Seanad Éireann debate -
Thursday, 24 Jun 1993

Vol. 137 No. 2

Health (Family Planning) (Amendment) Bill, 1993: Committee and Final Stages.

Question proposed: "That section 1 stand part of the Bill."

Mr. O'Kennedy

From the Minister's explanation regarding the Title of the Bill, may I refer him to section 8, and to many sections of other Bills that have been passed through the Oireachtas. Section 8 states "Sections 5 and 6 of the principal Act and sections 5 and 6 of the Act of 1992 are hereby repealed." I am sure that no solicitor of any standing, much less the Attorney-General, would suggest to the Minister that he is not empowered to introduce legislation that repeals existing legislation he finds unacceptable; of course the Minister can do that. However, to be consistent in the views he has expressed — they may not necessarily be in line with my views — he would repeal all existing legislation concerning health and family planning in one fell swoop and would then introduce legislation for the purposes he has expressed today, particularly for the control of AIDS.

I am surprised that his advisers — legal or otherwise — have suggested to him, as he said here, that the reason this is being presented under health and family planning is because one has to work within existing legislation. Have they not heard of repealing Bills in toto and replacing them with new legislation? Legislation should be as precise as possible. I tell the Minister I can see solicitors having a field day with this Bill, especially in regard to section 2, where a contraceptive sheath is no longer defined as a contraceptive.

Minister for Health (Mr. Howlin)

It was only last November——

An Leas-Chathaoirleach

I would like to remind the Senator that we are discussing section 1.

Mr. O'Kennedy

I am aware of that, a Leas-Chathaoirligh, but I wished to illustrate the point in relation to section 1. I do not think the Japanese would look for an Irish solution to a Japanese problem, that the citizens of Togo would look for a Japanese solution to a problem affecting Togo or that Afghanistan would look for an Australian solution to an Afghan problem. The Japanese can have Japanese solutions to Japanese problems — that is entirely appropriate — and the Australians likewise, but Ministers come here and denigrate the notion that we have responsibility to legislate for Irish solutions to Irish problems, that we are failing in our responsibility, are ridiculous and are figures of fun because of this. The attitude is let us have African or other solutions to Irish problems but do not contemplate having our own solution, as other countries would do in regard to their problems. We should take action that is appropriate to our circumstances.

Mrs. McGennis

I had some reservations about the fact that this was not described as a contraceptive Bill, but the Minister has explained this to my satisfaction. I was the first speaker on this side of the House to refer to the phrase "an Irish solution to an Irish problem", and I do so again. There are Irish solutions to Irish problems. It is widely acknowledged that this phrase was first used in relation to sexual matters and especially in discussions on legislation on contraceptives. There are universal solutions and ways to control fertility, including the rhythm method, IUDs, the contraceptive pill, the sheath, etc. There is no specific Irish solution to control fertility. That is why I used this term in my contribution.

Mr. Reynolds

I also asked why a condom is no longer considered a form of contraceptive. However, I accept that the deregulation of condoms has ensured that they will be more easily available. I was a Members of the Dáil when Senator O'Kennedy was a member of the Government which enacted the Health (Family Planning) Act, 1992. It was the most appalling piece of legislation enacted by the Oireachtas. Unlike this legislation, it did not deal with reality.

Mr. Howlin

We are dealing with the Title of the Bill. I did not want to repeal the existing legislation. I sought to deregulate condoms. This legislation, in its totality, deals with other issues which will be addressed separately.

There has been a synonym for fudges, and that is an "Irish solution to an Irish problem." Perhaps we should stop using such phrases because they bring us into disrepute. Like Togo or any other country, we must deal with our problems as part of a world affected in the same way. Our physiology is the same as other peoples. We must address issues on that basis and learn from and improve on the experience of others.

The definition in section 1 amends existing legislation; it does not seek to repeal all the existing legislation in this area because other issues relating to family planning must be addressed and will be addressed by me in due course.

Mr. O'Kennedy

When this legislation is passed, the courts will look at it for what it is and not for what we said or the Minister intended. From the point of view of clarity and precision if this legislation is to be effectively implemented, all the existing legislation should be repealed.

Mr. Howlin

Why would I do that?

Mr. O'Kennedy

The Minister is defining what is understood to be a contraceptive as something else. Perhaps he wants to maintain the corpus of family planning legislation. Such a disparity should not exist in legislation.

Senator Norris allowed himself, for once, to support what he would regard as obfuscation — an Irish solution to an Irish problem — because it suits his purpose. At any other time this would not be acceptable as Senator Norris was honest enough to say. This is a matter of precision in legislation and if the Minister and his advisers are satisfied to adhere to this, then so be it.

Although it is unlikely to happen, the manufacturers of contraceptive sheaths could contest the notion that what they have been producing has been excluded as a contraceptive by definition in Irish law. This is the irony and the contradiction in this law.

Question put and agreed to.

SECTION 2.

Question proposed: "That section 2 stand part of the Bill."

Mr. Roche

I do not want to engage in semantics but the deregulation of the condom is surely unique to this country. I have heard of the deregulation of airlines, etc., but never deregulating a condom. That is the quintessential Irish solution. It is an elegant solution to a problem and illustrates the point that we must look at appropriate solutions to problems.

Is the Minister content with the substance of section 2? The fact that the word "contraceptive" appears before the word "sheath" is a recognition that for 150 years this has not been a balloon, a water bomb, etc. Is the Minister satisfied that the word contraceptive means any appliance or instrument, excluding the contraceptive sheath? By so describing the product we are deregulating, are we leaving ourselves open to a perverse interpretation which may negate the Minister's actions? I hope that would not be the case. I support this section, but I have a concern.

Mr. Howlin

We have had many definitions of contraceptives. The Criminal Law (Amendment) Act, 1935, defined contraceptives as "any appliance, instrument, drug preparation or thing designed, prepared or intended to prevent pregnancy resulting from sexual intercourse between human beings". The 1979 legislation repeated that definition. The contraceptive sheath was never specifically mentioned in legislation until the Health (Family Planning) Act, 1992, introduced by my distinguished predecessor. He included contraceptive sheaths because he wanted to make regulations dealing with distribution, age, location, etc. It is my objective to remove regulations relating to age, location and availability.

Mr. O'Kennedy

The Minister said it is his intention to remove restrictions on the sale of condoms in certain areas. Yet, he stated in the Dáil that he will reserve the right to introduce regulations to restrict the sale of condoms in what he called "inappropriate places." I regard this as very inconsistent.

An Leas-Chathaoirleach

I suggest to the Senator that the points he is making are more appropriate to section 3.

Question put and agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mr. Reynolds

I agree with Senator O'Kennedy to a certain extent. According to the provisions of the 1992 legislation condoms can be purchased in shops and bars as long as they were not purchased from vending machines. Does this still stand?

Mr. Howlin

Yes.

Mr. Reynolds

Section 3 gives the Minister the power to prohibit the sale of condoms in certain places. He probably introduced this provision in case difficulties arise. I find it difficult to think what areas would be regarded as inappropriate. I am interested to know the reasoning behind this proposal.

Mr. O'Kennedy

I suggest it would be more appropriate and more of a safeguard for the purposes the Minister wishes to achieve if condoms were available in places where young people were fully in control of their senses, were fully compos mentis, and were not influenced by alcohol or drugs. They would then be able to make an intelligent and measured decision and would be able to use condoms as advised by people who say how they should be used in an intelligent and rational way. Such places seem to me to be as appropriate, to say the least, as places where they would congregate and, unfortunately, be influenced and have their judgment and capacity diminished by the consumption of alcohol. Is the Minister of the view that the latter places I have mentioned are appropriate or inappropriate? I suggest that places where young people are subject to parental or even school guidance would be appropriate. I do not know the Minister's view on this but I would feel more reassured, although I do not support the thrust of this Bill at all, if condoms were available in places where young people could make properly balanced decisions and would not be influenced by alcohol or drugs.

Mrs. McGennis

I would support Senator O'Kennedy's line of argument if I thought he was serious and believed that people should not be encouraged to use condoms if they are not in full control of their faculties and senses. However, what happens in reality is that sex often takes place without protection after young people leave discos and pubs. This section of the Bill is necessary. I believe, perhaps in contradiction to Senator O'Kennedy's argument, that primary schools and libraries, which are places where people gain information and knowledge, would be totally inappropriate for the sale of contraceptives. Senator O'Kennedy may be making the argument that these would be the appropriate places to have them on sale if we are to convey to users how they are to be used and their function but I regard these places as inappropriate.

The Minister said he will not list where they should not be sold. One is allowed to object to the Advertising Standards Authority if one finds advertisements on bus shelters or other advertising hoardings to be offensive. This section of the Bill is sensible. If people regard places where condoms are on sale through vending machines as offensive or objectionable the Minister will have the power to prohibit their sale in such places. Objecting to this section is quibbling for the sake of quibbling.

Mr. Howlin

To respond to Senator Reynolds, I have said I have no intention of listing places because it would be difficult to compile an exhaustive list. I genuinely do not believe, as I said in the other House, that there will be inappropriate locations but should this happen and my attention is brought to the matter I will deal with it.

I was concerned that in some countries there are external vending machines. I do not think, for example, that putting an external vending machine adjacent to a church would be appropriate. I do not think, like Senator McGennis, that a primary school would be an appropriate location. I have no fears that anybody would seek to site such machines in such places. I have every faith that this provision in the Bill will not prove to be necessary but I want the legislative authority to deal with such a problem if it does arise.

I understand Senator O'Kennedy has a fundamental position on this, he is opposed to the use of condoms.

Mr. O'Kennedy

No, I did not say that.

Mr. Howlin

Is that not the case?

Mr. O'Kennedy

I am opposed to the free availability the Minister is proposing.

Mr. Howlin

I apologise if I have misrepresented the Senator. I listened carefully to what the Senator said here, and indeed to his passionate contribution to the last time a Bill like this came before the other House. He was always clear and forthright in his position; I understood his position to be one of outright opposition to the use of condoms. I apologise if I have misrepresented his position.

I believe it is consistent to change the legal framework to allow for broad availability and to remove most of the statutory regulations other than two of these regulations. It is entirely appropriate and right that we maintain the two regulations regarding location and the ability to set standards which we will deal with in a later section. It is consistent with my view that the sale of condoms should be deregulated that we should have these residual powers as well.

Mr. O'Kennedy

I do not want to be understood as suggesting that condom machines should be located at primary schools, I wish to make that point clear. What I am saying is that I would have thought that a fundamental precondition for using condoms is that people would be able to exercise capacity, mental and otherwise, in their use. I worry greatly that where young people are influenced by alcohol and where their capacity to make rational judgment is thereby greatly diminished, there will be pressure on young girls particularly to concede to what is nowadays called "negotiation", the pre-sexual negotiation of young men who will not be in a condition in which they are concerned. That is the risk I am talking about. I am more concerned about the availability of condoms in public houses than I would be about their availability in places where people are fully compos mentis.

Question put and agreed to.

Sections 4 and 5 agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mr. O'Kennedy

The Minister has indicated he does not envisage making regulations or see the need for them. It would be helpful if he could explain why the legislation contains a provision enabling and empowering him to make regulations. Ministerial or Executive responsibility should not be lightly given. He mentioned he did not wish to see contraceptives sold outside a church. Does he have other locations in mind so that we could agree this section? I would agree the section with more enthusiasm if the Minister gave other illustrations without prejudice to what he might do in any given circumstance.

Mr. Howlin

This section is a standard provision to enable me to introduce regulations. I have the power to do so under two different sections. The first concerns the location of vending machines and the second concerns standards. I intend to introduce standards, as I said on Second Stage. I will apply the European standard now finalised. Pending that, the British "kite" mark or any comparable EC standard will be acceptable. The standard of condoms should be regulated so that inferior products will not be available on the Irish market. It is my intention to bring in regulations under section 4.

In relation to section 3, it is not my intention to bring in regulations unless my attention is drawn to an abuse of the deregulation in relation to the location of vending machines. I will deal effectively with any such abuse.

Question put and agreed to.

SECTION 7.

Question proposed: "That section 7 stand part of the Bill."

Mr. Reynolds

The Minister will be aware that a number of condom vending machines have been in place in the past couple of years. Have there been any convictions?

Mr. Howlin

I am not aware of any.

Question put and agreed to.

Section 8 agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mr. O'Kennedy

Allowing for my general reservations about this legislation, it would make for better legislation if the Minister repealed those parts of the law he finds unacceptable or unpalatable and introduced a new Bill. If he has got advice and intends to adhere to it, so be it. I believe some lawyers will do well out of this.

Question put and agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.

Mr. Howlin

I thank Senators for their thoughtful contributions and the speed with which this legislation passed with a great degree of consideration from all Members representing all shades of opinion in the House. I greatly appreciate the co-operation.

An Leas-Chathaoirleach

Thank you, Minister. When is it proposed to sit again?

Mr. Mullooly

It is proposed to sit at 2.30 p.m. on Tuesday, 29 June.