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Seanad Éireann debate -
Wednesday, 7 Jul 1971

Vol. 70 No. 11

Criminal Law Amendment Bill, 1971: Leave to Introduce

I move:

That leave be granted to introduce a Bill entitled an Act to amend section 17 of the Criminal Law Amendment Act, 1935, and consequentially to repeal section 16 and amend section 17 of the Censorship of Publications Act, 1929, and to amend section 7 and section 9 of the Censorship of Publications Act, 1946.

The Bill is being opposed on the First Reading and therefore Senator Robinson is entitled to make an explanatory statement in favour of the Bill.

My first reaction is that I should have thought that the Leader of the House might have had the courtesy to inform me. I have been in the House since before lunch and I know that the other two movers of the Bill were also in the House. I regret that I am now surprised by the Government's sudden decision to oppose it. Naturally, I am not prepared to make a very considered statement on the matter. I shall confine myself to making a rather angry statement. At this stage, after having waited for so long for some decision on it, the decision to oppose the Bill has been taken without even the courtesy of informing us. The Bill, whatever its content, has been an indicator of how poor the tradition in Parliament has become. A fitting climax is this lack of courtesy to a private Member.

The reason that Senators Horgan, West and myself tabled this Bill is because we feel that it is a matter of great importance in this country that the law relating to the availability of contraceptives and to the availability of literature on contraceptives be looked at once again. An obvious way of doing this is to table a Bill to that effect. The content of the Bill was to provide an amendment of section 17 of the Criminal Law Amendment Act, 1935, which would have allowed the availability of contraceptives in a limited form in certain venues such as hospitals, chemist shops, clinics supervised by a medical practitioner and at the discretion of the Minister for Justice, in such other places as the Minister might designate. This would allow responsible people who felt entitled in conscience to plan their family to go to these venues and to have contraceptives made available. It would have avoided one of the public problems in relation to the whole subject of the availability of contraceptives; the problem of slot machine contraceptives or barber shops or any of the other venues which would not be appropriate and which might corrupt young people.

Another important provision in the Bill related to the Censorship Acts. At present books or periodicals are prevented from coming into the country or are banned if they relate to what is called "the unnatural prevention of conception." Senators Horgan, West and myself felt that in 1971 the people of Ireland have the same right as the people in Europe, America and elsewhere in the world to inform themselves on a matter of such public interest, and very much a matter discussed in other countries. It is unfortunate that responsible literature about family planning is not available in this country. It is medically unsound and socially unjust to the people of this country. In this respect we are not talking about any religious minority. We are talking about anybody who wishes to inform himself or herself on matters relating to family planning. A very important part of the Bill which we tabled was to have given this freedom to publish and freedom to acquire knowledge in relation to family planning.

I am disappointed at the reaction of the Leader of the House, who speaks on behalf of the Government on this matter, in view of the many statements made by the Taoiseach and by Deputy Dr. Hillery about the necessity to create a pluralist society in southern Ireland and the necessity not to discriminate on the basis of religion or on the basis of a majority viewpoint on certain moral questions. I do not know whether the Government have changed their minds on this, or whether there has been a change of attitude. If there has been a change of attitude this is very regrettable for those who would like, as I think most Senators here would like, to see a better relationship with those living in the North of Ireland.

It appears that the policy of the Government is to try to eliminate Partition in this country. I do not see how one can eliminate territorial Partition if this religious and moral partition of the country is retained. If we are serious about the North, we must change our attitudes. We must change our legislation and be able to say to the people in the North of Ireland that they can come into the South of Ireland and find the same tolerance of different moral attitudes, the same tolerance of different ideas, the same possibility of informing themselves on important medical and social matters and the possibility in their own privacy of following their consciences in relation to family planning.

It would be regrettable, whatever the intention of the Government, if this attitude was interpreted by the people of Northern Ireland as showing fixed and closed minds or as showing undue influence by either the Church or commentators on the attitude of the Government.

As the Leader of the House knows, there is a case at the moment to test the constitutionality of section 17 of the Criminal Law Amendment Act. This action, if it were successful, would result in the section no longer applying and there would then be the free availability of contraceptives. We would not welcome this particular change in the position, because it would not have the safeguards which we had in our Bill and it would not relate to an important part of the Bill, namely the censorship provisions and the provisions in relation to the freedom of the press and also freedom of the individual to inform himself or herself. Therefore, it would be a piecemeal result and not very satisfactory.

I await with considerable interest an explanation from the Leader of the House as to why he has chosen in such an abrupt and discourteous manner to oppose this Bill which we have tabled. I should like to say that despite the rather unhappy progress of the Bill and despite the comments which were made by the Leader of the House, who has accused the Senators who tabled this Bill of disrupting the business of the House—he has accused me of being schoolgirlish—despite this, he will find that we will continue to introduce Bills on matters which we feel to be of interest to the country, particularly on matters which will lead to the sort of society we would like to see here: a more pluralist and a more tolerant society. Despite the way in which this Bill has been treated and been kept in Limbo, and despite the rudeness of its abrupt opposition now, this will not discourage us from introducing other Bills in the future.

First of all, I want to assure Senator Robinson that no discourtesy was intended. I apologise to her if she thinks that I deliberately went out of my way to be discourteous to her. This Bill has been on the Order Paper for so long and has become such a nuisance every time the Seanad meets that I took it for granted that Senator Robinson was aware that it could come up at any time. I told the Senator that it would receive consideration and she has pressed it so often and was so anxious to get it, I thought it better have it here today and to get a decision on it.

In spite of all Senator Robinson has said, the Bill, in its present form, is unacceptable and we could not stand over it. With regard to all the other matters which the Senator mentions, I do not think it is necessary for me to make a Second Stage speech such as she has done on the First Stage of this Bill. I am aware that an action is in progress to test the constitutionality of section 17 of the Act. I am opposing this Bill.

Senator Jessop rose.

I am afraid I cannot allow Senator Jessop to speak, as this First Stage of the Bill is governed by Standing Order No. 73 which provides that the person moving the Bill may speak in favour of it and a Senator opposing may oppose. There is no provision for further Senators to speak except to a very limited extent.

Could I ask a question?

A very brief question.

We have been told by the Leader of the House on more than one occasion, when Senator Robinson attempted to have this Bill taken, that the Government were examining the situation and would take the proper steps or the steps they considered to be proper, in due course. Does the fact that they are opposing this Bill now mean that they have cleared up this question and that they do not wish to have any more to do with it, or have they may solution to this problem to present to us later?

As Senator Jessop will recall, I said that the Bill, in its present form, is unacceptable. The Government are considering the situation and when the time arrives will take appropriate steps to deal with the matters concerned.

Could I ask a question also? A moment ago the Leader of the House referred to the fact that an action appears to have been instituted challenging the constitutionality of the legislation which Senator Robinson and the other Senators want to have amended. Is the House to take it from that, that one of the reasons why the Leader of the House is opposing this Bill, as it now stands, is because he feels that discussion of it would infringe the sub judice convention? That is not my understanding of what sub judice is all about.

That is not the reason.

Then why is it not?

Senator Robinson drew attention to it.

Could I ask a question?

We cannot have a series of questions.

Surely one has a right to put at least one question? I understand perfectly well that I am not entitled to make a speech on this Stage and I have no intention of making one on First Reading. I will probably take elaborate measures not to make a speech on Second Reading. However I should like to put this question. Does this mean that the Government have decided that the Seanad are not free to discuss this matter, not free to discuss a proposed amendment of the criminal law by a professor of criminal law, that this is taboo, not free for discussion, that the Censorship of Publications Act actually applies to this Seanad?

It seems to the Chair that the Senator is making a speech in the guise of a question.

I really did ask a question. I wanted to know——

The Chair accepts that there was a question mark at the end, but nonetheless feels that it was in the nature of a speech.

Senator Ó Maoláin promised to grasp a thistle, but what he is doing is putting weed killer on it instead.

Question put:
The Seanad divided: Tá, 14; Níl, 25.

  • Belton, Richard.
  • Boland, John.
  • FitzGerald, Alexis.
  • Horgan, John.
  • Jessop, W.J.E.
  • Kelly, John.
  • Lyons, Michael D.
  • McDonald, Charles B.
  • O'Brien, Andy.
  • O'Brien, William.
  • Robinson, Mary T.W.
  • Russell, G.E.
  • Sheldon, W.A.W.
  • West, Timothy Trevor.


  • Brugha, Ruairí.
  • Cranitch, Mícheál C.
  • Crinion, Brendan.
  • Doyle, John.
  • Eachthéirn, Cáit Uí.
  • Farrell, Joseph.
  • Farrell, Peggy.
  • Fitzsimons, Patrick.
  • Flanagan, Thomas P.
  • Gallanagh, Michael.
  • Garrett, Jack.
  • Hanafin, Desmond.
  • Honan, Dermot P.
  • Killilea, Mark.
  • McElgunn, Farrell.
  • McGlinchey, Bernard.
  • McGowan, Patrick.
  • Norton, Patrick.
  • O'Callaghan, Cornelius K.
  • O'Higgins, Michael J.
  • Ó Maoláin, Tomás.
  • O'Sullivan, Terry.
  • Ryan, Eoin.
  • Ryan, Patrick W.
  • Walsh, Seán.
Tellers: Tá, Senators Horgan and Robinson; Níl, Senators Joseph Farrell and Fitzsimons.
Question declared lost.