An amendment list has been circulated. Has everybody got a copy of it?
Health (Family Planning) (Amendment) Bill, 1985: Report and Final Stages.
Yes.
Amendment No. 3 would impose a charge and is out of order. Amendment No. 1, Senator Mark Killilea. The proposer of the amendment can speak and reply and other Members can speak only once and must speak to the amendment. I will be very strict on that.
I move amendment No. 1:
In page 14, after "chemist," to add "or is a servant or agent acting under a registered Company under the Companies Act, 1963,"
Because of my limited layman's ability I am open to correction but I think the amendment should read, "in page 2, line 14, after the words "pharmaceutical chemist or""is a servant or agent acting under a registered company under the Companies Act, 1963 or" and then continue the paragraph.
Does the House agree to accept a verbal amendment to this amendment?
Yes.
To be clear about what Senator Killilea is saying, does he want to amend this subsection so that once amended it would read "he is or is the servant or agent acting as such of a pharmaceutical chemist or is a servant or agent acting under a registered company under the Companies Act, 1963 or is a dispensing chemist or druggist"?
Exactly so.
He should be allowed to amend this verbally in this way. This may bring about a situation that he is not aware of.
Does the House agree to that?
Senators
Yes.
I bring this in because of the insinuations not alone within this House but by the public at large over recent weeks that we should be seen as legislators and that we should act responsibly in that field. We have the situation of women living in a sparsely populated area some distance from a town which has a population of maybe 500 or 600 and has two chemist shops, and both could be registered companies. It could happen that both pharmacists would not be present on a specific day, or days, or weeks, and what may rightfully be given to those women under this Bill may not be given to them without breaking the law. That has to be corrected and amending legislation is not the way to do it. We as legislators must do it. We cannot discriminate against anybody in this Bill. Under the 1979 Act a prescription was needed and certain rules and regulations govern the practices of the pharmaceutical companies. Under the amended Act the prescription is taken out, but account is not taken of the fact that in so doing the Government have inadvertently discriminated against companies registered under the Companies Act, 1963. Someone somewhere in this island will proceed to the Supreme Court and legislators will get another rap. Legislators are going to be told again that they are not doing their job. I emphasise in putting down this amendment, that at least we are offering the opportunity to the Seanad to present a Bill to the President which to the best of our knowledge is constitutional. That is the least that would be expected of us. Within that framework I would recommend to the Seanad that the word "proposed" used in this first amendment would be included in the Bill.
The House may remember that I raised this matter during the previous discussion on Committee Stage because much point was made about the conscience clause and the fact that individual pharmaceutical chemists might decide not to dispense whereas the limited liability companies with a pharmaceutical outlet would not be allowed to dispense. With that in mind I produced the amendment which is before the House and which I mentioned previously. Senator Mark Killilea asked if he could discuss it with me and he made a slight change in it. It has only just suddenly struck me that making that change has opened up the whole scope of contraceptive availability. The phrase "or is a servant or agent acting under a registered company under the Companies Act" has a very wide implication and it meets with my own feelings about family planning. Senators would need to consider it in coming to their own conclusions about how they will vote on the amendment. The amendment liberalises the Bill as it stands considerably.
I am amazed that Senator Killilea, presumably with the support of the Fianna Fáil Party, should propose this amendment. They talked to us at great length with enormous fluency about the floodgates of depravity that would be opened by the limited measures suggested by the Minister. Here we have an amendment providing that anyone who is a servant or agent acting under a registered company — not a registered pharmaceutical company but any registered company — under the Companies Act, 1963, should be enabled to sell contraceptives. We can sell them in McDonald's now. The fellow delivering the parcels for Brown Thomas's will be able to sell them. Anyone at all will be able to sell them. I suggest very strongly to the Minister that he instantly accept this amendment and let Fianna Fáil go back to the Dáil and explain exactly what they have done to the Minister's Bill and how they have opened the floodgates of depravity to such an extent that what the Minister was proposing pales into insignificance compared with what this amendment is providing. If I was the Minister I would leap to accept this amendment. Both politically and socially he will be moving everything forward in this country by leaps and bounds.
I will adopt somewhat the same attitude as Senator McGuinness to this amendment. I noticed that it was seconded in a more conscious way than it was proposed. The full implications were clear to Senator Robb. On the other hand, when I recall the thrust of one of Senator Killilea's contributions on Committee Stage it was quite clear that the main cause of anxiety on his part was that some people might be deprived of making profits, and that would be unconstitutional. I think I am being fair to him. Some people could make profits out of the Bill, others are going to be deprived of the possibility of making profits out of the Bill. It is consistent with that to propose the amendment which he has done which is to open up all the possible access points he could possibly think of. How many thousands of companies are there under the Companies Act and how many hundreds of thousands of people are employed by those? The mind really boggles. We really are suffering from the early hour of the morning in trying to grapple with what is proposed by Senator Killilea. I know that the profit motive is an important one. People must be entitled to make their profits on selling non-medical contraceptives, but is this not taking it a little far? Perhaps Senator Killilea could deal with that in his reply to this debate.
Senator Killilea is a little inconsistent. With the amendment which he has proposed he should really have suggested that the remainder of the Bill could be effectively deleted. I am on record for a long time as believing, as I have said on numerous times on Committee Stage, that this treating of contraceptive facilities as if they were some sort of contagious disease is a somewhat unhealthy symptom of Irish society. Senator Killilea proposes that any servant or agent of a registered company should be entitled to sell contraceptives. The remaining provisions of this Bill and, indeed, of the 1979 Act are nonsense and we have solved the problem of contraceptive availability in this country. I would be delighted if the Minister would accept the amendment, send it back to the Dáil and we will never again in this House or in the other House have to discuss the question of availability of contraceptive facilities.
In speaking to this amendment I share the views expressed by the people who have spoken to it and not of the proposer. In line with the Government's attitude on this legislation, to allow this amendment would create all the problems, the floodgates of promiscuity, the widening up of all the areas of access for all the people over which we would have no control. We would have people dispensing this who would have no qualifications; they would just be servants or agents of any registered company in Ireland. Possibly that is not what Senator Killilea wanted in his amendment. We could make political capital out of this and create embarrassment, but the Government would not accept an amendment like this to legislation that they framed carefully to ensure that contraceptives were available throughout the country in areas that they are not now available, but in a controlled manner. This part of the Bill was condemned outright for being permissive. If we allow this amendment to go through, politically the Senator will have committed suicide, and I like him too much to let him commit suicide. I suggest he withdraw the amendment to avoid embarrassment. Obviously, in every possible outlet everyone would be an agent or servant of that outlet registered under the Companies Act and would be allowed to sell contraceptives. I do not think that is what he means or wants. The Government would not want it either.
In fairness to Senator Killilea and because of the very late hour, Senator Ferris has highlighted the fact that it was not Senator Killilea's intention to have contraceptives available on the free-for-all and wide scale under which this could be interpreted. I realise the implications involved. That must be said so that there is no misinterpretation of his motive.
Perhaps it was a Freudian slip.
I am sure that what Senator Killilea intended was to state that in page 2, line 14, after "or" to add "or of a pharmaceutical chemist or as his servant or agent acting under a registered pharmaceutical company under the Companies Act, 1963." It would be wrong to attribute to him the kind of widespread distribution that we spoke about earlier. In that way it would be extraordinarily discriminatory. It really would discriminate against the family pharmaceutical firm who had not registered themselves as a company. They would be the only people left in the country who would not be selling the condoms and making money as a result. I am not interested in that. There is a genuine anomaly in relation to pharmaceutical companies. If the Minister of State gave an undertaking to examine the situation that might arise because of the existence of that anomaly, we should accept that and get some kind of a commitment in relation to removing this anomaly in the short term.
An Leas-Chathaoirleach
Senator Killilea to conclude.
As I rose to speak I realised that I had left out the words that Senator Higgins mentioned. I am not apologetic about it in that I am a lay person as regards amendments in the House. I know exactly what I wanted. It is my fault that I did not put it down. As the Senators have said, that is not my intention and it never has been. I have erred in not putting it in the correct phraseology. I knew in my mind what I wanted but I had not the time to consider it. I handed it in and did not think about it until I saw it in print. That still does not alter the fact that this legislation is discriminatory. I am withdrawing the amendment, of course, because of my failure to put the phraseology together correctly. Section 2 is discriminatory. Whether we like it or not, we are not behaving correctly as legislators on this issue. I do not want to be accused of not being a legislator. I may be accused of not being a good legislator, but that is a different story. I have explained the situation and I assume everybody has understood me. I withdraw the amendment because of the error I made. Senator Robb helped me on a point of where we differed as to what would happen. Are we not elected to do our best in our own individual way?
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 3, between lines 3 and 4, to insert the following—
"3.—Nothing in section 11 of the Principal Act shall be construed as enabling a health board to refuse to provide a comprehensive family planning service under this Act or under the Principal Act."
I have tabled this amendment to emphasise the point I was making earlier about the necessity for health boards to provide family planning services and the desirability of preventing them from exercising what might be called a collective conscience thereby making this legislation virtually useless. Where section 11 of the Principal Act says:
Nothing in this Act should be construed as obliging any person to take part in the provision of a family planning service, the giving of prescriptions or authorisations for the purposes of this Act, or the sale, importation into the State, manufacture, advertising or display of contraceptives.
"Any person" does not include a corporate person such as the health board. The amendment proposes that we should add into this Bill a section 3 saying that nothing in section 11 of the principal Act shall be construed as enabling a health board to refuse to provide a comprehensive family planning service under this Act or under the principal Act. This would be a question of making sure that the conscience clause would apply to individuals, if it must apply, but that it would not apply to health boards and that health boards could not by manoeuvring take away the effectiveness of the Act.
I am not sure whether the Minister can tell me whether the interpretation of "person" in section 11 could include a corporate person but I feel that for the avoidance of doubt it would be better to include a definite declaratory section showing that health boards cannot manoeuvre and behave in this way.
I will be uncharacteristically brief. There is a doubt——
An Leas-Chathaoirleach
Are you seconding the amendment?
I am seconding the amendment as my name on the amendment suggests. There is a doubt in my mind not so much about people in health boards who might have conscientious objections but that the possibility of interesting political manoeuvres might prove too tempting to people if this matter were not cleared up. There could be a line of least resistance for people of all parties and none to deal with objections to the implication of the floodgates that we have heard so much about recently. It needs to be made perfectly clear that no health board has the right in any way to interfere with the proper operation of this legislation when it goes through.
I agree completely with the thrust and wording of this amendment and, if I had any doubt, such as has been expressed by Senator McGuinness, I think that it is an amendment that should be supported. When we were discussing this issue earlier this evening on Committee Stage I was satisfied from the replies given by the Minister and, indeed, from the wording of section 11 of the 1979 Act, that by its very essence and the way in which it is framed, it necessarily relates to the individual. It is an attribute of a person to have a conscience and an attribute of a limited company, even in Senator Killilea's framing of a company, or of a board such as a health board. Therefore, the obvious, sensible and clear construction of section 11 is that the reference to a person is to an individual exercising a right of conscientious objection although there is no reference in the section itself to the word "conscientious objections"—that is provided as the explanation at the side of that section as the clear import of it.
When the Minister was questioned on Committee Stage about this, I understood him to give the clearest assurance that if any health board acted in a collective way invoking section 11 they would be acting ultra vires and that the Minister would take action in that regard under section 6 of the Health Act, 1970. Perhaps he would confirm that in his contributions to the debate. If that is the case then it would not be necessary to have an exclusive amendment. I would like to emphasise that I am completely in sympathy with the purpose and wording of this amendment.
Could I have some clarification? Could there be a situation where the health board might not necessarily refuse but the officials, collectively, under section 11 of the main Act would not co-operate? Could that situation arise? With regard to the double negative in that amendment, "nothing in section 11 of the principal Act shall be construed as enabling a health board to refuse", has that the same meaning as to say the health board could be compelled? I am not entirely satisfied that it means the same thing.
I shall not delay the House. I just want to say that Senator Fitzsimons has touched on a point and it is up to the movers of the amendment to reply to it. When we debated this earlier on we spoke about conscience as an attribute of individuals and where people have conscientious objections they seek to register these and to have them facilitated but not in such a manner as to obstruct the implementation of a piece of legislation or to obstruct the delivery to a citizen of such facilities as are provided for in law.
I equally support the spirit of this amendment in so far as it seeks to remove from a group of individuals a level of obstruction in regard to what might be the spirit of something which has been passed by both Houses. I went further and raised the question at that particular stage in that it is a more orderly way of the delivery of health services if one has a knowledge in advance of those who have conscientious objections so that it cannot affect the actual delivery of the service in relation to groups of cases and so forth. I am sure that the movers of the amendment will be able to make up their minds. There was a very important guarantee given in this House and I hope it will receive the widest publicity that any health board who seek to frustrate the provision of this service would, in fact be acting ultra vires. Not only that, but it was the Minister's intention to invoke such powers as he had under section 6 to effect the delivery of these services. We debated the delivery of them in detail for quite a long time afterwards. I would be happy with a repetition of this. Perhaps the Minister might indicate in his reply how he proposes in the short or medium term to address any other shortfall in the delivery of these services.
I do not accept that this amendment is necessary. I am satisfied that the provisions of section 2 cannot be interpreted by a health board as allowing them to refuse to provide family planning services. Health boards, in any event, are obliged under the Family Planning Regulations Act, 1980, to provide such a service at present. I do not need to repeat what I have already said to Senators Higgins and Robinson that under section 6 of the 1970 Health Act, if a health board fail to provide such a service under the regulations stipulated under the Bill the Minister can intervene.
As I have received this reassurance from the Minister I must accept that he is sincere in making it. I will not put this amendment to a vote. I would like to remind him that my worry has been not just that health boards might try to exercise a collective conscience but also that in hospitals ethical rules might be put forward which would militate against the provision of a proper family planning service. I hope the assurance the Minister has given me will also cover hospitals which are run by health boards. It is clear that the Minister may not have power to do anything about a private hospitals but where a hospital is run by a health board and funded by State funds, the Minister must have power to prevent a sort of collective conscience ethical rules situation being brought about which would militate against the provision of a proper family planning service.
With the leave of the House I will withdraw the amendment on the assurance of the Minister but I hope if things turn not to be as helpful as the Minister thinks he would be prepared to bring in amending legislation to bring about this situation.
Amendment, by leave, withdrawn.
Could I ask why amendment No. 3 is not in order?
The Cathaoirleach is in charge and he has made a ruling.
An Leas-Chathaoirleach
The Cathaoirleach made a ruling.
I did not hear it. It is unfortunate, as a consequence of the way this Bill was rushed through the House that we did not get time to get advice on this amendment. I am sure if we had time we would have been able to frame it in such a way that it would not be out of order.
I do not think that this Bill has been rushed through the House. It has been debated for three days and three quarters of a night. The Chair has already given a ruling that the amendment would create a charge on the Exchequer and was out of order. The House accepted that.
Could I have one final word? As regards the charge, it would be a very minimal amount.
An Leas-Chathaoirleach
We have got to have some consideration.
Amendment No. 3 not moved.
Agreed to take remaining Stage now.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."
Before the Bill is finally passed I would like to record my faith in our young people. Much has been said about them. I would like to record, finally and conclusively on this Bill, that whatever other objections there are to it and whatever other problems there are, our young people have been very badly served by many of the comments that have been made about them, the imputations that have been directed towards them, the many suggestions of their irresponsibility implied or imputed that have been thrown about inside and outside both Houses over the last three or four weeks. Our young people have handled much bigger responsibilities than this. A lot of the discussion on the Bill reflected a most extraordinarily paternalistic and patronising attitude to our young people. I am confident that the passage of the Bill will represent what most young people recognise it to be: a damp squib of no significance in their lives, which regularises a situation which for most of them was settled long ago.
I do not wish to make any criticism or comments on the young people to which objection could be taken. On the Second Stage of the Bill I made it clear that their shoulders were broad enough and strong enough to stand up to those pressures.
I will be brief. I feel a word in conclusion should not go amiss. In relation to this Bill and also in relation to the pro-life amendment, some of the more negative aspects of human sexuality have been brought into focus and have been widely discussed. They have been paraded before the young people about whom we have all spoken with such affection on the one hand and doubt on the other. This is a pity. I hope that it is an end to that kind of negative attitude towards human sexuality. In many ways I blame the Opposition. It should have been possible, if narrow political expediency had not dominated, that both of these measures could have been dealt with more expeditiously and that we would have avoided two very damaging negative debates on the subject of human sexuality. I hope that the national sexual neurosis will be laid to rest for a while.
I would like to state finally on this vital Bill that one or two questions remain unanswered. There is one question which I asked on Second Stage which is important now. If this Bill has taken an enormous amount of time to go through the Seanad, it is because it has been opposed tooth and nail by Fianna Fáil on all Stages. I asked Fianna Fáil for a commitment — because they felt so strongly, supposedly or openly, about this Bill — to repeal it if they came back into power. No such commitment has come; yet, the Fianna Fáil Party can put down——
An Leas-Chathaoirleach
On this Stage the Senator is confined to speaking on what is in the Bill.
I shall do exactly that. The Fianna Fáil Party put down an amendment to what was in the Bill this evening calling for a referendum. This is something I have never seen the Fianna Fáil Party put down on an important Bill before. If they feel so strongly about this——
An Leas-Chathaoirleach
Will the Senator refer to the Bill, please, or else resume his seat?
(Interruptions.)
This Bill, as we know, is unenforceable, like the 1979 Act. To call for a referendum on it when there was not one held on the 1979 Bill is hypocrisy.
If a referendum was called on the Bill, it would be defeated like the pro-life amendment was.
I should like to thank all Members of the House for having contributed in detail on this Bill. I am sure when it is enacted that all the fears which were expressed will be proved groundless. It is appropriate that the House went into great detail to enable the Bill to be more informative both to the Members of the House and to the public. Despite some disagreements as to how we should proceed I should like to thank everybody for having sat so late to ensure that the Bill was passed.
I should like to express my sincere thanks to all the Members of the House who have contributed to this debate. I should like to say to Senator Killilea: to err is human; to forgive is divine.
We are waiting a long time for the Minister to do this.
Basically, the Bill is about the provision of contraceptives to people of 18 years of age and over. During the course of this debate, as has been already stated some people opposed it as if it was a Bill that would introduce into society the availability of condoms, particularly to young people, resulting in a lot of things. One Senator in particular, when speaking on Second Stage, borrowed a number of phrases which were delivered by certain speakers in the Dáil. he repeated them here. It emerged in the finality of the Bill that there were some people who wanted to be more liberal in their approach to it than the Government are. I thank all those who contributed. I hope the Bill proves to be very good legislation.
Question put and agreed to.