Family Planning Bill, 1973: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

The situation that has arisen now makes it rather pointless for me to continue at any length. I have said everything I had to say about the Family Planning Bill. With regard to the situation that has now arisen by the Government publishing their own Family Planning Bill, I have the same kind of reservations as Senator Robinson has. That Bill has come so swiftly and suddenly across the horizon that it is hard to formulate any kind of well-pondered judgment as to its merits or demerits. It seems to me there are good things in the Bill and it also seems to me that it appears to be bristling with the most Draconian penalties. Therefore, for the moment I shall yield the floor and wait to hear if Senator Robinson is satisfied with the other Bill, whether she intends to press forward with her own or perhaps withdraw it in favour of what the Government are proposing.

I would prefer to await the Minister. I thought there might be other Senators offering? This debate is still open?

An Leas-Chathaoirleach

The debate is still open. Before calling on the Senator to conclude, on looking around the House, I see no Senator has offered. If the Senator wishes to wait for the Minister, the House could agree. Of course, it is open to any other Senator, who has not already contributed, to do so.

On a point of order, I should like to point out the fruitlessness of the whole exercise.

An Leas-Chathaoirleach

I think Senator Lenihan will admit there were a number of speakers when this matter was debated at a previous sitting.

Let us not make a farce of Parliament.

Is there any other business we could discuss?

An Leas-Chathaoirleach

Business was ordered today at 3 o'clock. The business ordered was Item No. 2, which we have disposed of. I have asked the House if they wish to continue and have conceded Senator Robinson's right to wait for the Minister before she concludes the debate on Item No. 3. It is not up to me to order business. There are no other Senators offering so I will call on Senator Robinson to conclude the debate on the Second Stage.

I should like to thank the Senators who spoke on the Second Reading of this Bill. I counted ten Senators who spoke apart from Senators John Horgan, Trevor West and myself. That was 13 Senators in all. On reading the debate it proved to be a most interesting and wide-ranging one. It was important in that it was the first opportunity the Oireachtas has had to debate this question of family planning. I intend to reply in some detail to the points which were raised by individual Senators but first. I should like to make some general observations on the whole question. I should like to elaborate on a point which I was making on the Order of Business, that is the role of Private Members' Bills in our Parliamentary system. It is a pity that the provision under the Constitution for initiatives of this sort and the elaborate provisions of Standing Orders of both Houses are not more of a reality. There is a marked tendency on the part of Fianna Fáil and also among the Government to the view that the Government must have a monopoly of initiating legislation. Obviously, if legislation is to be passed it must have the support of the Government of the day in order to secure the necessary majority. That is very proper because it is the democratic process.

I noted on reading the debate that the two speakers who did not address themselves to the Bill before the House were the Minister and Senator Lenihan, the latter speaking on behalf of the Fianna Fáil Party. Neither actually addressed himself to the Bill before the House. Senator Lenihan completely ignored the Bill. He spoke on behalf of his party and called on the Government to bring in legislation and to fulfil their duty in this respect. The Minister did refer to the fact that the debate on the Family Planning Bill had taken place in the House. He described it as an old-fashioned debate, an end-of-an-era debate because of the Supreme Court judgment and said that the Government intended bringing in legislation of their own. What he did not do—this is the point I am making because it illustrates my argument— was to say in which way the Bill before the House was unsatisfactory.

It seems to me that when a Bill is before the Parliament if the Government do not choose to let that Bill go its natural course there should be an indication as to why it is unsatisfactory. They should state on Second Stage what is wrong with the Bill that it cannot be amended or why a different type of legislation must be brought in. In many ways this particular subject has become such an inflated issue that it is better that the Government themselves bring in legislation. But one would welcome a more forthcoming approach on the subject. One would hope that if future Private Members' Bills are introduced they would have an opportunity of getting through our parliamentary process because the Constitution and the Standing Orders of both Houses provide quite clearly and definitely for this procedure.

The second point—and this is a more serious point—arising from the debate is that there appears to have been an attempt to blame the Supreme Court for the situation in which we find ourselves. I said at the start of the Second Reading that we had a twofold task before us. First, to regularise the position following on the judgment of the Supreme Court in the McGee case and, secondly, to promote the basic right to family planning and the right of access to information on the subject. Both in the Seanad debate itself—particularly in the case of one Senator who quite improperly castigated the Supreme Court—and outside in the public media generally, there has been a tendency to criticise the Supreme Court for having brought about the situation which we now have to remedy.

This is a most regrettable aspect of the matter. We must be very careful to preserve the proper balance between the institutions of this State and to guard against any possibility of such a criticism of the Supreme Court being mooted. I say this particularly having re-read the judgments of the judges of the Supreme Court. What emerges from all five judges is the care which they took not in any way to infringe the rights of the Legislature, to confine their judgments very specifically to the facts before them and not to substitute themselves for the Oireachtas. It is a model example of judges not substituting themselves for the Legislature, for the Oireachtas, and it would be a pity if some Members of the Oireachtas were to evade their responsibility by blaming the Supreme Court for bringing about the situation which the Oireachtas has to rectify. This would be a most unkind way of repaying the extreme care, thoughtfulness and consideration of judges of the Supreme Court not in any way to usurp or infringe on the role of the Legislature.

As the Minister for Justice pointed out, the McGee case is a key factor in the whole debate. There has been a tendency to oversimplify the judgment of the Supreme Court. Here perhaps the Minister was inclined to draw too definite and too simple a conclusion from the Supreme Court judgment. He said at column 384 of the Official Report of 21st February:

The Government have a duty now to enshrine in legislation the constitutional finding of the Supreme Court that married couples are not to be denied access to contraceptives. This is now a constitutional right. The Government propose to introduce a Bill to regularise the position consequent on the declaration of the unconstitutionality of subsection (3) of section 17 and at the same time enshrine as a matter of law the constitutional right so found by the court.

This is a possible interpretation of the McGee case but in the way in which it has determined the scope of the Government Bill framed as a consequence, it is an unnecessarily narrow assessment of the ruling of the Supreme Court. The Supreme Court did undoubtedly say that married couples in this country must have reasonable access to contraceptives but they did not say that legislation must provide in a narrow sense that only married couples would have access to contraceptives or that the legislation must be framed in that way in order to be constitutional.

I wish to quote a very brief extract from the judgments of all five judges to illustrate this point. It is important that we do not allow the Members of the Oireachtas to avoid their own responsibility to look at the broad issues of legalising the law on family planning by saying that the Supreme Court have spoken and that we have no choice in the matter. This is not so.

The Supreme Court's judgment was very carefully restricted to the facts of Mrs. McGee's case. The implication of what was said by the judges was: we are deciding this case for this particular plaintiff and we leave it to the Legislature to assume their full responsibility in relation to the matter and to decide, expressing the legislative intent, what the legislation will be.

Taking the first of the judgments— the judgment of Mr. Justice Walsh— he, I think, was the most explicit on this point, apart from the Chief Justice, who was the dissenting judge. Mr. Justice Walsh said in the judgment in relation to the appeal from the High Court:

Turning to the particular submissions made on behalf of the plaintiff I shall first deal with the submission made in relation to Article 41 of the Constitution which deals with the family. On the particular facts of this case I think this is the most important submission because the plaintiff's claim is based upon her status as a married woman and is made in relation to the conduct of her sexual life with her husband within that marriage.

He then goes on to deal with the various articles of the Constitution and with section 17 of the 1935 Act. Then he limits very expressly his judgment; and one can be confident that he did this so that he would not be found to have done more than he wished to do in giving his judgment in this particular case. He said in the second last paragraph of his judgment:

Lastly, I wish to emphasise that I have given no consideration whatsoever to the question of the constitutionality or otherwise of laws which would withhold or restrict the availability of contraceptives for use outside of marriage and nothing in this judgment is intended to offer any opinion on that matter.

This is a complete reservation of his position on that issue because the appeal had been brought by the plaintiff based on her status as a married woman and the judgment was confined to her particular case.

Mr. Justice Griffin in his judgment also made it clear that he was considering the appeal of the plaintiff on the facts of her particular case as a married woman. He said:

For the purpose of this Action, it is only necessary to deal with the plaintiff as a married woman in the light of her particular circumstances already discussed. In my opinion, by the inclusion of subsection (3), section 17 of the 1935 Act does, in the words of Douglas J. "sweep unnecessarily broadly and thereby invade the area of protected freedoms". In my judgment, this subsection violates the personal rights of the plaintiff, in this case her right of privacy in her marital relations with her husband under Article 40, section 3, subsection (1). For the purpose of this Action, it is not necessary, as contended for by Mr. McBride, that the entire section should be struck down.

He did not go outside the specific claim of the plaintiff on that specific section. Again, Mr. Justice Henchy also made it clear that he was ruling precisely on the individual circumstances of the case before the Supreme Court. He said in his judgment, in considering again the constitutional position and section 17 of the 1935 Act, that:

The answer lies primarily in the fact that Mrs. McGee is a wife and a mother. It is the informed and conscientious wish of herself and her husband to maintain full marital relations but without incurring the risk of a pregnancy that may very well result in her death or in a crippling paralysis.

He goes on to say that section 17 frustrates that wish and that he finds it unconstitutional—again showing that this was central to that particular case and was a focus for all the judgments of the Supreme Court and that these judgments did not go outside that particular focus.

Mr. Justice Budd approached it in the same way and he provides in his judgment that:

The State guarantees as far as practicable by its laws to vindicate the personal rights of the citizen. What more important personal right could there be in a citizen than that to determine in marriage his attitude and resolve his mode of life concerning the procreation of children. Whilst "personal rights" are not set out specifically, it is scarcely to be doubted that in our society the right to privacy is universally recognised and accepted with possibly the rarest of exceptions and the matter of marital relationship must rank as one of the most important of matters in the realm of privacy.

Not the only matter but the most important matter.

Then he said:

Applying what I have stated and to the principles of the Constitution to Article 40 I am driven to the conclusion that the Criminal Law (Amendment) Act, 1935, is in particular in conflict with the personal rights of the citizen as to the guarantee of Article 40. 3. 1º is to respect, defend and vindicate the personal rights of the citizen as far as practicable. The other Articles which I have quoted from are in no way inconsistent with the construction I have placed on Article 40. 3. 1º. This Act does not defend or vindicate the personal rights of the citizen or his or her privacy relative to matters of the procreation of children and the privacy of married life and marital relations.

Mr. Justice Budd seems to regard these rights not as identical but as being closely linked together.

Finally there is part of the judgment of the dissenting judge, the Chief Justice in this case, where he makes it clear that the effect of the Supreme Court judgment will not be confined to married people but will extend to all citizens in the State. I have already quoted this in the Second Reading debate but I think it is worth inserting here for a complete indication of the attitude of the Supreme Court. Mr. Justice Fitzgerald said:

It is, I think, well to realise that the plaintiff's claim here is as a citizen, and that if any portion of section 17 of the 1935 Act is declared unconstitutional, the benefit to be derived from such a decision is equally to be enjoyed by every other citizen, be they married or not.

I have quoted at some length from the judgments of the Supreme Court in this case not just to argue that contraceptives must not be confined only to married people but to say that it is the function of the Legislature to decide in which places and in what way they will be available. This question has not been finally determined by the Supreme Court. This is really what I am saying. The Supreme Court have not regulated this so that it is beyond discussion by the Legislature. It is our function and our responsibility to decide in what way and to what extent and with which controls and limitations contraceptives will be available. We are being intellectually dishonest if we try to pass that particular buck back to the Supreme Court. The judges very carefully did not rule on this.

I should like to turn now to a more detailed consideration of the points made by those Senators who participated in the debate, beginning with Senator O'Higgins who proposed the motion to decline to give a Second Reading because—and I quote from the motion—"such proposals have not been submitted to a decision of the people". I asked him how people might be consulted in this way and he did not in the course of his speech indicate how this might be done. I would submit that the reason he did not do this is that his motion lacked the possibility of being implemented even if the Seanad were to vote in favour of it.

I would submit that Senator O'Higgins as a lawyer must have known that his motion as it stood did not have any real reason in the sense that it could not be implemented even if passed. He would know that the way of achieving the object of the motion would have been to carry out the procedure expressly provided in Article 27 of the Constitution which deals with the reference of Bills to the people. Article 27, of course, refers to Bills which have passed through all Stages in the Oireachtas and are then referred to the people because they are matters of importance—matters of national concern. I would submit that by not using the Article 27 procedure, Senator O'Higgins was trying to impose a form of censorship. It is a less draconian measure than was imposed on the first attempt to introduce a Bill to amend the law relating to family planning in this House in 1971, but nevertheless it was an attempt to curtail the debate in the House by refusing to allow the Bill to go its course. The Article 27 procedure provides that when a Bill has been passed by both Houses of the Oireachtas a majority of Members of the Seanad and not less than a third of the Members of the Dáil can by joint petition addressed to the President, request him to decline to sign and promulgate the Bill as law until he has submitted it to a referendum of the people. I would expect that Senator O'Higgins as a lawyer and Professor Quinlan as a very long-serving Member of this House would have been aware of this provision. I hope that they would be prepared to withdraw this amendment on the grounds that it cannot be implemented even if it were passed by the House. Therefore, it does not have the necessary basis on which to have a vote.

Senator O'Higgins gave his criteria for attempting to have this Bill refused a Second Reading when he said:

Personally, I would regard the test in relation to a Government measure or any other measure as being whether or not it would improve or disimprove the position which has been brought about as a result of the Supreme Court decision and having regard generally to the common good.

This approach seemed a very reasonable attitude until Senator O'Higgins went on to define what he meant by the common good. The problem with Senator O'Higgins's speech is that the vague and rather general terms used in it make it clear that the common good is the good of the majority, and that that majority is decidedly a Catholic one. Nowhere in his long and thoughtful contribution is there a sense that the common good is really the achievement of the objectives of the Constitution of a genuine equality and equal protection before the law, a genuine freedom of expression, a genuine feeling that citizens of the country will not be discriminated against and will have the protection of the law to live full lives as citizens and to exercise their private moral choices without coming into conflict with the criminal law. Therefore, the Senator's outline of the common good, although I accept that it was given with very real concern and sincerity, was a very narrow concept of the common good and one which very seriously worries citizens in this country who wish to live full lives and those in the Northern part of the country who observe what is happening here. There is a great danger in identifying the common good with that of the Catholic majority because that is the source of all bigotry and prejudice which prevents us from expressing what was contained very clearly in the Supreme Court judgment, that is, the truth of the Constitutional position, and we are not trying in the full sense to be a pluralist society which respects and fully implements the basic rights of citizens.

At column 253 of the Official Report Senator O'Higgins expressed the core of the argument when he said:

There are values, standards and religious beliefs that the people of the South are not going to sacrifice at any price nor for any political reward. We are misleading ourselves and our fellow-countrymen in the North if we do not say that. We might not like saying it, but it is a fact, and is one of the facts of life that have to be faced up to in this country, North and South. When people talk of Home Rule or Rome Rule, Home Rule or Rome Rule being the test in this Bill, does it occur to them at all that for many people the test is going to be seen as one between conscientious conviction on the one hand and political experiency on the other?

I would maintain that this Bill does not ask people to sacrifice values, lower standards or deny their political beliefs. It asks the Oireachtas to promote the value of individual freedom and equality before the law, to uphold standards of tolerance and of equity in our system and to safeguard and protect the differing religious beliefs and convictions of the citizens of the South. Looking at the criteria which Senator O'Higgins mentioned, he is wrong in asserting that the Bill would have the dangers he implies because —as I emphasised on Second Reading —it is an enabling Bill. It is not forcing anybody to give up his own convictions or personal standards of behaviour.

Turning to the points made by Professor Quinlan, it seems strange that after 16 years in the Seanad he has not learned not to put down an unworkable motion. It merely wastes the time of the House. Also he criticised the Supreme Court ruling. The Supreme Court gave a most thoughtful and considerate judgment, not just in the narrow sense of considering Mrs. McGee's appeal, but also in the sense of maintaining the proper balance between the institutions of this State.

Did the Supreme Court comply with the Constitution when they gave five judgments?

I should prefer not to have to answer that particular question because it has already been very clearly answered. It is a technical and misleading question. The fact that the judgments referred to an Act passed before the 1937 Constitution means that they do not come within the particular rule in Article 34 of the Constitution. The judges of the Supreme Court are each entitled to give a view as to whether such an Act is still valid law. This is the view they gave. There is a richness in the fact that each of the Supreme Court judges wrote a long and considered judgment on the decision. The effect was a very clear finding—that section 17 of the 1935 Act was not part of the law of the State because it had not been continued in effect by Article 50 of the 1937 Constitution. The action of the Supreme Court in this matter was a most proper way of giving judgment on Mrs. McGee's appeal.

Some excellent lawyers hold otherwise.

Senator Lenihan was the only spokesman on behalf of the Fianna Fáil Party and indicated that he was speaking on behalf of that group. I found his contribution the most depressing of all because he was speaking as a political opportunist rather than as somebody who had a real concern for changing the law in this area. The silence of his fellow-members of that party was a depressing indication that they will play party politics with this issue if they can at all rather than face up to their responsibilities and legislate for the good of the people of the country, for the protection of basic human rights and for the remedying of a very real social problem in the country. They seem to be out of tune with many of their constituents in this respect. I hope their constituents will inform the Parliamentary party that they do not want them to play party politics with this issue but instead want the mature and constructive approach which Senator Lenihan had promised in the course of his speech.

That is what I said.

(Interruptions.)

Nevertheless it would seem to be basic courtesy and good manners when a Bill is before the House that Senators would address themselves to the Bill. We would all have welcomed an insight into Senator Lenihan's thinking and that of the Fianna Fáil Party on this issue. I should have liked to know what his views were on the framework which we have proposed for changing the law in relation to family planning or on the substantive issue of whether we should in fact change the law in relation to family planning. I would have thought that he might have welcomed an opportunity to make his views clear on the record on the subject. I regret that he did not take this opportunity. I regret it for the more fundamental reason that it appears to denigrate the role of individual Senators in bringing before the House Private Members' Bills on a particular issue.

Senator Brendan Halligan, on the contrary, addressed himself constructively and in great detail to the terms of the Bill. He welcomed the Bill because it proposed to change the law relating to family planning which he regarded as a matter of civil rights. I quote from his speech:

The denial of that civil right constitutes a serious transgression of the personal freedom of many of our citizens in the most private domain of life, the marital relations between husband and wife.

Having welcomed the Bill he then suggested that the Bill might be amended. This was a welcome approach. Obviously a Private Members' Bill does not have the full resources of a Civil Service Department behind it; it is worked on by the individuals concerned. I should like at this point to state that one of the factors which made it possible for us to introduce a Bill which could provide a satisfactory way of changing the law was the help given to us by the officials of this House. I pay tribute to them and thank them for that help.

A Private Members' Bill probably needs more amendment than a Bill which would come from a Government Department and, therefore, I particularly welcome those Senators who accepted in principle the need for a change in the law but were prepared to state that although they would vote for the Bill on the Second Stage they would like to bring in amendments to it.

The two amendments which Senator Halligan stated he would like to propose were first to restrict the importation of contraceptives—in other words to reimpose a restriction which had been regarded as unconstitutional by the Supreme Court in the McGee case because of the absence of any other outlets for the availability of contraceptives. If the Bill provided other outlets it would be quite constitutional to reimpose a restriction on importation.

Senator Halligan would also like to confine the availability of contraceptives to married couples. If this Bill comes to Committee Stage we will welcome the opportunity of debating these amendments in order to see whether the Bill would be improved while restricting the availability of contraceptives to married couples, even though we the individual proposers of the Bill did not wish to do that as is evident in the text before us.

As one of the co-sponsors of the Bill, Senator Horgan provided a most interesting perspective from which to examine the Bill. First he stated he would look at it not from the point of view of counting heads but from the point of view of the rights of human beings. He then went on to look at Irish society and examine the nebulous concept of the quality of life in much broader terms than anyone else who spoke during the debate apart from Senator O'Higgins.

The Senator mentioned, for example, the dramatically increased mobility and the various broad factors which influenced the life style in Ireland which should be taken into account. He spoke in particular about the moral value in freedom. It is worth referring briefly to what he said on this because it is fundamental to an understanding of the motives behind this Bill and of the vital importance of the subject matter, not only in itself, but as indicating that as a society we are prepared to see a moral value in freedom. I quote from column 321, Volume 77 of the Official Report:

However, in relation to standard society in general I would make a positive plea for a change in the law because there is a particular moral value in freedom. It is a moral value which is not sufficiently recognised in our society today. The role of society, of churches and of laws is to help people to grow. If we have a society in which freedom in many important areas simply does not exist, then people will not grow; they will remain morally stunted, morally immature and morally infantile.

We must be aware that in legislating in sensitive areas such as this the most important value we can put forward is this moral value in freedom and to the extent that it is compatible with public order and public morality, we should realise this value.

Senator Alexis FitzGerald made a contribution which has already been widely noted and rightly regarded as one of the most interesting and significant contributions made in the Seanad in recent times. He said he had approached the subject with an open mind because this was a complex issue which raised historical, moral and sociological questions. It is a subject, as the Senator said, on which it is difficult to be very sure of the precise way in which we should change the law.

The Senator accused me of being dogmatic and I quote:

I noted her as saying that the law cannot be used to enforce standards of private morality. I think this is a very questionable proposition. I do not think it is possible to make an assertion of that kind.

That was an important allegation which I shall try to refuse. If the law tries to enforce standards of private morality, it is not the standards of private morality which are being enforced but it is the law that is being enforced. This is not a semantic distinction; it is a very real one. One cannot by criminal law enforce standards of private morality. One can only enforce the law which is invading an area of private morality. This is an important distinction. I am still dogmatic enough to stand by that statement and to defend it.

I welcome the forthcoming way in which Senator Alexis FitzGerald indicated he would be prepared to support the Second Reading of this Bill—in other words, to support the principle of legalising the availability of contraceptives and providing access to information on the subject and so promoting the right to family planning. As Senator Halligan did, he indicated that he would like to consider introducing amendments probably restricting the availability to married people, but nevertheless he was prepared to support the Bill and see it going forward to a further stage in the debate.

The Senator also quoted from the Vatican II proclamation on religious freedom. If instead of Senator O'Higgins's notion of the common good we could substitute the declaration on religious liberty of the Vatican II document, there would be little doubt that this debate would have gone on to a different and more constructive level. Senator Alexis FitzGerald expressed the view that it would be possible to table an amendment to this Bill which restricted the availability of contraceptives to married couples. I again distinguish his attitude from the attitude of the Minister who did not look in detail at the provisions of the Bill or indicate in what way it might or might not be amended in order to satisfy the democratic process by expressing the view of the majority in both Houses of the Oireachtas.

I welcome this attitude and I hope when it is put to a vote Senator Alexis FitzGerald will be one of those who will support the Second Reading of the Bill.

Senator Noel Browne described the Bill as a first tentative step taken with great trepidation by the Oireachtas. In view of events subsequent to the debate, he appears right in this. I hope we are not losing our nerve on this subject. Perhaps we are. It is necessary to stand back from the whole subject and realise we are in fact making a small change in our criminal law and a change in our censorship laws in order to permit citizens to avail of various methods of family planning. There is obviously a desire in the community that this be made available as indicated by the number of women going to the family planning clinics and the 38,000 Irishwomen who are using the contraceptive pill. There are various other indications in our society that there is a genuine desire for the possibility of using various methods of family planning given the approval by all Christian churches of the concept of responsible parenthood and family planning. I hope Senator Browne was being pessimistic when he indicated a certain scepticism about what would happen either in relation to this Bill or in relation to a Government measure to legalise family planning in 1974.

I should like to compliment Senator Michael D. Higgins for his very courageous speech on this issue. He is a young public representative who hopes to go back before his electorate in the west of Ireland at the next election and yet he did not compromise himself. He had the intellectual honesty and integrity to put his views frankly on the record and to argue forcefully for a change in the law and in support of this Bill. I hope he will not learn too quickly—or at all in fact—to compromise, to become devious and to be intellectually dishonest, because we need people in public life who have the courage of their convictions and who are not afraid to stand up and be counted.

Senator M.D. Higgins also made a useful contribution in showing that in most instances those who lobby against any change in the law on contraceptives and against this Bill in particular do not in general give the references for their sources. We have all had through the post numerous quotations without an identifying reference, and quotations from people without spelling out what their qualifications are. In contrast to this the Senator pointed out the very detailed homework done by those who are in favour of a change in the law. He made particular reference to the very comprehensive articles by Dr. David Nowlan on the subject and also mentioned others who had written in support and who always gave evidence of their particular expertise or their particular background as justifying a professional or expert view on the subject.

The next speech was from the Minister who intervened in this debate and indicated that the Government would be bringing in legislation. I regret that he did not state in more substantial terms why this Bill is inadequate. At the same time I welcome the fact that as a Minister for Justice he is at least prepared to bring in legislation to change the law in this area.

I wish now to look very briefly at the Government measure. I must do so in order to indicate the attitude which I shall take in relation to it. I have made it clear that if I regarded the Bill to be brought into the Dáil by the Government as an adequate and satisfactory method of changing the law in this area I would seek the permission of the Seanad to withdraw this Bill in favour of the Government measure.

I have expressed some disappointment at not having a little more time to consider the Government measure in order to exercise this judgment on the text fairly and impartially. However, having viewed the Government Bill this morning, I am forced to conclude that it is a very, very restrictive and unacceptable measure for those of us who would like to promote the right to family planning in this country. The title of the Bill "The Control of Importation, Sale and Manufacture of Contraceptives Bill" and the fact that it is still under the jurisdiction of the Minister for Justice indicate a mentality which is still very restrictive on this issue and confined to the first aspect of the question—the "mopping up" after the Supreme Court—and not at all to the second aspect, the promotion of basic human rights.

On a point of order, I do not want to be thought as attempting to muzzle the Senator but she is now proposing to deal with a Bill which has not yet had a Second Reading in the other House, where it has been introduced. I wonder would the question of the privilege of the other House now arise?

I did consider this matter. I consulted with an official of the Seanad. We were both of the opinion that, while Senator Robinson might make reference to it, it would be improper to go into it in any great detail. The Bill is a fact of life and everybody in the House has been supplied with it. It would be proper for Senator Robinson to make reference to the Bill without going into detail and mounting a debate on it here.

I should like to thank the Chair for guidance in this matter. I appreciate the point made by the Minister for Justice that it would be improper to discuss in considerable detail a Bill which has not received a Second Reading in the House in which it has been moved. I received the Bill only this morning and therefore I am not competent in any case to give it a very full and detailed discussion at this stage. If I might just make a point on the general approach of the Bill, it proposes to rectify the situation following upon the Supreme Court decision and to leave the subject in the area of criminal law by having the Minister for Justice as the responsible Minister involved. It is a Bill which hits one immediately with the restrictions in it. Indeed, in so far as I have been able to work out the provisions of the Bill, it would seem to make the position in some ways more restricted than it was either before or after the McGee case.

I could not help thinking when I read the Bill that it reminded me very much of the Dangerous Substances Act, 1970, which had the same format of intensive restrictions and of licensing by the Minister with quite substantial penalties and the possibility of prosecution on indictment for failure to comply with the provisions of the Act. There are various questions which will have to be asked when the Bill comes to be discussed in more detail. One of these questions in the present climate must be whether those who offend against the provisions of the Bill will be open to private prosecution? There seems to be one section— I think it is a very small section—of the Irish population who are keen to make sure that nobody in the country will avail of what they do not approve of. One would see a dangerous possibility of private prosecution under this Bill almost in a vindictive spirit.

It is relevant to indicate why this Bill is considered to be so unsatisfactory, that we as independent Senators who have tabled a Private Members' Bill do not wish to withdraw in favour of it and wish instead to put our particular Bill to a vote on Second Reading. There are several reasons. First of all, is the framework of the Bill, which leaves the control and restriction of contraceptives and sanctions under the Bill within the criminal law under the Minister for Justice. Secondly, the confining of the availability of contraceptives to——

Acting Chairman

I am afraid the Senator is going too deeply into the Bill at the moment. I think the Senator should make reference to the Bill by indicating to the House that she is not in favour of withdrawing her own Bill. To go into the sections of the Bill in detail would be improper.

I accept the ruling of the Chair. Without wishing to become involved in detail, it is aspects such as the confining of contraceptives to married people, the licensing of the venues, the licensing of those who wish to manufacture, sell or have contraceptives which make the Government Bill unacceptable.

The definition of contraceptives, which is identical to the definition in the 1935 Act, and to the definition of abortifacients, would seem to me to raise great difficulties and to be unnecessary in the light of the broad provisions preventing abortion in this country and rendering anybody who procures an abortion liable under the Offences against the Person Act of 1861. This is an unnecessary red herring. It would be better to go back to the more simple framework which is contained in the Family Planning Bill, 1973.

Again we come back to the importance of terminology. Although I would be seriously critical of some of the provisions in the Government's Bill and although I am afraid that it will make us to some extent the laughing stock of Europe if it is passed in its present form, I nevertheless think that there are good things about that Bill. First, because if we pass legislation on this subject we will grant respectability to those who wish to use contraceptives in Ireland. We will say to them that they have a right to avail of various methods of family planning and to have access to literature on that subject. That is immensely important. Under the present state of the law these people have the aura of criminals. I know this has tended to be overemphasised and overplayed as an argument but it is a fact that we do not allow choice of methods of family planning under the present law. To change that, even in a very restricted form, is to grant to the individuals involved the respect of fellow citizens of the country in their exercise of the right to the private moral choice, by ensuring that they have access to various types of contraceptives and access to information on the subject.

On the question of the censorship provisions in the Government's Bill: they are an improvement on our proposals. They are, in most instances, identical in amending the specific sections of the Censorship Acts, but they would also allow the Censorship Board to review books which have been banned prior to the Act. This is an improvement in that it would allow books which have been previously banned to be resubmitted to the Censorship Board. This is not something which we thought of providing for in the Family Planning Bill. To that extent I welcome that provision in the Government's Bill.

It is not a Bill that will be easily improved or simplified by amendment and, therefore, we wish as independent Senators to ask the Oireachtas to vote on the Family Planning Bill, 1973, as one way in which the Oireachtas could change the law in this area. It is important that the Oireachtas should face up to its responsibility and exercise a choice in this matter. Far from the debate on this Second Stage having been old-fashioned, and the exercise today being, in Senator Lenihan's words, completely ridiculous and folly, it is a very important exercise. It is important that the Oireachtas, that Members of the Seanad, take a stand on this issue. They must assume their responsibility, and not either hide behind party politics or pass the buck elsewhere in order not to vote on the issue.

Still dealing with the detailed submissions of the Senators who spoke, Senator Trevor West—also a cosponsor of the Bill—expressed unhappiness at the Minister's remarks about the debate and about limiting the availability of contraceptives to married couples. He went on in a very relevant way to examine the position in another jurisdiction where contraceptives are available, namely in the northern part of the country. He made the point, which I think is very true, that the only community with which we can compare ourselves in this context is Northern Ireland, where the lifestyle and the attitudes towards the family are very similar to our own attitudes and where there is the same general ethic. We must stand back a little from the pressure of the present debate and be aware that the free availability of contraceptives, without any of this elaborate mechanism of restriction and licensing in the Government's Bill, has not contributed to the downfall of family life in Northern Ireland, or to the exploitation and corruption of young people, and has not been the abuse or the opening of floodgates or the downfall of the moral code of that society which are apparently feared by those who oppose the passing of legislation dealing with the availability of contraceptives.

I am very well aware—and I think it is an important aspect of the whole problem—that it is much more difficult to move from a situation of prohibition under the criminal law to one providing the availability of contraceptives. It is much more difficult psychologically for people to move from restriction under the criminal law with penalties, unavailability for sale, prohibition against importation, and so on, to a position of availability of contraceptives and availability of literature on the subject. Nevertheless what we must do, I submit, and what this Family Planning Bill, 1973, does, is to have faith in the people of this country, particularly the young people because they will be affected for longer by the provisions of the Bill, faith that it will not, in fact, induce them to become suddenly highly immoral or irresponsible in their behaviour, and that they will retain the standards which they get not from the criminal law but from their own ethical and moral codes. The passage of the Bill would not have the adverse effect on our society which would amount to an undermining of public morality.

Senator Andy O'Brien seems more ready than the other two co-sponsors of the motion to decline to give this Bill a Second Reading to accept the possibility that legislation should be introduced in this area. I hoped that his attitude was an indication that he had learned from the debate and from the contributions of the various Senators who spoke that this is a matter which should be legislated upon in order to improve the situation following upon the judgment of the Supreme Court and also to promote the basic right to family planning by allowing the availability of contraceptives. I do not want to read too much into his speech but there is a marked difference between his attitude and the attitude of Senator O'Higgins and Senator Quinlan. I would hope that it is a mellowing on his part as a result of having heard the contributions of the various people who took part in the debate.

Finally Senator Augustine Martin thought that the Minister had tried to place too much emphasis on the Supreme Court decision as having preempted the debate before the Oireachtas and in a sense having left us without the necessity of facing up to our own responsibility. I would agree with him very much on this. We must not pass the buck to the Supreme Court or say that this judgment has defined precisely what the legislative provision must be; because the Supreme Court so carefully refused to interfere with the legislative intent and made it so clear that it is up to the Oireachtas, considering all factors involved and the general background to the Bill, to bring in legislation.

I do not wish to speak much longer on this subject. It has already had a sufficient airing on the Second Stage. I should like once again very genuinely to thank the Seanad for giving time to this Bill and to thank the Leader of the House for allowing the debate to run on to the second day, the Thursday, when it had not, in fact, opened until late in the evening on the Wednesday.

Finally, I should like to thank those individual Senators who came to me privately and said they support this Bill. I would ask them now to put their feet where their mouths are and to vote for the Bill.

I am prepared to have a decision taken on the Bill and to withdraw the amendment.

Amendment, by leave, withdrawn.
Question put: "That the Bill be now read a Second Time."
The Seanad divided: Tá, 10, Níl, 32.

  • Boland, John.
  • FitzGerald, Alexis.
  • Fitzgerald, Jack.
  • Halligan, Brendan.
  • Harte, John.
  • Higgins, Michael D.
  • Lyons, Michael Dalgan.
  • Martin, Augustine.
  • Mullen, Michael.
  • Robinson, Mary.

Níl

  • Aylward, Bob.
  • Blennerhassett, John.
  • Brennan, John J.
  • Brosnahan, Seán.
  • Browne, Patrick (Fad).
  • Cowen, Bernard.
  • Deasy, Austin.
  • Dolan, Seamus
  • Farrelly, Denis.
  • Garrett, Jack.
  • Hanafin, Des.
  • Kennedy, Fintan.
  • Kerrigan, Patrick.
  • Kilbride, Thomas.
  • Lenihan, Brian.
  • McAuliffe, Timothy.
  • McCartin, John Joseph.
  • McClinchey, Bernard.
  • McGrath, Patrick W.
  • Mannion, John M.
  • Markey, Bernard.
  • O'Brien, Andy.
  • O'Brien, William.
  • O'Higgins, Michael J.
  • O'Toole, Patrick.
  • Quinlan, Patrick Michael.
  • Russell, George Edward.
  • Ryan, Eoin.
  • Ryan, William.
  • Sanfey, James W.
  • Walsh, Mary.
  • Whyte, Liam.
Question declared lost.

I have always preferred quality to quantity and I am quite happy with that.

The Seanad adjourned at 4.50 p.m.sine die.