First, I would like to say that I did not intend to speak until next week but as the opportunity presented itself I took it. I may be a little bit disorganised in what I want to say. I do not intend to speak for too long on this measure because it has been well discussed in this House and in the other House and in the country at large.
There are a few points I would like to put on the record of the House. This is an important measure both with regard to its implications for Irish society and because of the confrontation to which it gave rise to between Church and State. Whether it is a good thing or a bad thing is something we might discuss at a later time but a confrontation did take place.
The measure represents a very small change in the law. The exact nature of the significance of the change in the law I will deal with later but I think the fact that the legislation has been introduced and I hope, will be passed by this House, lies in reasons other than the change in the law. It is important because it is a vehicle by which those people involved in politics who want to deal with matters on the basis of logic rather than on emotion are given an opportunity of putting their point of view to the House. That is what this debate is all about. Are we going to deal with proposals on the basis of logic or on the basis of emotion? That is one of the most important debates of Irish political life. Political fall-out attending this Bill has highlighted very clearly that there is a substantial body of opinion and a substantial body of people involved in politics in this country who want to be ruled by emotion and not by logic. They are willing to go to considerable lengths to ensure that that situation continues.
The second reason why it is very important is because of the relative weight and importance which the Legislature has had to decide should be given to the advice of the ecclesiastical authorities. That is a very important consideration. The third reason is that the kernel of the argument is a discussion on what is meant by the common good, what is the nature of the common good, because in seeking to speak on this legislation we are all concentrating on promotion of a point of view which we believe to be the common good.
Before discussing the legislation a brief summary of what the present law is would be helpful. I listened to Senator Robinson and she outlined in considerable detail the full background of the legislation which forms the Principal Act of this proposed amendment. It would be useful also to look at the Health (Family Planning) Act, 1979 itself because an examination of that will show what the law is at the present time. An examination of that will show that some of the reaction to this proposal has been hysterical, unreasonable and unfair in the extreme. The operative portion of the Health (Family Planning) Act, 1979, which I consider to be a liberal piece of legislation — flawed but liberal — has met problems reasonably fairly but it is flawed because it is capable of being interpreted in more than one way. For that reason I considered it a flawed piece of legislation.
The kernel of that legislation is in section 4 of that Act. That is a section which prohibits people from doing something. It says: "A person shall not sell contraceptives unless...". It is a quite simple and straightforward statement. It goes on to say: "unless he is a servant or agent or a pharmaceutical chemist or unless the person who is selling it is named in a prescription or authorisation in writing for contraceptives of a registered medical practitioner, who in the opinion of the practitioner formed at the time of giving the prescription or authorisation sought the contraceptives for the purpose bona fide of family planning, or for adequate medical reasons."
It is important that that should be fully understood. It is not just bona fide family planning reason; there are also medical reasons. These medical reasons are not defined and the meaning of bona fide family planning is also not defined. A court could from time to time interpret what this means. The legislation goes on further than that. In subsection (2) when dealing with the question of a registered medical practitioner issuing a certificate or a prescription it says:
A registered medical pracitioner may, for the purpose of this Act, give a prescription or authorisation for a contraceptive to a person if he is satisfied that the person who is seeking the contraceptive, bona fide, for family planning purposes or for adequate medical reasons and in appropriate circumstances and, where a prescription or authorisation of a registered medical practitioner in relation to a contraceptive bears an indication that it is given for the purposes of this Act, it shall be conclusively presumed, for the purposes of this section, that the person named in it is a person who, in the opinion of the practitioner formed at the time of the giving of the prescription or authorisation sought the contraceptive for the purpose, bona fide, of family planning or for adequate medical reasons...
In other words, we have the ludicrous situation where, on the one hand we say that we are going to limit contraceptives to people who need contraceptives for bona fide family planning purposes or alternatively for medical reasons which are not specified and then we give carte blanche to the medical profession to decide what these are. Nowhere in this legislation is it suggested directly or indirectly that the sale and distribution of contraceptives is limited to those who are married. Anybody who has been basing his or her argument on drawing the distinction between this legislation and the 1979 Act, a distinction based on this legislation permitting contraceptives for those who are not married and previous legislation not permitting it, is drawing a false distinction. That false distinction has permeated right through the opposition to this Bill, from clerical and ecclesiastical sources to political sources and into the legislative area itself.
People have suggested that this Bill is changing the law in so far as it is permitting contraceptives to be made available as a matter of right for those who are not married. It is substituting, in respect of some of the contraceptives, free availability subject to the provisions of the Bill on the application of a person over 18 years of age for a situation where medical practitioners were the sole arbitrators of whether a person should get contraceptives or not. It does not say to the medical practitioners: "You must only give it to people who are married". It is a fact that, in so far as medical practitioners were operating this Act, some of them were operating it in such a way as to give contraceptives to nobody and others were operating it to give contraceptives to everybody.
The ludicrous situation which was set up by the 1979 Act has reached an intolerable level. It is very important that it would be clearly understood that this legislation does not, for the first time, create a distinction between those who are married and those who are single. It does it but it only does it in a different way from what is already in the 1979 Act. Under the present law, married and single are not mentioned, old or young are not mentioned, teenagers or mature adults — none of those are mentioned. Contraceptives can now be made available by any doctor to a person of any age. Having done so, his certificate or prescription is considered conclusive proof that it had been provided for bona fide family planning purposes. That is the law as it stands. When you understand the law as it stands at present, you will understand that the hysterical reaction of some of those who are against this amendment is based either on ignorance or on political malice or on sheer incompetence. It could not be based on anything else.
I am not suggesting that everybody who criticises it is ignorant. I am not suggesting that all are motivated by political malice or I am not suggesting that the other reason applies in any individual but in respect of each such person there must be a reason which I think falls somewhere within some of the categories I have outlined.
That is the present law. The medical practitioner can prescribe for a person and his prescription cannot be challenged and that is the law as it stands at present.
What does this Bill seek to do? It seeks to allow non-medical contraceptives to be made available to people over 18 years of age. Leaving aside for the moment the question of the setting of the level at 18 years of age and using instead the word "adult", we can hardly deny that under the Constitution there is a right to non-medical contraceptives for those that are married. Since the McGee case it is agreed and accepted that that right exists. To insist that a person before exercising that right must go to see a medical practitioner, and to give that medical practitioner the power to say "no"— in other words the power to deny that person a constitutional right — is certainly unconstitutional. Without doubt that law is outside the Constitution.
I listened to a very learned contribution in the other House on the question of whether there is a right to privacy, the same type of right as in the McGee case in respect of adults who are not married. It is the inevitable conclusion of the McGee case and the other developments in constitutional law that there is a right to non-medical contraceptives in respect of those who are mature in exercise of their democratic right as citizens.
That does not solve the problem or answer the critics who chose to use emotive words like "teenagers" and say that we are making contraceptives available to teenagers or that we are making contraceptives available to children. It ill behoves the Members of this House or indeed the Members of the other House who have passed the Age of Majority Bill such a short time ago and enacted it into law, to try to draw a distinction between 18 year olds and 21 year olds, because there were very few Members of this House indeed — only three I think — who expressed any concern whatsoever with regard to the reduction of the age of majority from 21 to 18. I was one of those people but all I can say is, the matter having been decided by this House and the other House and having been decided contrary to the advice of Senator Mullooly and my own advice, it having decided to reduce the age of majority from 21 to 18, it would be absolutely intolerable, having said a week ago that people of 18 years of age have reached their majority, to say now that we are going to differentiate and distinguish between them in respect of the acquisition of contraceptives.
It is an act of political hypocrisy for Members to support the abolition of the disabilities in respect of people between the ages of 18 and 21 and within four weeks of doing that to come back in here and say, of course 18 year olds are only teenagers and they are only children. We have decided that 18 year olds are adults. We give them all the rights under the Irish Constitution except two — that is the right of election as members of the Oireachtas and the right of election as President of the Republic. Other than those we have given them all the rights under the Irish Constitution and in those circumstances it would be unrealistic to set the age limit at anything higher than 18 years of age. I know there are people in the House who would wish the age limit to be set lower than 18. I do not think that is right. I am in favour of the age of access to non-medical contraceptives being set at whatever the age of majority is. Nobody can reasonably quibble with that age.
That is what is proposed in the present Bill. It is not the present Bill that provided for the possibility of contraceptives for those under 18 years of age: it was the last Act that provided for that. The last Act provides for the availability of contraceptives irrespective of age after having received a prescription. That law has not been changed. In other words anybody under 18 years of age who for some reason or another needs a contraceptive will be subject to the 1979 Act. They will have to go and get their prescription and they will have to go through the procedure laid down in the 1979 Act. The availability of contraceptives to those under 18 does not derive from this Bill but from the Act introduced under the last Fianna Fáil administration.
All these matters, are however, small, trivial matters compared to the real reason why it is important that this House should unanimously accept this legislation. These changes are, by and large, small and leaving aside the political advantage which the main Opposition party mistakenly thought they could gain by opposing this Bill, leaving aside that the overwhelming number of Members of both Houses believe that this legislation is a reasonable extension of the law and a reasonable amendment to legislation which has worked reasonably well but which has significant flaws, this Bill changes and adapts that legislation to the evolving situation in Ireland.
We are faced with the problem of how could it be in the public good to legislate so as to make contraceptives available to people at all. That is the problem which legislators have to face. That is the crucial point because if I believe, as indeed I do, that the act of contraception is an unnatural interference with sexual intercourse and is something which it would be better to avoid, how can I then maintain that permission to operate or to use contraceptives is in some way adding to the public good? The public good does not only consist of morality, morality in the sexual sense or morality in the economic sense: the public good is indeed a far wider concept than that because the public good also includes permitting people a choice. The public good also consists of permitting people to use their freedom of choice to make the right decision. That is an essential element of the common good. If human beings are to be treated differently from animals what differentiates us from animals is the fact that we have free choice. That is why it is very important, when you talk about the common good, that you include the element of choice and the element of freedom as being an important element in this scenario.
There are two categories of people involved in political life. There are those who believe that the State should control our existence completely and there are those who believe that the State should not control our existence completely. I belong unashamedly to the second category. I do not believe that the State should control totally our existence and, therefore, because I believe that an element of choice is an important part of man's journey through this life I extend that to include not only social legislation but also economic legislation. The only person who really believes logically that the State should completely control the actions of its citizens is a person who believes in the collectivism of the State, a person who believes in the communist ideal.
My good friend, Senator Brendan Ryan, who I am sure will not mind my quoting him, says he is against private enterprise. He told me that he is against private enterprise, that he thinks private enterprise has no place in a modern society. I think what he is effectively saying is that the control of the distribution of wealth should be with the State, that the State should decide what should be done with the wealth produced by its citizens. A person who has that opinion should, in my opinion, also logically have the opinion that the State should control what a person should do with regard to morality. I believe that a certain element, a substantial element of private enterprise is necessary.
I believe that people should be rewarded for their effort. I believe people should be entitled to improve their lot by their hard work. Similarly, I think if they decide to take it easy they should suffer the economic consequences, subject to the State underwriting and underpinning a certain minimum standard of living for everybody. If you believe that what you believe in is the differentiation between people. You believe that people should be given the choice to work hard or not to work hard.
If you look back to 1951, to the conflict between the Church and State, if you try to understand what the Catholic Bishops were saying to the Irish nation in 1951, you will see they were saying that the Church should not interfere with man's duty to look after his own health, that man had a responsibility to look after his own health and the health of his wife and children and that was a family responsibility and the responsibility rested exclusively with the family and not with the State. That is effectively what the Church was saying.
It seems very strange in this day and age that the Church was saying that and was not willing to go on and say that the State should at least provide a minimum standard of health care for its citizens. But that is effectively what the Church was saying. Against that background you can see the logic of the Church's position. The Church was saying that in economic matters man must be given a free choice. The State must not organise the economic affairs of the country so as to take away the discretion from individuals.
That freedom of choice in economic matters is precisely the same freedom of choice which the Church should be fighting for in matters of morality. The Church should be saying, and it does in respect of certain sections of morality, that the question of whether one will obey the law of God should be a matter of free choice for the individual, not a matter to be determined and dictated by the laws of a country. Where the vociferous minority in the Irish Hierarchy have gone wrong is that they have gone against the principles of the Second Vatican Council, they have gone against the principles which recognise the dignity of man as a free thinking individual, and they have come out in favour of a situation where the morality of a country is dictated by the laws of the country and by the operation of the law.
This incorrect analysis, because that is what it is, of the proper relationship between the State and its citizens has led to a situation where the authoritarian pronouncements of certain Bishops have coincided with the political opportunism of the main Opposition party. When I said in a statement earlier in this controversy that certain Bishops of the Hierarchy were expressing a party political preference, what I was saying was that there is a coalition of interests, an identity of views between certain members of the Hierarchy and the present leadership of the Fianna Fáil Party, that the authoritarian views of that minority of the Hierarchy and their authoritarian analysis of society coincides with the authoritarian analysis of the organisation of the main political opposition. I was not suggesting that historically speaking all the Bishops were supporters of Fianna Fáil. I did not say that or I did not mean it but at present there is a coalition of interests between the authoritarian members of the Hierarchy and the authoritarian attitudes which predominate in the main Opposition party.
I stand for a very different kind of analysis of society and a very different kind of analysis of Catholicism from that. I stand for an analysis of society where to the maximum possible extent, not totally, the individual is responsible for his own actions, that he is responsible before his God and he is responsible to the other members of society not through the operation of the criminal law but is responsible in the self-esteem of the other members of society for his actions. We should so organise our laws as to permit people to do things which we might find morally objectionable ourselves. This point of view is by no means unique. Many examples of it have already been given in discussions between various people during the course of this debate, such as our laws on adultery, examples such as our law on fornication, many examples indeed with regard to the simple matter of telling lies. It is not against the law to tell a lie. It is only against the law if you tell a lie having taken an oath. We should not attempt to impose morality through the operation of the civil law of the State. What we have to do as legislators is to look at the effect of the introduction and the availability of contraceptives and see whether disimprovement which may come about in society is offset to a greater or lesser extent, or offset totally, by the increased freedom which this opportunity will give to the citizens of the country.
There is a heavy responsibility on those who allege that the free availability of non-medical contraceptives to those over 18 years of age is going to give rise to an increase in venereal disease or an increase in promiscuity or an increase in illegitimacy. There is a heavy burden on them to show that that is the case. We had an excellent contribution, as we always have, from Senator Fitzsimons. But Senator Fitzsimons' presentation of statistics was very selective. On the one hand, he gave a list of countries in Europe where non-medical contraceptives had become available freely and he examined the change in the level of illegitimate births in each country after that decision was taken. In all the countries he quoted there was a gradual increase after that date. I asked him at the time would he tell us what the position in Ireland in the corresponding period was when there was no availability of non-medical contraceptives. Later on in the speech, for a different purpose, he gave us those figures. During the period when contraceptives were not available in Ireland — again quoting the same figures that Senator Fitzsimons quoted — the percentage of illegitimacy in Ireland rose from 1.6 in 1961 to 3.35 in 1974. Even though we started from a lower base our rate of increase was considerably higher than the rate of increase elsewhere. Senator Fitzsimons has a responsibility to this House in quoting these figures to quote the position in the corresponding period in Ireland. He did not do so. I am now doing so and the only logical conclusion we can come to is that, whatever the reason for the increase in the rate of illegitimacy in Europe and in Ireland during that period the availability of contraceptives appeared to make no difference because the increase happened in Ireland at a time when contraceptives were not generally available in this country. With regard to that, people have failed dismally to show that there is any relationship between the availability of contraceptives per se as a primary or secondary factor in the increase in the rate of illegitimacy.
It is reasonable to look at the position as it exists in the North of Ireland. I would like to ask the bishops who minister in dioceses in both the North and South to publicly state whether there is any difference between the sexual behaviour of their flock North of the Border and their flock South of the Border. I have very strong evidence that there is no difference, because the increase in illegitimacy and the increase in promiscuity in general and the increase in venereal disease is related, in my opinion, not to the availability of contraceptives but to other things. It is related, for example, to the greater mobility of the population. There is no doubt that mobility increases the opportunities for promiscuous behaviour. It is related to the greater consumption by young people of alcoholic drink. It is related to a lot of other factors like that; but there is no evidence that it is, in fact, related in any way to the availability of non-medical contraceptives.
I must draw the House's attention to the reaction of the Catholic Hierarchy to the publication of the Bill in 1978 when it subsequently became the 1979 Bill and the reaction on this occasion. When the 1978 legislation was proposed and when it was being discussed over a period of some months going through both Houses of the Oireachtas, there was no comment or virtually no comment whatever from the members of the Hierarchy. In fact, the only comments I could trace were two very small comments. One was an indirect comment in a lenten pastoral from the then Archbishop of Dublin and the other an equally indirect comment, in a lenten pastoral issued some months after the publication of the Bill from the then Bishop of Cork, the late Dr. Lucey. I could see no other reference in the files to the legislation and it appears to me that that contrasts very strangely indeed with the fluster and the frequency of comments which greeted the publication of this legislation.
I have already dealt with the allegations contained in the statements of the present Archbishop of Dublin and the statements of the Bishop of Limerick, Most Reverend Dr. Newman, but it would be wrong to suggest that they were the only people who acted differently in 1985 than they had acted in 1978-79. Other Bishops, to varying degrees and in various ways, expressed opinions on the legislation. Very many of them expressed opinions which were balanced opinions. They said that the use of contraceptives could never be made right by any law and that Catholics had a duty not to use them and that the legislators should take their views into account, they were not in favour of the legislation. But even those balanced comments from people like Bishop Cassidy are completely at variance with their silence in 1979. I believe that the 1978-79 legislation was, in fact, approved by the Hierarchy, directly or indirectly, before it was introduced. There is nothing wrong with that. I have no objection to the Hierarchy approving anything, but what I do object to is the fact that they did not tell us that that was the case. I believe it to be the case. I may be wrong, but I believe it to be the case. I believe that the Irish Hierarchy had a significant part to play in the drafting of that legislation and during its consideration by the Oireachtas they did not tell the people that they had that part to play.
I think the different reaction is based on the fact that members of the Hierarchy now feel that they have not as direct an access to the Minister for Health as they had at that time. I will talk about that later in the context of a criticism of the Minister for Health which I will make before I finish, but I feel that the difference in reaction now and in 1979 is a source of great scandal to the very many supporters of the party of which I am a member. It is a source of great scandal indeed that we should in some way be considered less suitable members of the Church than the supporters of the main Opposition party. I know that there are members of the party to which I am privileged to belong, and indeed of the party with whom we are privileged to be in coalition, whose commitment to the objectives and to the institution of the Catholic Church is every bit as deep as the commitment of the main Opposition party. I am not saying more deep, I am saying as deep. The Catholic Church should be careful not to align itself with one political party because, if it does that, it is finished since the fortunes of every political party go up and down. The Church of which I am a member should not be aligned to any particular party — Fianna Fáil, Fine Gael or Labour. The Hierarchy and the other ecclesiastical authorities could look with profit at the position in other European countries where the Church has aligned itself with political parties, where the only people who are going to Mass are old women. If you go to Italy you find that nobody else goes to Mass except old women. I do not know if they are the same old women, or if it is that when they get old they start going to Mass, but over the period of years that I have been observing them they always seem to be the same old women. We would want to be very careful that that situation does not come about in this country.
I would like to appeal very strongly to the leaders of all political parties in this State to reconsider their attitude on legislation of this kind. It is not right that the Whip should apply to any individual in respect of social legislation of this kind. It is not correct. It is not right. I defend the right of people to act in accordance with their consciences. Having said that, there is no possibility and it is politically impossible for this Government or any Government made up of any combination of parties on this side of the House not to apply the Whip in the situation where Fianna Fáil determinedly apply the Whip in these items. It is Fianna Fáil who are getting in the way of a free vote on these issues. I feel that there should be a free vote on these issues. The issues are quite clear, issues like whether we should have a referendum on divorce, what our future legislation with regard to contraception should be. In all these matters legislation should be based on the individual assessment of the Members of the Oireachtas and should not be subject to the Whip. Therefore, I appeal, in the context of other legislation which will be coming before this Oireachtas, to Members of all parties and I appeal to the leaders of all parties to meet together and to discuss what can be done to depoliticise these issues, and to allow the individual assessments of the position to be given a free expression and not to be the subject of party discipline. I must say that as long as the Fianna Fáil Party have a rule that they will always apply a Whip then you are going to have an intolerable situation in this country and one which is going to reflect great discredit on the political parties and indeed on the ecclesiastical authorities also.
There are a number of points I would like to make about the Bill before I conclude. I will conclude just before 5 o'clock. I would appeal to the Minister, now that the ludicrous situation which existed up to 1979, and after the passing of the 1979 Act, is being changed, to implement the law when enacted. I do not expect that the Minister will go around checking in every chemist shop in the country to see whether they are selling contraceptives to people over 18 years of age or not. We must be sensible enough to leave that to the good sense of the general public to do the policing on our behalf in that regard, but if we are to restrict the number of outlets for the sale of contraceptives and if we are writing that into the law of the land and if we are saying the outlets will be family planning clinics, chemist shops, health boards, maternity hospitals and various other institutions like that, then we should ensure that they are not openly sold elsewhere.
In the city in which I live there was a report in the paper about contraceptives being freely available in the restaurant in the university. We are either going to apply the law or we are not going to apply the law. I appeal to the Minister to apply the law in that regard. If those attending universities who, by and large, are over 18 years of age, want contraceptives they can go and get them like anybody else at a place which is set aside by the law for the purchase of these contraceptives. That is a family planning clinic or a chemist shop. If we want to change the law and make them freely available everywhere a proposal to that effect should be brought before the Oireachtas. I certainly would not support such a proposal because the access points should be limited. That is the proper way in which the law should be drafted in the present climate.
I appeal to the Minister to ensure that the law will be enforced. That may require one or two prosecutions but if it does, so be it. There is a provision in the 1979 Act for the prosecuting of people who sell contraceptives who are not supposed to sell contraceptives. So if we are liberalising the law in this regard the Minister must ensure that the law is operated. I am talking about where the law is being flouted. The Minister has a duty to ensure that the law is not flouted and if we say, in our collective wisdom, that there should be a limited number of sale points that should be the law until such time as it is changed.
The Minister, who is a very courageous man, and the Government, who are a very courageous Government, should be congratulated for the way in which they have put this proposition to us in spite of the potential political damage it could cause. The Minister is, however, in my opinion also to be criticised. The Minister appeared to decide that he would do this without any consultation whatsoever. Members may find that strange from somebody who supports this legislation very passionately. I support it very strongly because it is good legislation which treats adults as adults. But the Minister should have been big enough to consult people and consult them openly. I am not talking about consultations behind closed doors. It is not good enough for the Minister, in a matter of social legislation, to contemplate only his own navel. That is not good enough. In this case he came up with the right answer but that is not the way in which these things should be done. It is not a matter which should be discussed only within the Department of Health or only within the Cabinet. Wider consultations should take place and the Minister failed totally to have these wider consultations.
Part of the political storm and part of the ecclesiastical storm which broke over the country as a result of the introduction of this legislation was, in my opinion, connected with the fact that such consultations did not take place. In respect of the ecclesiastical storm, and indeed some of the political storm also, it would be reasonable for people to have said, "We should have been consulted and here is our opinion of the Bill." What they, in fact, did was they went against the Bill even though if individually they were consulted they might have made recommendations similar to those in the Bill. That applies in particular to the main Opposition party. From my contacts in the main Opposition party — I do have contacts in the main Opposition party — I would say there was a general feeling that the law needed amendment. But we certainly did not make it easy. The Minister did not make it easy for the Opposition to behave in a responsible fashion by the manner of his introduction of the legislation, not so much the manner of its introduction or the speed of its passage, because the Opposition had decided on its position long in advance of that, but the fact that prior consultation did not take place. I contrast that with the kind of consultation which is taking place over the marriage reform procedure. That may come down to a political dog fight in the end but everybody will have had their say. Everybody in the country will have had his or her say and that is good.
There is nothing wrong with the Minister publishing a Green Paper and following all that up with a White Paper. A Green Paper is a set of policy options and a White Paper is a proposal. There is no reason why the Minister could not have published a White Paper on this. There is no reason why the Minister could not publish a White Paper on the many other controversial things which he is proposing as well. I think it should be said to the Minister that while respecting the wise conclusions he has come to I certainly do not respect the manner in which the affair was dealt with over the last two years. I would like to recommend very strongly to the Government that far more use should be made of the White Paper procedures.
But, faced as we are with the actual proposal, I think those of us who believe in a pluralist society and those of us who believe in the dignity of the human person and the freedom of choice of the person have no choice whatsoever but to support his Bill. It will add considerably to the creation of a society in Ireland where adults will be treated as adults and the State will not be interfering in matters which should properly be outside its competence.