SELECT COMMITTEE ON HEALTH AND CHILDREN debate -
Thursday, 22 Nov 2001

Vol. 4 No. 4

Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Committee Stage.

Chairman

The select committee has been convened to consider the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. I welcome the Minister for Health and Children and his officials. I suggest we consider the Bill until 4 p.m. with a break from 1 p.m. to 2.30 p.m. for lunch. If we have not concluded by then we will resume tomorrow, Friday, at 10 a.m.

Before Committee Stage commences I wish to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment and in this instance, a consequent legislative provision contained in the Schedules to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long standing practice, the sections are postponed until consideration of the Schedules has been completed. I ask the Minister for Health and Children to formally move, in accordance with Standing Order 114, that consideration of sections 1 and 2 of the Bill be postponed until the Schedules have been disposed of.

Minister for Health and Children (Mr. Martin)

I move:

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

Mr. G. Mitchell

I only received notice of this motion when I arrived at the meeting. We finished Second Stage of the legislation very hurriedly this week. When I concluded my contribution in the Dáil on Tuesday at 8.15 p.m. I had to leave to keep a public engagement in another county. I arrived home late that night and I only had until the following morning to draft amendments. I have had little time since then. No Deputy has researchers or back up staff available to him or her to draft amendments.

I came here ready to speak on amendmentNo. 1 which I tabled. I am dismayed to find that it will not now be taken. It is typical of the way the Bill has been processed generally. We are entitled to the courtesy of being properly informed by the Minister and properly assisted to do our jobs. We are present to debate section 1 and the first Deputy McManus and myself heard about the section not being taken was when we arrived at the meeting. That is not a satisfactory procedure.

Ms McManus

It is incredible that we were presented with a fait accompli in terms of how Committee Stage will be dealt with. The Government intends to try to speed the legislation through and get rid of it at the earliest opportunity, even though it addresses life and death issues for women. Even when processing a normal, run of the mill Bill, it would be extraordinary to have a limit on the tabling of amendments, as has been the case with this legislation, but it is even more extraordinary for one to attend a select committee meeting and discover that a procedure has been proposed by the Minister which reverses the order in which amendments will be taken.

Any member of the public reading these documents would presume that we would begin with section 1 and continue to the end. It would be hard for an official of the committee, excellent as they are, to explain to a member of the public that the Schedules are mere technical matters and that is why they need to be taken first. My understanding is there is no good reason for the Minister putting forward this proposal and there is certainly no good reason for us to accept it. I was pleased when I read the amendment tabled by Deputy Mitchell because it is appropriate that we deal with the totality of what is outlined in section 1.

I urge the Minister, if he wishes to generate any goodwill, to withdraw his proposal for the order in which amendments will be taken. It may disrupt both his and the Chairman's briefing notes. I have been a Minister and very often briefing notes are simply an aid. A Minister must make decisions and deal with issues as they arise. Civil servants cannot do that for them. I am concerned at how procedures have been laid down both on Second and Committee Stages. It is interesting that even the Progressive Democrats Party is also concerned, according to newspaper reports. Can we please have some consistency in terms of dealing with this legislation? The proposal may set a precedent but it does not break the law. It means that we could have a logical debate.

Our position is one of great disadvantage. We do not have the legal back up which the Minister has and we do not have the pooled experience of the Department at our disposal. I resent the fact that I am starting from such a weak position to argue my case. I feel very strongly about this legislation on many counts and I certainly do not want to feel that the obstacles that are being put in place are being heightened. The bar is being raised.

The Minister for Health and Children can shake his head in a very patronising way because he does that quite often but the reality is that in good faith both Deputy Mitchell and myself presumed amendments would be taken in the order outlined in the list of amendments. There is a precedent for taking the Schedule first but I took it, because of the way the amendments were listed and because no one informed me otherwise, that this was the way this important Bill, flawed as it is, would be taken. I was aware of the precedent but I was not aware it would be used this morning and I object very strongly to it.

Mr. Martin

Notwithstanding the personal comments that have been made, I am taken aback by the tone and tenor of the remarks. There is no desire on my part or anyone else's to put any obstacles in place. That has been overstated. The Chairman has outlined a precedent, which Deputy McManus acknowledged, and in time honoured fashion, I moved the motion.

Ms McManus

But the Minister did not have to. There is no reason——

Mr. Martin

I do not list or group the amendments. That is done by officials of the committee.

Chairman

It is done by the Bills Office.

Mr. Martin

I do not have any role in that. The Bills Office does that, as the Deputy will be aware. It is unfair to suggest that I somehow am deliberately coming before the committee to attempt to put members of the Opposition at a disadvantage. That is not the case and it is wrong to say so.

Mr. G. Mitchell

We can agree to take the amendments in the order they are listed.

Mr. Martin

I do not like the allegations that have been made against me which are totally unfounded, unfair and without substance. I seek a suspension of the meeting for ten minutes to discuss the proceedings with you, Chairman, and the committee.

Chairman

Is that agreed? Agreed.

Sitting suspended at 12.10 p.m. and resumed at 12.20 p.m.

Chairman

The Minister is to respond to the request.

Mr. Martin

I had consultations with the Chairman and am satisfied that this is a time honoured precedent and that I am not proposing anything which has not been proposed before. An enormous amount of work was done yesterday in the Bills Office in preparing the schedule for the Chairman and the committee in a specific sequence. In fact, the work was done overnight as frequently happens on Bills of this nature. To change the sequence would, to put it lightly, seriously inconvenience the Bills Office, and I am not prepared to do that.

The arguments made have been somewhat overstated. No element to this is being postponed. We are discussing the sequencing of the process. It is open to Deputies at a certain stage to oppose section 1 if they wish. I note that no amendments have been tabled to the section, but if people want to oppose it, that is fair enough. There is just one amendment to section 2. This is a very short Bill, and that is what is allegedly causing such angst.

I do not have an army of people behind me either.

Mr. G. Mitchell

It was 86,000 at the last count.

Mr. Martin

There is a small group within the Department working on the Bill. The Bill was published on 2 October. There has been a considerable degree of legal scrutiny of it, not least by eminent lawyers from political parties in Opposition. I have examined 35 questions the Leader of the Opposition put to the Taoiseach. There is no question but that there was strong legal expertise behind both the framing of those questions and their tabling. Considerable legal expertise has been available to Deputies Mitchell and McManus. I am not so sure about Deputy Gormley because I am not sure how well represented the Greens are in the Bar Library.

I have been in Opposition and accept that, in the way the Oireachtas is organised, Opposition parties could be better resourced and, in recent times, we have resourced them better than before. This is a matter for the Oireachtas in the generality of events. I do not accept that the Bill has not been subject to considerable scrutiny since its publication and that considerable legal advice has not been available to all parties which have opinions on it.

I do not accept that the motion I moved in accordance with precedent in any way creates obstacles for people. That was not the motivation for doing so and people should acknowledge that. This is a time honoured precedent, as is the manner in which the Bills Office has organised this. It is in accordance with the precedent for considering Bills of this nature.

Mr. G. Mitchell

I am anxious to get into the detail of the Bill and not to be caught up inwrangling. The Minister said that this is a short Bill. It is the longest Bill amending the Constitution I have seen in my 20 years in the Dáil. It is not an ordinary Bill but one amending the Constitution.

As the Minister will find out shortly if his party goes into Opposition, there are huge demands on the Opposition in terms of attending committees as well as the House and hearing submissions from the public which are part of the participative democracy developments which have taken place in recent years. When I left the House at 8.15 the other night, I travelled to Meath to fulfil a public engagement. I did not get home until very late, yet we were forced to have amendments tabled by 11 the following morning, a limit extended courtesy of the Chairman. It is not straightforward or easy.

Do I understand from the Minister's reply that he is prepared to agree that we can speak about our opposition to section 1 while dealing with the Schedule at the same time?

Mr. Martin

No, what we have done in the motion is postpone consideration of the sections until consideration of the Schedules has been completed.

Mr. G. Mitchell

Is there any reason we cannot——

Mr. Martin

There is nothing to stop people speaking when we reach that stage.

Mr. G. Mitchell

We want to reach that stage in the beginning because that is how it is ordered. The first amendments were tabled to that. Deputy McManus and I have briefed ourselves to speak to it. Is there any reason we cannot speak to this motion and then take the vote when we conclude the Schedules?

Mr. Martin

I do not chair the committee.

Chairman

No, that cannot be done.

Mr. G. Mitchell

I cannot accept this. It is unacceptable for us to receive this notice at the commencement of the meeting. I was given a list of amendments——

Mr. Martin

Deputy McManus acknowledged she was aware of the precedent.

Ms McManus

Let me speak for myself.

Mr. Martin

I heard what Deputy McManus said and she clearly said she was aware of the precedent.

Ms McManus

That is not what I said.

Mr. G. Mitchell

I was asked by a colleague on my way here had I heard anything about the changes. The first time I heard about them was when I was informed by the Clerk when I came here. I recognise this is very difficult for the staff of the committee and that the Bills Office staff did their best late last night to put these amendments together. In terms of the way we are prepared to participate in the debate, if the Minister and the Chairman are prepared to accept a compromise that we can speak to the section and voice our opposition to it at the same time as discussing the Schedules, I am prepared to go along with that. I cannot accept the Minister's proposal.

Ms McManus

It is a pity this has happened but we would want to be clear what has happened. I was aware that there was a precedent in similar situations where the Schedule could be and tended to be taken first. When I received the list of amendments, my understanding was that these amendments would be taken in the order in which they were published. That is a reasonable assumption to make. I cannot read people's minds. I must take on trust what is given to me. It is clear not that someone wanted to befuddle us but that the Government has tried to fast track the Bill through Committee Stage——

Mr. Martin

No.

Ms McManus

——and that is why the Bills Office is not in a position to carry out its functions during the normal time it would take to inform the committee and ensure the Opposition has plenty of time to prepare itself for today. That is what has happened and nothing the Minister, for whom I have the highest regard, can say can alter that set of facts. The argument now being presented to turn this list of amendments topsy-turvy is being put on the basis that the Minister's briefing will be discommoded.

Mr. Martin

No.

Ms McManus

Let me finish my point. The Minister's briefing is going to be discommoded and he has used the term "the briefing of the committee." I want to make it clear that there is no briefing for the committee. The other members and I have not received any briefing from anybody. The Chairman receives a briefing and it is clear he would be discommoded by a change, but, frankly, that is what Chairmen have to do from time to time. They are paid to be Chairmen and have a certain responsibility towards those of us who do not have any special supports. The idea that we receive plentiful legal advice is laughable. It is extraordinary that the Minister would put it on the public record, as it is totally misleading. We do not receive plentiful legal advice and although what we get is excellent, it cannot compare with the resources the Minister has in the Department. It would be worth making the point again that Deputy Mitchell made: there are 83,000 employed in the health service for which the Minister is responsible. They will all get a copy of the executive summary of the health strategy. The Minister has a relationship with them. As that is the structure he heads up, it is not peanuts.

Mr. G. Mitchell

What is wrong? Did the Minister not get Terry Prone to come in with him this morning?

Mr. Martin

Are the 83,000 going to advise me on abortion? Is that what the Deputy is saying?

Ms McManus

It is important we understand there is nothing illegal in what we are suggesting. It is within the law about which there is no question. There are precedents, though, as we have seen in the Chamber, a precedent can be changed as it is a dynamic thing. It is not supposed to stultify and prevent the process from operating properly. The Minister is saying that his briefing cannot be interfered with but ours can. We have briefed ourselves on the sequence set out in this list of amendments. We have done so from a position of disadvantage as members of the Opposition with no dedicated resources whatsoever other than a constituency secretary who is run off her feet. If these are the conditions to be set out, let us be clear as to what those conditions are. The Minister is going to force this through, even though everyone knows that he, the Chairman and the civil servants can all work on the basis that we can be consistent and continue with the list of amendments, which have been published. Therefore, any member of the public can get a copy. Presumably many of them have, as the amendments are all over the newspapers today: they are already in the public arena. It is difficult to explain the reason, when the amendments are available, we have a situation where they will be turned on their head.

Mr. Gormley

This is a terrible way to conduct business on such a sensitive and complex issue. It may be a short Bill, but it has to be teased out in quite a bit of detail. The Minister will have to accept that sufficient time has not been given to Deputies in terms of amendments. It has been rightly pointed out that I do not have legal backup. Normally we have sufficient time to look at these issues, but that has not been given. The Minister must accept this; I give him that information in good faith. To come in at 8.30 a.m. and be given until 11.30 a.m. is not the way to do business.

At the Whips' meeting there was no information about the committee and the way business was to be done. We were given no information. I assumed the amendments would be taken as they were submitted and that we would have time to go through them in detail in committee, even though we were not given sufficient time beforehand. I discussed the matter with Deputy McManus. However, it now seems that this is not the case. The Bill is being rushed through with unseemly haste and rushed legislation is bad legislation. We will suffer the consequences at a later stage. Let us be in no doubt - this issue is not going to go away and if we approach it in this manner, we will be back here again. I regret this very much as the way we are doing business means this is a dark day for Dáil Éireann.

Mr. Martin

Again, it is absolutely untrue to say that the procedure articulated was motivated by the Government or that we interfered in any way with the Bills Office or the Chair in terms of the presentation, compilation or formulation of the brief for the Chair of the committee, which is what Deputy McManus was implying. That is absolutely and totally untrue.

Deputies are saying all this is motivated by the Government, but it is not. There is a time-honoured precedent——

Ms McManus

As the Minister is proposing it, he should withdraw it.

Mr. Martin

I have listened to a polemic and a politicisation of the debate from Deputy McManus. I am coming to the conclusion——

Ms McManus

I am a politician.

Mr. Martin

The Deputy may smile in her patronising way, but we published the Bill on 2 October. I do not accept the Opposition's protests that it was not in a position from 2 October until now to frame amendments. I do not accept that for one moment. From the correspondence exchanged since the Second Stage debate - which was longer than any similar debate——

Mr. Dukes

Will the Chair take a point of order?

Chairman

If it is a point of order.

Mr. Dukes

The Minister should not waste the time of the committee with reflections of this kind. He knows as well as the rest of us that it is one of the conventions, if not the fictions of parliamentary life, that we do not draft amendments until we have heard the Minister's conclusions at the end of Second Stage. It has happened, though not in the case of this Minister, that Ministers have shown a certain capacity to understand what the Opposition is saying on Second Stage and changed their minds about parts of Bills by the end of Second Stage, thereby rendering any amendments that might have been relevant at the beginning of Second Stage——

Chairman

With all due respect——

Mr. Dukes

I know that is out of keeping with the current Minister's mindset, but he should not detain us with his ramblings.

Ms Fitzgerald

On a similar point of order——

Chairman

That was not a point of order.

Ms Fitzgerald

——there is an agreement in the House that there should be a gap of two weeks after the conclusion of Second Stage. If the Minister was serious about getting consensus, he would have given us that two weeks after the conclusion of Second Stage and before the beginning of Committee Stage. He knows he is rushing it. Why the rush? Why not go with the precedent of the House, which is two weeks——

Chairman

With respect, that is not a point of order.

Mr. Dukes

Those are responses to issues the Minister raised.

Chairman

There is an opportunity to respond.

Mr. Martin

Any person standing back from this would have to accept that at this point in time, given the conclusion of Second Stage, there is a strong political context to this debate. I am not so sure it is all about procedure and sequence. I have to question——

Mr. Dukes

Very shrewd.

Mr. Martin

I did not interrupt and would appreciate the opportunity to speak. I question the motivation behind what is happening this morning. People are talking about huge, topsy-turvy amendments, but there are no amendments to section 1.

Mr. G. Mitchell

How could the Minister——

Mr. Martin

There is only one amendment to section 2. People are saying almost hysterically——

Ms McManus

Let us take them.

Mr. Martin

——that this is a huge change which will dramatically affect the sequencing. There is one amendment to the Title of the Bill and there is to be a general debate on sections. My briefing is in no way discommoded, as Deputy McManus suggested. I am not bothered one way or the other regarding the briefings. However, it would seriously discommode the Bills Office. That is an important point. Staff were there last night until 2.30 a.m., as they are on all Bills.

This is not worth the candle. No one will be debarred from discussing any element of the Bill, whether the sections or the Schedules. We know the real meat is in the Schedules. There is an unwarranted degree of fuss and histrionics and the only conclusion to which I can come is that this is more of the procrastination and obstruction which have become features of the discussion of this Bill. The procedure involved is the same as that adopted in June 1995 by the Rainbow Government regarding the constitutional referendum on divorce. That process involved a similar procedure on Second Stage, although less time was spent on that Stage. The Committee Stage debate of that legislation involved exactly the same amount of time as is the case with this Bill.

Mr. G. Mitchell

This Bill is not something to be fitted in between photo opportunities. We require the Minister to go through the legislation in detail.

Chairman

Is the motion agreed to?

Mr. G. Mitchell

No.

Cuireadh an cheist.

Question put.

Rinne an Choiste vótáil: Tá, 8; Níl, 7.

The Committee divided: Tá, 8; Níl, 7.

Tá

• Brady, Martin.
• Browne, John (Wexford).
• Cooper-Flynn, Beverley.
• Dennehy, John.
• Keaveney, Cecilia.
• Kenneally, Brendan.
• Martin, Micheál.
• O’Keeffe, Batt.

Níl

• Barnes, Monica.
• Connaughton, Paul.
• Gormley, John.
• Fitzgerald, Frances.
• McManus, Liz.
• Mitchell, Gay.
• Neville, Dan.

Question declared carried.

An Chéad Sceideal.

First Schedule.

Ms McManus

Tairgim leasú a 2:

I leathanach 6, idir línte 22 agus 23, an méid seo a leanas a chur isteach:

"Cuirfear na fo-ailt seo a leanas le halt 3 den téacs Sacs-Bhéarla:

'4°. 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.

'5°. 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.'.".

I move amendment No. 2:

In page 7, between lines 4 and 5, to insert the following:

"The following subsections shall be added to section 3 of the Irish text:

'4° Déanfar, go sonrach, beatha na mbeo gan breith sa bhroinn a chosaint de réir fhorálacha an Achta chun Beatha Dhaonna le linn Toirchis a Chosaint, 2002.

'5° Beidh feidhm ag forálacha alt 2 d'Airteagal 46 agus ailt 1, 3 agus 4 d'Airteagal 47 den Bhunreacht seo maidir le haon Bhille a ritear nó a mheastar a ritheadh ag dhá Theach an Oireachtais, ar Bille é a bhfuil togra ann chun an tAcht chun Beatha Dhaonna le linn Toirchis a Chosaint, 2002, a leasú, mar atá feidhm acu maidir le Bille a bhfuil togra nó tograí ann chun an Bunreacht seo a leasú agus ní foláir don Uachtarán a lámh a chur le haon Bhille den sórt sin láithreach ar mbeith sásta dó gur thoiligh an pobal go cuí leis an mBille de réir fhorálacha alt 1 d'Airteagal 47 den Bhunreacht seo, agus ní foláir don Uachtarán é a fhógairt go cuí ina dhlí.'.".

While this is not a major amendment, I am relying to an extent on the expertise of the Minister's advisers. There must be full translation between of the two languages in any constitutional amendment. That is how it was done in the Good Friday Agreement where there was an amendment to an amendment. It was included in the Constitution because it related to the amendment to Articles 2 and 3. The amendment occurred eight times because of the need to have a full translation between the two languages. I am concerned about the issue here.

Another matter may also need to be addressed. The First Schedule reads, "Cuid 1 - Part 1, Cuid 2 - Part 2" which are not direct translations. Both pages are not identical. One is not a translation of the other, one is Part 1 and the other is Part 2. My understanding is that when one is dealing with the Constitution it must be an exact translation. I am not an expert, nor am I trying to create a problem, but there seems to be a problem. We need to be very careful about this because it is most unusual. What is being presented by the Government is unique and unprecedented. However, in other ways it is not, because there is the Good Friday Agreement model which is similar but not exactly the same. It seems in that instance the provision relating to the translation was fully met. It may be that it is not being fully met in this instance, which is the issue I am raising here.

Mr. G. Mitchell

The Deputy may be raising more than an academic point. It is important, particularly in terms of a constitutional amendment but also in regard to any legislation, because the Irish language takes precedence in the courts. The Minister as a former teacher will have good Irish, but I notice in a later section the wording in the Irish section reads, ". . . go bhfaighidh an bhean bás". I think this translates that there is a substantial risk that the women will die. The English version reads, ". . . a real and substantial risk of loss of the woman's life". Some people may say that is the same. If it is the same meaning, I do not know why we did not use those words in English. It seems to me that the courts, given the recent judgment about the use of the language in legislation, will rely on the Irish version of any legislation, particularly a constitutional amendment. We need to be careful in this regard and I would be interested to hear the Minister's response to the point raised by Deputy McManus.

Mr. Martin

My understanding is that the Irish version of the Constitution is superior to the English version. In deference to what the Deputies have said, I understand it is not necessary to proceed with this amendment. I will reflect on what has been said between now and Report Stage and seek further advice in order to be absolutely sure.

Ms McManus

I intend to deal with the issue on Report Stage if the matter is not dealt with satisfactorily.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 3 and 4 are related and amendment No. 4 is consequential on amendment No. 20. Amendments Nos. 3, 4 and 20 will be discussed together.

Ms McManus

I have a difficulty because I do not think amendment No. 3 is related to amendment No. 4.

Chairman

It is a matter for the Deputy if she wishes to deal with the amendments separately.

Ms McManus

I can see that amendmentsNos. 4 and 20 are related but I would prefer to deal with amendment No. 3 first.

Chairman

I do not have a difficulty with that.

Ms McManus

There is a connection but it is a bit tenuous in terms of dealing with it.

Tairgim leasú a 3:

I leathanach 6, line 7, ", go sonrach," a scriosadh.

I move amendment No. 3:

In page 7, line 7, to delete "In particular, the" and substitute "The".

This relates to a problem I have with the wording currently proposed. We must remember this is a subsection which is being added to Article 40.3. In that context, "In particular" gives rise to uncertainty and ambiguity about the relationship between the existing subsections 3 and 4. Article 40.3.3° of the Constitution refers to the right to life of the unborn and with due regard to the mother's right to life. The new subsection refers to the right to life of the unborn in the womb and makes no reference to the right to life of the mother. The new subsection implies that it is intended as a specific application of a general principle. The reality is that it is an exception from the general principle since its effect is to overrule the judgment of the X case, which was grounded on a Supreme Court judgment in subsection 3. A clear conflict between the two subsections exists and it cannot be reconciled by what appears to be a drafting sleight of hand.

It would be clearer if Article 40.3.3° was withdrawn and replaced with this proposal. I would not support it but at least there would be no ambiguity. That is not being proposed by the Government. It is proposing to keep Article 40.3.3°, which refers to where it is practicable to save the life of the unborn and also provides for the right to life of the mother. That has already been interpreted by the Supreme Court as including a threat to suicide or self-destruction. That stands and will continue to stand if there is this amendment to the Constitution. However, there will be an additional subsection 4 which, in effect, does not have as extensive protections not just for the mother but also for the unborn in the womb. It specifies that one is only talking about the unborn after implantation. Therefore, there is an ambiguity between the two.

I would like to refer to legal advice which I managed to get by begging for it. My briefing has been put out of synch by the way the Minister has insisted on rejigging the list of amendments, therefore, he will have to allow some leeway. The legal advice states that the proposed new Article 40.6.1° contained in the First Schedule to the Bill provides that Article 40.3 shall be amended to include a new Article 40.3.4° and 40.3.5°. Article 40.3.4° provides that, in particular the life of the unborn in the womb shall be protected in accordance with the provisions of what will be known as the Protection of Human Life in Pregnancy Act, 2002. It is difficult to assess the compatibility of this provision with the existing Article 40.3.3°, in which 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 is practicable, by its laws defend and vindicate that right. It then proceeds to make certain guarantees.

The first difficulty relates to how far the new subsections actually overrule the judgment in the X case. The authoritative ruling gave priority to the mother's right to life, where that is in conflict with the right to life of the unborn. Where what will be the Protection of Human Life in Pregnancy Act, 2002, clearly will not apply, Article 40.3.3°, the judgment in the X case remains law. Thus section 1(1) provides that abortion means the intentional destruction by any means of unborn human life after implantation in the womb of a woman. The judgment in the X case remains the law in relation to unborn life prior to implantation, presumably after conception. Article 40.3.4° offers no protection to the life of the unborn prior to implantation or outside the womb of the woman, for example, in the case of an ectopic pregnancy, where the foetus develops in the fallopian tubes or, more rarely, the abdomen or cervix.

The words at the start of Article 40.3.4° are difficult to interpret. Do they mean that the unborn can continue to have protection beyond that offered in the Bill, or do they limit the protection of the unborn to that offered in the Bill? These words imply that the Article may be incompatible with the existing 40.3.3°.

Article 40.3.4° may also be incompatible with Article 40.3.3° because it makes no reference to the equal right to life of the mother. There is also no reference in what will be the Protection of Human Life in Pregnancy Act, 2002, to the right to life of the mother, yet Article 40.3.3° clearly provides that the State must have due regard to the mother's life. Limiting the right to life of the mother by ruling out suicide as grounds on which her right to life may take priority over that of the unborn appears fundamentally to be incompatible with the protection for her right to life under Article 40.3.3°. It is, therefore, very likely that, even if passed, Article 40.3.4° will give rise to significant litigation issues as it is difficult to see how the inconsistency between these two Articles can be overcome, given the wording of what will be the Protection of Human Life in Pregnancy Act, 2002.

The Minister, by using the words "in particular," is stating that there is a difference between this proposal and the rights enshrined in Article 40.3.3°. That is of comfort to the many concerned that he is taking suicide out of the equation, or trying to, because I do not think he will succeed. He says that the words "in particular" will cover it, but the generality is already enshrined in the Constitution. What is he actually saying? Is he saying that, notwithstanding the fact that women have certain rights under Article 40.3.3°, he is going to limit them? This is not clear and not a matter of my opinion - I am proud to be a politician in dealing with issues such as this - but it is an issue about our work resulting in litigation with cases taken which will raise serious doubts about the process on which the Minister is embarking.

Sitting suspended at 1.05 p.m. and resumed at 2.35 p.m.

Chairman

We now resume.

Mr. G. Mitchell

The words "in particular" stood out when I read the Bill and I wish to raise the issue with the Minister. I did not propose an amendment on it because of the other things I have to say about the Schedule. As it is, Article 40.3.3° says:

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.

I will return to that in my own amendment shortly.

If this new Article was approved by the people it would become Article 40.3.4° so Article 40.3.3° would continue:

"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."

It seems that the words "in particular" were inserted there for a purpose which the Minister did not explain to us on Second Stage. He should explain it to us now because, as I read it, Article 40.3.4° would be a more specific expression of Article 40.3.3° which I suggest remains the main provision. Article 40.3.4° would be a specific extension of that main provision and the words "in particular" are meant to create that specific from the general.

I do not know what the implications of that are for the morning after pill or embryo research. The impression given by the Minister at the launch of this Bill was that this now legalises the morning after pill but the morning after pill is not mentioned and whether we want to legalise it or not is not the point. The point is that the impression was given that this would now decriminalise or legalise the morning after pill. As I read it, under Article 40.3.3°, even if it is amended by Article 40.3.4°, it would still be open to the Oireachtas to bring in amending legislation prohibiting the morning after pill and would be open to any citizen to seek an injunction against the Irish Medicines Board or anybody else who approved the morning after pill. Article 40.3.4°, if added, would not give the protection the Minister implied at his press conference it would give to the morning after pill, IUDs or anything else. Will the Minister confirm that is the case? Will he confirm that it could still be legislated against under Article 40.3.3° if the Minister or any private Member wished to introduce a Bill or that it could still be challenged in the courts?

Will he confirm that the words "in particular" are meant to give a specific expression to Article 40.3.4° as a subsection or follow-on to the general provisions of Article 40.3.3°? What is the purpose of having the words "in particular" if not along the lines I have suggested?

Mrs. Barnes

I will follow along the general line of questioning and I commend Deputy McManus for raising this in her amendment. We are all aware of what happened with regard to the wording of the 1983 amendment. Some of us forecast that the interpretation of it would end up in the Supreme Court, and it did. That court interpreted it in a way that many people did not anticipate and about which they have protested ever since. Article 40.3.4° faces the same fate. It will be challenged because there would seem to be a conflict between 40.3.3° and Article 40.3.4° which is now the superior one.

With the 1983 amendment we had the argument, the debate and the interpretation examined and pronounced on by the High Court which came down on the side of the superior right of the unborn. It went to the Supreme Court which interpreted that in the case of self-destruction, in the light of the tragic circumstances of case X, the threat of self-destruction had to be taken into consideration and it allowed the mother to have superior rights when it came to weighing the value of the two in that particular circumstance.

Is the proposed Article 40.3.4° now attempting, by using the words "in particular" to actually give the superior claim to the right of the unborn and in that way counter the interpretation of Article 40.3.3° of the Supreme Court? We could find ourselves in a situation where the Supreme Court would find itself again having to try to decide which has the superior claim leading right back into the same difficulties it had before in deciding who had superior value and under what circumstances. It is fraught with legal challenge.

Mr. Martin

The effect of Deputy McManus's amendment would be to delete the words "in particular" from the proposed Article 40.3.4°. The words "in particular" are the key linkage between Articles 40.3.3° and 40.3.4°. That is deliberate. When used in the proposed Article 40.3.4° the words "in particular" make 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 40.3.3°. Both would have to be read together. If the people pass the amendment, Articles 40.3.3° and 40.3.4° will not be read separately on their own and then put into competition, as it were. They will both be read together. That is my very strong constitutional advice.

Mr. G. Mitchell

But it does not state "in particular."

Mr. Martin

Deputy McManus is correct in saying that, in essence, the effect of Article 40.3.4° is to remove the interpretation of Article 40.3.3°, which would permit the abortion of unborn life in the womb after implantation on the grounds of suicide risk. Therefore, Article 40.3.4° does deal with the suicide issue. That is the effect in inserting it into the Constitution.

Deputy McManus stated that what will be known as the Protection of Human Life in Pregnancy Act could nonetheless permit abortion prior to implantation on the grounds of suicide risk. We have always been consistent in saying that the Bill does not purport to define when human life begins, rather for the purposes of criminal law, it defines the offence of abortion. In theory, people could argue the issue as between conception and implantation, but it would not be practical to frame legislation to deal with that period. If someone wanted to explore the route from conception to implantation, it is a possible theory, but it is not possible to envisage a credible example or define such a possibility or eventuality for the purposes of criminal law.

Rather than adding confusion the effect will be to give certainty from the legal perspective. The effect will be to make it entirely clear that, in what be will known as the Protection of Human Life in Pregnancy Act, the protection of life will apply to the life of the unborn in the womb, as distinct from the life of the unborn as dealt with in Article 40.3.3°. However, they must both be read together for the purposes of legal interpretation.

In response to Deputy Barnes's point, anything we put into the Constitution is subject to interpretation at any point. Every citizen has the right to question particular actions from time to time. No amendment is immune from interpretation ultimately.

Mrs. Barnes

Particularly if it is in the Constitution.

Mr. Martin

Yes.

Ms McManus

I refer the Minister to a submission by Dr. Ken Whitaker to the all-party committee on the Constitution. I do not think he envisaged a proposal of this type where, in effect, there will be two subsections in the Constitution, which have within them an inherent conflict. I quote from Dr. Whitaker's report:

I would maintain that it is up to the Legislature to express very clearly and with very due regard the possibilities of misinterpretation of what it wants to be the law of the land. If the courts are in the ultimate position of deciding between disputing parties or disputing interpretations, the first requirement is that the law be set out in its original form with the utmost clarity so as to avoid in so far as possible recourse to the courts.

What the Minister is saying is that this proposal is specifying, in particular, a set of rights, but also restrictions. However, it is not possible to say they are overriding those rights and restrictions stipulated in Article 40.3.3° because they will both be in the Constitution. It is not up to the Minister or anybody else to decide which overrides the other.

Mr. Martin

That is not what we are doing.

Ms McManus

That is what I understood from what the Minister was saying. The Minister is arguing for these words. I am not too concerned about them; it is the issue that I am raising. The Minister is clearly pointing out that there is a difference between what is in this subsection in terms of its restrictions and what is in Article 40.3.3°. Which has precedence? Deputy Mitchell's point is correct. If we leave aside women and the foetus, an anti-contraception group presumably could go to court and argue on the basis of this provision that we cannot allow contraception prior to implantation and the morning after pill. That is a real problem. This has implications for the Minister's strategy in terms of crisis pregnancies etc. He must have a really clear precise position on this in order that there will no be danger of misinterpretation, even though people have a right to go to court.

Mr. Martin

Article 40.3.3° 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 defend and vindicate that right. Article 40.3.4° will insert into the Constitution the protection what will be known as the Protection of Human Life in Pregnancy Act gives. The great criticism of Article 40.3.3° was that we never subsequently brought forward legislation.

Ms McManus

This does not clarify Article 40.3.3°.

Mr. Martin

It clarifies it quite significantly. It defines the offence of abortion after implantation.

Mr. G. Mitchell

When we reach my next amendment the Minister will see that is not the case.

Mr. Martin

Once the people pass the amendment the two Articles will not be in conflict with each other. They must be read together.

Ms McManus

They are in conflict.

Mr. Martin

No, by definition they cannot be; they have to be read together. That is my very strong legal advice. The advice is adamant. The practised procedure is for them to be read together because, once passed, they will form part of the same Constitution. Any case looks at the balances. This is true of all constitutional provisions.

Mr. Dukes

Much of what the Minister says is rather specious; it does not have much meaning. Article 40.3.3° sets out to protect the life of the unborn - full stop. This has given rise to the problems about which we know. It is cynical and disingenuous of the Minister to tell us that, by inserting Article 40.3.4° as proposed, the words "in particular" add something.

This is a nonsensical Bill, in particular the Second Schedule. Does it mean that the Second Schedule is any more important than the whole Bill or that my dislike of the Bill has to be read in conjunction with my particular dislike of the Second Schedule? It does not. By using the words "in particular" it gives an explanation for a part of a whole. They must be consistent with each other. What the Minister really means to do in this text is to say there is a general protection in Article 40.3.3°, but that we are derogating from this general protection in Article 40.3.4° in some specific ways.

It would be more honest to say at the beginning of Article 40.3.4° that, notwithstanding the provisions of Article 40.3.3°, we go on to be more specific in Article 40.3.4°. This is the first place where there is a reference to what I call the Bill within the Bill, which sets out the exception to Article 40.3.4°. Article 40.3.4° means - I will say this as neutrally as possible - that the general protection afforded by Article 40.3.3° does not apply to a product of conception not yet implanted in the womb under the conditions that are proposed in the Bill within the Bill. That Bill provides that, in certain cases that fall outside the definition of abortion given in the Bill, the products of conception not yet implanted in the womb do not have the protection of Article 40.3.3°. The articles are not to be read together. One article has to be read as a particular exception to the other. The phrase needed here is not "in particular" but "notwithstanding" or "without prejudice to".

Ms Fitzgerald

There is no reference in Article 40.3.3° to implantation in the womb. Is that correct?

Mr. Martin

Yes.

Ms Fitzgerald

What is the definition of implantation and when does it take place? What understanding is the Minister working on in that regard?

Mrs. Owen

I am looking at the explanation the Taoiseach gave to our party leader, Deputy Noonan, in reply to the 34 questions that were tabled. I imagine the Minister is working on this because a legal person told the Taoiseach the kind of answers to give. As the debate has evolved, it is clear that the words "in particular" are totally inappropriate in this section. In his explanation, the Taoiseach said it will be noted that the proposed wording in the Constitution is to provide a "particular" scheme of protection for the life of the unborn in the womb. If that is what it is doing, it is qualifying, adding to or doing something to Article 40.3.3°. That cannot be second guessed because that is the explanation we have been given and it is obviously what the Government is working on. It goes on to state that the term "in particular" when used in the proposed Article 40.3.4° makes it clear that the statute envisaged by the amendment, if enacted, is not intended to be a restatement or redefinition of the term "unborn" as used in the Article 40.3.3°.

The exact words used are not a redefinition of "unborn" but the reference to the protection of the unborn in Article 40.3.3° is now qualified by the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. The last sentences of the Government's answer states that "it is hoped" the Government's proposals will result in the enactment of a law which is clear as to its meaning and its effect. Enacting laws that are clear in their meaning has to be the primary responsibility of every Minister. If ever a law needed every comma, apostrophe and parenthesis to be clear, it is this law. We know from personal experience of 1983 and onwards that if the law is not exact, interpretations can be made.

The Minister may tell us that his legal advice is that we take one article with the other. However, taking it with Article 40.3.3° is precisely why the amendment is being made. The words "in particular" are adding, changing or in some way redefining the matter, but the Taoiseach said there is no intention of restatement or redefinition of "the unborn". The Minister holds that this is not the effect of this article. However, we are talking about the life of the unborn in the womb as set out in Article 40.3.3°, if the Minister wants both articles to be read together. The Minister should listen to the committee and give it, if he can, a more understandable explanation.

The Minister's words to the committee could end up in the Supreme Court when a case is made. The lawyers will check committee records to find our great words and they will use them in the courts, as they must do. The intent of legislation can also be interpreted by what is said during the implementation of legislation, as the Minister knows. The Minister should consider the submissions being made here.

Mr. Martin

I am listening to what Members are saying. These issues are not new to me and they were examined by the interdepartmental committee. To suggest that law is an exact science is disingenuous. We know that is not the case, in an absolute sense. The Legislature passes laws while the people pass amendments of the Constitution. Going back to 1983, we know that Article 40.3.3° was subsequently amended by the Supreme Court.

Ms McManus

It was not amended. That is a distinct slip the Minister made.

Mr. Martin

Sorry, it was interpreted rather than amended. We want a genuine debate on the issues here and we should not get too picky or personal. The interpretation by the Supreme Court was not in line with what people thought they were doing when they voted for the amendment in Article 40.3.3°. That is what gave rise to subsequent behaviour in 1992 when the matter was revisited and that is also the case to an extent this year.

The Constitution is an organic document which changes over time. In Irish history, the Supreme Court has been a significant factor in the evolution of the Constitution and its impact on citizens. The Constitution passed in 1937 is not set in stone and has changed dramatically over the decades. One of the great catalysts for that change has been various interpretations by the Supreme Court. This will happen no matter what kind of amendment is made to the Constitution. In terms of this particular amendment and the words "in particular," the Supreme Court has laid down approaches to constitutional construction that are well known. The doctrine of harmonious interpretation requires that constitutional provisions should not be construed in isolation from all the other parts of the Constitution among which they are embedded, but should be so construed as to harmonise with other parts of the Constitution. It is not anticipated that the Government's proposals for the amendment will impinge on the rights of the unborn and the mother, already identified in the Constitution. The doctrine of harmonious interpretation has been laid down by the Supreme Court and that is how any subsequent interpretation would flow.

Regarding the definition of implantation, we know that it is a process by which the fertilised ovum becomes implanted or adheres to the lining of the uterus. This can take place anywhere from three to ten days after fertilisation. It is not a moment in time that can be defined but a process for which we have a reasonable timeframe from a medical perspective as to what happens.

Mrs. Owen

When does the law take over?

Mr. Martin

That brings me back to the point about practicality. Article 40.3.3° clearly says that the law, in as far as is practicable, must defend and vindicate rights. Are people suggesting that we bring in a criminal law that would prohibit or make an offence of anything that happens between the three day and ten day point? That is not practicable, although there are issues relating to this question.

Ms McManus

I agree there was a problem with the 1983 amendment and it was not clear. Many people were relieved when the Supreme Court enlightened us as to what it meant rather than being upset about it. That was a lesson in terms of what we are doing now. That is the reason I am disturbed that the Government is inserting legislation into the Constitution without provision for the Legislature to change it. If this proposal is passed, another referendum will be needed. With the possible exception of the Chairman, none of us believes we are infallible, yet we are being asked to act as if that were the case.

Let me make another point about the idea of being harmonious. There is no harmony between the two subsections I have been discussing. The Minister has signalled the lack of harmony. Being honest, the removal of the words "in particular" will not eliminate this problem, as the disharmony will remain, regardless of whether my amendment is accepted. It is not fair for the Minister to have to attend this meeting without constitutional or legal advice. I have the highest respect for civil servants in the Department of Health and Children, but we are discussing an unprecedented constitutional amendment which has been subject to grave criticism. The Minister should publish his legal advice, as the committee does not know what it is. It might be helpful.

Mr. Martin

I have given the legal advice in terms of harmonious——

Ms McManus

The extent of the legal advice is insufficient to allay the committee's worries. The Minister should be able to draw on legal advice when difficult issues arise. I have no doubt that Deputy Owen was right when she said we can be sure this matter will end up in the courts. I am worried that, in effect, the Legislature is unable to deal with the matter of abortion, first, because of its nature and, second, because of our inability to meet the requirements set down by Dr. Whitaker. It is clear that we are nowhere near reaching that requirement in terms of clarity.

Ms Fitzgerald

The Minister spoke about implantation, which is mentioned in one article but not in another. He replied to Deputy Noonan's question on the matter by saying:

At any given time, the exact state of an ovum in the womb of a woman is largely unknowable. As a matter of criminal law, there can be no presumption that a particular ovum is or is not fertilised at any given point in time or that it has or has not implanted in the womb. Medical research tends to suggest that around half of fertilised ova never implant in the womb at all. In addition to that, there is reason to believe that a significant proportion of fertilised ova which go on to implant in the womb almost immediately come to nothing. These facts underline the difficulty in providing protection by criminal law.

Given that the Minister said implantation is inexact, that one cannot be precise about it, and that the proposed constitutional amendment defines abortion as "the intentional destruction by any means of unborn human life after implantation," how will a medical practitioner know whether he or she is operating inside or outside the law?

Mrs. Barnes

While this is not a party political issue, I re-echo my party's concerns as this is a political matter for legislators. As has been pointed out, we have learned the hard way from the 1983 referendum. The Supreme Court's interpretation of Article 40.3.3° was the exact opposite of the interpretation desired by pressure groups and contrary to what many thought they had voted for in 1983. I commend the Minister for his reference to legislation being ongoing and open to amendment, depending on time and circumstances. Such circumstances may change as a result of huge developments in medical and reproductive procedures. We can only guess the form such changes will take in the next decade. It is almost impossible to legislate for all possibilities, much less insert them into the Constitution. It is downright dangerous to make constitutional changes, as the process does not evolve organically. A process of Supreme Court interpretation and referral to the Legislature once more seems inevitable.

This section raises many questions. I am worried that if we, as legislators, are not allowed to develop, amend and change the law as is needed in each Dáil session and as the Minister rightly says we should be allowed to do, we will be trapped by legislation that is set in stone. The process will not be organic and referenda will have to be held to make necessary amendments, no matter how small. Legislation should be flexible and open, as the Minister has said. It is fundamental that we are specific in legislation, although we cannot be as specific as we want to be. This amendment, the first we are discussing today, raises a huge issue. Similar difficulties will be faced when dealing with further amendments.

Mr. Martin

In response to the point made by Deputy McManus, I have had full access to constitutional advice on this issue. The advice has been published, as have the Taoiseach's replies to 35 questions asked by the leader of the Fine Gael Party. The questions were answered comprehensively, honestly and transparently. The replies did not pull any punches in terms of difficulties with definitions and other matters, including those raised by Deputies Fitzgerald and Barnes. It is not as if this issue is being raised for the first time today.

The Attorney General's key advice on this issue is that the Supreme Court has laid down particular approaches to constitutional construction which are well known, particularly in the legal world. The Attorney General has advised that the doctrine of harmonious interpretation applies in this case. If the people, in their wisdom, decide to pass a particular amendment, it forms part of the whole. The Constitution has to be read in its entirety. Other sections of the Constitution emphasise balancing rights and the Supreme Court is empowered to adjudicate on and to interpret such rights. The clear and strong advice on this matter is that the existing Article 40.3.3° and the proposed Article 40.3.4° will be read together, not separately. The Articles will not be in competition with each other.

It is clear that the insertion of Article 40.3.4° will mean that the situation will change, as constitutional protection for legislation will be provided and a new criminal law prohibiting abortion will be on the statute book. Article 40.3.4° will define specifically what is to be prohibited and permitted in terms of medical procedures to save the life of the mother when her life is in danger. The proposed Article will also provide for the removal of the risk of suicide as a ground for abortion. The proposed constitutional amendment is very clear in each of these areas. The morning after pill will not be prohibited, although it would be an issue if one was to return to the conception argument. Deputy Fitzgerald and other Deputies articulated that we are almost looking for a theoretical exactitude in terms of legislation.

Mrs. Barnes

We also seem to seek a theological exactitude.

Mr. Martin

I refer specifically to the search for theoretical exactitude, which is almost impossible to find. The wording of Article 40.3.3° of the Constitution clearly points the way towards the vindication of the rights of citizens, by guaranteeing that the State will defend "as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."

Others may have different viewpoints. Deputy McManus has acknowledged that, from her perspective, this amendment will not have any impact on the problems she has outlined. I assume she speaks from the advice she has received. It could be argued that the words "in particular" should be removed, but I do not agree and have not received advice to that effect. We are discussing the amendment brought forward by Deputy McManus, but others have not brought forward other types of amendment in relation to this issue. The reason we are adopting a legislative approach within the constitutional context is that it is clear to us that the people want to have a say on the matter. Deputy Barnes has argued that the Legislature alone should deal with the issue, which is also the view expressed in Dr. Whitaker's report. The all-party committee outlined three options. We have taken the third. We sincerely believe that the people have a right to be consulted on the issue and that, given its history, it would be inadvisable to move forward on the legislative front alone.

Ms McManus

On a point of information, the reason I quoted Dr. Ken Whitaker was that he was the chairman of the expert review group which, interestingly, also included David Byrne, the previous Attorney General and current Commissioner. The unanimous view of the group expressed in a recommendation was that we should not take the constitutional route again and should legislate in line with the judgment in the X case.

The difficulty is that, regardless of whether one removes the words "in particular," one still has the conflict. The amendment was not tabled to resolve the conflict, the Minister created it. Presumably one could have resolved the conflict by removing Article 40.3.3° and replacing it with this text, which the Minster did not want to do for political reasons. This means that, once this is all agreed, one will have two parts of the Constitution. The problem is that different rights will have been established. They can be read concurrently, but also as having an inherent contradiction which will, I presume, be tested in the courts.

Mr. G. Mitchell

I will put down a marker for fear that the Minister's statement will go unchallenged. When we reach my amendment, the one after next, I will demonstrate that there is potential for a lacuna. There is a point which we will need to tease out and challenge.

Mr. Dukes

I agree entirely with the comments of Deputies Gay Mitchell and McManus. The Minister raised several other issues. The nonsense of having to read these protections concurrently becomes clear immediately when one reflects that one cannot concurrently be a product of conception before implantation in the womb and a product of conception implanted. They are quite different things.

The Minister raised the route the Government is taking on this matter. He is good with honeyed words. The Government has decided to cave in to pressure exerted by persons who do not trust legislators to deal with these issues. I remind the Minister that they are the same people who did not trust the Legislature in the 1980s. They got it disastrously wrong and are determined to continue to get it disastrously wrong for as long as they are allowed to get away with it.

The Government has chosen a very odd mixture of constitutional and legislative action. As I will comment further on this matter when we discuss the Schedule, I will confine my remarks to a point the Minister made without the Chairman intervening to request that he not stray from the amendment. The form of legislation the Minister is proposing is the oddest one I have ever seen and not, incidentally, directly comparable with the approach taken with regard to the Good Friday Agreement. What is proposed here is that the Dáil and Seanad would be invited to pass a Bill, the text of which forms part of the enterprise with which we are dealing, which will be presented to the Houses of the Oireachtas on a take it or leave it basis with no provision to modify or critically examine it. That is utterly insulting to the Oireachtas. It is pandering of the worst kind to people who have shown a great capacity to get things wrong. If this passes, as it may well do, the Government will have created a precedent which it could very well rue in the future when dealing with other legislation, even if, as I hope, it finds itself in opposition very soon. There are other areas, which I do not need to go into, where people will make the same point, namely, they do not trust the legislators to do what they are elected to do.

The Minister and the Government have made a very grave error in choosing this combination. It is conceivable, for example, that the Government's objectives could be achieved in other ways. The definition of abortion, the protection of current legal practice - irrespective of what it is or our view of it - and the implicit legalisation of the morning after pill and IUDs could be achieved through simple amendments to existing legislation. For example, a simple amendment of sections 58 and 59 of the 1861 Act would achieve this, which would leave one net issue to deal with from a constitutional point of view, that is, the Government's intention to roll back the judgment in the X case.

This is the only issue which requires a constitutional decision. What the Government is doing is unnecessarily confusing it with a whole series of other issues. It is a very bad way of proceeding. Even though I make very few predictions with certainty, I am certain that we will regret this in the years ahead.

Mrs. Owen

We do not need to proceed with this debate having already hit the proverbial wall. The Minister is the master of his own destiny and the manufacturer of his own problems because, as Deputy Dukes said, of the way in which he is seeking to pass a constitutional amendment which, once passed, will give effect to the Bill, thus tying the hands of the Oireachtas. It is already clear from today's proceedings that a challenge, even to the innocuous words "in particular", could engage the Supreme Court for weeks in the process of working out whether Articles 40.3.3° and 40.3.4° are compatible or whether there is a hierarchy of protection. It could lead to an interpretation that the life of the mother is somehow less protected because the life of the unborn has been given the extra protection of the words "in particular". That is my concern.

I have not received legal advice on the issue. Article 15.2.1° of the Constitution 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.

It does not state that the people can make the law. The sole and exclusive power for doing so is vested in the Oireachtas. We are making a law here as is our right. The Minister, however, is asking us to give away our right set out in Article 15.2 of the Constitution. As soon as this Bill is passed, we will become powerless, emasculated. We will no longer have the power to amend the law or, probably, deal with any laws or problems which may arise from it without first returning to the people to seek an amendment.

The Minister may be a young man and probably has ambitions to be leader of his party. He will not be Minister for Health and Children for the next 15 years, during which time the unforeseen effects of this will become evident. This is aside from discussing the rights and wrongs of removing the right to abortion if one is suicidal or even what is in the law. We are talking about the mechanism the Minister is using. He is fettering the powers given to me as an elected representative under Article 15.2 and I strongly object to that.

The other article, to which Deputy Quinn referred in the Dáil, was Article 46.4. It states that any proposal should not be joined by any other. In respect of dancing on the head of a pin, the Taoiseach said there is no other proposal, but there is another. It is proposed to put to the people an amendment and then, on the back of that, to pass a law. We have no choice. If this amendment is passed by the people, there will no choice within 180 days. I am sure it will not be dealt with in time to have the 180 days elapse within the life of this Government. Members of the Oireachtas who are re-elected will have to return fettered, bound and dictated to by the Minister.

The Minister is breaking new ground and he is doing so at his peril. I believe he is getting bad advice on this matter; I have talked to lawyers, as have other members of the committee. Article 15.2 has not figured very much - maybe it did before I came in - but I stated what it says and I will protect it for myself and for posterity as I was trying to do today with regard to another issue. I am trying to protect this House for people who will come after me when I am dead and gone, or at least retired and capable of being a hurler on the ditch. We must protect our constitutional rights as legislators.

Mr. Martin

In any society with a written constitution, there is, by definition, a restriction on the Legislature. The Legislature is not supreme in Ireland because we have a written Constitution. That is a fact. Other jurisdictions do not have written constitutions and, consequently——

Mr. Dukes

That is——

Mr. Martin

With respect to Deputy Dukes, we know this because other laws and areas have required the passage of legislation subject to the Constitution. We do not legislate unfettered in our jurisdiction, nor have we ever done so. We can legislate only in accordance with the Constitution and it is the right of the people, if they so desire, to change that Constitution from time to time. It is the right of legislators to advance a change to the Constitution at any given time——

Mrs. Owen

So the Minister is amending Article 15.2.

Mr. Martin

No. Legislators can put propositions to the people, as we do on an ongoing basis. The people can either approve those amendments or reject them. If they approve them, an addition to or a deletion from the Constitution must be made, which, by definition, changes it.

Mrs. Owen

But then we go on to pass the law——

Mr. Dukes

The Minister is beside the point.

Mr. Martin

Some Governments have attempted to deal with this while others have not. There has been a strong attack on the Government's approach to this matter. Some independent legal commentators have articulated the view that the legal construction here is a work of ingenuity. I am not saying——

Mrs. Owen

It is not a contest. We are not having a competition here between——

Mr. Martin

The Deputy questioned the advice. The constitutional advice I have received——

Mr. G. Mitchell

It sounds like the advice is that one is looking in a mirror.

Mrs. Owen

It is not a question of who is the very best Attorney General in the country.

Mr. Martin

I did not say that.

Mrs. Owen

The Minister is saying——

Mr. Martin

No. The advice has been questioned. The advice has been undermined by the comments from speakers so far.

Ms McManus

What is the Minister's point?

Mr. Martin

I refer to the advice that has been put forward

Ms McManus

What is the Minister saying?

Mr. Martin

People are saying that the advice I received is not good, that it is bad. That is what Deputy Owen is saying.

Ms McManus

Our job——

Mr. Martin

I am not giving out about that——

Ms McManus

That is an incredible thing to say.

Mr. Martin

I am just saying it is a fact.

Ms McManus

The Minister used the word "undermined". Our job is to question——

Mr. Martin

Yes.

Ms McManus

——and to assess it in terms of our best opinions. That is not to undermine anybody. We are not——

Mr. Martin

Some of the commentaries had the impact of endeavouring to undermine my advice and say it is of no quality. That is the gist of what some of the Deputies have articulated. Let us not be totally disingenuous.

Mr. Dukes

The current Attorney General is a dab hand——

Mr. Martin

I accept totally the right of Deputies to question——

Mr. Dukes

——Deputy who is in this House——

Mr. Martin

——but there is also a clear attempt to undermine and say the advice is not good. It was said to me: "Minister, you are getting very poor advice."

Ms McManus

That is right.

Mr. Martin

I would read that——

Mrs. Owen

I do not think the Minister made those comments when he was on this side of the House.

Mr. Martin

That is a statement which, by definition, undermines the quality of the advice. I will not dwell on that. I want to address the core point.

Mr. Dukes

That is an admission——

Mr. Martin

A key point is that the Deputies opposite were in Government and did not attempt to legislate. I accept that the Labour Party has a position on this matter, but I do not think the Fine Gael Party has one yet.

Mr. Dukes

That is none of the Minister's business.

Mr. Martin

It is actually.

Mr. G. Mitchell

Perhaps we have been too decent to the Minister, but if he thinks we will let him throw his weight around like that, he has another thing coming. Does he want us to go out on the plinth and bring the whole thing down? We have behaved in a very democratic, constitutional and proper manner in respect of this Bill. I will not accept any more petty, political nonsense from the Minister.

Mr. Martin

This is not——

Mr. G. Mitchell

Let us keep to the Bill and have no more of the Minister's nonsense. He is raising temperatures here with his behaviour.

Chairman

Will the Minister deal with the issues at hand?

Mr. Martin

Chairman, I am dealing with the issues. Points have been raised as to the advisability of the Government's approach. People have questioned it very sincerely. I am responding by saying that the Government has given considerable thought to this in the light of the views the Oireachtas committee expressed and following the Green Paper process. If Deputies can come up with something better in legislative terms, maybe they should table their amendments, which should be to the point.

Mr. Dukes

Amend the 1861 Act.

Mr. Martin

I accepted that the Labour Party has a different point of view.

Ms McManus

It has nothing to do with the Labour Party.

Mr. Martin

It has.

Ms McManus

The Minister has opposed the approach taken by the chairman of the expert review group on the Constitution, Dr. Ken Whitaker, who laid out the correct approach very clearly. It is not Labour Party policy. Dr. Whitaker described exactly how he felt. Legislation could be drawn up in line with the X case that would not leave it open to abuse. That is a very serious proposal, but the Minister has ignored it.

Mr. Martin

I have not ignored it. I wonder why it has not yet emerged over the past ten years. Why did it not——

Ms McManus

What is the Minister talking about?

Mr. Martin

The position of Deputy McManus is——

Ms McManus

It is in the document that the Minister keeps quoting.

Mr. Martin

One alternative position that has been advanced is to legislate for the X case without the need for any constitutional amendment. It is worth reflecting on the fact that successive Governments, including a Government composed of different parties other than Fianna Fáil and the Progressive Democrats, did not go down that route or attempt to produce a template in terms of legislating for the suicide risk or all the other issues in terms of the X case. This is key point.

Mr. Dukes

That includes two Fianna Fáil Governments.

Mr. Martin

If people are arguing against a particular approach and saying to the Government that they think its approach is wrong, then those people have a responsibility to put forward an alternative proposition. That is all I am saying.

Ms McManus

It is there.

Mr. Martin

It is not there.

Ms McManus

It was outlined by Dr. Ken Whitaker.

Mr. Martin

The principle is outlined, but no political party has advanced any legislation.

Ms McManus

The Minister has never explained why he refused that.

Mrs. Owen

We did not do it, but we are not in Government.

Chairman

The Deputies should deal with the substantive issue at hand.

Mr. Dukes

We are not the ones bringing forward legislation.

Mr. Martin

Deputy Dukes mentioned the term——

Mr. Dukes

That is the job of the Minister and he is making a hames of it.

Mr. Martin

Deputy Dukes said both sections have to be read harmoniously, alluding to the doctrine of harmony.

Mr. G. Mitchell

That is new.

Mr. Martin

If the Deputy consulted some constitutional advisors, he would find it is not so new.

Mr. Dukes

We will have to sing in tune.

Chairman

Is Deputy McManus pressing the amendment?

Ms McManus

Yes.

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

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

Rinne an Choiste vótáil: Tá, 8; Níl, 7.

The Committee divided: Tá, 8; Níl, 7.

Tá

• Brady, Martin.
• Browne, John (Wexford).
• Cooper-Flynn, Beverly.
• Dennehy, John.
• Keaveney, Cecilia.
• McGennis, Marian.
• Martin, Micheál.
• O’Keeffe, Batt.

Níl

• Connaughton, Paul.
• Fitzgerald, Frances.
• Gormley, John.
• McManus, Liz.
• Mitchell, Gay.
• Neville, Dan.
• Owen, Nora.

Question declared carried.

Chairman

Amendments Nos. 4 and 20 are related and are to be taken together by agreement.

Ms. McManus

Tairgim leasú a 4:

I leathanach 6, líne 8, "tar éis ionphlandú" a chur isteach i ndiaidh "bhroinn".

I move amendment No. 4:

In page 7, line 7, after "womb" to insert "after implantation".

This is essentially a statement of fact. There is no protection for unborn life in the womb prior to implantation. Whether one is or is not concerned about that is not the issue I am putting forward although there are obviously very important questions relating to it. The overriding concern and criticism which has already emerged from our debate is the existence of ambiguities, confusion and possible contradictions and conflicts. One cannot say, as is stated in the Bill, that the life of the unborn in the womb shall be protected because for the purposes of this proposal, the life of the unborn has been qualified as meaning only after implantation. Article 40.3.3° of the Constitution does not have that qualification. Clearly what we are talking about here is the life of the unborn after implantation. Since that is the case, we should state it clearly in the Bill.

I know there are difficulties with regard to implantation about which Deputy Fitzgerald asked an interesting question. We are dealing to an extent with the unknowable. I note from the response of the Taoiseach that he agreed that at any given time the exact state of an ovum in the womb of a woman is largely unknowable. Be that as it may, the Government has chosen this point of departure. Some people were startled that the Attorney General appeared to be taking on St. Thomas Aquinas and all the other theologians who deliberated long and hard over when human life begins. Certainly, the papal view would be that this is not where human life begins. We need to be clear, therefore, in this legislation, which it is proposed to put into the Constitution, that it is human life in the womb only after implantation that we are talking about. That is the purpose of this amendment.

Let me refer briefly to amendment No. 20. In section 1(3) of the Second Schedule, "reasonable opinion" is defined as a reasonable opinion formed in good faith which has regard to the need to preserve unborn human life where practicable and of which a written record has been made and signed by the practitioner. However, we are not talking about human life in this Bill; we are talking about unborn human life after implantation in the womb and that is another issue because of the questions raised about in vitro fertilisation and the possibilities of experimentation and so on. The Minister should accept these amendments in order to be clear that in talking about unborn life he is not referring to it in the way Article 40.3.3° of the Constitution does but in the specific way he has determined, presumably for practical purposes, to define it. Otherwise, he is not being accurate.

I do not think we have any hope, but let me give the Minister a chance to prove me wrong. He will have to be much clearer about what he is talking about in presenting a Bill of this kind. Another example of where the Minister has had to catch up with himself is in terms of what is a medical practitioner, a very serious flaw in the Bill which is only now being addressed. This is a flaw that has the potential to cause quite a lot of trouble. I suggest that the Minister consider accepting the amendments.

Mr. G. Mitchell

Section 1 contains definitions of the terms "approved place", "medical practitioner" and "reasonable opinion". It even contains a definition of the term "woman". However, nowhere in the section, despite the fact that it introduces the word "implantation", is there a definition of that term. Further, the word "conception" is not even mentioned in Article 40.3.3°, let alone 40.3.4°. This is relevant and I must press the Minister on it. I gave the Minister an opportunity when I asked him about the morning-after pill and challenged what he said at his press conference but he did not reply and the record will show that. He said that this was turning around the law on the morning-after pill. It does no such thing but the Minister did not take the opportunity to correct that or to put on the record what he said at his press conference.

I ask the Minister specifically what are the implications of this for embryo and stem cell research? The Minister has said that the Supreme Court will read the various sections of the Constitution harmoniously - Article 40.3.3° will be affected by Article 40.3.4°. However, since Article 40.3.3° does not carry a definition of the term "unborn" or define when life begins, is it not possible that it may be adversely affected, from the point of view of pro-life people, by Article 40.3.4°, because when the Supreme Court looks harmoniously, as the Minister puts it, at the Constitution to interpret the meaning of those words, it will find no definition of the word "unborn" in Article 40.3.3° but will find a definition of when life begins from a criminal offence point of view in Article 40.3.4°.

The Minister said that section 1(1) of the Bill, which deals with implantation, will create the criminal offence of abortion for the purposes of the Act. I asked the Minister on Second Stage at what point the clock of life starts to run as far as a criminal offence is concerned. Furthermore, what is implantation? Why has the Minister not defined the term "implantation" in the Bill when he has defined the term "woman"? Is this not the essence of this legislation? How do we actually get to the point of the criminal offence the Minister says he is creating? When does it start? When does the clock of life start and when does it start to enjoy the protection of the Constitution in terms of the proposed criminal offence? What are the implications of this amendment for that? This is important and the Minister must spell it out because nowhere in Article 40.3.3°, as it exists, is it stated when life begins. The article refers to the unborn but there is no mention of conception.

Article 40.3.4° refers to implantation of the unborn and the criminal offence arising then. The Minister should deal with those questions because it seems from what he said in his earlier contributions that the Supreme Court will certainly take into account Article 40.3.4° when interpreting Article 40.3.3° and other sections of the Constitution. Otherwise, this principle of harmonious interpretation of the Constitution to which the Minister refers does not apply. I would like some clarification from the Minister on this. This issue did not just arise today. I asked the Minister about it on Second Stage in the House.

Mr. Dukes

I commend Deputy McManus's amendment to the Minister, without prejudice to the questions raised by Deputy Mitchell, which are important. Definitions are essential here. I reflect in passing that nowhere do we have a definition of the term "unborn". Is an unfertilised ovum unborn? In a very real sense it is, but does it enjoy the protection of the Constitution? The answer is that we do not know because we do not have definitions.

The amendment Deputy McManus proposes is essential for the purposes of the Bill. In particular, it is essential to give meaning to section 1(1) of the Bill within the Bill which specifically refers to unborn human life after implantation in the womb. If we are to be sure that the constitutional provision which it is proposed to make can be read concurrently or harmoniously with the rest, this amendment is not only useful but essential to state clearly what the context is. It does not matter if we eventually do not pass this because if we do not pass the Bill within the Bill, the amendment to the Constitution is not made. It is another day's work to talk about that. However, if the Constitution is to be faithfully reflected in the law and if there is to be no possibility of conflict between them, when both speak of a given thing they should do so in the same way. Deputy McManus's amendment, in the context of what the Minister is trying to do, is essential to prevent later doubts or possible need for reinterpretation.

As I said, if we do not pass the Bill within the Bill, the proposed amendment to the Constitution fails. Will the Minister reflect on what the situation will be if we hold a referendum and the proposed amendments to the Constitution are made and the Oireachtas, having been presented with the text of this Bill within the Bill, decides not to pass it? What will happen? We will have a situation where the amendment to the Constitution for which the people voted is not made. It will fall because the people have prescribed a Bill that the Oireachtas should pass, but the Oireachtas, under the terms of the Government's proposal and in the proper discharge of its functions under the Constitution, has decided not to pass it. That could be presented as the Oireachtas giving the back of its hand to public opinion. The Minister is creating the real danger that this could happen. It could be an even greater danger depending on the timing.

If a referendum is passed in the lifetime of this misbegotten Government and the 180 day period for the passage of the Bill within the Bill happens at the dawning of the new life of the next Government, where there is a different majority in the Dáil and the Bill is not passed, it will be interesting to hear what members of the Fianna Fáil Party will say when they are unfettered by the privilege of being in opposition. There might be some honest commentary from them. What would be the situation then? The Minister will have created a right constitutional pickle. That comment is without prejudice to what I have just said about the amendment. The amendment is entirely consistent with the Minister's newly stated fondness for harmony and concurrence.

Mrs. Owen

The case made for adding these words in the three sections under amendments Nos. 4 and 20 is crucial. By adding Article 40.3.4°, the Minister is adding another description of the life of the unborn and how it will be protected. The legislation within the amendment is the first time that the concept of implantation is mentioned. Until now, when people spoke about abortion or life they generally referred to conception. The Catholic Church always maintained that human life started at the point of conception. It will be interesting to discover the reason the Church has given no verdict on this legislation and it is waiting for the Minister to complete this rushed job before commenting on it. It is extraordinary. The Minister will be in direct conflict with the Catholic Church's professed definition of human life as commencing at the point of conception, not implantation. That is something he will have to handle when the Church comments on this legislation.

Earlier the Minister, in reply to Deputy Fitzgerald, said implantation is not an exact science. In other words, if there is fast implantation or a fast sperm moving along——

Mrs. McGennis

They are all fast here.

Mrs. Owen

——there are only three days. If it is not a fast implantation or a medium one, there might be five days. I am making the argument in a ridiculous way. A doctor will have to make these decisions and if there is somebody——

Mr. Martin

They will not have any decision to make on that.

Mrs. Owen

It will be a criminal offence——

Mr. Martin

There is a practical issue. Somebody who comes to the doctor will do so because she is pregnant. She will not imagine she is in three days.

Mr. G. Mitchell

Is the Minister suggesting that somebody is not pregnant until there is implantation?

Mr. Martin

I am not.

Mr. G. Mitchell

It is not as simple as the Minister says.

Chairman

Deputy Owen has the floor.

Mrs. Owen

The purpose of this legislation is to create a criminal offence if somebody carries out an abortion after implantation. However, implantation cannot be defined in such a way as to say that, no matter who the person is and regardless of whether it occurs slowly or quickly, implantation will definitely have taken place in the wall of the uterus in exactly five days. What if somebody decides to challenge a doctor who is dispensing an IUD or a morning after pill? This can be done within up to ten days if implantation is slow or within three days if it is not slow.

Due to the Minister not defining implantation - he cannot do so because medical science will not let him - he is adding this uncertainty. However, if he is including implantation, the legislation has to define it. As Deputy Fitzgerald said when quoting from the Taoiseach's letter, as a matter of criminal law, there can be no presumption that it has or has not implanted in the womb. We are talking about whether an ovum is or is not fertilised at any given point or that it has or has not implanted in the womb. In response to how this applies to IUDs and the morning after pill the Taoiseach said that it is simply not possible to have a statutory criminal offence carrying a serious penalty for its infringement where its ordinary meaning for ordinary people in ordinary situations is left obscure and unknowable.

I am an ordinary person in an ordinary situation. I do not know at what point the dispensing of an IUD or a morning after pill, which is allowable before implantation, becomes a criminal offence. The Minister says he is using the word "implantation" to keep the two treatments legal and ensure somebody is not committing a crime if they take the morning after pill. However, if one does not know exactly when implantation takes place, the Taoiseach has said that, as a matter of criminal law, there can be no presumption that it has or has not implanted in the womb. The Minister is leaving a gap in the legislation should somebody want to get at a doctor who has prescribed the morning after pill or the IUD. The doctor could be open to somebody saying, "I know it was nine days or whatever." When the baby is born or should a baby be born, the person could trace back.

Mr. Martin

A baby is born.

Mrs. Owen

Well, a baby should not be born. The Minister is leaving a gap as to what implantation means. Again, the word "unborn" is not defined. The Taoiseach referred in his letter to the right to life of the unborn and then included the phrase "however the unborn is to be defined." In other words, it is a case of have what one wants with regard to the definition of "unborn." It is not in Article 40.3.3° or this legislation. The Minister is sliding over these difficulties by saying that we are not redefining what "unborn" is. For God's sake, we have not defined it so, of course, the Minister is not redefining it. That is the whole problem - there is no definition.

Mr. Martin

No, we are defining unborn. That is the point.

Ms McGennis

Yes.

Mrs. Owen

However, one cannot ignore things like what unborn means.

Ms McManus

What about the harmony?

Mrs. Owen

It states the legislation if enacted protects the "unborn human life after implantation in the womb of a woman".

Mr. Gormley

Yes.

Mrs. Owen

But what about unborn human life before implantation? That sentence implies there is such a thing as unborn human life before implantation. That is what I believe the courts will examine. By saying it is unborn human life after implantation in the woman's womb, it presupposes there is also unborn human life before implantation. That is the way I would interpret it, although I am not a lawyer. By using such expressions, the Minister is leaving open the interpretation and could be accused of allowing abortions. That is why the people who think they want this amendment are against it as well; they see these difficulties with it.

Chairman

I wish to inform the committee that we have gone over the time. I have two further speakers who wish to address the amendment. It is a matter for the committee whether it wishes to allow both of them to make their contributions and hear the Minster's response. Is it agreed that we continue for 30 minutes?

Mr. G. Mitchell

Fifteen minutes.

Chairman

Fifteen minutes, okay.

Ms McManus

I have a concern that I wish to express after the Minister's reply.

Ms McGennis

I cannot speak with any authority on Deputy McManus's proposed amendment. I presume the Minister will be able to respond to it. I am a bit concerned that we are being warned, on the one hand, that we are in direct conflict with the Catholic Church's teaching on conception.

Mrs. Owen

It was not a warning.

Ms McGennis

On the other hand, that is not what should dictate the legislation anyway. I am more deeply concerned by the fact - if I understand what Deputy Dukes said - that if the people decide to pass this referendum, and there is a change of Government, whatever Government comes into power after that would not obey what we describe as the supremacy of the people. The people are supreme, so I find that most disconcerting. People can disagree with this legislation and can vote against the referendum, but it is wrong for Members of the Oireachtas to say that if the people pass it, another Administration might ignore the specific——

Mr. Dukes

It is the Oireachtas.

Ms McGennis

The people are supreme.

Mr. Dukes

It is the Oireachtas. It is a law.

Ms McGennis

The Deputy stated that if the referendum is passed, the Oireachtas might decide not to pass it.

Mr. Dukes

The text says that if a law is enacted by the Oireachtas——

Ms McGennis

My understanding is that any power that comes to the Oireachtas, comes from the people. The people are supreme but the Deputy is saying that even if this referendum is passed a future Administration——

Mr. Dukes

Oireachtas.

Ms McGennis

——Oireachtas might decide not to pass it.

Mr. Dukes

That is sensibly envisaged.

Mrs. Owen

That is envisaged.

Ms McGennis

So, is that the Deputy's view?

Mr. Dukes

That is specifically envisaged.

Ms McGennis

I think the Minister covered the other point. My understanding is that any of the agencies who administer the morning-after pill will warn people who are thinking of using it that it is only effective, and should only be used, within 72 hours. I presume the Minister will be able to confirm that. I am not aware that anyone would seek to have an IUD inserted in order to produce an abortion. The definition of abortion is quite clear and, therefore, somebody who carried out the procedure not knowing that would be the effect, would not be guilty of carrying out an abortion. That is the situation as I read it.

Mr. Dukes

It is evident that the extent of the pig in a poke the Minister is selling us is not fully realised.

Ms McGennis

Deputy Dukes is straying into agricultural matters.

Mr. Gormley

To take up the point made by Deputy McGennis, it is my clear understanding that Catholic teaching is very precise on this - that human life does begin at conception. I am sure many Deputies have received correspondence about it. That is the worry of those who perceive themselves as being the real pro-life people. We require definitions, yet there is no definition of "unborn human life". Deputy Dukes is quite right in asking whether an ovum is unborn human life. We could get into absurd "every sperm is sacred" Monty Python-type territory if we wanted.

Mrs. Barnes

Woody Allen.

Mr. Gormley

Yes.

Mrs. Owen

Where is the harmony now?

Mrs. Barnes

Get the video out at the weekend.

Mr. Gormley

To revert to a more serious note, Deputy McManus is trying to get a little bit of clarity and consistency, and that is commendable. I want to put a serious question to the Minister and I do not think we should be ducking this issue. If the Minister could pay attention just for a moment, is it his intention to commit the destruction of unborn human life prior to implantation? Is that what we are talking about? Let us be clear about this. What we are talking about here is the morning after pill which we know is in widespread use. We also know there would be even more abortions in England if it was not used. We need to face up to reality. Is this the Government's intention? Would it not be better simply to legalise the morning after pill? Will the legislation achieve that for the Minister? We need clarification on that point, Minister. There is too much hedging going on. We need to face up to the reality, as the pro-life people are saying, that human life begins at conception, and the morning after pill involves the taking of unborn life as far as they are concerned.

Ms McManus

Since we have now entered this territory, I want to express my concern. I am not so much concerned about the protection of medical practitioners, although obviously that is an important part of the work we are doing. I am considering the position of a woman whose pregnancy test proves positive. Nowadays, pregnancy tests are more accurate, and at a much earlier stage, than they were when I was pregnant. Women can know extremely early on that they are pregnant and they can deal with it at a very early stage. Since it is now possible, and will increasingly be so, for women to cause their own abortions - doctors will largely be out of the equation - I want the Minister to deal with that context. A woman who finds herself pregnant may not have a clue as to whether or not implantation has taken place. How would she know and why would she care? That is not what she is worried about. She gets the pill that deals with the pregnancy from the Internet, takes it, carries out the abortion and could end up facing a judge and the possibility of serving 12 years in jail. That is what concerns me.

Mr. Martin

As regards the amendment, the scope of the protection that will be provided as a result of the enactment of the Bill is described in the text, hence the words "after implantation". It is not necessary to build this into the Constitution, as Deputy McManus's amendment attempts to do. Our approach has been to have the specific, necessary detail in the legislation and not in the Constitution. That is consistent with the arguments of all the Deputies who spoke in the earlier part of the debate this afternoon.

I do not see the necessity for amendment No. 20, but, with respect, I will undertake to reflect upon it between now and Report Stage.

Mrs. Owen

What is the Minister going to look at again?

Mr. Martin

I will look again at amendmentNo. 20 which seeks to insert the words "(after implantation in the womb)".

Deputy Dukes raised the issue of what would happen if the Oireachtas did not decide to legislate after the constitutional amendment was passed, but that is very clearly laid out. This will be put to the people. If such a law is not enacted within 180 days of this section being added to the Constitution, the section shall cease to have effect and shall be omitted from every official text of the Constitution published thereafter. That is what will happen.

Mr. Dukes

What would be the effect of that?

Mr. Martin

The effect would be significant because the will of the people would be subverted by the Legislature.

Mr. Dukes

That is because of the way the Minister has written it.

Mr. Martin

That is a matter for the Legislature of the day. It is a matter for every individual legislator but I would never attempt to subvert the will of the people as a legislator. If others want to do that——

Mrs. Owen

The Minister is doing so. In 1992 the people passed a referendum and the Minister is trying to subvert it here.

Mr. Martin

This is going before——

Mrs. Owen

The Minister is doing so.

Mr. Martin

This is going before the people, not over their heads. The people ultimately will decide on this, not me or anyone around here.

Mr. G. Mitchell

Will the Minister answer all the questions he was asked?

Mr. Martin

Yes. Will the Deputy give me a chance?

Mr. G. Mitchell

The Minister went straight to the political question but there are other ones.

Mr. Martin

No, I did not.

Mr. G. Mitchell

I gave the Minister the opportunity twice to answer them but he still has not done so. The record will show that.

Mr. Martin

I apologise. I think someone asked about embryo research.

Mr. G. Mitchell

I asked the Minister about the implications of this and the harmonious——

Mr. Martin

This Bill does not deal with embryo research. It does not encapsulate either the regulation of assisted human reproduction——

Mr. G. Mitchell

I asked the Minister what are the implications.

Mr. Martin

There are none because we are not——

Mr. G. Mitchell

I asked the Minister for the definition of "implantation".

Mr. Martin

There are many points there which I will take one by one. The Deputy also asked about the clock of life and I will come back to that shortly. I would like to make the point in terms of embryo research——

Mr. G. Mitchell

I asked about Article 40.3.4° as against Article 40.3.3°.

Mr. Martin

Approximately one year ago I established a commission headed by Professor Dervilla Donnelly——

Mr. G. Mitchell

That was number 66.

Mr. Martin

If Deputy Mitchell can sort out assisted human reproduction, I will give him the floor.

Mr. G. Mitchell

I am not putting forward the legislation.

Mr. Martin

I am not being facetious but if the Deputy can sort out that one overnight without some commission with expertise——

Mr. G. Mitchell

It is the Minister's job to justify the legislation to us.

Mr. Martin

Over to Deputy Mitchell.

Chairman

Gentlemen.

Mr. G. Mitchell

It is the Minister's job.

Mr. Martin

It is a very complex area.

Mr. G. Mitchell

If the Minister wants us to vote for this legislation, he should explain to us what it contains.

Mr. Martin

I am saying——

Mr. G. Mitchell

The Minister should have explained it to the four Independent Deputies when they came knocking on his door.

Mr. Martin

This legislation, as we have clearly stated from the outset, has not been designed with a view to resolving the issues pertaining to assisted human reproduction. There is no question that those issues are very complex. Developments are ongoing internationally. We have appointed an expert committee with people from different fields of expertise to produce a report for us. I will share that report with the Oireachtas - I have no problem with that. That is the context, framework and the process within which we will deal with the issue of assisted human reproduction. I respectfully suggest this is the only process in which one could realistically do so.

Mrs. Barnes

It is not exclusive to unborn life, or potential unborn life.

Mr. Martin

Could I be allowed——

Mrs. Barnes

I am sorry, I could not contain myself.

Mr. Martin

This is a debating arena in which people have made points to which I am responding.

Mr. G. Mitchell

The Minister is not responding. That is the point.

Chairman

Please allow the Minister to respond.

Mr. Martin

Deputy Mitchell raised the issue of when the clock of life begins. I think Deputy Owen referred to this issue as well. We have been very clear from the outset that the Act to protect human life in pregnancy does not define human life. We have made that very clear. We are not about defining human life.

Mr. G. Mitchell

When does a criminal offence commence?

Mr. Martin

We are about defining abortion and the criminal statute. We are updating and modernising the law in relation to abortion and we are prohibiting abortion. We have provided a definition of abortion in the Act.

Mr. G. Mitchell

The Minister is not. He is creating a criminal offence of abortion but he is not telling us when the criminal offence commences and when the clock starts to run.

Mr. Martin

We are saying in this Act that abortion means the intentional destruction by any means of unborn human life after implantation in the womb.

Mr. G. Mitchell

When does that happen? We know when conception happens but when does implantation happen? The Minister is not telling us.

Chairman

Let the Minister speak.

Mr. Martin

The intention of the morning after pill and IUDs is to prevent implantation. They are not abortafacients and have never been described to me as such. On Deputy McManus's point on that question——

Ms McManus

The IMB——

Mr. Martin

It has sought legal opinion on it and I understand it will legalise that particular product.

Ms McManus

It is an amazing coincidence.

Mr. Martin

I had no influence one way or the other and I can put that on record. I would not even attempt to have influence.

Ms McManus

I am impressed.

Mr. Martin

In terms of drugs that may come on the market, there are drugs that can be used by women to self-induce an abortion. RU-486 is one such drug which operates much later than the period of implantation. That would be illegal in the context of——

Ms McManus

That does not answer my question.

Mr. Martin

It would be illegal under the Act. It would be an offence.

Ms McManus

I did not ask about the drug. I asked if a woman takes a drug she gets from the Internet without knowing whether implantation has occurred, is she running the risk of appearing before a judge and of a 12 year prison sentence?

Mr. Martin

There is a whole area dealing with the committal of the offence and so on and there are many issues about assumptions being rebutted, reasonable opinion, people knowingly doing things and so on which are dealt with in the Bill.

Ms McManus

She knows what she is doing but she does not know when implantation occurs.

Mr. Martin

With respect, the Deputy just said the woman did not know.

Ms Fitzgerald

Clearly, women do not know when implantation takes place.

Mr. Martin

That was not what Deputy McManus said.

Ms McManus

Is the Minister saying that if a woman goes into court and says she does not know when implantation takes place, she can always have an abortion?

Mr. Martin

There is a process and a framework there in which these issues will be arbitrated on in terms of any offences that will be prosecuted.

Ms Fitzgerald

Where?

Mr. Martin

In the courts, obviously.

Ms McManus

How?

Mr. Martin

With respect——

Ms McManus

So she does run the risk of appearing in court.

Mrs. Owen

Does the Minister know what happens when somebody takes that drug? I do not want to be graphic but how does one prove implantation?

Mr. Martin

The issue here is abortion. We have accepted from day one that this is not an exact situation.

Ms Fitzgerald

The Minister is criminalising women who might take that drug without knowing when implantation takes place.

Mr. Martin

I know what is being raised here, Chairman. This is a classic attempt to stereotype and to bandy about the phrase "criminalises". Every Deputy on this committee knows the existing legislation, the Offences Against the Person Act, over which every Deputy here whose party has been in Government has presided, which contained life imprisonment for any woman in an abortion scenario. Let us get rid of the "I am criminalising it and those opposite are not" type of hypocrisy that has been going on for some time in this debate and to which I take offence. It has been the feature of the Legislature that we have presided over that scenario and over an Act that is 140 years old. That Act has much stronger and stiffer penalties than anything proposed in this Bill.

Regarding Deputy McManus's question, there is a clear definition here in terms of what is prohibited in the Act. If anyone wants to prosecute on the basis that an offence has been committed, he or she must do so with reference to due process. People are presumed innocent until proven guilty and people can defend and rebut arguments. It would depend on the particular circumstances of a case.

Ms McManus

Inherent in the Minister's approach is that when a woman says she is suicidal, the Minister does not believe her.

Mr. Martin

The Deputy is stereotyping again——

Ms McManus

I am sorry but I have heard this over and over again——

Mr. Martin

——and she is endeavouring to categorise, classify and emotionally blackmail people. That is wrong.

Ms McManus

——from Deputies from the Minister's party who say they will not believe women when they say they are suicidal.

Mr. Martin

No, I am not saying——

Ms McManus

Is the Minister telling me that if a woman goes to court, her word will always be accepted?

Mr. Martin

I am not saying that. That is polemic yet again.

Ms McManus

That is what the Minister is doing in this Bill.

Mr. Martin

It is a consistent attempt by the Deputy to politicise the debate and to introduce emotional blackmail into it, not to deal with it rationally and with some degree of a logical thought process.

Ms McManus

This is not a school debate.

Mr. Martin

I will not stand for that.

Ms McManus

This is a matter of women's lives. This is not a school debate.

Chairman

We have gone past 4.15 p.m, so I will adjourn the meeting until 10 a.m. tomorrow.

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

Progress reported; Committee to sit again.

The Select Committee adjourned at 4.20 p.m. until 10 a.m. on Friday, 23 November 2001.