc., and, therefore, they were such a splendid committee that there was to be no party discussion on the subject matter of the Bill. In connection with a Bill of this kind, I believe that was absolutely the best policy that could possibly have been adopted and it was undoubtedly the policy which the Seanad followed. Believing that they should also look into the matter, they appointed an absolutely non-political lot of Senators to look into it and to advise them.

Now, the whole situation is reversed. What we are hearing to-day has nothing to do with non-party considerations. It is a distinct order from the Government that the amendments suggested by our committee, a committee which would never have sat if they thought they were going to be treated in this way, are to be put out because the Government do not want them. Would it not have been much better for the Government to keep to the non-party principle? Both the Seanad and the Dáil have kept to it, and the Government should have allowed the same principle to be carried through to the end. What harm would it do to the Dáil to see what a totally non-party committee from the Seanad has to say about the Bill? There may be something good in these amendments. We as a Seanad sitting here are not to hear a word about them. They are to be put out because discussion is not to be allowed publicly on the subject with which the Bill deals. I lived for a long time in the Victorian age and the greatest blot on the Victorian age was its refusal to discuss facts when people thought there was something indecent or immoral or something else about them. Surely we ought not to do that now.

It is nonsense to come here and say we are not to discuss this and that when practically every child in the country knows every single thing about it. We are told here that we are totally to ignore the opinions of the Seanad Committee. The other committee was a purely non-party committee set up to advise the Government. The Seanad, without any warning that they were to be treated in a different manner from what, under ordinary circumstances, they would expect, appointed a committee to advise them. We are told now that we are not to have that advice and we are not to discuss it. Each of these amendments is to be brought in and if they are passsed by the votes of the House the Seanad are to hear nothing more about them. Is it a wise thing? I wonder at the Government doing it.

We are dealing here with a very big question. There is a lot of talk about secrecy. We have dealt with the matter as quietly as we could by appointing two committees. I believe if there were not such restrictions as we are now talking about, a great number of Senators would follow the committee and take their advice. I have no doubt if these amendments went to the Dáil in the same way, and there was nothing said from the party point of view by the Government, a great number of the Dáil members would see there was a great deal of sense in what our committee have recommended. I dare say there are some of the amendments of a highly debatable character, but there is a good deal of commonsense in a lot of them and I can quite easily see many members of the Dáil, if they are left free, agreeing with a great deal of what our committee have put forward.

It is most regrettable that the Government should now come in and take an important measure like this out of the hands of the people who are dealing with it from an entirely non-party point of view. They say "We disapprove of this. We will agree to every one of these amendments and have no more discussions about them, because the subject is a difficult one to deal with in public." I have heard a good deal of humbug in my time, but it is an absolutely horrible principle to bring forward that where a matter is difficult and doubtful, and so on, we are not to debate it. Why, in the worst part of the Victorian times, they could not have done anything worse.

Mr. Farren

Senator Jameson stresses the point that restrictions are being placed on the members of the House. There is nothing of the kind being done. There is no restriction being placed on Senator Jameson. He is at perfect liberty if he wishes to discuss every detail in this Bill. What he is being asked to do is to accept it in the same spirit as the members of the Dáil accepted it.

Dr. Gogarty

Hush, hush!

Mr. Farren

Senator Jameson can discuss every detail of the Bill.

Mr. Healy

A very sweeping statement was made just now by Senator Jameson. I have taken down the words he uttered. He said that every child in the country knows about this subject. Let me say here that I definitely doubt that statement made by Senator Jameson. I do not believe any such thing as that the children of the country know all about this subject. Let me tell Senator Jameson further that there are a number of senior people even in the City of Dublin who are not very conversant with this subject, and I take very strong exception to his statement.

Mr. Toal

I also take exception to the line adopted by Senator Jameson. I think this is a very unusual measure, a measure that we should have had in operation years ago, and I congratulate the Government on the line they have now taken. I have no hesitation in saying here that the overwhelming majority of this House will support the Government and turn down the amendments suggested by this committee. I fully agree with the last speaker that the details of this measure are not known to the public and the less that is known about it the better. The public, perhaps, know too much and I think in connection with a measure of this sort the Government deserve very great credit for tackling the problem. When they are satisfied that they have a measure capable of dealing with the subject they are quite right in having it put into law as soon as possible. I desire to support the Government in the action they have taken.

Mr. Staines

I desire to support the Government, too. I think if we recommitted this Bill it would be the best course to adopt. It is much better not to have it discussed in public. On the other hand, perhaps it might be much better to discuss it in public rather than to have the newspapers publishing letters. My objection to having it discussed here is not so much because of the people here or in the gallery. My point is that it will be published in the papers and when the papers publish letters in connection with this thing I think they are doing wrong, and I think we are wrong in discussing the Bill publicly to-day.

Mrs. Clarke

There is one thing I would like to point out as a member of the Committee. I do not know whether you have studied the amendments. I think if the House studied the amendments that the Special Committee have brought in they would find that instead of not strengthening the Government, every amendment we have brought in will tend to strengthen the Government's hands. We have gone further even than the Government in helping to put down the evils which are in our midst. There was only one particular amendment on which the majority of the Committee differed from the Government, and when we come to that it is time enough to discuss the reasons why we differed from the Government on that particular matter. I think that when the reasons are known the House will find that they are fairly common sense ones.

Cathaoirleach

There is nothing to prevent deliberation and a vote being taken on every one of the amendments. Really, to say that the Government are using coercion is hardly fair. I shall now put the first amendment.

Mr. Foran

I should like to know what the age is under the present law. I should like to hear some real argument why the age which has been inserted by the Committee is being reduced. This matter was gone into very fully and the Committee felt that the age of fifteen was too young and they put in sixteen. Now the Government come along and propose fifteen as the age. I should like to know what the age is under the present law.

Mr. Ruttledge

Thirteen and sixteen where we propose fifteen and seventeen.

Amendment put.

Mr. Jameson

We have been told again and again that we are not to have a discussion. Are we to hear any arguments in favour of this amendment?

Cathaoirleach

Not this one, because I have put it.

Mr. Jameson

Are we going to follow this ruling all through the rest of the amendments?

Cathaoirleach

Certainly not.

Mr. Jameson

Is there any argument to be brought forward in favour of the present amendment?

Cathaoirleach

Not on this one.

Mr. Jameson

In what does this one differ from all the others?

Cathaoirleach

Because I have put the amendment already, and you are late in raising the point.

Mr. Jameson

It is a matter of order then?

Cathaoirleach

That is all.

Mr. Jameson

Therefore, the age of 15 goes by a matter of order, not by a matter of argument?

Cathaoirleach

Quite.

The Seanad divided: Tá, 25; Níl, 20.

Tá

• Baxter, Patrick F.
• Blythe, Ernest.
• Boyle, James J.
• Comyn, Michael, K.C.
• Connolly, Joseph.
• Duggan, E.J.
• Farren, Thomas.
• Fitzgerald, Séamus.
• Healy, Denis D.
• Honan, Thomas V.
• Keyes, Raphael P.
• Linehan, Thomas.
• Lynch, Patrick, K.C.
• Milroy, Seán.
• Moore, Colonel.
• O'Hanlon, M. F.
• O' Máille, Pádraic.
• O'Neill, L.
• Parkinson, James J.
• Quirke, William.
• Robinson, David L.
• Robinson, Seumas.
• Ruane, Thomas.
• Staines, Michael.
• Wilson, Richard.

Níl

• Bagwell, John.
• Bigger, Sir Edward Coey.
• Brown, Samuel L., K.C.
• Browne, Miss Kathleen.
• Uí Chléirigh, Caitlín Bean.
• Counihan, John C.
• Dillon, James.
• Douglas, James G.
• Duffy, Michael.
• Fanning, Michael.
• Foran, Thomas.
• Gogarty, Dr. O. St. J.
• Griffith, Sir John Purser.
• Jameson, Right Hon. Andrew.
• Johnson, Thomas.
• Kennedy, Cornelius.
• O'Connor, Joseph.
• O'Rourke, Brian.
• Phaoraigh, Siobhán Bean an.
• Toal, Thomas.

Tellers: Tá, Senators D.L. Robinson and S. Robinson; Níl, Senators Douglas and Foran.

Amendment declared carried.

Mr. Comyn

I move Government amendment No. 2:—

Section 1, sub-section (2). To delete the word "sixteen" inserted in line 19 in Special Committee and to substitute therefor the word "fifteen".

Mr. Connolly

I second.

Mr. Douglas

the last division should be taken as an indication of the wishes of the House, as far as the amendments dealing with the age limit are concerned, because the same principle really applies, and the two years' difference is really accepted by everyone. As the House is not prepared definitely to agree to the added protection which the committee unanimously thought desirable, it would be a great mistake to attempt to have divisions, or in any way to oppose the Government's amendments dealing with the age limit. That would not apply to amendment No. 20 but, as far as I am concerned, I do not propose to oppose any of the Government's amendments until we come to No. 20.

Miss Browne

I could not agree to what Senator Douglas has said as far as Section 14 is concerned.

Cathaoirleach

When we come to that, Senator, you will be entitled to take whatever view you wish.

Amendment agreed to.

Mr. Comyn

I move the following Government amendments:—

3. Section 1, sub-section (2). To delete the words "if over the age of eighteen years at the time of the commission of the offence" inserted in line 20 in Special Committee.

4. Section 1, sub-section (2). To delete all from and including the words "and if under" to the end of the sub-section, added in Special Committee.

5. Section 2, sub-section (1). To delete the word "sixteen" inserted in line 29 in Special Committee and to substitute therefor the word "fifteen".

6. Section 2, sub-section (1). To delete the word "eighteen" inserted in line 30 in Special Committee and to substitute therefor the word "seventeen".

7. Section 2, sub-section (2). To delete the word "sixteen" inserted in line 39 in Special Committee and to substitute therefor the word "fifteen".

8. Section 2, sub-section (2). To delete the word "eighteen" inserted in line 40 in Special Committee and to substitute therefor the word "seventeen."

9. Section 2, sub-section (2). To delete the words "if over the age of eighteen years at the time of the commission of the offence" inserted in line 41 in Special Committee.

10. Section 2, sub-section (2). To delete all from and including the words "and if under" to the end of the sub-section added in Special Committee.

Mr. Connolly

I second.

Amendments agreed to.

Amendment No. 11 not moved.

Mr. Comyn

I move the following Government amendments:—

12. Section 9. To delete the word "sixteen" inserted in line 59, paragraph (a), in Special Committee and to substitute therefor the word "fifteen".

13. Section 9. To delete the word "eighteen" inserted in line 1, paragraph (b), in Special Committee and to substitute therefor the word "seventeen."

14. Section 11. To delete the word "eighteen" inserted in line 12 in Special Committee and to substitute therefor the word "seventeen".

15. Section 12. To delete the word "sixteen" inserted in line 18 in Special Committee and to substitute therefor the word "fifteen".

16. Section 12. To delete the word "sixteen" inserted in line 24 in Special Committee and to substitute therefor the word "fifteen".

17. Section 12. To delete the word "eighteen" inserted in line 26 in Special Committee and to substitute therefor the word "seventeen".

Mr. Connolly

I second.

Amendments agreed to.

Mr. Comyn

I move Government amendment No. 18:—

Section 14. To delete the word "eighteen" inserted in line 6 in Special Committee and to substitute therefor the word "fifteen".

Mr. Connolly

I second.

Miss Browne

There is an important aspect, as regards age, in this amendment. The age in Great Britain and in Northern Ireland, and formerly here, was 13 in a case of indecent assault, but, in 1922, the age was raised in Great Britain to 16, and in 1923 it was raised in Northern Ireland to 16. Now we are going, on the advice of experts, to try to have the age raised to 18, but the Government wants to put the age back to 15, as was the case in the original Bill. That means that we are to be open to the reproach that we are giving less protection to our young girls than the Governments of Great Britain and Northern Ireland, and we may have the strange case occurring that a girl on this side of the border can be assaulted at 15 while a girl on the other side of the border will be protected until she is 16. The Minister might compromise and leave the age at least 17, and let us with all our posing about chivalry, modesty and all the rest, show that it is not mere hypocrisy. It is certainly a most retrograde step to try to put the age back to 15, and I ask the House to support the Committee or, at least, to leave the matter so that the law will be the same as it is in Great Britain and Northern Ireland. The Minister might compromise and make the age 17.

Mr. Comyn

Section 14 reads:—

It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault.

Of course, Senator Miss Browne has no knowledge of the cases that come before the court, and of the defences that are made in cases of this kind. I have considerable experience of the kind of defence that is made in a case such as is proposed to be dealt with in the section.

I have never yet seen a successful defence made by a man who admitted that he committed the deed and yet tried to escape on the ground that the other party was a consenting party. So that, in point of fact, there is very little practical substance in the contention put forward by Senator Miss Browne, although theoretically Senators might think that there was. It has been very well put by her, but, practically speaking, the accused person scarcely even puts forward the defence of consent. If ill-advised enough to put it forward, then in my experience and so far as I can remember I have never known such a defence to succeed. Therefore, I think that in respect to this section the Minister has adopted a wise course. It is right and proper that the law in regard to offences against girls should be as severe as it can possibly be made, but legislators must consider also this: it is desirable, where a guilty person comes before the court, that he shall not escape, and where an innocent person comes before the court that he shall be found not guilty. If you make laws too severe you defeat your own purpose. You cannot travel faster in these matters than a jury is prepared to go. It would be a disaster if legislation was framed so unreasonably that juries would not convict in proper cases because then a guilty person would be escaping.

I think it was wise of the Seanad, by the vote which it gave a short time ago, to support the Government on the sections up to Section 14 and to make no changes. It represents a wise middle course. As the Minister said, this is only experimental and it can be altered. The age limit can be raised as soon as the public conscience admits of its being raised. The Seanad is perfectly at liberty to make any decision it likes on the amendments that are now before it. Senators can discuss all these sections and vote on them according to their sound judgment. There is no compulsion on the Seanad in any way whatever, but when a Bill like this, dealing with a most important and difficult subject, comes before the House I think the proper thing would be to look at it fairly and as a whole. If Senators see that the general provisions of the Bill meet with their approval, then I say let them pass it.

This Bill has been drafted after long inquiry and investigation. The age of 15 is not put down there in the interests of a guilty man. It is put there in the interests of justice—to see that the guilty man gets punished. Therefore, I think that Section 14 ought to be passed without any amendment.

Mr. Douglas

I did not intend to speak on this particular section, but in view of what Senator Comyn has said I would like to say that I personally agree with the point of view taken by Senator Miss Browne: that the object of the Committee in extending the age was because they believed it was desirable to provide the extra extension. I would like also to say that the two lawyers on the Committee—Senator Lynch and Senator Brown—supported the amendment, so that apparently there are lawyers who in this case differ from Senator Comyn.

Mr. Brown

I quite agree that we ought not to discuss the amendments that are really the same as amendment No. 1, because we have already come to a decision on that. We are now dealing with Section 14, and the object of this amendment is to strike out the recommendation made by the Special Committee to that section. I think this section is one of the worst things in the Bill. When I first read the Bill and saw that the age of consent had been put at 15 I thought that was due to a mistake or to a misprint. I have not had as much experience in cases of this kind as Senator Comyn, but I have had a very large experience of young people. I am absolutely convinced that a child of 15 in this country, a little girl, is not nearly as old as a girl of the same age living in either England or Northern Ireland, and that we are depriving such a child of the protection that this measure would give her if the age were put at 18. I am not very keen about 18 myself, but I think 17 would be quite fair. I would urge on the Seanad not to be carried away by the result of the last division, but to deal with this particular amendment on its merits.

Mr. Foran

Will the Minister explain to the House why this change has been made and why our legislation in this matter should be different from that of our neighbours? It strikes me that somebody, in order to get at the Committee that considered this Bill, has dealt with its recommendations in a wholesale manner. There is no possible doubt in my mind that the Government are making a very serious mistake as regards the action they are taking so far as the age in this particular section is concerned. I would like to hear them justify their attitude on this section.

Mr. Ruttledge

This section deals with acts which are short of carnal knowledge or attempted carnal knowledge which would be very different from indecent assault, properly so-called. I was not before that committee but I have been informed that the committee considered all the aspects of this matter. I am not in a position to state for what particular peculiar reasons they agreed on the age of 15 but it was unanimous, in any case. I shall leave it to the House to decide.

Mr. Farren

I think there is some misapprehension with regard to this particular amendment. I think that Senator Miss Browne and the other members of the House who are talking about protecting a girl not beyond the age of 15 are making a tremendous mistake. They are overlooking the important fact of the existence of Section 2, which protects a girl up to 17 years of age.

Mr. Brown

Not if she consents. It is a totally different thing.

Mr. Farren

This particular Section 14 deals with the point of a person making the defence.

Cathaoirleach

They are different matters.

Mr. Farren

I understood Miss Browne to argue from the point of view of protecting girls up to the age of 17. I think they are already protected under the section already mentioned by Senator Miss Browne.

Amendment put.

The Seanad divided: Tá, 19; Níl, 23.

Tá

• Blythe, Ernest.
• Boyle, James J.
• Comyn, Michael, K.C.
• Connolly, Joseph.
• Farren, Thomas.
• Fitzgerald, Séamus.
• Healy, Denis D.
• Honan, Thomas V.
• Keyes, Raphael P.
• Linehan, Thomas.
• Lynch, Patrick, K.C.
• Moore, Colonel.
• O Máille, Pádraic.
• O'Neill, L.
• Phaoraigh, Siobhán Bean an.
• Quirke, William.
• Robinson, David L.
• Robinson, Seumas.
• Ruane, Thomas.

Níl

• Bagwell, John.
• Baxter, Patrick F.
• Bigger, Sir Edward Coey.
• Brown, Sameul L., K.C.
• Browne, Miss Kathleen.
• Duggan, E.J.
• Fanning, Michael.
• Foran, Thomas.
• Gogarty, Dr. O. St. J.
• Griffith, Sir John Purser.
• Jameson, Right Hon. Andrew.
• Johnson, Thomas.
• Uí Chléirigh, Caitlín Bean.
• Cummins, William.
• Dillon, James.
• Douglas, James G.
• Duffy, Michael.
• Kennedy, Cornelius.
• O'Connor, Joseph.
• O'Hanlon, M.F.
• O'Rourke, Brian.
• Staines, Michael.
• Toal, Thomas.

Tellers, Tá: Senators D.L. Robinson and Seumas Robinson; Níl: Senators Miss Browne and S.L. Brown.

Amendment declared lost.

The following Government amendments were agreed to:

Section 15, sub-section (3). To delete the word "sixteen" inserted in line 28 in Special Committee and to substitute therefor the word "fifteen".

Section 15, sub-section (3). To delete the new paragraph (c) added at the end of the sub-section in Special Committee.

Mr. Comyn

I move Government amendment 21:—

Section 16. To delete the new section 16 (relating to the offence of solicitation in public places) inserted in Special Committee and to substitute the following new section therefor:—

16.—(1) Every common prostitute who is found loitering in any street, thoroughfare, or other place and importuning or soliciting passers-by for purposes of prostitution or being otherwise offensive to passers-by shall be guilty of an offence under this section and shall on summary conviction thereof be liable, in the case of a first such offence, to a fine not exceeding two pounds or, in the case of a second or any subsequent such offence, to imprisonment for any term not exceeding six months.

(2) The Probation of Offenders Act, 1907, shall apply to offences under this section as if the words "or to the prospects of the moral reclamation of the person or persons charged" were inserted in sub-section (1) of Section 1 of that Act immediately before the words "it is inexpedient to inflict any punishment".

Mr. Douglas

This is an amendment which is of considerable importance. It deals with a matter which should not be allowed to go simply by default. This particular section deals generally with the offence of solicitation, and it then penalises the persons of one sex who are described as prostitutes. I have held the belief for a long time that this particular offence should not be confined to one sex. I have evidence that persons of my own sex are a source of trouble at the present time. I want them caught under the Bill. I believe the section which was put in in committee provides for "every person who in a street or public place solicits or importunes any person of the opposite sex for an immoral purpose," and so on, is a much more just way of dealing with it. Not alone that, but it is peculiarly necessary to the circumstances here. I could speak at length on this matter. We discussed it at considerable length in committee and the new section which we accepted as an amendment was proposed by me with the addition of some words inserted by Senator Lynch which were a definite improvement. There is a principle involved which I hope this Bill will support.

Mr. Johnson

The importance of this proposition was brought home to me very acutely some time ago. I was at a meeting of workmen, and some of the workmen afterwards were discussing the general conditions with which this Bill deals. Some of them happen to be men who work for the Corporation at night and they emphatically mentioned a grievous evil that was prevalent in this city—men with motorcars moving around at a slow pace in certain of the thoroughfares and enticing girls into the cars. That evil will be met by the clause that was accepted in committee but not by the amendment proposed by the Government.

Mr. Comyn

Senator Johnson has pointed to a great evil. He speaks of young men loitering about the thoroughfares.

Mr. Johnson

And old men.

Mr. Comyn

Yes, and old men loitering about the streets of Dublin and the streets of the suburbs endeavouring to pick up girls and bring them for a drive in motor-cars. Yes, that has happened. It is a great evil. But why not legislate for that evil? Why not introduce an apt amendment to deal with this evil? Here is an amendment that has been spoken to by Senator Johnson. It goes too far. The new section proposed in the Government amendment is much better. Let me read for the House the amendment advocated by Senator Johnson:—

16.—(1) Every person who in any street or public place solicits or importunes any person of the opposite sex for an immoral purpose shall be guilty of an offence under this section and shall on summary conviction thereof be liable in the case of a first conviction of such offence to a fine not exceeding two pounds or at the discretion of the court to imprisonment for a term not exceeding six months or to both such fine and imprisonment, or in the case of a second or any subsequent conviction of such offence to a fine not exceeding five pounds or at the discretion of the court to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.

(2) No person shall be convicted of any offence under this section upon the evidence of one witness unless such witness is corroborated in some material particular by evidence implicating the person charged with such offence.

(3) The Probation of Offenders Act, 1907, shall apply to offences under this section as if the words "or to the prospects of the moral reclamation of the person or persons charged" were inserted in sub-section (1) of Section 1 of that Act immediately before the words "it is inexpedient to inflict any punishment."

I would like if the Senator would construe the words of that amendment for the House. Is a house on a street adjacent to the street? I would say it is.

Mr. Brown

You have not read the rest of it.

Mr. Comyn

I would say the house was adjacent to the street. The arguments put forward by Senator Johnson are arguments for another section altogether, a section that would impose safeguards and inflict penalties on persons who go around in motor-cars enticing away girls——

Mr. Douglas

Let the Senator read sub-section (4) of Section 16 as passed in Committee.

Mr. Comyn

The gentleman who moved it did not read it. Here is the amendment before the House. (Amendment read).

Mr. Douglas

I want the Senator to read sub-section (4) of Section 16.

Mr. Comyn

But will not the Senator give his colleague time to read it? I have already read the amendment before the House. Sub-section (4) reads:—

The word "street" in this section includes any highway, road, lane, footway, square, court, alley or passage, whether a thoroughfare or not and the word ‘place' includes any public park or garden or any uninclosed ground to which the public have unrestricted access and each of such words includes a motor car, carriage or other vehicle on the street or public place as the case may be.

Cathaoirleach

I would point out to the Senator that that is not the motion before the House. The motion before the House is to delete the new section inserted in Committee and to substitute for it amendment 21.

Mr. Comyn

I have already read what I wish to have substituted.

Cathaoirleach

And the motion is to delete what the Senator has read now, that is Article 16, inserted in Committee.

Mr. Comyn

The section which it is proposed to delete is as follows:—

Every person who in a street or public place solicits or importunes any person of the opposite sex or in an adjacent street or public place, for an immoral purpose, shall be guilty of an offence under this section and shall on summary conviction thereof be liable in the case of a first conviction of such offence to a fine not exceeding two pounds or at the discretion of the court to imprisonment for a term not exceeding six months or to both such fine and imprisonment, or, in the case of a second or any subsequent conviction of such offence, to a fine not exceeding five pounds or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both such fine and imprisonment.

That is sub-section (1). Sub-section (2) states:—

No person shall be convicted of any offence under this section upon the evidence of one witness unless such witness is corroborated in some material particular by evidence inplicating the person charged with such offence.

Sub-section (3) states:—

The Probation of Offenders Act shall apply to offences under this section...

Sub-section (4) reads:—

The word "street" in this section includes any highway, road, lane, footway, square, court, alley or passage, whether a thoroughfare or not, and the word "place" includes any public park or garden or any uninclosed ground to which the public have unrestricted access, and each of such words include a motor car, carriage or any other vehicle on the street or public place, as the case may be.

That is the whole of Section 16. I say that there are only three lines of that section that are reasonable, and these are the last three lines, that "place" shall include a motor car, carriage, or other vehicle. My argument is this: if you want to deal with these gentlemen and to punish these people who use motor cars for the purpose of vice and seduction, deal with them in a section about which there will be no mistake. I do not mind how heavy you make the punishment and juries will not mind it either, but when you mix provisions of this sort with the foregoing sub-section I object to the form of it. I object to the form of sub-section (1). I ask you in your own good judgment to consider this pro-provision: "Every person who in any street or public place solicits or importunes any person of the opposite sex or in an adjacent street or public place." Suppose I were a judge or a magistrate——

Dr. Gogarty

Do not anticipate.

Mr. Comyn

I am so much attached to this place that I do not wish to go anywhere else, for the present, but if my friend, Senator Gogarty, were asked whether a house in a street were adjacent to the street or not, I should like to know what his answer would be. In the first place, the section is too sweeping. I was going to say that in drafting it something was forgotten. What I would say is that the section proposed to be deleted should be deleted and the section which it is proposed to insert, and which I read first, should be inserted. It goes far enough for what I might call a preliminary, for a measure which introduces a new kind of legislation, which is experimental to a certain degree. When this legislation is working for a little while and when the public conscience and juries follow it to the full extent, then you can tighten the screw if you like but at present it is too wide. That is what I say in regard to the amendment which it is proposed to delete.

Mr. Foran

The last Senator said that something was forgotten in the amendment recommended by the committee. Well, he forgot to tell the House that the committee made a recommendation protecting the female from the obnoxious male to a great extent.

Mr. Comyn

I am in favour of that part of it.

Mr. Foran

I have been listening to him for the last half-hour and he never touched on it. Now he is in favour of it. If so, he must be in favour of the amendment recommended by the committee, and if I have converted him I need not occupy the time of the House further.

Mr. Ruttledge

There is just one word which I should like to say. I am convinced that if this proposal of Senator Douglas, which came before the Select Committee, were adopted there would be very little use in passing a Bill at all for the purpose. It would be absolutely unworkable. We know that from the experience of the police here in Dublin. There is first the proposal that the police must prove when they are prosecuting one of these people that they were soliciting for an immoral purpose, and as well as that, they must have corroboration. The experience of the police here in the city is that it would be quite difficult enough to deal with it without these conditions. The proposal put forward here, we are convinced, will render the section absolutely unworkable considering the difficulties we have had to meet up to the present. Mention has been made of motor cars, but these people can be dealt with even as the law stands at present, for insulting behaviour and so on. From what we know in the Department from the police, we are convinced that you are putting difficulties in their way by this amendment and you are making it absolutely impossible for them to deal with that branch of the evil, anyway.

Dr. Gogarty

Senator Comyn asked me what my feeling would be if I were asked whether a house in a street was adjacent to a street. I really find myself in this matter in agreement with the Government, who have, for once, shown some commonsense. When "street" or "place" can be construed as any car, carriage or vehicle it is time that this orgy of mock virtue was punctured. Is a man to have no privacy or no liberty? We are told that in England a man's house is his castle, but apparently under the proposed section of the committee, a man's wheelbarrow is an open street. One evening I went down to Ardenza, Blackrock, and I sat in my car. Of course, the thought of anybody communing with himself in a car never occurred to our police and they shot an electric torch on me to see who was in the car. Of course, they were greatly disappointed. Zeal very often may overtake commonsense in these matters. The Irish people are sometimes presumed to be a "bull" making and ludicrous people and when a hand-barrow can be a street or anything else, it certainly lends some colour to the presumption. I stand by the amendment, but, at the same time, I should like to have some definition of "common prostitute." It seems to me that the proposed section places too much power in the hands of the police. At their discretion, any woman who is found loitering can be arrested; but, again, the Minister balances that by saying that the Probation of Offenders Act shall apply in certain cases. I am always anxious to strike a balance between too much power and too much discretion. It may well happen that if the police are given too much power some unfortunate woman may be victimised. There have been cases in towns in other countries in which women who were not persona grata with the police were put into a position of inferiority and in which a sort of blackmail was carried on. Inasmuch as we have no registration of these women, such as is carried on in Berlin and other places, I think that the term “common prostitute” is one that is very difficult to define. It is a matter altogether for the police to define. I do not see how it can be done otherwise, unless it is held that once a woman has been convicted she might be held to be one. I am with the Government in their attitude to this amendment, because I never heard before that a motor car was a front garden or a street. Suppose you were out in Crumlin developing land for building purposes and you were handed over a wheelbarrow and told that that was the road, it would not be any more absurd than this amendment.

Mr. Blythe

I do think that the Committee's amendment is preposterous. As the Minister says, it would be quite impossible to get convictions under it, and if it were altered so as to make convictions possible, it would open the way to an enormous amount of blackmail. I think that the Committee attempted a thing which would require a great deal more thought and care than they were able to give to it.

Mr. Brown

I was Chairman of the Committee and had no opportunity, at the Committee, of expressing views on any of the sections or even of voting. Now that I am in the House, I wish to say that I consider that the amendment inserted by the Committee, instead of the original section, represents one of the most important things —if not the most important thing— done by the Committee. Everybody who has any knowledge of what goes on in the country knows the position as regards these motor cars. That has been recognised by virtually everybody who has spoken. The only objection put forward is that the amendment would not be workable. Senator Gogarty indulged in a great deal of humour as regards a motor car being described as a public place. That is one of the commonest forms of legislative drafting. A judge would have no difficulty in directing a jury on this section. There would not be the slightest difficulty in court in working the section.

I admit that Senator Gogarty is right when he says that there is no definition of the term "common prostitute." The phrase has been used in a great many Acts. It is used in the Act which is operative in the City of Dublin. It has never been defined, but the unfortunate class alluded to is well known to the police. I should be very sorry to think that there was anything in the nature of blackmail in this city. This class is a small one and is, fortunately, getting smaller every year. It is not possible to have a definition, but I have not the slightest doubt as to the practicability of the amendment. One of the strongest recommendations in the Carrigan Report which, through the courtesy of the Minister, Senators had an opportunity of reading, was that something should be done to prevent a continuance of this motor car scandal. That is what has been carried out in this amendment. I ask Senators not to be frightened by the jokes of my friend, Senator Gogarty, or by the suggestion of the Minister that the amendment would not work. It would work perfectly well.

Amendment put.

The Seanad divided: Tá, 23; Níl, 22.

Tá

• Blythe, Ernest.
• Boyle, James J.
• Comyn, Michael, K.C.
• Connolly, Joseph.
• Cummins, William.
• Farren, Thomas.
• Fitzgerald, Séamus.
• Gogarty, Dr. O. St. J.
• Healy, Denis D.
• Honan, Thomas V.
• Keyes, Raphael P.
• Linehan, Thomas.
• Lynch, Patrick, K.C.
• Moore, Colonel.
• O Máille, Fádraic.
• O'Neill, L.
• Parkinson, James J.
• Phaoraigh, Siobhán Bean an.
• Quirke, William.
• Robinson, David L.
• Robinson, Seumas.
• Ruane, Thomas.
• Wilson, Richard.

Níl

• Bagwell, John.
• Baxter, Patrick F.
• Bigger, Sir Edward Coey.
• Brown, Samuel L., K.C.
• Browne, Miss Kathleen.
• Uí Chléirigh, Caitlín Bean.
• Foran, Thomas.
• Griffith, Sir John Purser.
• Jameson, Right Hon. Andrew.
• Johnson, Thomas.
• Kennedy, Cornelius.
• Milroy, Seán.
• Counihan, John C.
• Dillon, James.
• Douglas, James G.
• Duffy, Michael.
• Fanning, Michael.
• O'Connor, Joseph.
• O'Hanlon, M.F.
• O'Rourke, Brian.
• Staines, Michael.
• Toal, Thomas.

Tellers:—Tá: Senators D. Robinson and S. Robinson; Níl: Senators Foran and Brown.

Amendment declared carried.

Cathaoirleach

Amendments No. 22, 23 and 24 all deal with the same subject. I shall allow the three to be argued together on the first amendment.

Mr. Ruttledge

I am not accepting amendment No. 22 nor amendment No. 23.

Amendment No. 22, by leave, withdrawn.

Mr. Lynch

As the Minister has intimated that he cannot accept my amendment No. 23 I ask leave to withdraw it.

Cathaoirleach

Amendment No. 23, by leave, withdrawn.

Senator Staines

Has Senator Lynch withdrawn his amendment with the consent of the House?

Cathaoirleach

Yes. The Senator must have the consent of the House to withdraw the amendment.

Mr. Staines

I am very much in favour of this amendment.

Cathaoirleach

It is not moved.

Mr. Staines

Am I not entitled to ask the permission of the House to move that amendment with a view to having it discussed?

Cathaoirleach

Yes, if the Senator had the permission of the Senator in whose name the amendment stands.

Mr. Staines

My interest in the amendment is that as well as preventing sales it would prevent distribution.

Cathaoirleach

Senator Lynch asked permission to withdraw the amendment. I said he had permission. If I have been mistaken I must ask the House to direct me, and we must have a division on the matter.

Mr. Staines

I do not wish to have any trouble in the matter but I think Senator Lynch's amendment is much superior to any of the others.

Cathaoirleach

The amendment is not before the House because the Senator desired to withdraw it.

Mr. Farren

I move amendment No. 24:—

New section. After Section 16 to insert a new section as follows:—

17.—(1) It shall not be lawful for any person to sell, or expose, offer, advertise, or keep for sale or to import or to attempt to import into Saorstát Eireann for sale, any contraceptive.

(2) Any person who acts in contravention of the foregoing sub-section of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment and, in any case to forfeiture of any contraceptive in respect of which such offence was committed.

(3) Contraceptives shall be deemed to be included among the goods enumerated and described in the Table of Prohibitions and Restrictions Inwards contained in Section 42 of the Customs Consolidation Act, 1876, and the provisions of that Act (as amended or extended by subsequent Acts) relating to the importation of prohibited goods shall apply accordingly.

(4) In this section the word "contraceptive" means any appliance, instrument, drug, preparation or thing, designed, prepared, or intended to prevent pregnancy resulting from sexual intercourse between human beings."

Mr. Comyn

I beg to second the amendment.

Cathaoirleach

This amendment has been proposed and seconded. Perhaps the Minister might explain it, or does he consider it explicit enough?

Mr. Ruttledge

I think it is explicit enough.

Mrs. Clarke

I moved an amendment in the Special Committee to delete this from the Bill, and my reasons were very much misinterpreted in the Press. Perhaps that was why the Press did not get my reasons. I am in perfect agreement with the Church and the State in the condemnation of the use of these things. I think they cannot be condemned too strongly. But I am totally opposed to the Government's method of trying to deal with this crying evil. I think in matters of this kind prohibition is the wrong method of dealing with them. I have seen prohibition in another country where I lived, and I have seen the evil effects of it. It was not prohibition in connection with these things, but it was prohibition that affected the individual and the action of individuals in the State. After a certain time these individuals combined and they got up an organisation which outwitted the Government of the country in their efforts to enforce prohibition and brought that Government into contempt, and many evils developed out of it. That country to-day if it got the chance again would never introduce prohibition.

I believe that prohibition in connection with this will work out in much the same way. I believe you will drive the trading in and the use of these things into secret and illicit channels in which you will not be able to get after them. You will not alone bring the State and the laws of the State into contempt by inserting prohibition in this Bill, but you will bring the Church and religion into contempt. These are dangers which we really ought to look at and think of before passing such a clause. I do think that if the Church and the State put their heads together they ought to be able to devise some means other than this clause for dealing with this evil. We admit that if it grows to any extent in our country the reactions from it are going to be very terrible. I cannot believe, however, that it is as bad as represented, because this is a Catholic country and if the laws of the Catholic Church prohibit the use of these things, well, then, I do not think we have really a terrible lot to fear. If you have prohibition, however, human nature is a peculiar thing, and the minute you prohibit anything the human being is inclined to rebel against it. In the case of those who never had a desire to do a thing before, the fact that they are prohibited from doing it often creates a desire within them. For these reasons I am totally opposed to this clause. I think that there should be some other method by which we would be able to appeal to the higher and nobler and more spiritual side of the human being than that of prohibition.

Mr. Comyn

Allow these things into the country; allow them to be distributed far and wide and to be sold in every shop, and then go and appeal to the higher instincts of the people not to use them! I am in favour of this clause. In fact, I consider that it is more valuable than any other clause in the Bill. I do not propose to argue this on religious grounds. I propose to argue it on political grounds. I say that the trade in these contraceptives would mean the destruction of this race, and it is on these grounds that I am in favour of this clause. Not alone in this country but in all the countries of Europe the people who are charged with the government of the countries have expressed themselves as being thoroughly opposed to this trade in contraceptives because it is destructive of the race. The argument is put forward that if you prohibit you will encourage, and we were cited the example of prohibition in America. I hope that this prohibition will have public opinion behind it, and that is the difference between the prohibition in America and that proposed in this clause. This prohibition meets with the thorough approval of this entire community.

Another argument I would use is that the possession of the means of doing evil deeds makes ill deeds done, and I think that the Government are quite right in depriving young people of the means and the temptation to do evil deeds. I will go farther and say that I do think that the introduction of this section and its defeat by you —of course, in the absurd supposition that you would defeat it—would be corrupting the youth of this country.

Miss Browne

As one who had to do with this matter when it was before the Special Committee and who opposed the deletion of the clause, I wish to appeal to the Seanad not to be influenced by the arguments of Senator Mrs. Clarke. I am sorry, but I could not agree with her in any way and I consider that she is taking an entirely wrong point of view. I hope that the Seanad will vote for the amendment to put back the section which was defeated. I am sorry that Senator Lynch withdrew his amendment, which was put in by the Special Committee. I consider that it was better than the Government's suggestion, but as he has withdrawn it we cannot do anything but support the present amendment.

Mr. Bagwell

I have a few remarks to make on this amendment, but, in deference to the Minister, I am willing to make my remarks as brief as possible. The difference between this amendment, dealing with this particular section, and all the other amendments is that the differences of opinion in this case are of principle. It is a matter of principle. The others were differences in degree. Therefore, to my mind, this is a very much more important part of the Bill. That is to say, it breaks newer ground and is, therefore, of the greatest importance. It affects a large number of people and there is room for difference of opinion on it. Like every member present, I have a responsibility in measures like this which affect the welfare of other people, and very often silence is taken to mean consent. I do not want anybody to be in a position to say that I agreed with this amendment, whether by default or otherwise. My views were those taken by the Special Committee of this House and I wish to support their recommendation that this clause be deleted. This question of contraception is eminently one proper to be threshed out in a special committee, and that was done. The Special Committee was well qualified to deal with it. Both sexes were represented on it, as well as various Parties in the House and the medical profession. It was a very properly constituted committee. That committee advocated the deletion of Section 17. So do I. The recommendations of such a committee ought not to be lightly set aside, whatever people's opinions may be, and I recognise that in this case there is room for plenty of difference of opinion.

I hold a strong opinion against Section 17 and I think that I have every bit as much right to do so as other people in this House—possibly a majority—who are in favour of its retention. People like us who are members of legislative assemblies are very often described as being Parliamentary representatives. Perhaps we here in this Seanad are not representatives to quite the same extent and degree as members of the other House, but we are representatives all the same. In the case of a Bill of this kind, I think that the views held by a number of people outside the House, which are the same as my views, ought to be represented here. I think that is right. I have no doubt that the Select Committee discussed all the points involved in this case with a full sense of responsibility and that they did so in conditions of quiet out of the arena of Party strife. I expect that everybody said what they really thought. I support their suggestion as an independent member of this House. I was not a member of that committee. I did not serve upon it and I am not briefed by any section outside; nor, may I say, have I had any hand in any previous consultation with people or bodies outside. My views are the views of a considerable number of decent citizens who are not extreme in any way. Contraceptives are condemned under two heads: that they are an interference with nature and that they are immoral. As regards the question of interference with nature, that is a very debatable matter. Every surgical operation appears to me to be an interference with nature. Every treatment by way of injection, for microbes and so on, is an interference with nature and an interference that has very beneficial results. Hundreds of things are done nowadays which, if they were done 500 years ago, would mean burning at the stake.

There are wide differences of opinion on this subject amongst quite good citizens. There are people who condemn contraceptives wholesale under any and every set of circumstances, but they have no monopoly of Christian virtues. There are lots of decent people who hold the contrary view. I hold that the use of contraceptives is fully justified in a great many cases. They are justifiable when it means the prevention of disease, the avoidance of injury to health, and possibly danger to life. That is a view held by quite respectable, good-living citizens. I am speaking now as an ordinary citizen with, I hope, a reasonable amount of general knowledge and information. It is a very frequent thing to have contraceptives used by women under medical advice, responsible medical advice. I hold we are not here to make moral gestures; that is not our function. I hold that, so far as is practicable, matters of conscience are best left to the individual. Every individual has his moral adviser quite apart from the State and this House or any legislative assembly. We are here to legislate in a practical manner if we can. We are here to legislate for the good of our fellow-citizens.

I hold that this type of legislation is not good and, in many respects, it is not practical legislation. Human knowledge increases; it has done so very notably in our time and, though newly acquired knowledge is not always wisely used at first—in fact it is often abused—on the whole, increased human knowledge is a good thing and it goes step by step with an increase in Christian virtue. I think that is a reasonable statement to make when you take into consideration the amount of knowledge we possess nowadays and compare it with what our grandfathers knew 100 years ago, and visualise the changes that have come about since that time in the matter of dealings with other people, with animals, and so on. Generally speaking, the more knowledge we possess the more humane and less intolerant becomes our point of view. That goes hand-in-hand with knowledge, which is a good thing. You cannot stop the advance of human knowledge.

As regards this measure, where you can make it most effective is possibly in the direction that it will do most harm. Anybody can quite easily realise what I mean by that. I think what happens when people consider a law to be unreasonable and too extreme is exactly what Senator Mrs. Clarke described. I agree with every word she said on that subject, although I have not had her advantage in seeing how prohibition worked out in the United States, because my visit there was long previous to it. It certainly drove the thing underground and made it worse. What you will do by this legislation is, you will drive underground what is now overground. Whether that is a good thing or not is a matter of opinion. Personally, I do not think it is. I think whenever you drive a thing underground to the extent of having decent, well-behaved citizens who have the welfare of the State at heart breaking the law, it is a very bad thing. That is what happened in the case of prohibition and that is what will happen in this case. I think legislation for conscience' sake can be very unpractical and mischievous. For my part, I hope there will be a division on this because I intend to vote in support of the views expressed by the Select Committee of this House; that is to say, I shall vote against the Government amendment, which is for striking out the Committee's amendment and going back to the original clause.

Dr. Gogarty

I think it was very courageous of Senator Mrs. Clarke to adopt the attitude she has adopted in view of all the Long Ju-Gu-ism and Mumbo-Jumbo going around upon this highly debatable question. She made a most sincere contribution to the debate. I am glad that the Seanad decided to discuss this openly and not to hide it, as the Carrigan Report was hidden. Some self-advertising chemists and others have been talking about racial suicide. As if nations were only increased by those whom their mothers did not wish to fear. But there is a worse thing than racial suicide and that is racial syphilis. That is the one thing that undermines and saps away the vigour of the race, not in the third or fourth, but even in the twentieth generation. I presume that the aspect of the prevention of disease was completely lost sight of by some people in the consideration of this matter. They viewed it possibly from the aspect of the prevention of birth. If the Carrigan Report were published, reference might be found there to the dreadful alternative facing the unfortunate poor—and it is not amongst Senators or well-to-do people, but amongst the poor. The alternative to unwilling birth and bastardy in Ireland is infanticide. That is what they have confronting them. I know the ignorant classes are not the classes that might use this.

The great objection to the curtailment of families is that the intelligent people, the governing classes curtail them at the expense of national intelligence and development. People of different religious persuasions may have their own views on this matter. Some people may not think as we do but then we have the Constitution in so far as it says that all religions will be free in this country. It is absolutely impossible to stop the use of contraceptives and it would be difficult to differentiate nicely between the medical and the religious aspect, if one is empowered to purchase a contraceptive under a doctor's order. Senator Colonel Moore has suggested that there would be some abuse here. Undoubtedly it is a difficult matter. It is an impossible thing to hold back the little scientific knowledge that goes to the use of these things.

There was a time shortly after the discovery of ether when it was a monstrous outrage against what was called "Nature" to utilise it in childbirth. It was considered an outrage when it was suggested that a woman should not be allowed to be tortured by the pangs of childbirth. The man who was responsible for the discovery approached a certain Methodist protagonist of this Sadism and pointed out to him that there must be a certain amount of pain in childbearing according to the Bible. The Bible also stated that there must be a certain amount of sweat on one's brow when earning one's living. He pointed out further that stockbrokers and those in pulpits did not necessarily perspire while earning their bread. It has not cost the world anything or made human affection less dear because women are not tortured into death or lunacy or into great physical weakness by withholding a little chloroform or ether while in childbirth.

When one considers the tremendous revulsion of opinion against that ancient prejudice, it is enough to make us consider how it may be in ten or 20 years' time in regard to these so-called contraceptives. First of all, the people who use them are not the people who would be excellent propagators of good citizens, and it seems to me when we talk of racial suicide that the whole thing is a want of confidence in human nature. There will be always parents and always children. As to those people who are supposed to make an immoral use of a little chemistry—after all, it is a very easy thing to destroy the male element; any vinegar will do it; you cannot take all the cruet-stands out of the country —I think it would be far better if people realised the medical results of almost ineradicable diseases from the woman's point of view. These venereal diseases are not so easily shaken off by women—never, in fact. You have only to go to Grangegorman to realise that. I am sorry Senator Moore did not discriminate between the medical and prophylactic aspect of these drugs and the use of them, which I cannot naturally uphold, in order to allow people to sin without having the ordinary consequences. As I said, the Carrigan Report consequences are harder to accept. That infanticide means murder in this country, and it is heavily on the increase. When we are legislating we should at least have been provided with the data necessary for the discussion of the matter. When one has to stand up and speak openly and fearlessly, he should have the Carrigan Report to show what the alternative is in disease, in child outrage and in the fate of any illegitimate child in this country. Is prevention not better than murder?

Mr. Boyle

I do not think that there will be any measure of assent to the contention of Senator Bagwell, or at least the implication of what he said, that it was not the duty of the legislature to enact such wise laws as would preserve the morals of this State. I do not think it is right that that should go unchallenged. I rise in wholehearted support of the amendment which tries to secure the total prohibition of the sale and importation of contraceptives. I think the argument which was stressed to some extent by a couple of Senators with regard to prohibition in America is a very fallacious one. The legislature there attempted to impose upon people the prohibition of something the use of which within reason no moral law prohibited. There is no moral law to prevent a man from using alcoholic liquor within reason; no Christian teaching condemns it. Here the Government is trying to enact legislation to prevent the use of a commodity which is contrary to all moral law and which is contrary to authoritative Christian teaching. That is sufficient for me and for the vast majority of members of the House.

Senator Bagwell also stressed the advantage of the spread of knowledge and implied that it connoted an advance in virtue. Yes, knowledge of good, but what about knowledge of evil? Does he contend that that tends to the same happy result? I think it is the duty of the legislature to see that our youth are not contaminated, and that whatever knowledge they get shall be knowledge of good and not of evil.

Mr. Bagwell

On a point of explanation: I am inclined to think that the Senator has misrepresented me. I think he is quoting things which I never said. I did not hear him very well What I said about conscience was that I thought matters of conscience were, as far as practicable, best left to the individual.

Mr. Boyle

I accept the Senator's explanation. My recollection was that he said it was not the function of the legislature to make a moral gesture.

Mr. Bagwell

I did say that. That is right.

Mr. Boyle

Probably I took a wrong implication from the Senator's words. I suggest that someone wiser than the Senator or myself said that knowledge comes but wisdom lingers. I am afraid that wisdom up to this has been a long time lingering. I think there is no need to stress the desirability of putting this section into effect, especially the part dealing with the advertising and sale. We know that no matter how authoritative Christian teaching may be on this matter immoral propaganda and immoral advertising campaigns can undo very much of the good done by social reformers. I do not intend to say any more on this matter, but I considered it advisable that somebody should stress the point that there is no relevancy in introducing the failure of prohibition in America with regard to an article which is not prohibited either by the moral law or Christian teaching into the discussion of the prohibition of an article the use of which is contrary to Christian teaching.

Mrs. Clarke

Might I correct the last Senator? Why I quoted prohibition in America was this: I wanted to prove the effect of prohibition on the human. I lived six years in the United States and I never saw either a man or a woman under the influence of drink; I never saw a man or woman take intoxicating drink. I went through nearly the whole of the States of America in 1924 and I found that prohibition had driven these people from a state of sobriety to a state of drunkenness—that even the children were not free from it. It was prohibition which brought that condition about. What I said was to show the evil effects on the human of prohibiting a thing. I do not really think that the trade in this particular thing is so great in this country that we want prohibition. We want something else; we want something more human than laws.

Mr. Johnson

I would like to express a view upon this which is different from that of any of the Senators who contributed to the debate. This is a Bill "to make further and better provision for the protection of young girls and the suppression of brothels and prostitution, and for those and other purposes to amend the law relating to sexual offences." The Bill, almost as a whole, is aimed at preventing what the community unanimously denounces as utterly abhorrent, and in that Bill is introduced a proposal which has possibly or probably nothing whatever to do with the particular purpose of the Bill as a whole. The practices with which Section 17 is concerned may come into the realm of the offences dealt with in the rest of the Bill; but this amendment should have been in a separate Bill altogether. For my part, I would be prepared to support that section in a separate Bill. I am quite prepared to accept the view that 97 per cent. of the people of this country, if challenged as to their assent or objection to that section, would agree with it, and I am quite prepared to abide by that decision. But to imply, as we are doing in this Bill, that the use of contraceptives is in the same category as a crime against young girls and in the same category as the keeping of brothels and prostitution is a libel upon hundreds and perhaps thousands of honest, God-fearing, holy women. It is putting their practice in the same category as brothel-keeping and prostitution. I object strenuously to that combination in this legislation. As I say, if that section were put forward in a separate Bill in order to make the sale of contraceptives a separate offence, I would vote for it; but I feel that we ought to protest against combining that section with the general class of offences with which the rest of the Bill deals.

Mr. Foran

I was a member of the Special Committee, and the point raised by Senator Johnson was made there. This measure is based largely on the report of the Carrigan Commission, which went very fully not only into this matter, but into sex matters generally. On that commission there were very capable people and they furnished a very complete report. What is known as Section 17 was mentioned, but the committee saw no particular relationship between what is dealt with in Section 17 and general matters. I must say that I agree with the findings of that committee. Whatever my views may have been on the question generally, I submit that this is a matter for separate legislation, one that should not be dealt with in the incomplete and hasty way that it appears before the Oireachtas. It is a very involved matter. We heard an eminent doctor discuss the various medical aspects. The majority of the committee felt that Section 17 had no relation to the Criminal Law Amendment Bill. The Government should take up this question and deal with it in a separate Bill. I thought it better that I should say so before the Bill passes through this House.

Mr. Lynch

As one of the minority on the Special Committee who voted against the deletion of this section, I should like to call the attention of the House to a few matters. I regret very much that the committee came to the decision they came to with regard to Section 17. I regret it because they worked very carefully and strenuously and harmoniously until they came to this section. As we came to decisions for the purpose of expediting the passing of the measure, we have refrained from defending our position. The House may take it from me that no committee could have got down to their work more earnestly and worked more strenuously than this committee did on every section of the Bill. As regards Senator Foran's remarks, instead of the House fearing that the committee would do anything rashly or impetuously, I fear that the decision of the committee to delete this section was taken without due consideration.

I regret that they did that. I think they did themselves an injustice and that the public have been perhaps very much disappointed at their decision. It is only fair to them to say that the decision they came to on that point was, in my opinion, due to the fact that they did not sufficiently appreciate the importance of what they were doing. Having regard to the volume of opinion that has been given expression to from all parts of the country since the majority of the committee came to their decision, it is not an extravagant description to say that the public conscience has been shocked by the decision arrived at. I wish to safeguard that statement by explaining that although the public conscience may have been shocked, in my opinion that decision was come to owing to the erroneous impression that the bringing of a section of this kind into a Bill that was aimed perhaps, in the main, at something else, was a mistake, and that therefore it was better to eliminate it. That is a matter of opinion. I understand the framers were a committee selected from all Parties in the Dáil, including the Minister for Justice, an ex-Minister for Justice, and lawyers, who came to a decision after having the Carrigan Report, which was left aside for some time, before them. The Bill was then carried through the Dáil without controversy, and I only regret that we failed to facilitate its passing through this House without controversy. We did our best and we have been punished for any mistakes that were made. In the same way as we are bound by the majority of the committee, they are bound by the decision of the House in the desire to pass this Bill and to have done with it. We should now conclude the work that we have been engaged in by bowing to the decision of the Seanad and finishing with this Bill. Let it be passed, as it is a pity to have any further controversy about it. I beg the House to pass this amendment and to restore Section 17 to the Bill.

Mr. Ruttledge

I do not know if I misunderstood Senator Foran's remarks, but I seemed to gather from him that there was no relation between the Carrigan Report and the Bill. That is not so. As I pointed out at the beginning, this Bill has been framed on it. The committee was trying to get down to the details when framing the Bill. They followed up the various recommendations that were made in the Carrigan Report and it was on these recommendations that this Bill was framed. In reference to the relationship to the particular matter referred to in Section 17, there was a definite recommendation forbidding contraception, and unless I was to ask the committee to leave that business aside, or to have a separate Bill, I do not know what could be done. If it was regarded by the Carrigan Commission, which dealt with this matter, it must be assumed that they regarded it as one that could be properly dealt with in this Bill. The Carrigan Commission regarded it as being within their province to deal with, and made it one of the recommendations, and that is one of the reasons for this Bill.

Amendment put and declared carried.

Question—"That the Criminal Law Amendment Bill, 1934, be received for final consideration"—put and agreed to.