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Seanad Éireann debate -
Wednesday, 12 Dec 2001

Vol. 168 No. 23

An Bille um an gCúigiu Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le linn Toirchis a Chosaint), 2001: Céim an Choiste. Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Committee Stage.

As the substance of the debate on Committee Stage will relate to the First and Second Schedules to the Bill, it would be appropriate to have those Schedules decided upon before deciding on section 1 of the Bill which actually provides for the insertion of the text in the Constitution. I suggest the House postpone consideration of sections 1 and 2 of the Bill until after the First and Second Schedules have been disposed of. This is a procedure adopted on Committee Stage in the Seanad in the case of previous Bills to amend the Constitution and which, I suggest, would lend itself to a more logically ordered debate. I formally ask the Leader of the House, therefore, to move, in accordance with Standing Order 107, that consideration of sections 1 and 2 of the Bill be postponed until the First and Second Schedules have been disposed of.

I move:

That consideration of sections 1 and 2 of the Bill be postponed until the First and Second Schedules shall have been disposed of.

Question put and declared carried.

Mr. Ryan

Tairgim leasú a 2:

I leathanach 6, líne 7, "Déanfar, go sonrach," a scriosadh agus "D'ainneoin fho-alt 3º, déanfar” a chur ina ionad.

I move amendment No. 2:

In page 7, line 7, to delete "In particular" and substitute "Notwithstanding subsection 3º”.

Molaim an leasú.

This amendment proposes to delete the words "in particular" from the beginning of the proposed Article 40.3.4º and substitute the words "Notwithstanding subsection 3º." The term "in particular" when used in the proposed Article 40.3.4º makes it clear that the statute envisaged by the amendment, if enacted, is not intended to be a restatement of the term "unborn" as used in Article 40.3.3º. The Supreme Court when it comes to the interpretation of the Constitution must follow the well established principle of harmonious interpretation laid down by the courts. In other words, constitutional provisions should not be construed in isolation from all other parts of the Constitution among which they are imbed ded, but should be so construed as to harmonise with other parts of the Constitution. Therefore, neither of these Articles can be regarded as taking precedence over the other, they must be construed together. If the term "notwithstanding" was used, it would change the nature of the relationship between Articles 40.3.3º and 40.3.4º and suggest that the latter Article was to be construed independently of Article 40.3.3º rather in harmony with it. It is also worth repeating that Article 40.3.3º always envisaged that the Legislature would make laws and that it has been criticised in the past by the Judiciary for not having enacted such legislation. The legislation envisaged in these proposals will address this particular criticism.

Mr. Ryan

I am delighted to hear the Minister subscribe to the principle of harmonious interpretation of the Constitution. The legislative part of this amendment to the Constitution, which my party believes is in breach of the Constitution, suggests that we will specifically say that people will not be prosecuted in this State for travelling outside it to do something that would be an offence in the State. If something was ever out of harmony with the Constitution it is the establishment of this principle. Section 4(2) of the Second Schedule states: "This Act does not operate to restrict any person from travelling to another state on the ground that his or her intended conduct there would, if it occurred in the State, constitute an offence. . . " This is the classical Irish mix-up on the issue of abortion. To pretend that we are superior to the rest of the world, we make something illegal here but then we export it to somewhere else in the world and say that under no circumstances will we use our law or Constitution to stop people travelling there.

If there was ever anything which brought the whole sense of constitutional order into disharmony it is the establishment of this principle in our Constitution. Essentially, for the sake of making a political statement about what the Government wants to do, we are writing into our Constitution the right to commit an offence as long as it is not committed here.

That is an exercise in monumental hypocrisy and a left-over from the X case. It is an issue we should have had the political courage to deal with but instead we are inserting further assertions of the fact that we will not prosecute a person who tries to get around it outside the State. Although we regard this issue as so fundamental and important that we propose to amend the Constitution, we are putting in a provision, via this Bill, to get around it. In terms of the Constitution, how can that be? There is a procedure for dealing with the law and breaches of it. We essentially propose to write into the Constitution, via this Bill, a statement which says we will make it a constitutional offence to do something but we also propose to write into it that if the person goes over the border to do so she will not be punished. That is fundamental conflict. It is proposed to be put into the Constitution because it is considered very important, but what we are saying to everybody is that we really do not mean it and we will not prosecute if the person goes outside the State.

I have every sympathy with the political, ethical and other complications that hang around this issue. My lack of sympathy is with the idea that this Bill as drafted will somehow get around those issues. It introduces explicitly a contradiction between what our Constitution should be and its implementation through law in this State. We say that the offence will carry a 12 year sentence if committed here but if committed outside the State, even though we regard it as a horrendous offence, it will not carry any punishment. If we ever wanted to introduce disharmony into the Constitution that is how to do it.

I do not propose to make an issue out of the amendment although I have obviously confused the Minister.

The Senator has not confused me. He has made general comments about the wider issues in the Bill which are not specific to this amendment. The Senator's amendment wants to replace the words "in particular" with "notwithstanding". It is a technical legal point and is the same amendment that was tabled by the Labour Party on Committee Stage in the Dáil. The arguments made there were in a constitutional context and related to the appropriateness or otherwise of the words "in particular" as opposed to "notwithstanding". The argument made then was that the new Article 40.3.4º would somehow take precedence over Article 40.3.3º. We argued that this is not the case and that both Articles had to be read together.

In relation to the wider points which we will deal with later in other amendments and sections of the Bill, the right to travel is an issue which has clearly been decided on by the people in previous referenda. The proposal we are making refers to this jurisdiction, but it also takes cognisance of decisions the people have taken in relation to the right to travel and the right to information. Talking about harmony, we will go back to the people who will ultimately decide on this. It is in that context that the Supreme Court, if ultimately faced with any issues arising from these Articles in the Constitution, would adjudicate, but it would be on the basis that the people would have decided, one way or the other, on them.

I do not know whether these two subsections of the Article can be seen to be in harmony because there seems to be a great deal of concern among constitutional lawyers about how they will be interpreted. I wonder if a particular point has been put to the Minister. He said several times that he does not want them to affect the use of the morning after pill, which is used as an important form of emergency contraception. He also said he does not want them to affect the use of the post-coital intrauterine device. It has been put to me, not by members of the medical profession, who had thought that with the announcement of this legislation the legality of the morning after pill and post-coital intrauterine device were ensured, that this is not the case and that these two subsections of Article 40 will be read one after the other.

Subsection 4º uses the words "in particular," which is of importance. It leaves in place the existing constitutional provision, which is in place to protect the unborn. It is important to remember that the term "unborn" has not been defined. Article 40.3.3º states, "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right." The term "unborn" has never been defined in legislation or any of the constitutional amendments brought forward, but we have said that the State is obliged to defend and vindicate the rights of the unborn.

Subsection 4º of the First Schedule states, "In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002." The legal advice I am getting – I would like the Minister to be able to tell me that he has not heard it – is that this leaves Article 40.3.3º as still covering the unborn from the time of conception and as the Minister is obliged to vindicate and protect the life of the unborn, that would mean protecting it from the use of the morning after pill and intrauterine device.

These are most serious issues from the medical profession's point of view – nothing could be more serious. Initially, the Minister's interpretation was that there would be no challenge, following the introduction of this amendment to the Constitution, to the use of the morning after pill or the intrauterine device inserted post-coitally. We know both issues are extremely important in trying to reduce the incidence of abortion here, which, as Senator Ryan said, is perfectly acceptable once it is exported to England. This is a most important issue which we need to have clarifed at once.

Mr. Ryan

I do not want to be awkward, but the Minister sent me off on a tangent about the harmonious interpretation of the Constitution and, on this one, I blame him for my slight aberration. Although I would never give them the exclusive right to be heard on these issues, it is helpful to hear members of the profession talk about them. The point made by Senator Henry is extremely valid.

We were down this road before when assurances were given to us about what a particular phrase in Article 40.3.3º meant. Serious questions were raised by the Director of Public Prosecutions and the then Attorney General about it. That advice was ignored and we ended up in a mess from which we are still trying to extricate ourselves. Some eminent individuals hold the view that the phraseology proposed could well mean that there could be a successful legal challenge to the use of IUDs and the morning after pill because of the implications of what Senator Henry said, if Article 40.3.3º is more broad ranging than Article 40.3.4º. The broader range of Article 40.3.3º would encapsulate unborn life from the moment of conception, if we do not define it otherwise. While Article 40.3.4º would deal with specific practices and circumstances, the scope of Article 40.3.3º would stretch beyond it. That is a perfectly reasonable interpretation put by a practising medical practitioner, much better than I could put it. It deserves a precise technical answer, not a bland assurance that this is not what it means. This is a very serious question.

I support my colleagues. An important point has been unearthed and drawn to the Minister's attention. It underlines the point made by many of us on this side of the House, that the Constitution is not the appropriate place for the articulation of this kind of material. I have been convinced by what I have heard from my colleagues on this side of the House. If this subsection is left unattended, it will affect the use of the intrauterine device and morning after pill in which there is an irony. The Minister is shaking his head, but legal opinion has been put on the record and we have to take it seriously. This seems ironic when Levonelle, one of the main morning after pills, has been licensed. It seems there is a clear contradiction.

There is nothing in the Bill that in any way legally prohibits the use of the morning after pill or IUD. The key point was made by Senator's Henry, that we do not define the term "unborn". The Bill is about defining the crime of abortion. It does not define when human life begins.

One of the major criticisms of the Oireachtas during the years in the aftermath of the 1983 amendment, which states that the State may, through its legislation, protect and vindicate those rights as between mother and child, is that the Legislature did not legislate for this. That brings us back to Senator Ryan's point. In many respects it was an absence of fleshing out Article 40.3.3º in the form of legislation that left the matter to the Supreme Court to decide and the Oireachtas never bothered endeavouring to legislate. Even after 1992 when there was a series of three referenda on travel, information and the substantive issue, the Legislature for one reason or another did not legislate on the matter. Why did it not legislate for the judgment in the X case, which it had the option to do? Different parties forming different Governments have been in power since 1992, but none took up the complex issue of whether we should legislate for the judgment in the X case and not go back to the people by way of a referendum on a constitutional amendment.

Equally, it could be strongly argued that there are many inside and outside the Oireachtas who are strongly of the view that we should not bypass the people on this issue because it can be articulated that they have a strong desire to have a say and that the Oireachtas, on its own, because of what has happened since 1983, should not arrogantly decide on it. It is for that reason we have decided upon this constitutional legal framework to introduce legislation – the first legislative response to the issue – which will have the protection of the Constitution. The mechanism devised is one which will facilitate us to go the people while also setting out in some detail the practicalities of legislating on the issue.

The point must be made, therefore, that one could not establish a criminal law prohibiting abortion. The point of conception is indefinable. It is a process that can take up to ten days, or even 14 as Senator Henry remarked on Second Stage. Article 40.3.3º includes the phrase "as far as practicable". It is not practicable to enact a law with a view to establishing whether a crime has taken place, in terms of abortion, or a case to be prosecuted within 14 days. That is impracticable. Clearly the morning after pill and IUD are not abortifacients. It has been argued that they prevent—

I am not suggesting they are.

It has been cogently argued that they prevent pregnancy from occurring. The purpose of the Bill is to define abortion and the crime of abortion. Its function is to update and modernise the Offences Against the Persons Act, 1861. We are reliant on regulation in this area from an Act enacted over 140 years ago. The 25th Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, is the first modern statute attempted by the Oireachtas in this field. The Bill states, "In this Act, "abortion" means the intentional destruction by any means of unborn human life after implantation in the womb of a woman." The use of the word "intentional" is very important.

The Minister said the people have expressed the desire to have their say but I am not sure he will like what they have to say. I do not believe this referendum will be carried. That may suit the Government very well because it will have satisfied the demands of the Independent Members in the other House and by putting this to referendum they will have put it outside the range of future referendums.

As I listened to the Minister it worried me more and more that the unborn is not defined. The Bill defines what is an abortion. It also defines what are approved places, medical practitioners and reasonable opinions. It even defines what a woman is, and even I have a general idea of what a woman is. The one thing the Bill does not define is that which the Act is supposed to protect. I do not understand how this can be done. How can it be that legislation designed to protect something defines everything else but does not define that which it is supposed to protect – the unborn? It seems that by using a vague phrase like that it would be possible to include IUD and the morning after pill. I am worried about this.

I strongly reject that. We are defining abortion—

We are not protecting the abortion, we are protecting the unborn.

This is the strongest protection in legislation yet for the unborn. It is being defined from the perspective of the practicable application of the law. It is being done as and from or after implantation.

The issue of defining human life is one on which Thomas Aquinas and many others, going back thousands of years, have had different views. Tortuous intellectual debate has taken place on that issue. We would be here for a long time if we were to enter into that.

Indeed we may be. The Minister has not answered my question. I am not saying the post-coital intra-uterine device or the morning after pill are abortifacients. I do not think either of them is. Both act by making the lining of the uterus inhospitable to the implantation of the fertilised egg. Articles 40.3.3º and 40.3.4º will be read one after the other. They cannot be looked at separately. Article 40.3.3º will still mean that in protecting and vindicating the rights of the unborn, the morning after pill and the intra-uterine device, used post-coitally, are not legal. Both of those methods make it impossible for the fertilised egg to be implanted.

No one would be happier than me to see implantation being taken as the beginning of a pregnancy. I spent a great deal of time during the referendum debate in 1983 saying that it was impractical to try to continue to protect the life of the fertilised egg. About 50% of eggs are naturally lost after fertilisation, they cannot be protected. Another 10% to 15% probably begin to implant but do not do so properly and are also lost. Only about 30% can implant and continue for some weeks towards a pregnancy. At 12 weeks, between 20% and 25% of them are lost and further losses occur as the pregnancy continues. It is a continuum or, if it is preferred, it can be looked at in stages.

The Minister keeps talking about the two sections being taken in harmony but I think they will be taken in sequence. Has the Minister received advice to clarify the use of "in particular"? It makes a difference between the two sections. This is very important. A very large number in the medical profession feel that the morning after pill and the intra-uterine device, used post-coitally, are protected by this legislation but I do not think they are. The Minister did not mention that in his reply to me. I wrote in an article that they were protected and received a lot of responses which said I was wrong. Other people are thinking this as well. There must be some cause for concern. One cannot go to the people and say that methods of contraception which have been acceptable here for years will no longer be acceptable if the Articles are read one after the other. I am obviously not making myself clear as the Minister is looking very puzzled. This is a most serious issue.

Admittedly, these methods of contraception are not approved by substantial numbers of people who hold that human life begins at conception. I will not argue with that, people are entitled to hold that view. Philosophies differ as to when human life begins. St. Thomas Aquinas said it started at 40 days for a male foetus and 90 days for a female. This is an issue which is based on philosophy. The public and medical profession have got to know clearly if the morning after pill will be legal or illegal if this legislation is enacted. If the referendum is carried it will be put into law and cannot be referred to the Supreme Court by the President.

I am not suggesting criminal cases can be taken regarding this, or that people will be described as having procured abortions for women because they prescribed the morning after pill or intra-uterine device. Nor am I suggesting that women could have criminal cases taken against them. I am seeking clarity on this issue. Based on the legal advice I have received, the Attorney General could take civil cases. Members will remember that SPUC took legal action against students who provided information about abortion. This is a legal nightmare. It will be members of my profession who will prescribe the morning after pill or the IUD, or members of my gender who can be prosecuted – in civil cases, not criminal – because they used such methods.

Nobody could be as clear as Senator Henry about the matters she has raised and we will continue to raise them throughout the debate. The Minister repeatedly referred to the principle of harmonious interpretation of the Constitution in the Dáil. This is where the issue begins and ends. The Minister has stated we are in agreement with the Supreme Court if it interprets Article 40.3.3º in conjunction with Article 40.3.4º.

If that is the premise, there must be definitions and there is no point in saying otherwise. I will raise the need for a definition of the term "unborn" time and again in later amendments. The Minister may say it is not relevant to the legislation and that he is dealing with abortion, although there is also no specific definition of that term. Let us go back to the definition of the term "unborn". An unfertilised ovum is unborn, but does it enjoy the protection of the Constitution? Every issue we will debate today and tomorrow depends on the interpretation of the term "unborn" and if we cannot satisfy ourselves in the House that we know exactly when life begins, which, in turn, leads to what Senator Henry said regarding the morning after pill, conception, etc., we will not get anywhere. We will only make a complicated issue much more complicated when it comes to explaining what is to be put before the people in a referendum. It is not too late for the Minister to provide a definition in order that we can work on specifics when we address other aspects of the Bill in later amendments.

Senator Henry's reference to Article 40.3.3º and Article 40.3.4º highlights the absolute nonsense of what we are about because there is no clarity. If we cannot be clear within the Houses of the Oireachtas regarding the constitutional amendment, I do not know how we can put it before the people. With regard to the morning after pill, there has been no indication that the Irish Medicines Board will approve Levonelle.

When did the board approve it?

The other day.

The procedure is that the company which manufactures it must make a case for its use and that will take a number of months. That demonstrates the morass we are in. I would like clarity in regard to taking these two Articles of the Constitution together. I was not satisfied with the Minister's contribution, but we will not achieve satisfaction in this regard.

During the hearings of the all-party committee on the Constitution I asked a number of witnesses, including a number of senior obstetricians and gynaecologists, when life begins and nobody could give me an answer. Whether we follow the St. Thomas Aquinas doctrine or any other, it is impossible for any Government to define when life begins. The legislation defines "abortion" clearly under the interpretation of statute using the long-standing maxim, inclusio unius est exclusio alterius, which means that if one thing is included, others are excluded.

I am a lay person and far be it from me to argue with Senator Henry. However, the IUD and the morning after pill are widely used, despite Article 40.3.3º being in place for some years, and there has never been an attempt to prosecute any woman who took that course of action in a criminal or civil case. We must not divert the thrust of the legislation, which is clear regarding abortion and implantation. Trying to introduce the vague notion that someone who might use the IUD or the morning after pill could be guilty in a criminal or civil sense is wide of the mark. The Bill is clear in regard to what it proposes to define. If anything, by stating what is abortion and the penalties involved, we are clearing the way for the use of the IUD and the morning after pill. Perhaps I am wrong, but it would be impractical, if not impossible, to prosecute any woman for using these products on a civil or criminal basis as it would be virtually impossible for the Director of Public Prosecutions to gather any evidence.

Mr. Ryan

The Minister is not convincing nor is he convinced about the argument he is making. When Article 40.3.3º was passed by the House, longer ago than I would like to remind the electors of Cork South-Central when I opposed it—

Or Cork South-West.

Mr. Ryan

—nobody envisaged it would result in a teenage girl being injuncted by the Attorney General to prevent her travelling to England. While we thought of extreme examples, nobody in these Houses believed that a girl who had been raped and was pregnant would be injuncted by the Attorney General to prevent her travelling to Britain for an abortion, but that turned out to be the case.

On the other hand, those who supported that amendment never believed that it would be interpreted by the Supreme Court to mean effectively the opposite of what they sought. Let us not pretend there is certainty about the meanings of words in the Constitution. We are trying to eliminate uncertainty where we know that in terms of how legal people examine these sections there is clear uncertainty. Where there is such uncertainty, we have no guarantee regarding how it will be dealt with.

With regard to Senator O'Donovan's contribution, a considerable number of those who lobbied the Government successfully to hold a further referendum on abortion are firmly on the record as believing that both the IUD and morning after pill are abortifacients. That is their clearly held position, which they have made public on many occasions during the past 20 years. This legislation is part of their agenda. Some of them, as the Minister knows better than I, do not agree with his approach because they think it is not conservative enough. His approach is too liberal and they do not like it, but if the legislation is passed, they will turn their attention to questions about the morning after pill and IUD because they have a singular obsession with keeping this country different. It does not matter what happens to Irish people abroad.

Quite clearly, the next two stages will be to try to get Article 40.3.3º used to provide a constitutional basis for a prohibition on each of these, particularly if increasing scientific evidence shows that both act in a way which prevents implantation, which is what most people think they do anyway, although nobody seems to be quite certain. Once they come to that stage, that will be the target and it will be a consistent campaign. If people listen politically to them on this issue, they will listen to them again and we will have further constraints imposed.

That is what this is about. It is not about the niceties of language. It is about the political response to a campaign that has been unswerving in this country for 30 years and it is quite clear what will be next. The immediate issue was a referendum. That, they see, may be out of the way. The next issue will be devices which they regard as abortifacients. I do not regard them as abortifacients and the Minister does not regard them as abortifacients, but they will use the language of the Constitution in exactly the same way as the X case arose. They did not envisage that 15 year old children or younger children would be injuncted by the Attorney General but that is what happened. I am certain that they will not go away and they will begin on the next stage of the campaign to have what they regard as abortifacients included because they will see that brief period between the fertilisation of an ovum and implantation as the area where the unborn is vulnerable. They will see IUDs and morning after pills as the techniques that are used to exploit that vulnerability and that is where they will go to next.

If that is what the Minister wants, so be it. If it is not what he wants, then he cannot just wave away the genuine concerns which have been articulated by Senator Henry and have obviously been articulated to her by people who understand constitutional law well.

The House can rest assured that I have had available to me the strongest constitutional advice on these issues, and particularly on the utilisation of the term "in particular" in the relevant section which is subject to the amendment. That term, "in particular", is essential to the harmonious interpretation of the Constitution. It is not that Article 40.3.4º will be read after Article 40.3.3º. They will be read together.

Let us say that we did not do anything at all, to come back to the generality of points about the morning after pill and the IUD. Article 40.3.3º exists.

That is right, yes.

The 1861 Offences Against the Person Act exists. As they stand, they are potentially subject to a challenge—

That is right.

—from any organisation out there in terms of the legality or otherwise of the morning after pill.

Mr. Ryan

We know that.

What we are bringing in actually strengthens or clarifies the position and makes it far more certain than it was. Article 40.3.3º makes it very clear in terms of what it leaves open for the State to do. It states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

It is clear there that the right to life of the unborn, and that the obligation of the State to defend and vindicate the right by its laws, is acknowledged to be subject to legal and factual practicality. That is clear for any law one brings in, and it says that in Article 40.3.3º. We are bringing legal and factual practicality to the situation in terms of defining what is abortion for the purposes of the Act.

Clearly if we were to take some of the amendments which have been tabled, particularly by the Fine Gael Party in the other House and here today, in other words, if people want us to define, for the purposes of this Act, unborn human life back to conception, for example, one would then be banning and prohibiting the morning after pill and the IUD. Is that what the House wants? There are people advancing amendments which would have that effect. You cannot, on the one hand, criticise the definition of abortion here as meaning the intentional destruction of the unborn after implantation and on the other hand condemn the fact that we do not define unborn human life itself. There is some duplicity going on there too and it has been going on throughout the debate – I am not saying here but in different quarters – where people are playing both sides of the argument to try to appease different sections or different perspectives on the debate itself.

The Taoiseach, in his response to the Leader of the Opposition, Deputy Noonan, made it very clear in terms of what this Act was about and in terms of the definition of abortion meaning the intentional destruction of the unborn after implantation. In particular, he dealt with the use of the morning after pill and the post-coital IUD. He stated that the use of both the morning after pill and the post-coital IUD must, as a matter of practicable law, either lie within or without the criminal prohibition on abortion. It is simply not possible to have a statutory criminal offence carrying a serious penalty for an infringement where its ordinary meaning for ordinary people in ordinary situations is left obscure or unknown.

There were options facing the Government on this issue in terms of the drafting of the legislation. We could have legislated both of those out of the equation if we so desired but we did not. I would have to reject any notion that this somehow dilutes the position in respect of the morning after pill or the IUD. It does not. It makes it far more certain in terms of the legislation we are putting in place, in terms of the definition of abortion as a crime – the intentional destruction of the unborn after implantation. It is far clearer.

That said, I mentioned that SPUC is taking a case in Britain to prohibit the use of the morning after pill and the IUD under the 1861 Offences Against the Person Act. This legislation is far clearer and far more certain than the status quo, that is, either Article 40.3.3º or the 1861 Act.

At the end of the day, by definition, anything one puts into the Constitution is clearly subject to challenge. Nobody can say there are absolutes in this and from the outset we have never said that there are absolutes. The very nature of a written constitution is that it is subject to challenges and interpretation, as we know from what happened with Article 40.3.3º.

There were one or two other points. Senator Keogh made the point about Levonelle. The IMB has stated that there is no legal impediment to the licensing of Levonelle and has made a decision on that, but of course it is up to the company to apply. Every company seeking a licence to manufacture, sell or distribute a medicine in Ireland is subject to the normal licensing processes, and it will go through that if the company decides to apply. My understanding is that an application is expected and obviously we would have to go through the various regulations and legislation which oversee the sale and distribution of medicines in Ireland.

I support Senator Ryan in what he said about the morning after pills. The term "abortifacient" was one with which I was completely familiar until the letter campaign in the media, particularly in the newspapers, by these anti-abortion groups. The kernel of what they were saying was that the morning after pill was an abortifacient. That was the first time I came across the word and it was repeatedly used by these people in this campaign. Therefore there is no doubt whatever that that is a principal target of these people.

I do think the lack of a definition is damaging to the Bill. It seems to me, for example, that if you decide that you want to outlaw the use of a hammer on a nail, you do not just define "hammer" and leave the nail undefined. That would be absurd. Therefore I really do not understand why there is no definition. Surely unborn human life is susceptible of definition which would obviate all these difficulties and problems.

I am glad the Minister clarified the Levonelle issue. I felt a little guilty in this matter because I did mention Levonelle, in particular. I did so because of the useful briefing document from the Well Woman Centre which welcomed the licensing of Levonelle for use as a morning after pill, which indicates that it is licensed.

It welcomed the decision that the IMB took.

The point is that it will not be available for some time.

Women are under the impression that it is available but it is not.

No one has said that it is available. The big issue, as everyone knows, was the IMB coming to a decision on this, prior even to the publication of the legislation. Its availability was never an issue as it was not licensed. No medicine or contraceptive can be available without being licensed.

Both the Minister and Senator O'Donovan stated that this legislation will make it certain that the morning after pill and the post-coital interuterine device are legal, but it will not.

I said that it would be more certain than what is there at the moment.

It will not.

Then we must disagree.

We will. It will not because we are leaving exactly what is there already, Article 40.3.3º, which means that they can still be described as abortifacients by those who object to them. The Minister's definition of abortion, which I will return to, is not to be found in any medical or lay dictionary. Is it in any dictionary?

It is a criminal law. It is a statute, not a medical definition of abortion or the unborn. We are defining abortion for the purposes of the Act which is to protect human life in pregnancy.

Of course.

It is defined. We should not deliberately obfuscate. It is crystal clear in defining abortion as the intentional destruction of unborn human life after implantation in the womb.

It has been made up for political purposes.

Of course, we can make up a definition for any word that we want to put into a Bill. However, the general public think that a definition of abortion can be found in a dictionary.

The public does not. Is the Senator actually suggesting that legislation would be found in every dictionary? That is absurd.

The word would be defined in a dictionary.

I find that idea absurd.

Very well, it is absurd.

If this were legislation being considered only by the Houses, I would not object as we are accustomed to examining words and understanding how they are defined for legislation. However, this will go to the people. Both the Minister and Senator O'Donovan argue that it will clarify the position regarding the morning after pill and the post-coital interuterine device. I cannot see how it will and it is not fair to tell the public that it will.

The Minister claims that this is just about abortion. However, people believe that they can look the definition up, but no one will read the Bill. I would be sanguine about an ordinary piece of legislation because I know that if we made an error, we could correct it, but this will go into the Constitution.

I do not wish to play Cassandra, but in 1983 when I was nervous about opposing that referendum, I was advised by lawyers – one now sits on the Supreme Court and the other is earning too much to be interested in that court – who told me that it would be construed the other way, which is what happened. At that time, we were told, by largely the same people who are pushing this referendum, that this would settle the matter. I do not number the Minister among them. I do not blame him for what is happening as he has picked up the poisoned chalice and must fight the case as best he can. I would rather discuss the health strategy with him. The people who were wrong in 1983 will be wrong again as the legislation contains many problems.

The Minister is correct in saying that the current situation is unclear but this legislation will not clarify it. Of course, neither he nor I nor regard them as abortifacients; nor does Senator Fitzpatrick. However, I am concerned about this being put to the public who rely on us to make legislation as clear as possible.

I should apologise to the House because I commented last week that I was not surprised the Minister was not here to debate the Second Stage since he had no support from his colleagues on Committee Stage in the other House. I stated that neither the Progressive Democrats nor the Independents had taken part although they were allowed to. I named Deputies McGennis, Roche and Cooper-Flynn – who did not say much – as coming in to support the Minister but I was wrong as Deputy O'Dea, the Minister of State, and Deputy Kenneally also attended. I apologise to both of them and to the House.

If this legislation is wrong, it will be challenged, as Senators Ryan and Norris stated, and I can envisage that because of the correspondence I receive. The pro-life campaigners have written me two letters thanking me for protecting the fertilised egg. If they are reduced to communicating with me, then the matter is out of hand. The legislation is not making things any better because Article 40.3.3º still remains. There is a similar challenge before the courts in Northern Ireland. As I said last week, it is not the devil but the danger which is in the detail. We are setting ourselves up for further re-interpretation by the courts. I do not understand why we want to do so.

This section does not make a clear, definite statement. It will add a serious dimension to the Constitution. Rather than clarifying the position, it convolutes it. The Minister has not made a convincing case today.

Senator Henry stated that the Progressive Democrats were not involved, but they were involved in the person of Michael McDowell, the Attorney General, who put his credibility on the line by presenting this Bill. Both he and the Minister know that it is full of flaws and open on a variety of fronts to litigation and clarification in the courts. There will be subsequent legislation through this House if parties are foolish enough to allow themselves to be subjected to pressure which could lead to a further amendment to the Constitution in the future. This Bill is open to challenge.

The case the Minister makes is not convincing. There is no clear definition about one fundamental issue, no definition of the unborn. The Minister tells us there is definition of abortion. That is a separate issue and that is not clear either. As Senator Henry said, there is no clear definition in the medical dictionary. There is a definition included in the Bill and it is a political concoction of convenience to suit a particular political agenda and political circumstances.

The Government has deliberately chosen not to put any definition of "unborn" into this Bill. That obviously is done for a specific purpose. I am disappointed that the Minister is not prepared to consider some definition of "unborn" even at this late stage. The Bill does not give any clear guideline or definition as far as the practical implementation of the legislation is concerned. We as legislators have a responsibility to ensure that the legislation we pass is clear, is fairly specific and is practicable in its application. This Bill will be subject to further constitutional cases about interpretation.

I ask the Minister to consider the views that have been expressed in this House today and to present clarification. The Medical Council already has difficulties in relation to the application of the rules and regulations. Medical practitioners are scared; they are not sure. Senator Fitzpatrick knows this. This proposed Bill will not clarify matters any further nor will it improve matters from a practical point of view. If we do not have something practical before the House then there is no point in proceeding.

I wish to return to the subject of Levonelle which is particularly apt in relation to Senator Henry's point about Article 40.3.3º. It is my understanding that when Levonelle was not permitted one of the reasons given was that it was an abortifacient. We never accepted that, but that was the reason given. We are now told that it is not an abortifacient, something we all knew anyway, and is therefore permitted. This is based on the opinion of the Irish Medicines Board. None of this has anything to do with us as legislators. It underlines the lack of clarity and the openness to challenge inherent in this Bill. Instead of our being able to amend legislation in the Oireachtas, the whole thing will have to go to the people all over again. Everything that we have talked about here so far underpins the fact that this is completely wrong. We should not be here debating this; we are wasting everybody's time.

There is no consensus among the people and this has been admitted by the partners in Government in this House. The Minister was asked to reflect on whether it is wise to go ahead with a referendum that many people believe will be defeated. Something that was not permitted one week is permitted the next week because somebody has had a change of mind or because of legal advice. Where was the legal advice before that? Who gave the Irish Medicines Board the legal advice that Levonelle was an abortifacient? Doctors differ and patients die. We have seen in the appalling X case that lawyers differ and in some circumstances women will die if we have differences of opinion as we had in that case.

Senator O'Donovan referred to theory but none of us is talking about theory; we are all talking about practice. We are talking about things that happen and that have happened. It is not theory but fact. This is not a theorethical and philosophical discussion in the main but rather we are talking about actual facts. The question of Levonelle illustrates how open to challenge this proposal will be.

Mr. Ryan

I presume the Minister accepts that human life begins before a fertilised ovum is implanted in the womb of a woman. I presume he believes that because the definition of abortion means the intentional destruction of unborn human life after implantation and, therefore, it exists before implantation—

No. I have explained all that. What does the Senator mean?

Mr. Ryan

The Minister tells me that he has explained it and then asks me what I am saying. That seems to be reversing the order—

The Senator made a comment about the inference being that nothing existed before implantation. That is a very wrong inference to draw.

Mr. Ryan

No. I said the opposite. I said I assumed that since the Bill which we will come to in the Second Schedule talks about the implantation in the womb of unborn human life, one has to accept from that that the official position is that unborn human life exists before implantation. If Article 40.3.3º is meant to defend unborn human life then quite clearly it does not begin to defend it at the moment of implantation unless that is specifically written into the Constitution. Our amendment says that notwithstanding what is in Article 40.3.3º, the following applies. This at least makes clear what we are dealing with. We are dealing with the prohibition of abortion. The way it stands, people will be able to go back. Incidentally, I do not think our amendment deals with Senator Henry's issue.

It does not at all. It is a completely separate issue.

Mr. Ryan

I do not think it does. Our amendment at least deals with the fact that this only applies to the legislation that is involved here. I think the issue that Senator Henry raised is not the issue to do with this amendment at all.

Not at all.

Mr. Ryan

Neither the Minister nor I is a doctor or lawyer so we have to struggle with the language.

We are mere parliamentarians.

Mr. Ryan

And both of us are good ones.

Even though both are from Cork.

Mr. Ryan

Even though we are from the same constituency. There is a genuine issue here. It is not so much a constitutional issue as an understanding of the political process that is at work, that the campaign group which has persuaded the Minister and his Government to do this has an agenda and the next stage on that agenda is the issue of what it regards as abortifacients.

There is a solution to this, which would be to define unborn life as commencing at the moment of implantation. Then the State's obligation to defend unborn life would clearly be coterminous with the application of the Bill that the Minister is using here. That would mean that instead of defining abortion in terms of the intentional destruction of unborn human life from the moment of implantation, unborn human life would be defined as human life from the moment of implantation in the womb of a woman. That could be done now and it would copperfasten the position of both the morning after pill and the IUD, if one accepts one interpretation of how they operate. It would clarify the position. The Minister could still do this now. He could agree to look at this on Report Stage and to define unborn life in terms of the moment of implantation. One of the members of the Supreme Court, Mrs. Justice Catherine McGuinness, tried to get that done on the previous disastrous amendment and it was refused. However, it could be done now.

I started by asking the Minister for a definition of unborn. It is now clear he is specifically saying that unborn means after implantation when referring to the abortion issue. He has not answered the question, which needs to be answered. Everything else we are debating in the Bill will refer back to Articles 40.3.3º and 40.3.4º. We are clear where we stand regarding Article 40.3.3º. Why will the Minister not tell us the legal advice he got on the definition of unborn? It appears the Attorney General has taken it upon himself to say that it is after implantation. The Minister is shaking his head, but that is the general impression the public will get. This raised many questions during the Dáil debate, which was guillotined. I ask the Minister to give us a specific definition of unborn so that we may be able to deal with the Bill more specifically.

People are not listening to the debate.

I was listening very carefully.

The Bill is concerned with defining abortion. That is the core issue. We are protecting the unborn after implantation and I gave the reason. Is Senator Jackman seriously suggesting that it would be practical to introduce abortion law that would go right back to the beginning of human life? Would it be possible to say that from conception onwards, abortion would be prohibited? How would it be possible to find out? Let us consider the practical application of law.

When enacting law, we can consider when fertilisation begins or anything up to 14 days later, based on what Senator Henry said – I was told it was between three and ten days. In the natural process up to half of the fertilised ova may never implant in the womb. How could we bring in a law or update the Offences Against the Person Act, 1861, to deal with abortion prior to implantation? It could not be done. That is the purpose of defining abortion as the intentional destruction of the unborn human life in the womb after implantation.

Article 40.3.3º states: "in so far as is practicable by its laws defend and vindicate". In other words Article 40.3.3º makes it very clear there is a test of both practicality and factuality in terms of how that is to be done. Article 40.3.4º does not come in the aftermath of Article 40.3.3º, the two should be read together. The strong constitutional advice I have is that Articles 40.3.3º and 40.3.4º should be read together in harmony. The Supreme Court adjudicates these matters in accordance with the doctrine of harmonious interpretation.

The legal advice we have got does not accept that they be read together.

Senator Ryan and others said this is a political concoction, but it is not. The definition of abortion emanated from a consideration of the legal practicalities of the issue and addressed the issue of the morning after pill and the IUD as requested by the Oireachtas committee. We have given much greater certainty and clarity to these issues now than existed prior to these proposals under the 1861 Act and Article 40.3.3º.

We had a Green Paper followed by the All- Party Committee on the Constitution, chaired by Deputy Brian Lenihan, which, although not unanimous, came up with three options. This Bill came as a result of the third of those options. The other options were to do nothing other than establish the Crisis Pregnancy Agency and legislate for the X case. Since 1992, no political party has produced any template or legislation.

It is up to the Government to do that.

There have been plenty of Private Members' Bills, but nobody has provided a template for legislation for the X case. That would bring other difficulties.

In answer to Senator Ryan's point about one political group, this emanated from the process initiated by the Taoiseach when we came to power in 1997. He made a promise and a commitment.

Mr. Ryan

He made a promise the rest of us avoided making.

The Green Paper considered many views and the committee was another important stage. All concerned agreed this was a very good process. The committee did a considerable amount of good and clarified a whole range of issues. Having read its report, the evidence from the medical practitioners was particularly useful. This Bill is the result of a long process of consideration by the Oireachtas and groups outside.

It is being rushed through in the end.

It is not being rushed through in the end. The Levonelle issue emerged prior to any of this being in the public arena because the company applied to the IMD. As a statutory independent body for the licensing of medicines, the IMD sought legal advice on receipt of the application based on Article 40.3.3º. The test concerns practicality and factuality.

Some Senators referred to the Attorney General in the course of the debate. Senator Quinn is wrong in saying he knows it is full of flaws. In all the public commentary, nobody has said this is legally wrong. Some have argued it might be suspect.

I agree it is suspect.

I have yet to see independent legal opinion describe this as unconstitutional.

They are waiting for the opportunity to get to the courts and argue the case.

That is unfair to people of some eminence in the legal world who have views on this.

Do not be unkind to us.

Nobody has said it is in breach of the Constitution. Although all sorts of hares were raised initially, they have subsided somewhat in terms of the legal and constitutional propriety.

These are uncharted waters.

Sometimes we have to enter uncharted waters.

America would not have been discovered without going into uncharted waters.

We still do not know who discovered America.

I accept this is a unique process because we want to provide both a legislative and constitutional response. The committee made it clear that no single paragraph in the Constitution would resolve all the issues. This is legislation that will provide constitutional protection because, as the Taoiseach stated, we also wanted to consult the people. Some people in other political parties do not agree with that and feel this should be done through legislation alone. I believe we should go back to the people because they have voted on this matter on a number of occasions.

On the one hand much concern has been expressed about the morning after pill and the IUD and on the other hand I am getting requests to define the unborn for the purposes of this Bill. This is a criminal statute to prohibit abortion. If one wanted to define the term "unborn," one would, by definition, outlaw the use of the morning after pill. That would be the net effect of some of the amendments.

Not necessarily.

That would be the case.

I point out to Senators that we must endeavour to make some progress on the amendments. There has been much detailed debate and I do not want Senators to get involved in repetition.

I will try to avoid repetition, but this is one of the most important parts of the Bill. The Government has decided to consult the people. That is its prerogative. The consultation process was excellent. I was present for a considerable amount of the time that Deputy Brian Lenihan chaired the committee which did good work and of which Senator O'Donovan was a most constructive member. There is, however, a great lack of clarity in the information given to the public and medical profession. There is nothing in the legislation which makes the situation more clear regarding the legality of either the morning after pill or post-coital intrauterine device. Both are still open to challenge. That is the reason it is worthwhile looking at Senator Ryan's amendment which seeks to insert the words "Notwithstanding subsection 3º.” It is unfair to say to the public that something is the case when it is not and when we in the House know it is not. It is still possible to take challenges against both methods of what I and most Members here would describe as contraception on the grounds they are abortifacients. We know such challenges are being taken in other places. I do not like the impression being given that this improves the situation. The Minister talked about protecting and vindicating rights as far as is practicable. Many could say it was practicable to ban the post-coital IUD and the use of the morning after pill, but that is not an argument.

I came in at the end of the debate and do not want to raise issues which have already been addressed. My colleague told me the Minister clarified the reason he is not prepared to delete the words "In particular." I thought what would be known as the Protection of Human Life in Pregnancy Act, 2002, was to specifically protect life in the womb and that it would not require any type of caveat or qualifying expression, such as "In particular" or "in general." That takes from its thrust. If one talks about the life of the unborn, in particular, one is saying that something else loses out. Does that mean we are balancing the protection of the life of the unborn in the womb against the protection of the life of the mother? I thought our amendment to the Schedule as distinct from the definition of when an abortion can take place or the decision on whether life begins at implantation or conception, which will be difficult to define, would have been accepted.

We must agree to disagree or try to resolve the issue one way or the other. I reiterate the point about the use of the words "In particular." It is fundamental and correct because it clearly indicates that it is linked with Article 40.3.3º. Articles 40.3.3º and 40.3.4º must be read together in accordance with the doctrine of harmonious interpretation of the Constitution. Articles in the Constitution are not decided upon in isolation by the Supreme Court. They are dealt with as part of the package construed together. The words "In particular" are significant in that Article 40.3.3º sets out the obligations of the State, while Article 40.3.4º uses the words "In particular" and refers to what would be known as the Protection of Human Life in Pregnancy Act.

Should we deal with in vitro fertilisation before or after lunch?

After lunch, please. Does the Senator mean embryo research?

Nothing as dramatic as that. I am delighted the Minister is more relaxed here than he was at the Dáil select committee. We are a pleasant group.

As regards in vitro fertilisation, it has been brought to my attention that the Government is stating the legislation ensures challenges will not be taken against the freezing of embryos or zygotes. Perhaps the Minister did not say it, but it has been brought to my attention that an impression has been given that if this constitutional amendment is passed, there will not be any trouble in the future with freezing embryos or zygotes. I would like to hear him discuss what influence, if any, he thinks the legislation will have on in vitro fertilisation.

This legislation is silent on those issues. It does not deal with the issue of in vitro fertilisation or embryo research. I have indicated time after time that it does not deal with such issues. I established a commission on assisted human reproduction because of their complexity. It was probably after some reflection that Deputy Gay Mitchell felt I was right to establish that commission. He has been critical of the fact that we have 51 such agencies in the health area. The commission was established almost 12 months ago under Dervilla Donnelly. It is both complex and evolving. The Bill is specific. It does not deal with those issues.

We are broadening the debate.

The Minister established the commission after I brought forward a Private Members' Bill in the House almost two years ago. If we had got going on it, we might be there by now. I am not saying that Professor Dervilla Donnelly's committee is doing anything but great work. However, a committee can proceed more slowly than we would have been obliged to proceed in the House if we had been made to tackle the issue. I am glad the Minister said what he said because the impression is being given to both the medical profession and the public that all will be well in terms of problems with in vitro fertilisation if the legislation is passed. However, as he said, the Bill does not address that issue.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh."

Question put: "That the words proposed to be deleted stand."

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, JohnFarrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.Glennon, Jim.Glynn, Camillus.

Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Ormonde, Ann.Quill, Máirín.Quinn, Feargal.Walsh, Jim.


Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Coogan, Fintan.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.

Jackman, Mary.Keogh, Helen.Manning, Maurice.Norris, David.O'Meara, Kathleen.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Costello and Ryan.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

Before we suspend I should point out that we have a distinguished visitor in the Visitors Gallery, Tony O'Sullivan, who is from Galway originally and was capped 15 times for Ireland. On behalf of Members I welcome him to the Seanad.


Hear, hear.

Sitting suspended at 1.05 p.m. and resumed at 2.15 p.m.

Tairgim leasú a 3:

I leathanach 6, líne 8, "is a shuíomh" a chur isteach i ndiaidh "chosaint".

I move amendment No. 3:

In page 7, line 8, after "protected" to insert "and vindicated".

This amendment follows the line I expressed earlier in the debate. I am concerned because the Minister has said that Article 40.3.3º and Article 40.3.4º must be taken together. My party, Fine Gael, is not happy about the fact that the wording in Article 40.3.3º is much stronger. It contains a guarantee, "to defend and vindicate", which is much stronger than "undertaking to protect." We are not sure whether the Bill is a secondary provision or whether it will be a full and equal provision in the Constitution. We would have preferred if the language of 40.3.4º was stronger by the insertion of the words "and vindicated". If the Minister responded I could develop the argument further.

The amendment seeks to change the text of the proposed Article 40.3.4º of the Constitution by adding the words "and vindicated". The term "vindicate" is already used in Article 40.3.3º where the terminology is "to respect and, as far as practicable, by its laws to defend and vindicate that right". No additional benefit would be conferred by the insertion of the term "and vindicated". We cannot see any benefit that it would bring. It could cause confusion between Articles 40.3.3º and 40.3.4º if the word was common to both and one would be asked about all the other language in Article 40.3.3º. The term "protected" is sufficient and comprehends the terms "respect", "defend, and "vindicate" which appear in Article 40.3.3º. My strong constitutional advice is that it is not necessary to insert the term in this section.

We are not 100% sure, nor is the Minister, that the two would be read—

I am very clear.

The Minister is clear and definite from his legal opinion but he cannot really say 100% that they will be read together and that Articles 40.3.3º and 40.3.4º will not be contested. That is the Minister's interpretation.

No, it is not my interpretation.

It may not be the Minister's interpretation but it is his legal advice. We are going into more detail in regard to a possible reference by the Supreme Court in relation to the two being read together.

That was the previous one.

The Minister is strong on the harmonious element of it, but it may not be harmonious. Why is there a difficulty about repeating the words? I see no difficulty with repeating them.

The phrase "in particular" which was dealt with in the previous amendment deals with the linkage of Articles 40.3.3º and 40.3.4º. This amendment does not do that but proposes to add the words "and vindicated" to Article 40.3.4º. My argument is that no additional benefit would be conferred by doing that. It is not necessary and it does not make sense to us. In terms of harmonious interpretation, which belongs to the previous amendment, that is not my opinion but the manner in which the Supreme Court interprets the Constitution. It interprets it by a process known as "harmonious interpretation", in other words, it does not deal with each clause independently of the other.

I am sure the Minister does not mean to say that the Supreme Court would rule in advance that the words "and vindicated" should not be inserted.

I did not say that.

No, he did not. Surely the Articles would be more harmonious if they were the same. We keep hearing about the harmony of the two Articles. One uses the word "protected" while the other seeks to be protected "and vindicated". The Minister is aware of my views on what was inserted in the Constitution in 1983. It was extraordinarily foolish. I knew of nobody who was doing abortions on socio-economic grounds, and I know I would have known prior to that amendment being brought forward. Indeed, they are not being done now. If the Articles were to be harmonious I would have thought a little consistency would be no harm between the two of them.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendments Nos. 4, 1, 5, 7 and 29 form a composite proposal and may be discussed together.

Tairgim leasú a 4:

I leathanach 6, líne 9, "agus Forálacha Eile" a chur isteach i ndiaidh "Dhaonna".

I move amendment No. 4:

In page 7, line 9, after "Life" to insert "and Other Provisions".

This amendment is simple and I think the Minister will respond accordingly because they are all provisions in the Bill. There is the provision to create the criminal offence of abortion, which was discussed this morning. There is provision to legalise abortion but it is called "medical procedure" in certain circumstances. There are no provisions to define what a "medical procedure" is in the definitions section. I believe the Minister responded somewhat to that question in the other House but I would like to hear his response in regard to "medical procedure". That is important given that there are specific provisions in the Bill. There is a definition of a "medical practitioner". There are provisions to provide for a "reasonable opinion" and for records to be kept as to what is or was a reasonable opinion before the so-called "medical procedure" takes place. There is a definition, which some people may not accept, of "woman". Why was that not included in the definition of "medical procedure"?

On a point of clarification, the group of amendments seeks to change the title—

And other provisions—

—by inserting "and Other Provisions" to the existing title of the Bill. That would be the effect of the amendments.

I understand that but I presume the Minister—

It does not deal with definitions.

I have spelt out the provisions and I cannot understand, given that the Minister made provision, why he did not insert them.

Was it into the title?

Yes, that is the amendment as it stands. It seeks after the word "Life" to insert "and Other Provisions". Given that the Minister is specific about them it would be much better to include them.

This group of amendments seeks to change the title of the Bill—

There is nothing wrong with that.

—governing the proposed referendum to the Twenty-fifth Amendment to the Constitution (Protection of Human Life and Other Provisions in Pregnancy) Bill, 2001, by inserting "and Other Provisions". That is one amendment. Another amendment seeks to change the Long Title of the legislation envisaged by the Government and contained in the Second Schedule. The change would be as follows: "An Act to protect human life and other provisions in pregnancy to repeal sections 58 and 59 of the Offences against the Person Act, 1861, and to provide for related matters." The third amendment seeks to change the title of the legislation envisaged by the Government and contained in the Second Schedule to the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy and Other Provisions Bill, 2001.

Unfortunately, I cannot accept those amendments because the Bill to amend the Constitution contains only one proposal. There are no related matters. The Deputies amendments cannot, therefore, be accepted. It is a constitutional provision that only one proposal can be put to the people.

The standard approach to the title of a Bill to amend the Constitution is that it is simply entitled, with the number, for example, Twenty-third, Twenty-fourth or Twenty-fifth Amendment of the Constitution Bill. That is what would normally be done in a case like this. In this case a Private Members' Bill had already been drafted—

That is right.

—which proposed to make other amendments to the Constitution. This was entitled the Twenty-fifth Amendment of the Constitution Bill, 2001. The Government's Bill could not, therefore, also use this title. That is the reason for the use of the title chosen which adequately covers the general purpose of the Bill and the envisaged legislation contained in the Second Schedule. Were it not for the existence of the Private Members' Bill, the Government's Bill would have followed the standard format and no issue would have been raised about the title of the Bill. The suggested title does not appear grammatically correct in any case as it appears to suggest that the Bill is concerned with the protection not only of human life but also of other provisions in pregnancy. That would not make grammatical sense. In relation to the Long Title, if the relevant amendment were accepted the title would include both "and other provisions" and "to provide for related matters", which would involve a degree of duplication.

If it is only a question of avoiding duplication there is not a big deal about it. The Minister has specified the provisions.

One never puts the whole content of a Bill into the title. There is only one proposal before the people and the title must reflect that.

There is only one proposal before the people. In regard to what they will be voting on, there is nothing to inform them about the travel and information section. I presume this is what Senator Jackman is concerned about. People may think this is just about abortion. I approve of what the Minister is doing in section 4 but many people who might vote "Yes" in the referendum will not understand that it is reinforcing the situation regarding travel and information. I am not concerned about that because the Government was wise to do this before there was a fresh case before the courts. I take Senator Jackman's point that this is not simply about the protection of human life. This could be said to be averse to the protection of human life. It still allows people to travel and to have information regarding abortion, admittedly in other states. No matter what way one looks at it, whether one wants people to vote "Yes" or "No", it is an important section of the Bill and is not referred to in the title. I am sure that is not the Minister's fault.

We do not put every section of a Bill into the title. I take the Senator's point about information for the public. We will not rely on the title to provide that information as there will be a comprehensive information campaign in the course of the debate and referendum campaign. No matter what referendum was being brought forward we would not depend on the title to provide the information. It is normal to have the ordinal number in the title and what we have done is include in brackets Protection of Human Life in Pregnancy. We did that to distinguish from the other Twenty-fifth amendment that is in the House at present as a Private Members' Bill.

I am happy with the Minister's assurance that the Government's campaign for a "Yes" vote on this will ensure that information will be put before the people that the right to travel and information will be retained. That is important.

I wish to refer again to the point made by Senator Henry. I intended raising the issue of travel and information. The Minister says he wants to put this as succinctly as possible for the people. They will have a short time to address this extraordinarily complex, sensitive issue. I do not want to go back over the Nice treaty referendum which created concern among the public because people did not know on what they were voting. The response I am getting is that people do not know what this is about and do not want to hear about it.

If the words ‘and Other Provisions' are not included how will people know about the provisions and how will they access the information on the detail of the provisions made in the Bill? The motto seems to be "If in doubt, leave it out." That is what will happen and people will not know there are other provisions. If we knew what kind of campaign the Government would run in relation to providing information to the people it might be a different story, but we do not. All we know is that after the passing of this Bill the people will know that there will be a referendum two months later. I do not expect them to go into the complicated detail that we have gone into in the short time available but they need to know about it if they are to vote on such a complex issue.

I am sure Senator Henry will agree with me that this is the most complicated amendment to the Constitution ever put before the people. Does the Minister think that they will go through the Bill line by line and know the provisions made, be able to differentiate between Article 40.3.3º and Article 40.3.4º and know that they are supposed to be taken together as a harmonious interpretation? We are doing the people a disservice by not including ‘and Other Provisions'. They may wonder if they are entitled to travel or information anymore. They will ask whether there is a proper balance between the life of the mother and the life of the child. They will also ask about medical practitioners and about the suicide issue. I cannot answer those questions.

The reason for wanting to include ‘and Other Provisions' is to show that there is a lot to be learnt, studied and understood before the people vote on it. We must remember that once the people have spoken we will have our response and after two months the Act can come into operation. If it is not carried we will have to go back to the people again. In deference to their understanding of this complicated issue we should include ‘and Other Provisions' as a signpost to the fact that they should read the Bill and know what they are voting on.

If the Senator looks at a copy of the Constitution of Ireland she will see that all the titles of amendments have the ordinal number in the title. Every section is not included in the title.

It is only three words ‘and Other Provisions' which the Minister said was innocuous.

We do not include sections. The rights to travel and information which were the subject of previous referenda were not in the title. Our position is that we put in "Twenty-fifth Amendment", and to distinguish it from another amendment we put in "Protection of Human Life in Pregnancy". It is the 25th amendment. There is another 25th amendment, a Private Members' Bill, that was in the House before ours. It was not the view that any amendment would include a range of different sections in the title nor was it ever considered that the title was the basis on which people decided how to vote. Democracy is about debate, argument, intention and perspective. We will have that in this case, just as in all other cases, and issues can be clarified there. Democracy is not a perfect system and we can not say with certainty that 100% of a group has understood every issue. People have different perspectives and views and some will focus more on one aspect of a Bill rather than another. We must leave it up to the people and ensure through debate that they will have a full understanding of it. It seems we will have to agree to disagree on it.

I will have to agree to disagree. What I have suggested including is not another section. It is just three words ‘and Other Provisions'. We are not suggesting a huge number of subordinate clauses to be added but just those three words. I hope the Minister is correct in saying that there will be a long debate on this issue and that people will get information. The reality is that people do not know what the 25th amendment is about. We are not asking for a detailed insertion. The words we want included draw attention to the fact that people need to look beyond the actual title and to ask what are the other provisions. These are the issues on which people will be looking for information and guidance. They will ask questions such as those asked on Second Stage in relation to a medical procedure.

Senator Henry made an interesting point con cerning the designation of specific hospitals. What, for example, happens some mother at risk who lives hundreds of miles from a specific hospital? These are human elements of the Bill and I believe that if people see the words 'and Other Provisions' they will ask what are those provisions. I am worried because I do not think the public will be as informed as the Minister seems to think it will be. I do not know where the people will debate it or whether they will have enough time to do so. Has the Government put enough thought into communicating the complications of the Bill to the people so that they can make a reasoned decision when they come to vote on it.

An Leas-Chathaoirleach

Is the amendment being pressed?


Cuireadh an leasú.

Amendment put.

Burke, Paddy.Caffrey, Ernie.Coogan, Fintan.Cosgrave, Liam T.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.Jackman, Mary.

Keogh, Helen.Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Toole, Joe.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.


Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.Glennon, Jim.Glynn, Camillus.

Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ormonde, Ann.Quill, Máirín.Quinn, Feargal.Walsh, Jim.

Tellers: Tá, Senators Burke and Jackman; Níl, Senators T. Fitzgerald and Gibbons.
Faisnéiseadh go rabhthas tar éis diultú don leasú.
Amendment declared lost.
Níor tairgeadh leasú a 5.
Amendment No. 5 not moved.

Mr. Ryan

Tairgim leasú a 6:

I leathanach 6, línte 37 go 39 a scriosadh.

I move amendment No. 6:

In page 7, to delete lines 37 and 38.

This is the amazing disappearing constitutional amendment. What is in the First Schedule, with the exception of the amendment to Article 40, disappears never to be seen again if certain things happen. This is not without precedent; something similar happened in the referendum on the Good Friday Agreement. The provisions of Article 27, to the best of my knowledge, have never been applied in the history of the Oireachtas. I do not understand why that is the case. I am a self-proclaimed admirer of Éamon de Valera but he made sure that when he included this in the Constitution it would never be used. He did this by requiring a majority of Members of the Seanad to support any such petition. He also ensured that the Government of the day would have a majority in the House. That is apart from the peculiarities of the second period in the lifetime of the last Government. It is a pity they did not exercise their rights and I am surprised Fianna Fáil did not exercise it at least once as they had the possibility of attracting some of my erstwhile colleagues.

I do not understand why Articles 26 and 27 have to be specifically excluded. If one were to trawl through the provisions of the Constitution one would find many other anomalous provisions. I do not use this as a negative term, but this is an anomalous constitutional amendment. If all its implications are carried through, the consequence will be that the amendment "shall be omitted from every official text of the Constitution published thereafter, but notwithstanding such omission this section shall continue to have the force of law." I am not persuaded that there are not a dozen other issues in the Constitution that could impact on that. Therefore, I cannot see why the provisions of Articles 26 and 27 of Constitution shall not apply to the Bill for such a law. It is entirely superfluous and I propose that lines 37 and 38 should be deleted.

Anyone to whom I have spoken about the legislation has been extraordinarily surprised by this provision. People do not understand that the referral of the Bill by the President to the Supreme Court will be impossible. The President has expressed her interest in this area in the Houses of the Oireachtas. I am sure other Senators, the Minister and the Leas-Chathaoirleach were present when she addressed both Houses of the Oireachtas. I remember her speech well and, in particular, her reference to the life of the unborn because a photograph appeared on the front of Time at the time featuring surgery on a baby in utero at 18 to 20 weeks. The diagnosis of spina bifida had been made in utero and, as the Minister will be aware, operations on infants before they are viable is an extraordinarily important area.

I am delighted the chief medical officer has joined the Minister. However, the President expressed delight about progress in this area and pointed out that when one looked at the photograph on the front of Time there was little difference in size between the forefinger of the surgeon and the developing foetus. This is an experimental area, as the chief medical officer will inform the Minister, but it is an area in which most progress has been made. It is a little high-handed of the Government to say that the President cannot refer the Bill to the Supreme Court given that she expressed an opinion in the Houses of the Oireachtas in this area. It would be fair enough if the Minister was to delete the right of referral of the Houses of the Oireachtas to the Supreme Court from Article 27, but I am shocked the Minister is deleting the right of referral of our President, particularly since she has shown interest in this area in the Oireachtas.

How frequently does the Government do this? We are constantly given early bird warnings to sign legislation rapidly. Many members of the public might rely on the President for her considered opinion on the legislation in this area, yet she is being denied that opportunity and that is deplorable.

I referred to this provision on Second Stage. This is one of the most fundamental affronts to our Constitution. Technically another constitutional amendment is provided for, which will impair the powers of the President to refer Bills to the Supreme Court. She is empowered to do so under Article 26 and the Government proposes to remove that power from her in regard to the Bill. It is an underhand way of undermining the constitutional powers of the President. The Minister would be wise to reflect on and agree to the amendment.

He intends to roll two Bills into one and in this provision we are dealing with the legislation that should be introduced following the adoption of the First Schedule in the Constitution. This is a smart way around addressing this issue. The subsection specifically precludes the President from referring the Bill. Article 27 "applies to any Bill other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution, which shall have been deemed, by virtue of Article 23. . . ", which deals with money Bills in the Seanad.

This issue should be addressed in a separate referendum to amend the Constitution to change the powers of the President. The proposal, which has been slipped in at the end of the First Schedule, diminishes the role and powers of the President. It states: "The provisions of Articles 26 and 27 of this Constitution shall not apply to the Bill for such a law". This provision will be the subject of major litigation on a variety of constitutional grounds. We have outlined one and I ask the Minister to accept the amendment.

Amendment No. 26 relates to the section dealing with orders. I agree with previous speakers. The Bill states clearly: "The provisions of Articles 26 and 27 of this Constitution shall not apply to the Bill for such a law." This is an extraordinarily dramatic issue that will catch the imagination of the public and people will ask why the Minister considers that these articles shall not apply. The President probably cannot make a statement but it is unprecedented that he or she would not have the right to consult the Council of State to refer legislation to the Supreme Court for consideration. I would like the Minister to outline whether there is a precedent for denying referral. I have not come across this and under the provision two Articles cannot be referred. I will deal with the issue in greater detail under amendment No. 26.

Senator Jackman has touched on one of the principal points I wanted to make. Has the exclusion of the presidential role been effected in legislation previously? I cannot remember, and it seems very curious. It also has a strongly undemocratic flavour. I said on Second Stage that it looked as if the mentality behind the Bill is not to trust the Oireachtas, the courts and now the President. Why should she not have the power to refer legislation to the courts for a constitutional test? I support the amendment.

I want to clear up some misunderstandings about this. First, Articles 26 and 27 do not apply to Bills which are put through the Houses to amend the Constitution.

We do not know that.

Article 27 applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas other than a money Bill or a Bill expressed to be a Bill containing proposals to amend the Constitution.

Mr. Ryan

We know that.

One would not think so having listened to the debate. Most Senators are suggesting we are diminishing the rights of the President, but that is not the case.

That is not true.

The Bill to amend the Constitution will be determined by the people so that they are the ultimate arbiters of the Constitution.

Mr. Ryan

Article 40.3.4º and Article 40.3.5º—

The people will decide and we are going to them with a clear proposal to amend the Constitution and to give constitutional protection to the legislation.

Article 26 ordinarily enables the President to refer a Bill to the Supreme Court for decision on the question as to whether such a Bill or any specified provision or provisions in such a Bill is or are repugnant to this Constitution or to any provision thereof. The nature of those Bills is specified in the article. Under the current proposal if the constitutional amendment is passed, it will have taken place with the people having been able to see the precise text of the envisaged Act in advance. The constitutional protection, which will be provided under Article 40.3.4º of the Constitution, will refer to that Act as contained in the Second Schedule to the Bill.

The reason it would not be appropriate to provide for referral of the Protection of Human Life in Pregnancy Act to the Supreme Court is that, by virtue of the people having decided to give constitutional protection to that Act in the terms proposed in this Bill, the Act is made constitutional. In other words, the vote of the people will make the Act constitutional.

We understand that.

If the people had already, in effect, given their verdict on the matter, it would be totally inappropriate then to go back to the Supreme Court and to give it the role of considering the issue of constitutionality. It is quite straightforward.

The Senator is asking to delete the lines which state that Articles 26 and 27 shall not apply.

Basically we are saying if the people vote for this, then the Oireachtas will be obliged after the referendum, within 180 days, to enact that Bill, word by word.

Which might or might not happen.

When that has been completed, the people will have decided on that and on its the constitutionality, and we are not giving either the Supreme Court or others the role of second guessing that.

Article 27 provides for a mechanism for the referral of Bills to the people. Senator Ryan has given the background to that. A majority of the Members of Seanad Éireann and not less than one third of the Members of Dáil Éireann may by a joint petition addressed to the President by them under this Article request the President to decline to sign. In other words, it is a methodology for ascertaining the will of the people on particular legislation.

What we are putting forward here is a referendum mechanism which was designed expressly to ascertain the will of the people on the precise text of the envisaged legislation in advance of its passage through the Oireachtas. Therefore it would be illogical to leave open the possibility that a further referral to the people would take place when the same Bill came before the Oireachtas, which is what is being proposed if we delete the lines referring to Article 27.

Here is the mechanism by which we are going to the people to ascertain their will on this particular Bill, and there is no point, for the purposes of this procedure, in the provisions of Article 27 applying.

The Minister is quite disingenuous in the way he is explaining this. The reality is that only the short bit will be written into the Constitution. All of the rest of the Bill, from the First Schedule to the very end, will become statutory law and it will not be included in the Constitution. That will not become law until the first bit is passed by the people and included in the Constitution. Then the Govern ment and the Oireachtas will have the ability, within 180 days, to bring in the Bill and let it become legislation.

This is unprecedented constitutional misbehaviour. The Minister is introducing a law, rolling it in with the first Bill, and prohibiting this House and the other House from going through the normal process of examining a Bill through the five Stages. He is also withdrawing from the Oireachtas the powers to amend legislation. It is unprecedented. It has never been done since the foundation of the State in this manner. The Minister is introducing an unprecedented legal constitutional process which is open to serious challenge in the courts.

He is not only withdrawing from this House and the other House the powers to amend legislation but also prohibiting the President from referring it to the Supreme Court. He has done two things. He has tied up the President so she cannot do anything and he has tied up both of these Houses from addressing it at any time in the future or from going through the normal process.

I believe this section breaches a fundamental Article in the Constitution, that is, Article 15.2.1º. That Article states:

The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

The Minister is withdrawing that power from the Oireachtas. He is, in a sense, vesting the legislative powers in the people but he is not really doing so because, in effect, what they will vote to put into the Constitution is the first bit.

It is a constitutional quagmire. It is irresponsible of a Government to go down this particular route, to flout the Constitution in such an appalling manner and to insult the position of the President and of the Legislature – both House of the Oireachtas – in the manner in which it is being done.

Mr. Ryan

I have been convinced for a long time that the Minister and the Government are far from convinced about the road they have chosen on this issue but they are stuck with it. It is really astonishing. The Minister is quite certain and eloquent, as only he can be, about how inappropriate and illogical it would be to refer this to the Supreme Court if the people had decided on it, and perhaps he is right. However, presumably the President, left to her own devices, would come to a similar conclusion. She is a very eminent lawyer, a very sensible and practical woman. If what the Minister is saying is true, which is that it would be inappropriate to do this, then I am quite sure the President would act accordingly. Obviously the Minister does not believe the President would necessarily do that because he wants to take away the option.

Precisely. It is appalling.

Mr. Ryan

If it is as obvious as the Minister says it is, he should leave it to the President and she will make up her own mind. Similarly if, in the Minister's mind, the President gets it wrong and refers it to the Supreme Court, their lordships are perfectly capable of saying at the very beginning, "This is inappropriate. It has been decided on by the people. Take it back. It is over. It is constitutional." There is no need for this little bit. If what the Minister says is as clear-cut and unarguable as he has said, then neither the President nor the Supreme Court will exercise the options available to them under Article 26.

The reality is of course that the Government has been advised by somebody that unless it includes this, it might be possible for them to do it. If the President decides that it is appropriate to do it, if the Supreme Court accepts that it is appropriate to consider it, it is an extraordinary presumption on the part of the Oireachtas to withdraw that right from them. If, on the other hand, it is as clear cut as the Minister said, then he does not need to touch it at all. He should take this subsection out, let it be as it is and let the President and the Supreme Court operate autonomously without our restricting them because the Government is afraid that they might do something the Government does not want them to do.

It is a quite outrageous interference. If the Minister believes it is so clearcut, then he should trust the President and the Supreme Court. If he does not think it is appropriate, then he should not have these two lines in the Bill at all.

There is a touch of paranoia in the Seanad this afternoon.

I thought the Senator was a GP, not a psychiatrist.

Basically what we are doing here is putting to the people a proposed change in the Constitution. The Constitution belongs to the people. It does not belong to the President or the Houses of the Oireachtas or anybody else. It is up to the people to decide. If they say "Yes", it becomes part of the Constitution and it is not up to anybody else, not even the Supreme Court, to question the Constitution. They may interpret an understanding of it but they cannot change it.

Mr. Ryan

What are they afraid of?

It is not a question of being afraid of anything.

Mr. Ryan

Then leave it out. If he is so sure he is right, leave it out. Otherwise the Minister is afraid of something. It is as simple as that.

If in doubt, leave it out.

There is no doubt.

Perhaps the fear is on the other side.

I want an answer from the Minister to my question if this is unprecedented. It could be that the people will have their say in the vote, but within 180 days there may be a change of Government, or of minds, and the Bill will not be passed. In that case we will be saying that the people have decided, but we are not enacting the law. What then of the people's will? The constitutional amendment will fall, even though the people have spoken. Is that not a fact?

It is not a fact. It is the Constitution.

Yes, but we should consider that scenario. I hope the people know that, when they vote, there is no guarantee that their will will be respected. That has never happened before. Why sail these uncharted waters? Another issue is the President's prerogative to refer the Bill to the Supreme Court being put aside. It is a muddle. Why put it to the people at all since it is so uncertain? This is dangerous. Senator Taylor-Quinn, who has more experience on constitutional matters, has made the dangers clear, as has Senator Ryan. This should be left out. The Minister should take heed of what has been said in the House on this very important amendment.

I asked the Government to make clear in its public information that, subsequently, the legislation cannot be referred to the Supreme Court by the President in whom many have confidence, whatever their opinion, fair or not, may be of politicians in general. The Government must also make it clear that there is still the right to travel and information, that the fertilised egg is protected to the same degree, and that the morning after pill and post-coital IUD will still be available.

I have already applied to the commission for funding to campaign for a "No" vote. Both sides will be treated equally. Therefore, when the Government receives its funds to promote the amendment, I will receive mine. As I will not use billboards, no one will be able to comment about unkind things appearing on them.

The acid test for any constitutional issue is the decision of the people. This is the first time that a constitutional amendment is in tandem with legislation. If the people decide in a referendum, why should the Supreme Court or the President interfere? The Supreme Court is the guardian of the Constitution, but not the judge of what the people decide. It would be ludicrous for the President or the Supreme Court to seek to arbitrate again on the matter. It would undermine democracy as its essence is that if there is a constitutional difficulty, then the people decide. The Constitution belongs to the people. The Supreme Court may arbitrate down the road, but not shortly after the referendum. Anything else would be a deviation from the principles of the Constitution.

It will not be able to do anything.

Ours is a republican Constitution. The people are sovereign, the fundamental point governing this entire issue. They will make a constitutional decision. They will be presented with a Bill amended as it passed through the Oireachtas. As it was amended in the other House, it is untrue to say that it is not being dealt with by the Oireachtas. It will pass through all Stages.

It is unprecedented.

Yes, it is a unique process.

Mr. Ryan

Grotesque, unprecedented, bizarre and unbelievable.

The key point is that the people will decide. It is unworthy and disingenuous to read into this—

Mr. Ryan

The Minister ought not to use such words.

Very well, I withdraw the word "unworthy," but it is unfair and disingenuous—

That is not much better.

—to claim that it is about a lack of confidence in the President. That was never the motivation behind this measure. As others have argued, the issue is that the people will decide constitutionally one way or the other. They will be informed of all aspects and, in reply to Senator Jackman, will know that if the Oireachtas does not enact the Bill within 180 days, it will fall.

That will not instil confidence.

By that time Fianna Fáil will have satisfied the four Independents and be out of office having done the damage.

In response to Senator Taylor-Quinn's point, we are not taking any powers away from the Oireachtas. After the referendum the Oireachtas may decide not to pass the Bill.

What of the voice of the people then?

There would be a problem.

Of course there would. Why go down that route?

We are putting it before the people who will decide. Any Oireachtas which refused to comply with the will of the people would deserve to be condemned. I would condemn it roundly. However, we are not hiding this. We are saying that if the legislation is not passed within 180 days, it will fall.

The general public will not understand that.

We are not taking any powers away from the Oireachtas.

If it is done once, it will be done again.

Constitutionally, it is a correct, sound approach. Many of the comments made about the President are overstated. I have great confidence in her. This side of the House enthusiastically supported her nomination and election. However, any President would only refer a Bill to test its constitutionality and rarely do so in accordance with his or her private views. In this case, because the whole issue is being put to the people, they will have decided on its constitutionality, the reason there is no need to utilise Article 26 or Article 27.

Once the Bill is passed it will be subject to interpretation by the Supreme Court should anyone wish to challenge it. Any legislation we pass here is subject to interpretation by the courts if cases are made. The constitutional status of the Act is the key point. It will require that the rest of the Constitution be construed in a manner which is consistent with the fact that it is intra vires of the Constitution. The Act will enjoy the full protection of the Constitution once passed by the people after the amendment is decided.

Let us take this to its practical conclusion. The Minister has clearly stated that this will be put directly to the people and will be passed by the people and that the people are the ultimate decision-makers. I accept that absolutely but I must ask the Minister to get down to the practicalities. The Minister might imagine himself at the polling station in Turner's Cross. He is presented with his ballot paper. Is he also presented with the entire document, the entire Bill? No. What the people will be presented in the referendum with the words in sections 1 and 2. That is exactly what will be on the ballot paper. This is what the people will read when they go in and they will mark either yes or no. They will not have seen the Bill and they will not know what it is all about. Technically speaking, the people will not vote on that Bill because that Bill will not be presented to each voter. If this proposal is passed, this bit will go into the Constitution. There will be an election, the Government will possibly change but Bertie will be able to say that he was a good lad, he kept his promise to the four Independents and he had a constitutional referendum. He will say that the other crowd will not bring it in after the change of Government.

The Minister has acknowledged that this is unprecedented legislative practice. It is giving almost an unconstitutional power to the Oireachtas. That is the reality. It is a fundamental breach of the Constitution. I do not believe Senator O'Donovan, who has a legal background, believes the argument he made. The realities are that the people will not be voting on that Bill; they will hear that there is legislation hanging around but they will not know the fine detail. It is unprecedented and unconstitutional and should not proceed.

Mr. Ryan

I have a huge respect for the capacity of this Minister and I have a certain degree of sympathy for him. Apart from saying that they should not have started on it, I will not try to make this into a party political issue. I have tried to avoid that. My own views on this have been known for a long time.

I come back again to the fact that the President knows the role of her office better than I do and the Government is saying it does not trust her to understand her role. She will have to sign this Bill. It would have been more honest to say that this Bill when enacted by the Oireachtas does not need to be signed by the President. We are telling her that she still has the role of signing this Bill but we are withdrawing her constitutional role to question whether it is consistent with the Constitution. It is possible that this Bill might contradict another section.

Let us remember what happened to Article 40.3.3º. One of the reasons for the problem was that it produced conflicting rights, not just in 40.3.3º but in terms of the fundamental idea of the right of the citizen to life. That is why the Supreme Court interpreted 40.3.3º in a way which is totally at variance with what its advocates thought it would mean because it contradicted something else in the Constitution. That is a separate issue but the fundamental issue is that I trust the President not to do something which is at variance with the Constitution. I trust the Supreme Court not to do something which is a variance with the Constitution. If it would be inappropriate for this Bill to be referred by the President to the Supreme Court to adjudicate on it, I am perfectly happy to leave that choice to the President who has to sign it. I therefore do not understand why if it is so obvious, we have to prohibit it. I think there might be a problem that their lordships might feel that some sections of this Bill were in conflict with the Constitution. I do not know.

How could they decide that if the people had voted?

Mr. Ryan

It is perfectly conceivable to have contradictory amendments to a Constitution, to have an amendment passed which contradicts another.

The people have decided and the people are supreme.

Mr. Ryan

It would be wiser for us to identify such a thing in advance. The Minister may well have a point. Maybe the President should not and probably would not, and maybe the Supreme Court should not and probably would not, get involved in this, but it is a pre-emptive strike entirely out of proportion to the risk to take the powers away from them, while at the same time reserving to the Oireachtas the right to ignore the people. That is the case whatever the Minister's view as to whether it should or should not be enacted.

If I am a supporter of a Government and this legislation has not been passed, I will be doing my best to ensure that it is not passed, because I will be a Member of an Oireachtas which was given that power under the Constitution to do precisely that. I will not be intimidated by people telling me things such as the Minister has said. I still believe it is wrong afterwards. If the Oireachtas is left with the right to refuse to pass this legislation, then as far as I am concerned the Oireachtas is entitled to exercise that right and nobody should pretend otherwise.

If we do not believe that the President or the Supreme Court are capable of understanding what their roles are in a constitutional democracy, if we believe that they are so capable of being wrong to the extent that we write them out to make sure of it, then our constitutional order does not stand up to much. There is no reason for that subsection.

There has been much talk about trust and lack of trust. Senator Ryan said he trusted the President and the Supreme Court to make an informed decision but not the people.

He never said that.


The corollary of what the Senator said is that the people cannot be trusted to make an informed decision. That is political naivety or political bravery of the highest order.


I accept that the approach to dealing with this issue is unprecedented in the Irish Constitution. It is not unprecedented in other constitutions or in other countries.

We are now dealing with the de Valera Constitution, not with other jurisdictions.

County Clare will never forget or forgive.

The Constitution Review Group and the All-Party Committee on the Constitution were composed of people from all sides and included senior people from the Opposition party. It proposed a referendum and legislation as the way forward. That is what we are proposing.


Senator O'Donovan is in order.

I think there is some confusion about the role of the President and the role of the courts. The Constitution belongs to the people and it would be utter nonsense if provisions under Articles 26 of the Constitution, allowing the President to refer a Bill to the Supreme Court, were used after having given the people their say. We will ask the people to decide in February or March and once they have decided, de facto that will be the end of the matter. We should not be confused, the people will be first to decide and having done so the functions of the President or the Supreme Court are nullified. They will have no say because if that were the case the Constitution would be—

The President may not necessarily intervene, but she has the option.

The President has no function when the people have decided.

There are conflicting legal opinions on this, which completely undermine what the Government is trying to do. As I said on Second Stage, based on legal advice I got, we are contravening Article 26 of the Constitution, which allows the President to refer a Bill to the Supreme Court to see if it is repugnant to the Constitution. We are undermining the Constitution. If the Government wants to refer everything to the people, why not be honest about it, abolish the Constitution and introduce a system like the one that exists in Switzerland? We could vote every week and forget about the Legislature and the President.

The people have the ultimate power.

Nobody denies that. Why are we embarking on something that is totally unprecedented to achieve a certain aim?

It is not totally unprecedented. This was done with the Good Friday Agreement.

Why not respect the Constitution as it stands? Why not respect the Office of the President? This will be challenged again. The Government's legal advice comes from the Attorney General, mine is from another eminent senior counsel and already there is a conflict. The Government has opened up a minefield. Having sat through the debate, I do not believe the Minister can stand over this.

It is crystal clear.

The Minister agrees it is not crystal clear

We have had prevarication on some of the issues. What we have is opinion, not clarity.

Senator O'Donovan referred to the report of the All-Party Committee on the Constitution in relation to the holding of a referendum. I am a member of that committee. We reached consensus on many things, but we did not reach consensus on the need for a referendum. I support the comments made on this side of the House in relation to this amendment.

I reiterate—

Acting Chairman

You have already spoken on this.

There is nothing to stop me from coming in again. I reiterate the point made by Senator O'Meara. Senator O'Donovan referred to the fact that some members of our party agreed with this line. They agreed to legislation on the X case, but not to proceeding to hold a referendum. To leave that on the record of the House would have been totally wrong.

It was one of the options.

The Minister referred to the Good Friday Agreement in a passing comment. From its foundation, the Fianna Fáil Party was very slow to involve itself in constitutional politics. It did not engage in constitutional politics until it got its own Constitution in 1937. It is now showing a blatant disregard for the Constitution of which its founding father was the architect in 1937. I am concerned that it is reverting to unconstitutional matters given the cavalier manner in which it is dealing with this issue. I am surprised a Minister of the calibre of the Minister, Deputy Martin, for whom I have regard, would involve himself in this. I thought he was one of the fathers of the future of Fianna Fáil. Further reducing the powers of the Constitution and the Oireachtas is to be frowned upon.

I reject the arguments that this is a fundamental breach of the Constitution. It could not be and is not.

That is the legal opinion.

How can anything be in breach of the Constitution if the people have decided? Everything has to go before the people who will decide this one way or the other. In a republic, the people are sovereign. It is not a question of not trusting the President or the Supreme Court. We are developing a mechanism to ascertain the will of the people.

It is a mechanism to usurp the Constitution.

The people cannot usurp the Constitution, the people make the Constitution.

The President is the person.

The President guards the Constitution as made in the context of any future legislation that may vary with, undermine or be in breach of the Constitution. That is the role of the President. The President may refer legislation to the Supreme Court to test its constitutionality. This legislation will form part of the Constitution if passed by the people. There is no need to go through other mechanisms to second-guess a decision of the people. I will not decide this nor will the Government, but the people will. Any suggestion that it is in some way in breach of the Constitution is absolute nonsense and does not stand up. That is not a matter of opinion, it is a matter of fact.

That will be cited to the Minister in the future.

This is not exactly the same as the Good Friday Agreement, but there is a similarity.

The only time Fianna Fáil agreed to the 1922 Constitution was when it signed up to the Good Friday Agreement.

I do not want to go through the evolution of the Fianna Fáil Party.

It came around to the Fine Gael way of thinking when it signed up to the Good Friday Agreement.

The 1927 general election was very interesting because it involved several Cumann na nGaedheal people coming over to the Fianna Fáil side. The same happened in 1932. The great Professor Alfred O'Rahilly, the Dowdalls etc. saw the light and came over to the Fianna Fáil side of the House. Both parties were central to the consolidation of politics in this country at a time when other European countries were taking other routes. The Labour Party also played a noble role.

What about the Independents?

Fianna Fáil was not around during the Civil War although its predecessor was.

Mr. Ryan

We did not kill our fellow Irishmen because we did not agree with them.

I agree that it did not. The Labour Party would have been in power if John Jinks had voted the right way.

Acting Chairman

I ask the Minister to address the amendment.

It is no harm to have some light relief from time to time. The amended Articles 2 and 3 of the Constitution only came into effect when the Government declared within a limited period that the State had become bound by the Good Friday Agreement. If no such declaration had been made by the Government, the amendment would have lapsed. That was a complex and unprecedented formula that was put to the people. The word "unprecedented" has been bandied about as if it was a dirty word, but it is not. Things happen in an unprecedented way from time to time. It happened with the Good Friday Agreement and on this occasion, two new subsections will be added to Article 40.3 if the Oireachtas, within six months, enacts the protection of human life in pregnancy Bill.

On Senator Ryan's point, it would be fundamentally undemocratic if the Oireachtas decided not to implement the will of the people.

Mr. Ryan

It would have been acceptable for Articles 2 and 3.

No, it would have been wrong.

The Minister is covering himself in case he does not get back into government.

In terms of the Constitution and the will of the people as clearly articulated in a referendum, it would be fundamentally undemocratic to work to undermine that decision, irrespective of one's personal or political views.

It could happen.

One could do it through another constitutional referendum if one wanted to, but to say one would work not to give effect to a decision of the people is fundamentally undemocratic. I would find great difficulty with legislators who would purposefully and in a premeditated way set out to undermine the will of the people. We have said all there is to say on the issue.

Mr. Ryan

de Valera's is a fine constitution. It is a remarkably liberal document dating from the 1930s when liberalism was not a characteristic of some parties in the House, which should not force us back into that time too enthusiastically. They have issues about which they should not invite us to think. If the Minister's argument about the Bill is right, there is a question about the constitutional propriety of the process. My party raised the appropriateness of the legislation to amend the Constitution containing other matters, that is, the Second Schedule. These are constitutional issues at which the Supreme Court might feel it is entitled to look. While it may not be appropriate for it to rule on the constitutional niceties of the Bill to protect human life, it might feel entitled to look at the process of the amendment and the legislation and state that is not what Bun reacht na hÉireann envisaged as the correct way to amend the Constitution.

Mr. Ryan

It might be entitled to say that after a referendum is held because a referendum not held in accordance with law would be null and void. If we did not hold a referendum in accordance with the Constitution, there would be a serious issue as to whether a decision was made by the people and, therefore, whether it was an amendment to the Constitution. It would not be outside the bounds of possibility for the Supreme Court to take upon itself the right to consider the process by which it was done and decide on it. That would not represent an interference in the activity. It would be a defence of the Constitution, which is the job of the Supreme Court. Without going through the nitty-gritty of the Bill, it could look at the process. The subsection means that an attempt by anybody to get the Supreme Court to look at the validity of the process in terms of the Constitution is being prevented. That is a fair issue because the process is new, unprecedented and different, as the Minister said. There is nothing wrong with unprecedented decisions, but they deserve to be scrutinised. This is preventing the process from being scrutinised.

It is not.

Mr. Ryan

It is preventing the process from being scrutinised. There is no stage where the Supreme Court can look at the process.

I hate when matters become repetitive, but sometimes one must repeat to get the message across. I agree with Senator Ryan. The Bill has serious implications for the Constitution and threatens the withdrawal of fundamental rights, one of which is the right of the President and the Supreme Court. We disagree on a fundamental part of the Bill. The arguments Senator Ryan made are compelling. He has given a slightly different angle to it, which is interesting. It shows the quagmire into which we are descending and it is the Minister's fault.

Members should read Article 26 in terms of the Bill to amend the Constitution. Article 26 states, "This Article applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas other than a Money Bill, or a Bill expressed to be a Bill containing a proposal to amend the Constitution. . . " We are referring to the Bill which will subsequently pass through after the people vote for it. That may not be referred to the President because the people have decided.

The Minister has made the case. The first section of the Bill is an amendment to the Constitution, while the second part is legislation. It is unprecedented for a Bill which has passed its five Stages in the House to be put under the umbrella of a Bill to amend the Constitution. Article 26 reads, "a Bill expressed to be a Bill containing a proposal to amend the Constitution, or a Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of this Constitution." There will not be an opportunity for the legislative part of the Bill, which will subsequently be in the Statute Book, to be signed by the President and referred to the Supreme Court.

The people will have decided.

The Minister should not give us the people argument. He is deliberately misleading the House.

I am not.

The people will not decide the legislation.

They will.

The legislation must pass through the House in the same way as the five Stages passed through the other House. The constitutional amendment will be put to the people. The First and Second Schedules, the legislation, will not go through the normal process as enacted by the Constitution, thereby enabling the President and the Supreme Court to amend it.

My understanding is we are arguing about a gap between the passage of the Bill and the holding of a referendum.

No. They are talking about after the referendum.

After 180 days.

The Bill does not become an Act until after the referendum. It must come back to the Oireachtas.

Mr. Ryan

This is an appropriate place to raise an issue since we are ranging far and wide, including into history. The Government is presuming to run the affairs of the Oireachtas with the proposal about the Bill because it will put a Bill through the Oireachtas which it states does not have a right to amend it. That is an interesting idea. The Bill referred to in the Second Schedule will, the Minister hopes, come before the Oireachtas sometime within 180 days of the referendum. The Houses of the Oireachtas will be told they cannot amend it.

The people will have decided.

Acting Chairman

Order, please.

Mr. Ryan

Why not end the pretence and write into the legislation that the Bill will have been deemed to have been passed by both Houses of the Oireachtas? What is the point of going through the charade of Oireachtas scrutiny?

That would contravene Article 15.

The Minister is contravening Article 26.

Mr. Ryan

The Minister is contravening the spirit of Article 15 if the Oireachtas rubber stamps something because the Government instructs it to do so. I find it peculiar, but we have said enough on the issue.

We will have to agree to disagree. We have argued it well.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh."

Question put: "That the words proposed to be deleted stand."

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.Glennon, Jim.

Glynn, Camillus.Kett, Tony.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Ormonde, Ann.Quill, Máirín.Ross, Shane.Walsh, Jim.


Caffrey, Ernie.Coghlan, Paul.Coogan, Fintan.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.Jackman, Mary.Keogh, Helen.Manning, Maurice.

Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ridge, Thérèse.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators O'Meara and Ryan.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

I wish to announce a correction to the list of amendments. After amendment No. 6, the words "section opposed" should read "Schedule opposed" and the names of Senators Ryan, Costello and O'Meara should have appeared on the printed list in addition to the names of Senators Jackman, Keogh, Manning and Taylor-Quinn.

Tairgeadh an cheist: "Gurb é an Chéad Sceideal an Chéad Sceideal a ghabann leis an mBille."

Question proposed: "That the First Schedule be the First Schedule to the Bill."

Will the Minister explain the Schedule, especially the subsection beginning: "If a law, containing only the provisions set out. . . "? I am confused about its effect. Will he explain the effect of this in plain language?

I have the same question. Senator Ryan has kindly explained it to me. However, given that he and the Minister have not agreed on the explanation of earlier matters, it would be wise if the Minister explained it to me as well.

Is Senator O'Meara referring to page seven of the Bill?

It is page seven, lines 24 to 32. The subsection begins: "If a law, containing only the provisions set out. . . ".

That is the subsection I would also like explained.

The subsection states:

If a law, containing only the provisions set out in . . . The Second Schedule to the Twenty-fifth Amendment . . . Act . . . is enacted by the Oireachtas, this section, other than the amendment of Article 40 of this Constitution effected thereby, shall be omitted from every official text of this Constitution published thereafter, but notwithstanding such omission this section shall continue to have the force of law.

It is self-explanatory. What will be included in the Constitution—

With respect, it is not.

No, it is not.

Subsections 4º and 5º will be included in the Constitution. The First Schedule contains the proposed text of the amendment of Article 46 of the Constitution. The proposed text to be inserted as Article 46.6.1º, in turn, contains the proposed text of Articles 40.3.4º and 40.3.5º of the Constitution. The proposed text of Article 40.3.4º provides that, in particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002. The use of the term "in particular" makes it clear that the statute envisaged by the amendment, if enacted, is not intended to be a restatement or redefinition of "the unborn" as used in Article 40.3.3º.

The existing Article 40.3.3º, as amended in 1992, will remain in place. The effect of the text proposed as Article 40.3.5º is that any Bill containing provisions to amend the Protection of Human Life in Pregnancy Act, 2002, must be referred to the people in a further referendum if, in future, people wish to amend it.

The effect of the text proposed as Article 46.6.2º is that if the Protection of Human Life in Pregnancy Act, 2002, is enacted, and amendments are made to Article 40, the amendments to Article 46 will no longer appear in the official text of the Constitution, and the amendments made to Article 40 will take effect, appearing in the appropriate place within that Article. This is because once the amendment to Article 40.3 takes place, it would be undesirable for the new Article 40.3 to appear in more than one place in the Constitution.

The text proposed as Article 46.6.3º contains a mechanism whereby, unless within 180 days – as Senators know, we discussed this matter already – a law is enacted in exactly the terms of the text seen and approved by the people when they vote on the proposed amendment, the whole of Article 46.6 will cease to have effect and the Constitution will revert to the form in which it existed before the referendum.

The text proposed as Article 46.4 states that the Bill for the law on the protection of human life in pregnancy is excluded from the terms of Articles 26 and 27 of the Constitution, which we have just debated in the previous amendment.

It is still not totally clear to me. Can the Minister explain the text in the First Schedule, Part 2, lines 30 to 32, which states, "but not withstanding such omission this section shall continue to have the force of law"?

It must continue to have the force of law.

The term is, "but not withstanding such omission [which means that it is being taken out] this section shall continue to have the force of law". While this may be absolutely clear to everyone else, it is opaque to me. I cannot follow exactly what that means. My concern is that we will have to explain this to people, so I would like to be sure what I am explaining.

I have explained that it means the same provision will not appear twice in the Constitution. That is the point.

I was very confused before the Minister's statement but now I do think I understand it.

The same happened in the Good Friday Agreement.

As I understand it, it is redundant—

—because it already exists in one place and there is no point in having it in two places. Therefore, it is not as if the substance is being left out of the Constitution.

The substance is very clearly in there but it is a kind of redundant clause which the Minister is tidying out of the way. I have no problem with that at all. It seems logical to me.

Very well read.

Thanks. We do things well in TCD.

I hope the Minister will correct me if I am wrong. If this amendment to the Constitution is passed, do I take it that henceforth Article 40.3.3º will state:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

I take it the new text will then be inserted as follows:

4º In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002.

5º The provisions of section 2 of Article 46 and sections 1, 3 and 4 of Article 47 of this Constitution shall apply to any Bill passed or deemed to have been passed by both Houses of the Oireachtas containing a proposal to amend the Protection of Human Life in Pregnancy Act, 2002, as they apply to a Bill containing a proposal or proposals for the amendment of this Constitution and any such Bill shall be signed by the President forthwith upon his being satisfied that the Bill has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law.

Does it stop there?

It stops there and that is it? That will be the new Article 40.

Yes, Article 40.3.3º, 3.4º, and 3.5º, as the Senator has just read out.

And that is it?

Is this, in effect, what will be presented to the people when the ballot paper is presented to them?

No. What will be presented to the people is the text on page 7 of the Bill. That is my understanding. The full Schedule to be presented to the people will be posted up on the noticeboards in the polling stations.

Not on the ballot paper itself?

I am talking about the ballot paper. Forget the polling station, I am talking about when the people go to vote.

They will vote on the proposed Bill to amend the Constitution, as they have done in the case of every other constitutional amend ment, whether it was the Fourteenth, Fifteenth or Sixteenth Amendment. In this case it will be the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill.

Will it be the little bit on page 4 of the Bill, containing sections 1 and 2, that will be on the ballot paper?

I will confirm that for the Senator later.

Is the text on page 7 of the Bill what will be sent out in the post?

That will be up on every noticeboard in the polling stations.

Hold on a second. The Second Schedule will not appear on any posters or noticeboards.

It can do, yes.

I am sorry, Senator Taylor-Quinn, but we are not yet dealing with the Second Schedule. We are dealing with the First Schedule at this stage.

I am aware of that, a Chathaoirligh, but we are dealing with a fundamental principle of what the people will be voting on. We need to be very clear about what will be presented to the people on the ballot paper and what they will actually be asked to vote on. We have now got clarification from the Minister, specifically, but the more clarification we get the more unconstitutional the proposal appears to be. It is essential that it be strongly opposed.

By way of clarification, I would point out that this is very similar to what occurred in the Good Friday Agreement.

They are two different things.

Sections 4 and 5 of the Nineteenth Amendment of the Constitution Act, 1998, state:

if a declaration under this section is made this subsection and subsections other than the amendment of the Constitution affected thereby, and subsection (5) of this section, shall be omitted from every official text of this Constitution, published thereafter, but notwithstanding such omissions this section shall continue to have the force of law.

It is exactly the same kind of provision.

There is a difference.

Section 5 went on to state:

if such a declaration is not made within 12 months of this section being added to the Constitution, or such longer period as may be provided for by law, this section shall cease to have effect and shall be omitted from every official text of the Constitution published thereafter. . .

It is a very similar construction.

Yes, it is very similar but not the same. The Minister was talking about a declaration there, not about a Bill that is presented in five Stages.

The Senator was talking about an action that was dependent on something happening after the people had voted.

Yes, which is quite extraneous to the normal legislative process that is incorporated in the Constitution. The Minister was not talking about introducing a Bill that goes through five Stages in each House of the Oireachtas and which is subsequently referred to the President who, in turn, can refer it to the Supreme Court. To draw similarities is not fair because the circumstances are different.

They are different circumstances.

We have argued about the fundamental point that the people are sovereign, and that is very important. It is the people who will decide on this. Only then, after they have decided, will the Act go back to the Oireachtas to be passed.

We would have no problem with the Act going back to the Oireachtas if the normal process could be followed, whereby be it could be amended in both Houses, passed and referred to the President. What is happening here, however, is unprecedented. It is bringing an unconstitutional role to the Houses of the Oireachtas. In another sense it is diminishing the powers of the President. Inherent within it is another Act which amends the Constitution to reduce the powers of the President. Within this constitutional amendment is another, not very apparent, constitutional amendment which considerably reduces the powers of the President.

The Senator is now broadening the scope of the debate.

We are dealing only with the First Schedule.

Cuireadh an cheist.

Question put.
Rinne an Choiste votáil: Tá, 27; Níl, 19.
The Committee divided: Tá, 27; Níl, 19.

  • Bohan, Eddie.
  • Bonner, Enda.
  • Callanan, Peter.
  • Cassidy, Donie.
  • Chambers, Frank.
  • Cox, Margaret.
  • Cregan, John
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Liam.
  • Fitzgerald, Tom.
  • Fitzpatrick, Dermot.
  • Gibbons, Jim.
  • Glennon, Jim.
  • Glynn, Camillus.
  • Kett, Tony.
  • Kiely, Rory.
  • Leonard, Ann.
  • Lydon, Don.
  • Mooney, Paschal.
  • Moylan, Pat.
  • O'Brien, Francis.
  • O'Donovan, Denis.
  • Ó Fearghail, Seán.
  • Ormonde, Ann.
  • Quill, Máirín.
  • Walsh, Jim.


  • Caffrey, Ernie.
  • Coghlan, Paul.
  • Coogan, Fintan.
  • Costello, Joe.
  • Cregan, Denis (Dino).
  • Doyle, Joe.
  • Henry, Mary.
  • Jackman, Mary.
  • Keogh, Helen.
  • Manning, Maurice.
  • Norris, David.
  • O'Dowd, Fergus.
  • O'Meara, Kathleen.
  • O'Toole, Joe.
  • Quinn, Feargal.
  • Ridge, Thérèse.
  • Ross, Shane.
  • Ryan, Brendan.
  • Taylor-Quinn, Madeleine.
Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators O'Meara and Ryan.
Question declared carried.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Níor tairgeadh leasú a 7 agus a 8.
Amendments Nos. 7 and 8 not moved.

Amendments Nos. 9, 10 and 12 are related and will be discussed together by agreement.

Tairgim leasú a 9:

I leathanach 9, líne 12, "(nó, i gcás éigeandála liachta agus i gcás ina gcreideann an cleachtóir lena mbaineann gur gá sin ar mhaithe le bainistiú leas a othair nó a hothair, in aon áit eile)" a chur isteach i ndiaidh "fhormheasta".

I move amendment No. 9:

In page 8, line 12, after "place" to insert "(or, in case of medical emergency and where the practitioner concerned believes the management of the welfare of his or her patient so requires, any other place)".

Amendment No. 9 refers to the notion of an approved place. It causes a lot of concern because an element of confusion could arise. Will the Minister clarify what he is likely to do? My understanding is that the term "approved place" will mean that the Minister, if the referendum is passed and the Bill becomes law, will prescribe by regulation or order the approved places where the procedures can be carried out. I know from work on the all-party committee that in general the major Dublin maternity hospitals are the ones which handle medical emergencies or difficulties in pregnancies from around the country. Am I right in assuming that these hospitals would be approved places? Will the Minister clarify the important matter of what is likely to happen if the referendum is passed and the Bill is enacted?

On the issue of an approved place, what happens in the event of a pregnancy related medical emergency which occurs far from an approved place? Will the Minister clarify what would happen in such circumstances? I know the legislation also deals with the issue of intent in relation to termination, medical procedure and abortion, and that is presumably to protect medical practitioners. It is not just we as legislators and the public who will be voting in the referendum who need to be clear about what is happening here. Medical practitioners will be in the front line in the carrying out of the provisions of this legislation. I ask the Minister to clarify that position.

Our amendment is designed to clarify the position, particularly in relation to medical practitioners. The wording of the amendment is self-explanatory. We seek to provide further protection in the legislation with the inclusion of the words "(or, in the case of medical emergency and where the practitioner concerned believes the management of the welfare of his or her patient so requires, any other place)". In other words, we seek to ensure that the welfare of the patient is paramount, which I think is also the Minister's intention. Until I hear the Minister's thinking on where these approved places are, I am convinced, given the way the legislation is phrased, that we need to expand along the lines of our amendment. I consider that not only necessary but urgent.

This is one of the areas in the Bill that causes me most concern. From a practical point of view, this is where we may run into a great deal of difficulty, particularly when we take account of the definition of the term "approved place".

Section 4 of the Second Schedule provides that a person can be a conscientious objector to what is in fact a legal procedure to save the life of the mother. When this section was discussed by the Dáil at Committee Stage, I felt that at any moment they would discuss the situation regarding haemorrhage in particular. While I agree with the masters of the three maternity hospitals that there are four to six cases a year of serious pre-eclampsia, HELLP syndrome, Eisenmenger's syndrome or a problem with another cardiac condition, it is important that we remember there are likely to be greater rather than fewer serious cardiac problems because we have made great strides in cardiac surgery in children in the past 20 years. Those children are now coming up to child-bearing age.

I cannot be the only doctor who had a patient in her early 30s who was eager to have a child, but was anxious because she had a major cardiac operation as a child and wondered what I thought. That woman's cardiologist told her he felt she should proceed if that was what she wanted. We all had to be aware during her pregnancy that it was at 20 weeks – when the unborn child is not viable and the blood volume really increases – that she might run into trouble. We had to be in a position to provide that something could be done to terminate the pregnancy, if necessary.

Having regard to the Supreme Court judgment in the X case, I would have thought that situation is all right. Judge O'Flaherty's judgment indicated that there did not have to be immediate signs that a woman's death was about to take place or one did not have to be certain that a woman's death would take place, but that if there was a real and substantial risk to the mother's life the pregnancy could be terminated. It could be aborted, even though the unborn child would not be not viable. I agree with the Minister that there are a small number of cases in this area and there may be more, but I am sure that the obstetricians will be well able to cope with them.

The situation regarding haemorrhage was not really considered by the Dáil at Committee Stage. When this area was discussed, I recall the Minister said that he would go back to his medical advisers and ask them what they thought. I am sure he did that because I do not think he wants any woman's life to be put in danger. There may be a problem in this area in that those who work in large maternity hospitals deal with women who have serious haemorrhage in association with pregnancy, childbirth or in the six weeks after childbirth. That is so common that they may have thought it was run of the mill and could be coped with, but I am not sure it can between the definition on an "approved place" and the section on conscientious objections.

When the Minister was asked on Tuesday, 27 November what would be an approved place, he said the Minister would make an order that would list hospitals so approved and, on foot of amendments being brought forward, the Oireachtas would have the opportunity to affirm these orders. We got more information from the Taoiseach on what would be an approved place. In a reply to Deputy Noonan he said, the term "approved place" is intended to be applied to hospitals under responsible management, possessing adequate expertise in the area of obstetrics and gynaecology and in the treatment and prevention of life-threatening diseases arising out of or complicated by pregnancy.

I mentioned women with HELLP syndrome. For the benefit of other Senators, this is a condition where a woman has very high blood pressure and her condition is so serious that she suffers haemolysis of her red blood cells. That affects her liver and kidneys which start to shut down. This is a dire situation. The last such case I read about in medical literature was of a woman who was approximately 20 weeks pregnant when this happened. It was totally unexpected, but she had access to University College Hospital, Galway, where she was treated very properly. There is some time in such cases to get the woman to hospital. These are not the type of cases about which I am concerned.

I am concerned about the Taoiseach's definition of an "approved place", having regard to the contracting nature of the maternity services. Even during the Minister's term of office quite a number of hospitals with maternity units have been closed. For example, we have all been involved at some level with the debate that has taken place in the North-Eastern Health Board on the closure of Monaghan and Dundalk hospitals. That decision was right because there was not an adequate number of staff in those hospitals to provide the level of service pregnant women require. The Minister was right to support the report which recommended that there could be midwife led services there, but that will not come under the Taoiseach's definition of what is an approved place. I presume we must go by the Taoiseach's definition, given that no one else has given one.

There is a contraction in maternity services and a serious deficit of midwives around the country. There is also the problem in the lack of obstetricians. There are major problems regarding medical insurance in these areas. Given these problems, we face serious problems in dealing with woman who suffer haemorrhage in association with pregnancy.

As to why they are important, the maternal mortality rate has dropped in all western European countries and we, in the medical profession, have been advised not to quote cases because they are too easily identified. In a bad year we might have three cases of maternal mortality. Naturally, if they are discussed in a maternal mortality report, everyone will know who the woman was. We have stopped doing that for at least the past ten years.

I was involved in producing maternal mortality reports years ago. It is only 30 years since there may have been 30 such deaths in a year. Major improvements have been made, especially since, with the advent of contraception, there has been a decrease in the number of older women having a large number of children. The most likely women to die were older women with large families. Thankfully, there has been a great diminution in the number of women dying during pregnancy. That is due not only to improved obstetrics care but also to the fact that women have more of a choice about whether they become pregnant. If women have had an illness, in many cases they are unlikely to try to become pregnant again. I can remember hearing of women with rheumatic hearts in maternity wards in this city. They were lined up for death. All that was ahead of them was cardiac failure and while the baby may have been born and may have survived, its mother would have died.

We are advised always to refer to the Report of the Confidential Inquiries into Maternal Deaths in the United Kingdom. These are excellent reports produced every three years. They reveal that haemorrhage is a major cause of direct maternal deaths. The rate has varied between about 10% and 20% over the past ten years. The unfortunate thing is that many of these cases were unexpected. The cases do not always include all those in early pregnancy as some of the deaths are due to spontaneous abortions which are not reported as many did not happen in maternity hospitals. There may be even more than we know – the results of the confidential inquiries and the general health statistics always differ, with the greater number of deaths recorded in the latter.

What women have these haemorrhages? A large number of them are older women and many are women who have had poor maternal care or are not known by the hospitals. Unfortunately, a number of them are from ethnic minorities while others are women who have concealed their pregnancies. This is increasing in this country rather than decreasing. It is a problem that will not go away. This is one of the great difficulties about excluding everywhere that does not have obstetric or paediatric care from the list of approved places. I suggest we would be wiser not to have approved places.

We have some idea about identifying cases that might be at risk in this country. Due to the decrease in maternal mortality in recent years efforts have been made to bring forward reports on near miss maternal mortality and I know the Minister has supported this. The following is cited from a letter which appeared in the Irish Medical Journal in March 1992:

Sir, We wish to introduce the term near miss maternal mortality (NMM). This is defined as a serious maternal morbidity directly or indirectly due to pregnancy, arising in pregnancy or within 42 days of delivery necessitating transfer to an intensive care unit (ICU) or coronary care unit (CCU). The NMM rate is calculated per 1,000 deliveries (including abortions, ectopic pregnancies and hydatidiform moles).

I want to make it clear that abortions in this case are spontaneous abortions. They are not therapeutic abortions, although those that take place before the child is viable could be described as that. They can happen after spontaneous abortions. This is really risky because when someone is 15 to 19 weeks into pregnancy she may have had very little contact with the doctor or hospital. These are a very vulnerable group. That letter was from 1992 and I am sure the Minister or his advisers will have seen a recent letter in the same journal from the University College Hospital in Galway that raised this issue again. They pointed out that there are still no statistics on near miss maternal mortality available and that they should be provided. The major hospitals in the Dublin area are certainly trying to produce this and I applaud the Minister's encouragement of that as it is extraordinarily important.

A recent near miss maternal mortality survey carried out in the Coombe Hospital gives some indication of conditions. Dr. Bridgette Byrne was the consultant in charge and Dr. Carmel Sheridan was one of the registrars who worked on it. The survey ran from January 1999 until October 2001 inclusive. It was very well done. It was important that it should be a prospective survey as there is no point in carrying out a retrospective survey. In the period, 21,170 women delivered babies. Of that number, more than 50 were near miss maternal mortalities, that is about one in 400. It is many people. Haemorrhage was the major cause of near miss maternal mortality, with 31 women suffering from it. This does not include those who with post-partum or caesarean hysterectomies also suffered serious haemorrhages.

There were eight instances of eclampsia which is associated with high blood pressure and kidney problems. That is a much smaller number, yet it is for them we are catering in our approved places. There was a case of failed incubation – that was an anaesthetic problem – and amniotic fluid embolism, which is totally unexpected and nothing could be done about it. There was also a case of diabetic ketoacidosis. That can be a problem, which involves dealing with diabetics, and I am sure the hospital was able to care for the person. There was also a case of respiratory failure.

The big group were the 31 who suffered haemorrhage. How much bleeding did these women have? The near miss maternal mortality criteria was taken from a protocol from Pretoria, South Africa, which was agreed some years ago and is considered to be very useful. It asked if the woman had to have more than five units of blood. That would involve the replacement of a woman's entire blood volume. It is quite a bleed, and there were 31 of them.

Suppose this were to happen in a rural area. I do not know if the Independent Deputies who are pushing this have been assured that approved places are to be provided in each of their constituencies. I would like to know what is going to happen to someone who starts bleeding in Goleen. Bantry has no obstetrics unit and it will not be an approved place. I do not think the Minister should build one there – that is not what I am asking. If this happens I suggest that Senator O'Donovan should become a conscientious objector, head for Castletownbere and let Deputy Healy-Rae deal with the matter. By the time the woman would reach Cork she would be very ill. She may have bled for quite some time before anyone got to her.

She would not be treated on the side of a hill and one would not propose that. That is the core point.

Amazingly some women could be treated there. If a woman had a spontaneous abortion, up to about 18 weeks, she could be treated. I worked in the Rotunda Hospital and we used to go around the district before these women were admitted. We dealt with them in houses. I recall being with a woman in a room at the top of Parnell Square while her husband shone a light on her from the next room because they were living in poverty. She lay on a mattress on the floor while the registrar and I dealt with her. She was not admitted to hospital.

However, it is not correct of the Minister to say no one will be able to do anything.

I did not say that.

We will run into serious danger because of this provision even though the Minister does not want anyone to run into serious danger. I am dying to see what Deputy Fox will do when people in Glendalough ask her to get a woman to Dublin in an ambulance when the snow is on the ground and the ambulance has to pass Loughlinstown Hospital because it has no obstetrics or paediatric care, the Blackrock Clinic, although in these circumstances the woman would be taken in, and St. Vincent's Hospital until it arrives Holles Street Hospital. That is a serious situation. Something should certainly be done for her in Loughlinstown but it will not be an approved place.

What will Deputy Gildea do for people in Ard ara? Will he attempt to cross the mountain passes to reach Letterkenny or will he travel to Sligo? Both journeys involve long distances and that coastline is well populated as people are encouraged to live there. Others are advised to travel to Derry where they will not have the problem of meeting a conscientious objector. This is serious.

I do not like another aspect of the approved places, namely that they will only be used for what is a legal procedure. Nothing new will be made legal. An inference can be drawn from this provision that some doctors may be doing things they should not be in other places but that is not happening. The intention of the provision is to prevent people from carrying out socio-economic abortions.

It is hardly to give the best medical care.

It is all about safety. I will argue the point later.

Very often the best thing is to travel to the centre of greatest expertise but when one is travelling between Goleen and Cork one is dealing with another scenario. I do not ask the Minister to establish an obstetrics unit in Bantry. I read the health strategy to establish whether the proposed medical helicopter would be introduced but it has not been provided for and, therefore, such a helicopter will not be available to fish these women out.

I would not be concerned about this except that I have seen dreadful bleeding, involving 50 units of blood. The cases mentioned involved five units. However, I spoke to the consultant involved and greater amounts of blood are involved in these cases. At least in places like Bantry the medical personnel would be able to group and cross match blood and request it. This provision is fraught with danger but none of my colleagues will not conduct socio-economic abortions on women.

It is nine years since the X case and there has not been one case in which the suicide ground was used so that someone could have an abortion. The only case that was mentioned in the press was the 13 year old child who had been raped and was threatening suicide. An approved place is unfortunate. Senior managers may have said to the Minister not to worry because they can cope with everything, but I am not sure that will be case. The Minister will be aware of the old expression "over my dead body". I do not want anything to happen that will be over any woman's dead body and I am quite sure the Minister also does not.

The atmosphere in the Chamber indicates this issue was not dealt with in the Lower House with the same clarity and detail demonstrated by Senator Henry as she arrived at the nub of the issue. She has outlined real life situations using her medical expertise and know ledge. I ask the Minister to re-examine the amendment. Perhaps Senator Henry will table the amendment for Report Stage so that he will have time to go through it. Fine Gael would have examined the concept of approved places but we wanted reassurance that the necessary expertise would be available in the approved places.

On Second Stage Senator Henry said she was concerned about women in remote parts of the country who might be at risk. She mentioned Goleen and Wicklow and I refer to west Limerick, north Tipperary or west Clare. The Senator is saying lives can be saved by adopting a broader interpretation. This needs to be spelt out clearly and a great deal of work needs to be done on approved places. She is absolutely correct, as we read day in day out about the shortage of midwives in large urban centres, that rural areas should be examined in this context. People take it that everything is fine because childbirth is natural, but Senator Henry graphically explained what happens when one comes across a relative or friend who experiences complications and an immediate decision must be made regarding the life of the mother.

I am extremely supportive of Senator Henry's amendment. Extensive logical and practical information has been put to the Minister regarding this issue. He has said "no" to earlier amendments but he has time to take into account Senator Henry's professional understanding of the plight of women in such cases, particularly where women have survived but are at risk. I implore the Minister to take the amendment on board and consider it before Report Stage.

Senator Henry's contribution was one of the finest I have heard on Committee Stage in my time in the House


Hear, hear.

The breadth and depth of knowledge she displayed must be seriously considered. An approved place is ill defined in the legislation but her point is that no matter how it is defined it will not cover certain circumstances which could result in a fatality. She provided statistics on the incidence of haemorrhage among women, which could happen in a maternity hospital or as a result of a serious accident. There is a wide set of circumstances which could give rise to a medical condition that would need to be treated in an emergency where an approved place might not be easily accessible.

The Minister has the option of the Labour Party amendment or that of Senator Henry. She has proposed the deletion of "an approved place" so that all circumstances that might arise can be dealt with through a reasonable response. Our amendment would leave the reference to "approved place" in the Bill on the general understanding that it would be a hospital with obstetric and paediatric and neo-natal services, etc., but would provide for the following caveat, "(or, in cases of medical emergency and where the practitioner concerned believes the management of the welfare of his or her patient so requires, any other place)". What we are saying is that "approved place" will not cover all circumstances and that the Minister should accept an amendment which would deal with emergencies.

Notwithstanding any examples given, whether it is Goleen or the fastness of Donegal, there could be circumstances arising in Dublin, with the current traffic congestion, where it would take just as long to reach an approved place, wherever that may be. It is unsatisfactory that we must deal with this definition of "approved place", that is, "a place in the State approved for the time being by order as being suitable", without having a clear idea how many of these places will be approved, where they will be and what the services will be in these approved places. It is left up in the air and it is confusing.

I would suggest that there are serious practical problems which must be addressed here and we would like a positive response from the Minister. He must remember that what we are talking about is a procedure that, even within the context of the terms of the provision here, will be an emergency. The Bill states, "in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life", and therefore we are dealing with approved places only in the context of emergencies and immediate action being required.

One is talking about special circumstances with which one must deal all the time. That is a highly important point. It is not about the run of the mill medical procedures. These are exceptional circumstances in every single case we are talking about. That must be taken into consideration.

I understand we are taking amendments Nos. 9, 10 and 11 together. In the other amendment, where we are proposing to delete the last clause of section 1(2), that is, after "a real and substantial risk of loss of the woman's life" to delete the words "other than by self-destruction"—

We are not taking amendment No. 11 with these amendments. We are taking amendments Nos. 9, 10 and 12.

There is enough in those.

That is fine. I thought it was a little out of kilter with the others.

It is being taken separately.

I want to support my colleagues who have put forward these various amendments, but in particular Senator Henry. I agree with the praise which has been given to her. The Minister must really listen carefully to what has been said because it was said so simply and without heat but clearly and factually from firmly grounded personal medical experience. The examples she gave were admirable also because they indicated the difficulty of people having to travel long distances and the risks to which their lives might be exposed in this area.

There is a suspicion around the House that, for political reasons, no amendments will be accepted in the Seanad. We are well used to this but it is a violation of the designated role of this House under the Constitution for such a position to be adopted, even informally, and we all know that it happens.

This is a compassionate and caring Minister. I need not remind him that he is Minister for Health and Children and that his responsibility is not to the political convenience of the Government or any particular party. His responsibility is clearly the welfare of patients. That is paramount, however much trouble it might get the Minister into with some of his colleagues if the Bill must be returned to the Dáil.

It seems to me that a very serious problem indeed has been drawn to our attention. If it goes through without an amendment of this kind, as I read the Bill, a doctor in an emergency who performs a therapeutic routine in order to save the life of a patient may in fact be guilty of a criminal offence.

He will if he is not in the approved place.

I want the Minister to tell me if that is the case, that a doctor saving a woman's life on the side of the road or in another kind of hospital, which does not have all the facilities which the Taoiseach thinks they should have, is guilty of a criminal offence, that the Minister is criminalising the saving of life. He cannot accept that.

What about it if the Bill must return to the Dáil? That is where it must go. At the end of the day our responsibility is to the welfare of the patient.

There is an argument, as there is with regard to home births, etc., that it is better to have these emergencies dealt with in a place where there are facilities of the best kind available. In an ideal world that is so, but the amendment in the names of Senators Ryan, Costello and O'Meara makes it perfectly clear that this is in the case of emergencies.

Emergencies are not neat. That is part of their character. They are untidy, unpredictable, unexpected and one must act on the spur of the moment. If one has the medical expertise that will allow him or her to save the life of another human being, is it appropriate that because of technical considerations this act should be deemed by the State under this legislation to be criminal? I cannot believe that to be the case.

It seems to me that the Minister could not possibly have heard a clearer argument in defence of an amendment of this sort put forward by this side of the House. I will certainly be strongly supporting this important amendment. The Minister and his advisers would only gain credit for taking action in this regard to ensure the welfare of the patient, the ordinary citizen of Ireland. That, not political convenience of any kind, is what must be paramount.

Anybody who has listened to the incredibly compelling argument put forward by Senator Henry could only support her amendment. It is utterly compelling. She has made the case. She has the expertise which, unfortunately, none of us has. We are lucky that she is here to participate in this debate. Others of us have expertise and experience in different areas of an immediate nature which relate to this proposed Bill, but the almost heartrending plea and argument that Senator Henry is making cannot possibly be ignored.

Once more we are back to theory as opposed to practice. This is a theme which runs right through this Bill. We can not afford to ignore realities in relation to women's life and health. If we ignore this amendment, this is what we are doing.

I cannot add any more to the argument that has been put forward by Senator Henry in terms of compassion for expectant mothers. I would earnestly entreat the Minister to accept this amendment.

This section gives us a definition of approved place. It states clearly that it is one "approved for the time by order as being suitable for the purpose of this section". Therefore the Minister will be empowered to make an order to designate an approved place. The Minister can choose to designate as few or as many as he or she so wishes and therefore in a sense we are literally at the whim of the Minister. One individual can make a decision in whatever manner he or she chooses. How will the Minister decide what is an approved place, where it will be located and the details of such a place?

The subsection further restricts the right to life of the mother if she does not have access to an approved place. Article 40.3.3º states that the State acknowledges the right to life of the unborn with due regard to the right to life of the mother and guarantees in its laws to respect and, as far as practicable, by its laws – not by orders – to defend and vindicate that right.

The number of places approved may increase or diminish a woman's right. It may vary depending on what part of the country she lives in, the climatic conditions at any given time and the distance she may reside from an approved place. The inclusion of the words "approved place" will restrict a woman's right to life. Senator Henry made a compelling case, which impresses me as I am from a rural area, on near miss maternal mortality in the survey. Of the 50 women included, 31 suffered from a serious haemorrhage. She also gave examples of localities.

The Minister wants to be responsible as we are discussing a situation where a normal, natural miscarriage occurs and the woman needs medical attention. If she does not get to the approved place to receive the proper medical attention, she may lose her life. As Senator Henry said – we are fortunate to have someone of her medical expertise among us – five units of blood was the criterion applied in the survey, a considerable amount.

Is the Senator referring to the Coombe Hospital's survey of women who came under its care?

It was produced at a meeting the other night. It refers to those women, of whom there are about 7,000 each year.

It is a startling and convincing figure. The Minister must consider the information supplied by Senator Henry and consequently accept this amendment. There is a danger in including the words "approved place" as they will put at risk the lives of women living in isolated rural areas which are medically disadvantaged.

As Senator Henry stated, the recently published health strategy did not provide the helicopter which many of us had called for. In west Clare it is over 50 miles from Loop Head to Ennis. Limerick or Galway, 90 miles away, may become the approved place. This is a serious situation which must be reviewed, not just because of the information laid before us, but also because of the constitutional protection. Will women be discriminated against because of where they reside?

This is a good discussion, but the emergency about which we are talking is acute and sudden blood loss. The fluid lost can be replaced on the side of the road. In rural Ireland most general practitioners carry plasma expanders and fluid. The first thing to do is to stabilise the patient and reverse the shock. She is then taken to a hospital for proper and adequate treatment.

The other reality is that women in Ireland are voting for high-tech maternity units. District hospitals are closed and children are no longer delivered in nursing homes. Mothers go to the Rotunda, the Coombe and Holles Street because they feel certain that they will get the best possible treatment if anything goes wrong. If the Minister was to designate a hospital which did not have full obstetrical support – the minimum in any unit is two obstetricians on full call – he would be guilty of and encouraging malpractice. The public, especially ladies, would turn on him. In the Bill he must ensure appropriate treatment is given in appropriate units.

The Labour Party amendment would provide for an exclusion of requirement that procedures be carried out in approved places in an emergency and when the medical prac titioner believes that the welfare of his or her patient requires it. Senator Henry's amendment would remove the requirement regarding an approved place in section 1(2) and its definition in section 1(3). This would permit the procedures to be undertaken in any location, not just those approved by the Minister or the Oireachtas.

I want to make it clear that the Oireachtas will ultimately approve the places as I brought forward an amendment to this effect in the other House with the support of other parties. This means that orders to give effect to approved places will have to be voted on by both Houses, which is not the normal way to introduce orders and regulations which require a motion to nullify them. It will not be one person's decision, although the Minister will make the proposals. We envisage they will include major maternity and acute hospitals.

When this started I sought advice on this specific point from the masters of the three major maternity hospitals. As a lay person, I asked about emergencies.

Did the Minister specifically ask about haemorrhage as it is extremely common?

I did not but, with respect, these are the people who are aware of the complications. It is generally agreed that they gave clear, solid submissions to the Oireachtas committee. As this issue was raised on Committee Stage in the other House, I sought medical advice from my own chief medical officer. I discussed it again this morning. As Senator Fitzpatrick said, the first priority where a woman is haemorrhaging is to stabilise and then move her to a centre where she can get the best of care. What the masters said to me was that in these rare and exceptional cases, about which Senator Costello spoke – exceptional does not equate to emergency – they would bring in other medical practitioners to help and discuss the case. Cardiac, liver, renal or a range of other functions could be involved where the life of a mother is at risk because of pregnancy. All would involve a multidisciplinary team approach to her care in order to decide the best course of action.

The major issues discussed and the major medical conditions which would constitute a real and substantial risk to the life of the mother were pre-eclampsia or Eisenmenger's syndrome or cancer of the womb. It is said that these would be diagnosed in the normal way. Immediate action would not be required. There would be three or four such cases in any given year. These are the conditions where the woman concerned would be brought to a tertiary level centre. Her condition would be assessed and monitored over a period of time. It is in that context that decisions are made as to whether a medical procedure is necessary to save her life that would have the effect of ending the life of the unborn in her womb.

There would be a great issue of safety if we were to delete the words "approved places."

Because one would then be opening up the idea of taking chances. I accept the validity and the motivation of the excellent contribution of Senator Henry, but it is equally valid to argue the other side of the coin. The position on mortality rates has improved dramatically in recent years. The position on maternal mortality rates has improved in the last 30 or 40 years because of advances in medical practice and in terms of the environment in which women give birth. It did not happen by accident. Other socio-economic issues are also a factor. There is a very strong argument on safety grounds for putting in place a framework and controls in terms of where the medical procedures in question should take place. There are also strong arguments on the other side of the coin, but if one was to delete the words in question, one would leave the situation wide open. One may leave it open for individuals to carry out illegal abortions. That is one consideration.

The chief medical officer and others are very strongly of the view that there is a very strong safety dimension to this issue. Even the Institute of Obstetricians makes the point about the need for multidisciplinary teams of doctors who would invariably be involved before a medical procedure would be carried out that would end the life of the unborn in the event of a real and substantial risk to the life of the mother. The situation is by no means black and white.

I have been advised that there would be ample time to treat the conditions in question in terms of appropriate facilities where the highest level of medical expertise could be brought to bear on the situation. The legal side is equally important. Section 1(1) states that "abortion" means the intentional destruction by any means of unborn life after implantation in the womb of a woman. Subsections (1) and (2) are not simple alternatives to each other, but must be read together. We are talking here about intentional destruction. The absence of one element under section 1(2) does not automatically mean that an abortion is being committed under section 1(1). There is an inference that if a doctor intervenes in an emergency and because of his intervention the unborn human life is ended, that automatically constitutes an abortion. It does not. There has to be deliberate premeditated intent to terminate the life of the unborn in the first instance.

In the very unlikely event that a case would be of the sort which would be taken, the rebuttal presumption is enshrined in the Bill. The Director of Public Prosecutions would have to initiate the case in the first instance. There are very strong barriers or obstacles to those who might want to take a range of cases against doctors in any given situation, but it is not as simple as that. There would be many hurdles to jump before a case ends up in court. We do not want to reach that position because we do not want medical practitioners in a situation where they have to save the life of the mother to be looking over their shoulders. This is the first Bill to give legislative certainty to medical practitioners in intervening to save the life of a mother. While they have been doing so up to now, they themselves have said they feel they are acting in an uncertain legal environment and are anxious that it be cleared up.

Given the strength of the arguments made, I will look at the matter again overnight. I wish to make it clear that I am not promising anything. We will have a final discussion on Report Stage tomorrow.

I am not so worried about a doctor being sued. I do not think that will happen. My concern is that someone will do nothing because they will be afraid to act in a dire situation. Senator Fitzpatrick is correct. General practitioners could do an enormous amount, but might be in a situation where they would be forced to terminate a pregnancy if they encounter someone with a serious bleed 16 weeks into pregnancy. Senator Fitzpatrick points out that a GP would try to stabilise the patient, but bleeding during pregnancy is another kettle of fish. Confidential inquiries into maternal deaths in the United Kingdom note that Dextran should be avoided for fluid replacement because of its possible effects on haemostasis. In other words, it can lead to a situation where the bleeding will become worse. It is suggested that intravenous crystalloid and artificial plasmatic expanders such as Haemoceel should be used. I do not know of any GP who is going around with intravenous crystalloid and artificial plasmatic expanders in his or her bag.

What is the Senator's point? If she says GPs cannot do it, who can and where?

They might be in a position to act with a miscarriage, a spontaneous abortion, that is not complete. I should mention that 31 cases—

In the context of the Bill, that would not equate to an abortion.

I am not worried about a doctor being sued. I am worried about him or her doing nothing in an emergency. I am worried about the woman losing her life because the doctor cannot get her to an approved place. The figures I mentioned from the Coombe Hospital survey do not cover early or ectopic pregnancies. They were excluded.

I am delighted that the Minister will look at the matter again overnight. I am not trying to be difficult. I do not think there is one Member in this or the other House, one member of the Government, anyone, who wants any woman's life to be in danger. I do not think people will get smart and try to do things in peripheral hospitals. It is vital that patients are moved to tertiary level hospitals. Doctors are warned not to deal with cases with which they cannot cope. They must be moved quickly to ensure expert care. I am not asking the Minister to establish peripheral units. I am merely pointing out the danger that a doctor not in an approved place may do nothing. We are constantly warned that time is of the essense where there is bleeding, particularly in obstetrics.

I ask the Minister to look at the matter again. I do not think people will deal with cases with which they cannot cope as they will only invite litigation if they do. The Minister does not want a woman to be in danger, nor does Senator Fitzpatrick. None of us does.

There is a piece at the end where one can be a conscientious objector to carrying out one of these procedures. The procedure is a life-saving one for the mother. A woman could arrive in a very serious condition at a peripheral hospital and meet a junior doctor. The doctor may have to verify if the hospital is approved. Having discovered it is not, he might announce he is a conscientious objector. It would not be possible to blame him. The medical council guidelines warn about such cases. The senior medical practitioners have to try to take responsibility for dealing with the most difficult cases. However, there may be nobody senior available.

At the last two meetings of obstetricians and gynaecologists, this topic was raised repeatedly and people from the peripheral hospitals were extremely anxious about it. The Minister's definition of approved places appears to be expanding on the Taoiseach's definition, but it is still very loose. Because the Minister is making orders, we could leave out approved places and if people start getting smart, the Minister could say it is outrageous and do something about it.

Of course women want to be looked after in the best places, but there is much evidence from the British figures and now from the Coombe survey which is rather alarming. If we consider ectopic pregnancies and spontaneous—

Did the Coombe survey cover people treated at the Coombe Hospital?

No, they eventually turned up at the Coombe. It has not been published yet, but I am grateful to the people who carried out the survey and spoke to me. Although most of these events were managed in a maternity hospital, management outside these perimeters occurred in selective cases. This is the problem. They did not manage to get them to the hospital, even the Coombe. This is a matter of life and death. Nobody, especially the Minister for Health and Children, who may have to look after the children that are left, wants to enable this. I am grateful that the Minister has said he will consider this. We have nothing to lose. The medical profession is very honourable. I hate the suspicion people have that the medical profession will try to do abortions.

I welcome the Minister's open approach to this issue. He has clearly listened to the concerns that have been raised. I look forward to hearing what he has to say tomorrow, having thought about it overnight.

Based on the last comments by Senator Henry, unfortunately over the past 20 years a degree of fear has entered into the general relationship between pregnant women, or women who intend to become pregnant, and the medical profession. We are debating the issue of legislative certainty for doctors on the one hand and the need to ensure women's lives are protected in every context. From listening to the masters of the main maternity hospitals who addressed the All-Party Committee on the Constitution, it is clear their day-to-day concern is to always ensure the pregnant woman is protected and kept in the best possible health.

When we pass legislation, we have a responsibility to ensure there are no loopholes left and there is the greatest degree of certainty possible for doctors and of course patients. That is the root of our concern over the issue of approved places. The more I hear about this, the more concerned I become. In his response the Minister said the approved places in general will be the major maternity and acute hospitals so there will not be a shortage of approved places. However, there will be a list of approved places and this will not include every hospital in the country. Once the list is published and passed by the Oireachtas, they will become the only places women can go in the certainty that, in the event of a medical procedure being required that would result in ending the pregnancy, this will happen. That is why we tabled the amendment and in the light of the Minister's response, I believe it is still necessary. The Minister has said the deletion of the words "approved place" would result in not having any hospital that could carry out such a procedure.

Not just a hospital, but anywhere.

The procedure could be carried out anywhere and clearly that is not the intention of the legislation, which should give legislative certainty for doctors and patients in cases of medical emergency. In light of what the Minister has said, our amendment is necessary to address our concerns and those of the Minister.

As mentioned in passing by the Minister, it is the intention of this legislation to ensure that illegal abortions are not carried out. In other words, the Minister relies on the judgment of the medical practitioners in the major maternity and acute hospitals to determine whether a particular medical procedure is required, which would result unintentionally or otherwise in the ending of the pregnancy. We are placing our trust in those hospitals to implement the legislation and the constitutional amendment if passed by the people. We should be clear about what we are putting into law.

I welcome the Minister's open attitude and in responding tomorrow, I ask him to try to give us more details about where the approved places will be.

The Minister indicated approved places would be existing maternity hospitals. If that is the case, I remind Senator Fitzpatrick that Loop Head is 200 miles from the Rotunda Hospital. It is 70 miles to the maternity hospital in Limerick and 90 miles to the maternity hospital in Galway.

Will women really want to go to these hospitals?

No, not at all. One of the Minister's predecessors, Deputy O'Hanlon, withdrew the maternity service from Clare in 1987 or 1988 and the women from there were so vehemently opposed that they marched on the streets. They have no choice but to go to Limerick because no other facility exists.

I share Senator Henry's concerns about the fears that may exist concerning general practitioners. It is possible to envisage GPs in Carrigaholt, Kilkee or Kilrush finding that under section 2(1) they have to carry out a medical procedure at an approved place in the course of which or as a result of which human life is ended. In such a case a GP would have to decide whether to take a chance and put her on an ambulance to Limerick or Galway. A GP who carries out a procedure in a surgery or the patient's house may be prosecuted as having engaged in criminal activity.

Tugadh tuairisc ar a ndearnadh; an Coiste do shuí arís.

Progress reported; Committee to sit again.