I welcome this opportunity of drawing the attention of the House to the fact that, although the Supreme Court gave judgment in the McGee case in December, 1973, the effects of that judgment have not been fully implemented, particularly as regards notices issued by the Revenue Commissioners about what goods can be imported. I refer to two notices which are published by the Revenue Commissioners and are available at ports of entry into this country, for example at airports. One of them covers the position of Irish residents and the other is a notice for visitors coming here. The notice for residents is entitled: "Ireland—Notice by the Revenue Commissioners, Customs Guide for Residents." This notice is operative as from 1st January, 1973, and it is notice No. 962 (revised). That notice contains a section headed: "Prohibitive or Restricted Goods" and it goes on:
Arms, ammunitions, explosives, budgerigars and other birds of the parrot species, contraceptives, dogs and cats from places other than Great Britain, Northern Ireland, the Channel Islands and the Isle of Man, fireworks,...
The separate customs guide for visitors contains a similar list of prohibitive or restricted goods and includes, again, the prohibition on importing contraceptives.
In the circumstances it is necessary to recall to the attention of the Members of the House the precise effect of the Supreme Court judgment in the McGee case. It will be recalled that Mrs. McGee had brought a constitutional action to challenge section 17 of the Criminal Law Amendment Act, 1935, and in particular the prohibition on importation by her of contraceptives into Ireland so that she could use these contraceptives within marriage and avoid the considerable health hazards which would otherwise have caused problems for her, her husband and their family. In the course of the judgment of the Supreme Court Mr. Justice Henchy said on this issue:
In my opinion, s.17 violates the guarantee by the State in Art. 40, s. 3, subs. (1), by its laws to protect her personal rights, not only by violating her personal right to privacy in regard to her marital relations but in a wider way by frustrating and making criminal any efforts by her to effectuate the decision of her husband and herself, made responsibly, conscientiously and on medical advice, to avail themselves of a particular contraceptive method so as to ensure her life and health as well as the integrity, security and well-being of her marriage and her family. Because of the clear unconstitutionality of the section in this respect, I do not find it necessary to deal with the submissions made in support of the claim that the section violates other provisions of the Constitution.
What stands between Mrs. McGee and the exercise of any constitutional right claimed by her in this case is subs. (3) s. 17. With that subsection out of the way, her cause of complaint would disappear, because what she wishes to do, namely, to import the required contraceptive by post, would then be legal, for the import, not being for sale, would not be forbidden by subs. (1). Since s. 17 without subs. (3) can stand as a self-contained entity, independently operable and representing the legislative intent, subs. (3) is capable of being severed and declared unconstitutional.
The precise wording of section 17 (3) of the Criminal Law Amendment Act, 1935, is as follows:
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.
This was the legislative provision which entitled—and indeed required— the Revenue authorities to list contraceptives as being among prohibited goods. This was the section expressly struck down by the Supreme Court in the McGee case as not being in conformity with the Constitution, as infringing constitutional rights including the right to marital privacy and as not being part of our law.
I would draw attention to a brief passage from the judgment of Mr. Justice Walsh in the McGee case where he said as follows:
As this particular case arose primarily out of the ban on importation, I think in so far as Article 41 is concerned the declaration sought should only go in respect of subsection (3) of section 17 of the Act of 1935. That does not necessarily mean that the provisions as to sale in subsection (1) cannot be impugned. If, in the result, notwithstanding the deletion of subsection (3), the prohibition on sale had the effect of leaving a position where contraceptives were not reasonably available for use within marriage then that particular prohibition must also fall. However, for the moment I do not think it is necessary to make any declaration in respect of that.
I would submit that when the highest court in our land makes such a clear and unambiguous ruling about the unconstitutionality of a section of our law and strikes down that provision as contravening basic constitutional rights, then there is a clear duty on the Government and in this instance on the Revenue Commissioners to ensure that all steps are taken to make the necessary changes or amendments to any notices in order to make it clear what the rights of the citizens are. This, indeed, is required by Article 40, Section 3 of the Constitution which imposes on the State a duty to defend and vindicate the personal rights of the citizen. One of these personal rights is the right to marital privacy.
I should like, first of all, to consider the implications of the fact that the notice which is produced for residents was not amended. The effect could be that people who are not very well informed on the law could believe that they would be stopped if they tried to import contraceptives for their private use, and this could give rise to unnecessary tension. It could give rise to confusion. It could create or perpetrate a climate of fear and apprehension in this regard.
Secondly, as regard visitors, this notice may be picked up by them when they arrive in this country or, indeed, sought by them before they come here because they want to know what kind of goods they can bring into the country. This must have a deterrent effect. It must continue the idea that Ireland is still a State whose laws are dominated by a Catholic Church influence which still prohibits the importation of contraceptives. Foreign visitors might feel that they would be searched and embarrassed and have their own sense of privacy invaded by having these items confiscated on coming to Ireland.
This is, I think, a matter which shows a lack of endeavour by the Government to ensure that the full impact of the Supreme Court decision is reflected in an administrative way by amending these particular notices. I hope that this was only an oversight. It is hard to understand how an oversight can have lasted from December, 1973, until March, 1977. But if one takes a kind view, then one has to regard it as an oversight or, alternatively, as an economic measure in using up old notices. There must have been a lot of notices to use up if, as I say, they were using them up over a period of more than three years. I would not regard this as a justification, because we are talking about basic constitutional rights, about the need for people to be properly and carefully informed about their rights, of the need for the Government to clarify, defend and vindicate these personal rights.
There is another possible view, that is, that the Government did not want to fully implement the decision in the McGee case and in the absence of success in changing the legislation through the Oireachtas to amend the law there was an attempt just to leave things as they were and not to implement fully the result of the McGee case. If one examines the debates on both sides of the House in the Dáil when the Government measure was introduced in 1974 to amend the law —a measure which was subsequently defeated—there were expressions of concern about the situation following the McGee case. There were calls on all sides of the House for the necessity to change the law following the McGee case; and yet, as we know, the law was not changed. In the absence of a legislative capacity to change the law, was there a sort of collusion in not fully implementing the law? If so, I would find that particularly regrettable because it would be evidence of a Government which was not subscribing in a full sense to the implementation and upholding of the rule of law, evidence of a Government which was not championing, defending and vindicating the personal rights of the citizen which the Government are constitutionally obliged to do.
I have stated that of yesterday these two notices were picked up in Dublin Airport, a notice for visitors and a notice for residents. Clearly they do not conform to the judgment of the Supreme Court in the McGee case, because they do not advise Irish residents properly that they are, in fact, legally entitled to import contraceptives for their private use and that visitors are similarly entitled to bring contraceptives into this country for their own use. Indeed, they can also bring them in to distribute freely.
One of the loopholes following the McGee case is that, although it is still prohibited to import for sale under section 17 (1) of the Criminal Law Amendment Act, 1935, it is not prohibited to import for distribution and therefore any quantity of contraceptives can be imported for distribution. This may very well cause certain fears and alarms from people who feel that this would be an undesirable situation. I wish those people would examine the law carefully and see that there is, even from that perspective, a very strong reason to sit down and amend the law and bring in a rational and reasonable proposal. The Supreme Court cannot legislate. It cannot cover all different contingencies when it makes a decision; it must address itself to the particular problem before it.
In the McGee case in December, 1973, the problem was a married woman who could not import contraceptives for her private use within marriage, but the effect of the Supreme Court judgment is not to confine importation to married people. The Supreme Court cannot do that. It is not a legislative body. Married or unmarried and of any age, any person coming into Ireland can import contraceptives. They cannot import them for sale, but they can import them for private use or they can import them for distribution in whatever quantities they like and as often as they like. Perhaps a realisation of this situation may increase the support for the rationalisation in a legislative sense of the whole position relating to the availability of contraceptives and to family planning in this country. I await with interest the explanation of the Minister for Finance of the situation whereby these notices are still distributed at ports of entry into this country more than three years after the McGee case itself.
