On behalf of the select committee I welcome the Minister for Health and Children, Deputy Martin, and his officials. Our task is to resume consideration of the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. I suggest we consider the Bill until 3.30 p.m., with a break for lunch from 1 p.m. to 2 p.m. Is that agreed? Agreed. It is also proposed that we consider the Bill next Tuesday, 27 November, from 10.30 a.m. to 1 p.m., next Wednesday, 28 November, from 11 a.m. to 1 p.m. and all day next Thursday, 28 November until 6 p.m.
Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Committee Stage (Resumed).
Chairman, will you notify us of those dates?
Yes. I would have preferred an afternoon session next Tuesday afternoon but, unfortunately, no room is available. The select committee is meeting on Wednesday afternoon to consider Supplementary Estimates.
Could we meet next Monday? The Government does not have any major announcements on that day.
We suspended our deliberations yesterday on amendment No. 4 when the Minister was responding.
I understood I had concluded. I said I would consider amendment No. 20 in the context of Report Stage.
Is the amendment to be pressed?
I will withdraw the amendment with leave to reintroduce it, if necessary, on Report Stage.
Tarraingíodh siar an leasú faoi chead.
Tairgim leasú a 5:
I leathanach 6, líne 8, "is a shuíomh" a chur isteach i ndiaidh "chosaint".
I move amendment No. 5:
In page 7, line 8, after "protected" to insert "and vindicated".
The purpose of this amendment is to raise the important issue of the contrasting words which would have effect if Article 40.3.4° is added compared with what exists in Article 40.3.3°. If I may put it this way, many concerns have been raised in the committee on both sides. From a pro-life point of view, I want to raise this issue and tease out the Minister's case.
The Minister said that the Supreme Court, in adjudicating on various sections of the Constitution, would have concern for the principle of harmonious interpretation, but it seems to me that these two articles in the Constitution, Articles 40.3.3° and 40.3.4°, if it is passed, could well introduce conflicting conditions, and I want to spend a little time on this. Article 40.3.3° states:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
Note the strength of the word "guarantees". Those are very strong words. It guarantees as far as practicable to defend and vindicate that right, the equal right to life of the mother and the right to life of the unborn. It is very carefully balanced, we would have thought. Then we come to Article 40.3.4°, however, and look at the words it is proposed to introduce. We have already dealt with the words "in particular", but it goes on to state:
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 to me that a guarantee to defend and vindicate is a much stronger guarantee than an undertaking to protect.
Articles 40.3.3° and 40.3.4° are the relevant articles of the Constitution. Article 40.3.4° will mention the Protection of Human Life in Pregnancy Act, 2002, and the Act itself will contain the provisions, but the Act will be protected by Article 40.3.4°. This is a very unusual way of amending the Constitution and certainly a very novel way, but is the Act a subsidiary or secondary provision or is it a full and equal provision to the Constitution? Let me just make a comparison. If this was, for example, a European Union treaty, would this amendment have the status of a full treaty provision or a protocol for which we opted? If it is a full constitutional provision, then taking what the Minister said about the principle of harmonious interpretation, does Article 40.3.4° affect Article 40.3.3°? Does it qualify this right, duty and guarantee to defend and vindicate that right? If it does not, then is this Bill a subsidiary to Article 40.3.4°? In that case, does it give the protection which the Minister is claiming it could give?
Over the years the Supreme Court has fulfilled an important role in society but I do not have the confidence in the Supreme Court on every issue which others have. I do not wish to denigrate the Supreme Court but I do wish to criticise some of their shortcomings. First, the Supreme Court tends to be of a Dublin 4 nature - if not from Dublin 4, certainly it is of that mentality. There are certainly very few of them on that bench with what I would describe as any sort of reasonable Dublin accent. They are not representative. They are people who take an academic interest in the interpretation of the law.
Whereas in general they are very fair and decent in the way they interpret the law, they have made some peculiar decisions. Their decision on the Single European Act, for example, was a very peculiar decision. No matter what we might say, we all know that it is practically impossible to explain to the people in a referendum campaign the contents of the Nice Treaty or to expect them to make a decision on the basis of the finer points of the Nice Treaty. It never gets beyond using slogans. Yet the Supreme Court made a decision on the Single European Act which some very eminent lawyers would have thought was a little on the daft side to put it mildly. The Irish people had already voted on the question and now we are a situation where we must have a referendum on every occasion and it is practically impossible to explain the content. There are also other decisions of the Supreme Court which I would question. The Supreme Court decision on the Referendum Commission is another daft decision on which the taxpayer is left holding the baby.
People will say that the Supreme Court will have reference to this great principle of harmonious interpretation and they will work all this out. Are Articles 40.3.3° and 40.3.4° of equal validity or does Article 40.3.3° come as a general statement with, in particular, Article 40.3.4° as a subsidiary? Does this Act, which is incorporated in Article 40.3.4°, have the same status as a full constitutional provision?
Is the statement guaranteeing to defend and vindicate that right of the unborn and the equal right to life of the mother reduced by the wording just "to protect" in the new section? This is more of an academic question. One may ask how might this question arise. I would like to suggest how it might arise. The X case was an actual case which was taken to the court, as was the C case, and that was the vehicle by which this entire original amendment was questioned. What could give rise to this lacuna or potential lacuna being exposed? I would like to suggest what could give rise to it.
We will come to section 5 in due course. It is a section about which I have very serious reservations. I explained that on the floor of the House and I am disappointed to see the Minister has not introduced an amendment to take care of my concerns. I am really very concerned about it. Under that section, a Minister is in perpetuity to have the right to introduce orders to vary the effect of this constitutional amendment in terms of naming approved places where abortions, which are not to be called abortions, are to be carried out - they are to be called medical procedures and we will have to cross that bridge and explain that when we come to it - and also of the evidence to be kept that it was not a criminal abortion but a permitted abortion, to be called a medical procedure, so there is not a blurring of sections 1(1) and 1(2) in the Bill. The Minister will make an order on that and a Minister from time to time will make orders varying that.
The first time an order is made on that I predict Youth Defence or some body of that kind or maybe a citizen acting individually will challenge those orders. The Supreme Court will then be asked to make a decision on Article 40.3.3° versus Article 40.3.4° and the issue I have raised, namely, whether this wording, to protect in accordance with the provisions of this Act, has reduced the effect of Article 40.3.3°, which guarantees to defend and vindicate. This guarantee to defend and vindicate the right of life of the unborn with due regard to the equal right to life of the mother, seems to me to be affected by these different words. I do not know whether it is affected in a way that reduces the protection of the unborn or whether it is subsidiary to Article 40.3.3°, but it does raise a question which may sooner rather than later be brought before the Supreme Court. That is why the amendment seeks to include the term "and vindicated". I would like the Minister to elaborate further on this matter. I am not sure that the wording I have put forward is correct, but I believe this matter needs to be addressed.
Many people are concerned about this issue and have put forward questions in respect of it. From the pro-life point of view, does the wording weaken the existing position, does it give rise to a conflict or is it harmonious in nature or is the Supreme Court being given the right to pick and choose? Orders to be made could, perhaps, be struck down under Article 40.3, which would make matters difficult in terms of having an approved place and keeping evidence. Will the Minister indicate whether Article 40.3 will be changed or, in part, nullified by this wording?
This is an important issue. The debate on it recalls yesterday's debate on an earlier amendment wherein we discussed the potential conflict between the two sections of the article. We did not receive a clear answer from the Minister about the potential legal conflict between the two sections. This point is central to the procedure on which we have embarked.
One of the points made in 1983 was that the wording was unclear, that it would lead to difficulties and that it would have to be interpreted by the courts. That argument was put forward by people who opposed the insertion of Article 40.3. Their assertion clearly turned out to be the case in the sense that a Supreme Court interpretation was required in order for us to understand what some of us had included in the Constitution. It is a matter of great concern that, rather than having learned from that lesson, we are being asked to include another section to Article 40 which will lead to a conflict between two subsections.
As stated yesterday, I am of the opinion that we require the presence of a constitutional lawyer to advise us on this matter. The Select Committee on Health and Children, which must operate within a very important framework, was chosen to deal with this legislation. However, no member of the committee is a constitutional lawyer. I was a member of the All-Party Committee on the Constitution and the experience I gained has given me some understanding - small though it may be - that one cannot mess around with the Constitution without paying a heavy price. That appears to be exactly what is being done here.
I do not believe we should be in a situation where, in order to resolve political or theological problems or whatever, we might do damage to the Constitution by creating or proposing to create an internal conflict within that document which will have to be decided upon by the courts. We should certainly not take that route in light of what has happened since 1983. The expert review group made it clear that we should not even attempt to go the route of introducing a constitutional amendment. It is clear, however, that we are going down that route in spades and that we are being asked to do things that have never been done before. Some people have referred to what is being done as "elegant", while others have termed it a "sleight of hand", "clumsy" and "unprecedented" and described it as having "great potential" to cause future difficulties which would lead to its inevitable submission to the courts for interpretation.
Will the Minister clarify the position? Aclear-cut statement that can be stood overmust be made; we should not merely be sub-jected to phrases such as "My advice is, as aMinister . . . ". The latter is not sufficient. The Minister must indicate how the two are compatible. He stated that there is harmony, but from our perspective there is serious potential for disharmony. This is quite apart from where people stand on the issues of suicide, abortion, etc. We are discussing what it is proposed to include in the Constitution, a document that we have a duty to protect and safeguard.
In reply to question 7 put forward by Deputy Noonan, it is stated that the provisions of Article 40.3.3° are not amended by the text of Article 40.3.4°. It seems clear from this that Article 40.3.3° stands firm in the Constitution and that a new Article 40.3.4° will be put in place. However, Article 40.3.3°, as interpreted by the courts, has defended and vindicated the rights of the unborn but in a way which fully acknowledges the rights of the mother. There is a change proposed in the legislation that will exclude the X case and the threat of suicide. It appears, therefore, that a clash will immediately emerge between Articles 40.3.3° and 40.3.4°. There will be less protection for women under the new article by virtue of the fact that psychological health and suicide are being removed as grounds. However, the Minister clearly has clearly indicated to the committee that Article 40.3.3° will not be amended by the text of Article 40.3.4°.
In my opinion this matter will be open to interpretation by the courts, particularly the Supreme Court, with regard to what rights will be vindicated and how this will be done. The latter will depend on how both articles will be interpreted. How can it be the case that Article 40.3.3° will not be amended by the text of Article 40.3.4°?
The advice I shared with the committee yesterday was provided by a constitutional lawyer. That advice was included in a letter the Taoiseach sent to Deputy Fitzgerald's party's leader. Opposition Deputies have inquired whether articles in the Constitution will compete or conflict with each other. The same point could be made about any other set of articles in the Constitution. The constitutional advice I have received, and which was available during the preparation of the legislation, indicates that this is not how the Constitution is interpreted by the Supreme Court. The court has laid down clear procedures in respect of how the Constitution should be interpreted and indicated that articles must be read together and that the doctrine of harmonious interpretation applies. Articles 40.3.3° and 40.3.4° would, therefore, be read together.
What does that mean?
It means that judges, when considering the overall issue, will not look at Articles 40.3.3° or 40.3.4° in isolation, they will be obliged to look at them together.
That is the difficulty.
What we cannot do here is become the Supreme Court.
We are saying that the Minister is establishing a conflict.
We are not establishing a conflict. It must be accepted that the Constitution will always be subject to interpretation. Deputy Gay Mitchell referred to the Supreme Court and his concern about certain judgments. In our democracy, we have a written Constitution, a Legislature, an Executive and a Judiciary. The latter interprets the Constitution for society. When we take a decision to add something to the Constitution, we do so in the knowledge that it will, at some future date and in whatever shape or form, fall to be interpreted. It is true that we do not have control over such interpretations. As stated yesterday, that is how the Constitution has evolved.
With regard to the points made about 1983, for example, we came to the conclusion in preparing this formula that no single paragraph would suffice, that it was not possible to insert a single paragraph on this issue into the Constitution. People may have learned that lesson from 1983 and we, in taking on board a range of submissions and arguments about the various processes that led to this Bill, decided to do so more specifically in the form of a legislative provision. I am advised in respect of Deputy Mitchell's amendment that there is no necessity for the additional language he has proposed. It would not confer any additional protection. That is my legal advice.
I will not press the amendment, but will reintroduce it on Report Stage. The Minister is correct. As well as criticising the Supreme Court, I acknowledged the important role it has played during the years, but it should not be beyond criticism. I do not know whether the X case judgment was its best day's work in terms of the stark way it dealt with it. However, that is another day's work.
We are in the business of presenting the court with an agenda, but that is our job before we legislate and put the constitutional amendment before the people. I speak from the point of view of someone with pro-life concerns. The Minister is introducing a measure which states the unborn in the womb shall be protected in accordance with the provisions of this Bill. The reason the unborn will no longer be defended and vindicated is the Minister is legislating for abortion. We must deal with this and people must be told the truth. I accept the Minister is doing so in limited circumstances to take account of what doctors are given to understand is current medical practice where there would be real and substantial risk of loss of life of the mother. Calling it a medical procedure is like calling a dog a canine or a cat a feline. The reason the wording "shall be protected" is used is to reduce the guarantee in Article 40.3.3°. The Minister is no longer defending and vindicating the right to life of the unborn. That is the reason the words have been introduced.
If the Bill is passed by the Oireachtas, but the constitutional amendment is rejected by the people, it will still be before the Oireachtas. The Minister could introduce the Bill as an ordinary Bill, but that would be challenged and found to be unconstitutional because section 1 would not meet the guarantee to defend and vindicate the right contained in Article 40.3.3° which he is reducing by introducing this measure in thisway.
It would be unconstitutional because it would be in conflict with the judgment in the X case.
The Bill could not be introduced.
The Minister could introduce any Bill that the President does not refer to the Supreme Court.
It would be open to constitutional challenge, but one would also know by removing suicide——
The Minister should not be disingenuous.
I am not.
The Bill will still be before the House. Perhaps it would be unconstitutional on the grounds the Minister has suggested, but the reason the Bill would not see the light of day is section 1(2) would be unconstitutional because it would not meet the guarantee to vindicate and defend the right to life of the unborn contained in Article 40.3.3°. This is an important point and those who are pro-life need to know this because if we pass the legislation, we will provide for abortion, albeit in limited and perhaps reasonable circumstances, on which I do not make a judgment.
This is all on the record and not what the Minister has been saying in radio interviews. He did not answer many of the questions I asked yesterday. The wording on its own cannot be introduced under the Constitution. It can only be introduced by modifying Article 40.3.3° to include it under Article 40.3.4°.
I agree with the Minister that if he introduced the legislation as an ordinary Bill, it would be found to be unconstitutional because it would be in conflict with the judgment in the X case, but inserting the wording in the Constitution would also mean that it would be in conflict with the judgment in the X case because it defines Article 40.3.3°. The conflict is not resolved by inserting a paragraph which conflicts with an existing paragraph in Article 40. The Minister is inserting it in the Constitution as a paragraph that conflicts with an existing one, Article 40.3.3°. He is transferring the conflict to the Constitution. The Minister is correct. There is a conflict on the basis of what Deputy Mitchell and the Minister said.
Women have a right to life under Article 40.3.3°. The Minister's intention is to interfere with this by excluding psychological, psychiatric conditions, but women have the right currently and the Minister is not interfering with it. He is leaving it in the Constitution and we enjoy that right, but the Minister is trying to take it away from us. However, he cannot take it away unless he removes Article 40.3.3° under which we have that right. Not only is it provided in the Constitution, it has been affirmed by the Supreme Court. If the Minister inserts this wording, it will not change anything.
He reminds me a little of the Mad Hatter who could think of three impossible things before breakfast. It is impossible for the Minister to say the two paragraphs under Article 40 are compatible or in harmony because he has already outlined that if he introduces the constitutional amendment by way of ordinary legislation, he has no doubt it would be struck down as unconstitutional.
The Minister and the Taoiseach have clearly stated Article 40.3.3° stands. The Supreme Court has identified a number of rights under the Constitution. They include the right to bodily integrity, privacy and not to have one's health endangered by the State. The Supreme Court has already found under Article 40.3.3° that where there is a risk of suicide, the person concerned is protected by the Constitution. Effectively the Supreme Court protected the young woman in the X case. That is Article 40.3.3° and the Minister says it stands. If Article 40.3.4° gives less protection to women by withdrawing that protection for mental health, a right enumerated by the Supreme Court, surely there is a conflict between Articles 40.3.3° and 40.3.4° and the Minister is effectively setting up that conflict between the two.
Whatever about harmonious interpretation, the reality is that one has been interpreted one way and the Minister clearly said that still stands, while the Taoiseach said Article 40.3.4° does not amend it. Is it correct to say the Minister is relying on the possibility of a future Supreme Court judgment which will interpret Article 40.3.3° as he outlines in Article 40.3.4° as opposed to saying Article 40.3.4° stands, which is what the Taoiseach said? At the very least, is it the case that the Minister is setting up a conflict between the two and creating potential for a huge amount of disagreement and case law and a lack of clarity about what rights of women are protected in Ireland on this issue?
The Minister must feel extraordinarily lonely given the enormous support he is receiving from members of his party and his Government colleagues. Their silence is eloquent beyond words.
Does the Deputy really want some of them over?
Bring in the defence.
Perhaps the proceedings of the committee would be enriched if the Independents who demanded this hotch-potch were present. Like Deputy Mitchell, all of us present speak from a pro-life stance. I am sorry I have to use the term but the Minister has brought in a hotch-potch of legislation. He says he is doing this because he has conducted many inquiries. However, we all know——
On a point of order, I was not referring to anyone present, just that there is also a pro-choice lobby which has seen me to ask for abortion to be legalised.
Yes, it is not in here.
I was distinguishing between the two. I hope no one is too testy on that specific point.
Yes, I want to ensure that is clear as well because I do not want anyone reporting there are two different lobbies on the committee.
The two lobbies have been articulated.
They may or may not have been.
The Minister should be very careful about making that assertion.
There is a very important presumption here.
I could do points of order all morning and I have allowed everyone to have a say.
Allow Deputy Owen to finish her contribution.
The Minister's comments were extremely unhelpful for the workings of the committee. He should not interpret anything we say as legislators one way or another. We are dealing with this legislation as if it was any other piece of legislation where we have the right and the duty to criticise and nit-pick whatever the Government does in exactly the same way the Minister will do next year when he is in Opposition and we are in Government. We will go through the legislation with a fine tooth-comb.
Deputy Mitchell's is one of a number of amendments which, if the Minister does not accept them, means he will be guilty, assuming the constitutional amendment is passed, of introducing a constitutional amendment and enacting legislation which will cause havoc. One has only to look at what happened to the simple Article 40.3.3° amendment to the Constitution and the interpretation of it. God knows what rings the Supreme Court will run around this when it is added to by Article 40.3.4°, something we have already pointed out to the Minister. Added to this will be legislation which will have constitutional protection. The explanation from the Taoiseach states that it will be intra vires for the Dáil to pass this legislation.
It would be helpful to the committee if the Independents who support the Government and requested and demanded this referendum came to a meeting and gave us an explanation. Perhaps many of the matters confusing us would suddenly disappear if Deputies Fox, Healy-Rae and Gildea were present to tell us the case they made to Government for this wording and referendum. They must have done something because we have been told that part of the reason this is happening is because they have strong views about holding this referendum. Their silence is eloquent and I hope they will attend at some stage during the day.
The Minister places great store on this harmonious interpretation. The phrase also appears in the Taoiseach's replies to Deputy Noonan. The doctrine of harmonious interpretation requires that constitutional provisions should not be construed in isolation from other parts of the Constitution. However, the Minister is silent on what type of interpretation will exist - harmonious, disharmonious or conflicting - if, for the first time, legislation is included in the constitutional provision. Unless the terms of the Constitution and of the legislation fit harmoniously, it will be a recipe for unbelievable and endless interpretations, conflicts and challenges to the Supreme Court. That is what we are trying to get across to the Minister.
He should be careful not to reject the amendments tabled by Deputy Mitchell and Deputy McManus seeking greater harmony between the legislation, existing constitutional provisions and the new ones the Minister seeks to add. He will reject them at his peril. A challenge could be taken on one of the grounds in those amendments, on words which are not controversial and do not, as the Minister said, create conflict between those who would like to see an abortion regime in Ireland and who would like to see choice and those who would like everyone going to England to have abortions and those who would not like people going to England. People opt for a range of choices.
The Minister should not minimise what we do as legislators and the advice we try to give him. It is not being done to get at him but to bring our advice to him. He said his advice is not supreme. The Taoiseach's replies to Deputy Noonan's questions are littered with phrases such as "It is hoped" or "It is anticipated". It is clear the Minister is trying to flag that, although he is in receipt of advice, there is a certain lack of clarity and there is a possibility the provisions may not do what he believes they will do.
The approach the Minister has taken is not to accept anything the Opposition puts forward. I am a former Minister and Deputy Mitchell and Deputy McManus took legislation through the Oireachtas. The Minister should not underestimate the type of wording and advice we have received about this legislation. It may ultimately pass because the Government will put it through and it will go to the people, but it may not be passed by them. The Minister should be more open to accepting amendments and should not think it is a game.
I take seriously the points people make on Committee Stage and my short record as a legislator since 1997 has shown that I have always been willing to accept amendments where I believe they make sense or change legislation for the better. I have done that in a variety of legislation I have piloted through the Oireachtas. We have already accepted two points articulated by Opposition spokespersons on Second Stage and have tabled two amendments which will be discussed later to address those concerns. I have also given a commitment to come back to Deputies on Report Stage in respect of two issues. I will continue to conduct myself in that vein.
On the points raised, Deputy Mitchell said that, if the legislation was on its own, it would fail the constitutional test because of section 1(2). I will come back to that. I said it would fail the constitutional test because it is in, in essence, affecting the X case judgment. That is why it is going to the people. One could not do this by legislation alone. The bottom line is if this amendment fails, it is back to the drawing board and it is then up to the Oireachtas to decide if it wants to do something else. That is what would happen.
However, section 1(2) is about vindication of the life of the mother. I disagree fundamentally with Deputy Mitchell's point that that would be considered unconstitutional, because Article 40.3.3° acknowledges the right to life of the unborn with due regard to the equal right to life of the mother. It goes on to state that it guarantees in its laws to respect and, as far as practicable by its laws, to defend and vindicate that right.
The Act we are bringing forward is to protect human life in pregnancy and section 1(2) is specifically included to ensure there is legal and constitutional certainty in terms of protecting the life of the mother where the life of the mother is endangered by a particular condition, illness or disease during pregnancy. Those on the committee will know that medical advice was received in terms of the various conditions that can apply.
My understanding from reading people's comments and listening to the radio was that this section was not being opposed by those of a pro-life disposition. There may be some in the pro-life community who have difficulties with it but my understanding is that certain groups had difficulties with other aspects of the legislation but not with this one.
To go back to the fundamental point, one does not read one article in the Constitution in isolation from another. That is the fundamental difference we have here. It is not fair for Deputy McManus to say that to use the legislation on its own would be in conflict with the X case: it would be in conflict because it would not pass the constitutional test. The ultimate authority in that is the people so if the people in their wisdom decide to insert Article 40.3.4° into the Constitution, then it becomes part of the Constitution, part of the whole and the entity, and has the impact of removing the risk of suicide as a factor. The bottom line is that the people, not the Supreme Court or anybody else, would decide to insert that into the Constitution. It would subsequently fall to the Supreme Court, if it wished to do so, to interpret a particular case but the people are the ultimate arbiters of what goes into the Constitution.
First, I did not vote for Article 40.3.3° when it came before the Dáil in 1983, even though there was a lot of hysterical campaigning at the time. I have no difficulty whatsoever with a constitutional protection for the unborn. I did not vote for it because the advice we got at the time was it would give the Supreme Court the right to interpret and it could introduce abortion on an interpretation.
On the very first case, the X case, that is exactly what it did. I was discerning enough then as a legislator to say that I did not want to lend my name to it, so before we give the right to the people to decide anything, we have a right; the people gave us the right and duty, as obliged by the Constitution, to act as legislators. The people require us and put that in the Constitution themselves. Only what we pass as legislation goes to them so they expect us to tease this out and put it through the strainer, so to speak, before we put it to them. That is our role. When it goes to the people, a seven section amendment is hardly something people will have the opportunity to go through with the Minister as we have today. All they will hear will be the debate on the principles and the points. Many people will want to vote "yes" who, if they knew the detail, might not do so, or vice versa. It is important to highlight these points; that is what Committee Stage is about.
It seems reasonable to me that if the current medical practice, which has been brought to attention by the constitutional review group, where doctors feel there is a real and substantial risk of loss of life to the mother - even though they are not the exact words of the medical ethics used, though they are very similar - they will terminate the life of the unborn. That is not as an indirect consequence but as a direct consequence. It may happen rarely but it happens.
It seems that could be challenged under Article 40.3.3° as it stands. The only reason it is not being challenged is that nobody has gone to court to challenge it. It is one thing it being the case according to medical ethics and practice but it is another being the case by legislation. I come back to the point that if the Minister was to legislate to give effect to what is practice, that legislation would not be guaranteeing by law to vindicate and defend the right of the unborn and, therefore, it could not only be challenged but probably would not stand up.
That brings me to the point I made. The reason the Minister is making a constitutional amendment is that he could not do this by law and we are therefore weakening the provisions as I believe we are. We may be doing it in very limited circumstances - I want to be careful with the words I use as I have already been taken to task - and someone might call it the "reasonable" thing to do in the circumstances but, nonetheless, we are doing it if insert these words. People should be aware of that. This is the reality and the Minister could not do so, in my view. I am not a lawyer but I am 20 years in the House and I have seen a lot of legislation go through it. It was my opinion in 1983 that the wording was faulty and I was right. A reasonable opinion would be that the Minister could not do this by ordinary law because it would conflict with Article 40.3.3° under Article 40.3.3° , therefore by doing it this way he is reducing the effect of article 40.3.3° .
The problem with Article 40.3.3° is that the Oireachtas did not follow on with legislation to define it. The article states ". . . as far as practicable by its laws to defend and vindicate that right".
Members of the Supreme Court admonished the Oireachtas for its failure to provide legislation in the aftermath of Article 40.3.3° in terms of fleshing out the principles contained in it. Here we are fleshing it out in the context of the legislation we are putting forward. That is the fundamental difference.
No, can I——
It is far more specific. It is difficult to comprehend that some Deputies are arguing that we are weakening protection for the unborn, which in essence is Deputy Mitchell's case, while we are giving the mother's life less priority. Both views are not compatible by any yardstick. There is no way that it is in any way weakening the life of the unborn as demonstrated in Article 40.3.3°. What it is doing is clearly specifying in legislation where particular procedures are permissible and what is not permissible.
I am not making any statements. I am asking questions and raising points, indicating the potential for conflict. That is my job.
I thought the Deputy made a statement.
No. I made a statement that if one did this in ordinary law it would be set aside because it conflicts with Article 40.3.3°.
The Deputy did say that it was his opinion that this was weakening protection for the unborn. He did say that.
It is weakening the guarantee in the article. That is what I am leading onto.
Article 40.3.3° is to be read with article 40.3.4. They are both to be read together.
Regarding Article 40.3.3°, the Minister did not use the word that is there. The word is "guarantees" in its laws to respect and as far as practicable by its laws to defend and vindicate that right - guarantees. That is my point. If, when that was passed, the Oireachtas - the Supreme Court was right in its criticism - had introduced laws to guarantee and as far as practicable defend and vindicate, as well as setting out the circumstances in which we would have done that, that law would probably have been constitutional. However, the Minister is moving away from this position. We must be aware of this fact. I am not saying I am going to vote against this and have already stated I am not pressing the amendment. I am being reasonable in raising this issue and in the manner in which I am doing so. I am not pressing the issue at this stage and will come back to it on Report Stage.
This legislation will not just involve the practice which doctors carry out under medical ethical guidelines or an Act passed by the Oireachtas which can be amended. When it becomes law it will be protected by a constitutional guarantee which we cannot amend. If we are going to go that far, we might as well outline the implications of what we are doing.
The Minister is right when he states the people will decide. However, the people have a right to expect that when they are being asked to do so, they are not presented with provisions which are contradictory to those already included in the Constitution. It was notable that the survey carried out after the Nice treaty referendum showed that it was an unhappy experience for most. The vast majority did not understand the issues and many stayed at home as a result.
If the Government gets its way, we are going to present a further referendum to the people on issues which are quite complex. Clarity is important if they are to make an informed decision. To achieve this objective it seems logical that if we are going to add this Article to the Constitution, we should clear out Article 40.3.3° and start with this amendment. That is the obvious way in which to approach the issue. We have to ask the reason the Minister is not doing so. If he is sincere and genuine and feels the best approach is to include definitions and exclude suicide, then he should do so in an manner over which he can stand. However, he is not doing so because, presumably, he is afraid of a reaction.
The Minister continues to argue that the Articles have to be read together. I do not understand how he can argue that is an answer to our concerns about the internal ambiguity and possible conflict. Article 40.3.3° protects the right to life of the unborn, but the proposed Article 40.3.4° only protects the right to life of the unborn after implantation. Read together, one Article does one thing while the other does something else. Article 40.3.3° protects the right to life of the mother, including the issue of suicide. It is as if those words have been written into the Constitution because they have been affirmed by the Supreme Court.
The proposed Article 40.3.4° protects the right to life of the mother but excludes suicide. This highlights the fact that one Article states one thing and another states something different. Therefore, reading them together explains the problem as they state different things about the same issue - the rights of the unborn and mothers. The Minister is suggesting that one is being set against the other.
Deputy Mitchell has argued the point regarding the unborn and I am concentrating on the issue of women. However, that does not mean there is a conflict between us. We are making the same essential point that the position the Minister is adopting in the proposed Article 40.3.4° is different from that in Article 40.3.3° which is being maintained. The Minister is also suggesting to Deputy Mitchell that there is no weakening of the provisions of Article 40.3.3°. It might be logical if the Minister stated that in his view there is a weakening of those provisions. However, he is not saying so but arguing that Article 40.3.3° will stand regarding the rights of the unborn. If that is so, what is the reason it will not stand as regards the rights of women? If Article 40.3.3° still protects the rights of the unborn, it also currently enshrines the rights of women who are suicidal. Is the Minister suggesting that this protection will be removed from Article 40.3.3° while trying to convince Deputy Mitchell that the rights of the unborn in that Article will be maintained? That does not make sense.
It does make sense. It does not make sense given the Deputy's interpretation.
The Minister is arguing that he is responding to some members of the Supreme Court who highlighted the need for legislation. The Minister is not legislating for Article 40.3.3° but for something else. He is not legislating in the manner suggested by the expert review group but introducing legislation which deals with other issues after implantation and excluding suicide.
In reply to some of the queries raised the Minister stated that it is for the people to decide. That is correct, but the point of this discussion is to make the issue as clear as possible for the people. Deputy McManus has put it well. The Minister is suggesting that Article 40.3.3° will remain unchanged. However, there are areas in which the provisions of that Article and the proposed Article 40.3.4° are different, particularly regarding the definition of the unborn and the issue of suicide. This would mean there would be two Articles in the Constitution, one of which has been given an interpretation by the Supreme Court and which remains in the Constitution. However, there will be a second Article which defines the unborn in a different manner and excludes suicidal women from being considered which the Supreme Court had decided should be the case under Article 40.3.3°.
The Minister is suggesting a new provision for the Constitution. This mechanism has never been used before and will shift the balance between the Judiciary and the Dáil and the President. There is quite a shift in the balance between the different organs of State in this legislation, an issue which has not received enough discussion. The provisions of the two Articles will be totally different. The Supreme Court has given a particular interpretation of Article 40.3.3°. The unborn is not defined in that Article——
We are not redefining the unborn.
The definition was not included in Article 40.3.3°.
We are defining it in terms of abortion. We are not defining human life.
I accept that point.
This point is being repeated as if we are defining human life. We are not doing so.
Article 40.3.3°, after imp-lantation——
The Minister is,de facto, doing so.
We are not doing so.
It is in the proposed Article 40.3.4°, after implantation, but not in Article 40.3.3°. There are differences.
We are making the same points we made yesterday. The bottom line is that Article 40.3.3° is on its own at present. If the people decide to insert Article 40.3.4°, it will become part of the Constitution and the provisions, particularly those with which we dealt yesterday, link the two Articles. There is no question that the proposed Article 40.3.4° removes the risk of suicide as a factor in determining whether an abortion should take place and whether an abortion is legal.
Article 40.3.4° is paramount.
The Minister is suggesting that the proposed Article 40.3.4° will be superior to Article 40.3.3°.
No, we are suggesting they are linked. Article 40.3.4° is not in the Constitution.
Is the Minister assuming that one will be superior to the other?
The Minister is doing so if he is excluding suicide.
I am suggesting that, under the doctrine of harmonious interpretation, the Supreme Court will read both Articles together.
The Minister is leaving it to the Supreme Court.
Nothing is absolute in life. I cannot state that some day someone will not offer a particular interpretation of the Constitution. The entire Constitution is about the balancing of rights. The Supreme Court adjudicates on the Constitution. We can go through the social, economic and other provisions of the Constitution and a lay person examining the document would see that it appears to include competing issues. The Supreme Court has laid down the mechanisms by which it intervenes and decides on these issues via a doctrine of harmonious interpretation. We know this is a fact.
Deputy McManus made it clear that the Supreme Court has adjudicated that the threat of suicide is built into Article 40.3.3°. Is your constitutional advice that when you include another section it actually expunges the earlier interpretation of what Article 40.3.3° stands for?
Is the Minister saying it cleans it out?
No, it does not clean out theentire ——
That is exactly what Deputy Mitchell is trying to say.
Article 40.3.4° takes out the suicide issue.
Is the Minister saying it is superior to Article 40.3.3°?
It is a new insertion.
It is like an insurance policy. One is covered for one risk——
We are not talking about an insurance policy.
No, it is not.
This is about women's lives and the Irish Constitution.
This issue is important to everyone. I am simply drawing an analogy to explain the point. The Deputy should not get high and mighty with me because she is not the only one with an opinion on the matter.
The two are linked together by the phrase "In particular". They will be read together when the phrase is inserted. However, it is not inserted at the moment. There have been various views on Article 40.3.3° as subsequently interpreted by the Supreme Court - Deputy Mitchell and others have articulated them - and there has been an ongoing campaign in this regard. If the people decide in their wisdom to insert Article 40.3.4° into the Constitution it will have the effect of removing the risk of suicide as a justification for abortion. It is fairly simple and straightforward.
Could we come back to my amendment? My colleague and I are impressed with Deputy McManus's comments. This is about protecting the unborn and not about suicide. The suicide issue will come up later but let us deal with the issue before us. The words to which I am referring are, "In particular, the life of the unborn in the womb shall be protected". I wish to add "and vindicated" for the purpose of this debate. The issue is that 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, that is, the right to life of the unborn. The State guarantees in its laws, except in this law. By introducing 40.3.4°, the Minister is only introducing protection - the proposed article states the live of the unborn "shall be protected in accordance with. . . ". The law which allows for this guarantee to vindicate and defend the right of the unborn will be weakened and reduced. That is the intended effect of Article 40.3.4°. The question of suicide is quite proper but this section——
On a point of clarification, is the Deputy saying it is weakened because of a lack of wording or because of sections 1 and 2?
I am saying that because of the way the Bill is worded it is providing in law, under constitutional protection, for a medical procedure which is abortion, but which will not be called abortion. In my view this could not be done without challenging ordinary law because the guarantee contained in Article 40.3.3° is being reduced.
It seems to me the Deputy is saying we are weakening the protection given to the unborn by specifically including in the legislation a provision which would protect the life of the mother in the event of rare medical conditions which would threaten her life. I disagree fundamentally with that view because I always thought, even going back to 1983, that the wishes of the people were to protect the life of the mother in such circumstances. Where these rare life-threatening conditions apply and where such procedures are necessary to save the life of the mother were well teased out in the Oireachtas committee. I do not think that is weakening the protection afforded to the unborn in Article 40.3.3°. There is a clear obligation in Article 40.3.3° to vindicate the equal right to life of the mother in so far as is practicable. Deputy Owen referred yesterday - perhaps it is not the point the Deputy is making in terms of the definition of the crime of abortion - to the period between conception and implantation. The practicality test comes into play in that regard. This law is as practical as it can be in terms of providing for a criminal statute on abortion.
I would like clarification from the Minister on this issue which we have been discussing yesterday and today. It relates to the question of the 17th Protocol to the Maastricht Treaty. Is that one of the reasons the Minister wishes to retain Article 40.3.3°? That protocol states that nothing in the Treaty of the European Union shall affect the application in Ireland of Article 40.3.3° of the Constitution of Ireland. Can the Minister confirm that nothing in the Maastricht protocol extends to these new amendments?
It does in terms of Article 40.3.3°. There is also a commitment——
Let us be clear about this. We spoke about the Supreme Court but we are members of the European Union. This will be reflected in the future - Mr. Rogers highlighted it in terms of divorce - and it will be highlighted again in terms of abortion, therefore, we can forget about the Supreme Court. We need to tease out that issue on which I would like clarification from the Minister.
It is not germane to the amendment. Obviously Article 40.3.4° will be read with Article 40.3.3°. In terms of the Maastricht protocol, there was a clear commitment from the European leaders at the time that any further adaptation or change would be accommodated in the form of a further protocol, if that was required. The legal advice from the Attorney General is that it is not required.
To respond to what the Minister said on my amendment, under Article 40.3.3° the constitutional guarantee for which he is now providing actually takes place in practice. However, that is different from providing for it in law because the Constitution as it stands and which the Minister is not proposing to change, guarantees to defend and vindicate in law the right of the unborn. Therefore, the Minister could not by law take away that guarantee to defend and vindicate. The only way he could do so is through this article. We are not just providing for termination but for termination in unrestricted circumstances provided there is a real risk of loss of life to the mother, something the Minister could not provide for through ordinary law. Therefore, the effect of Article 40.3.3° is being reduced. The Minister is not introducing anything new in terms of what will happen in practice in hospitals because this is already being done on medical ethics grounds. However, he is elevating what is currently being done on medical ethics grounds, not just to law but to law guaranteed and supported by the Constitution, which currently conflicts with Article 40.3.3°. Articles 40.3.3° and 40.4.4° will say completely different things and it will be the Supreme Court——
I totally reject that suggestion. Article 40.3.3° is very clear in regard to the equal right to life of the mother and the Legislature should reflect that in any laws it passes. On the suggestion that we are merely putting what is happening into practice, the obstetricians and others involved in this field have been equally critical for some time of the lack of clarity and legal uncertainly surrounding this aspect.
That is by law——
They are unhappy about that which is why we have moved very practically and strongly on the issue in the legislation. Whatever about the differences in regard to the other aspects being proposed, I thought that particular section would have had the unanimous support of members.
The amendment which is being withdrawn is getting a very good airing.
It is. I am withdrawing it because I do not want to bring people in here to vote. The Minister has not addressed satisfactorily the points I raised. People need to be made aware of what he is doing and why, which is a committee's purpose at this Stage of a Bill, especially one enjoying constitutional protection. The Minister is replacing the words "defend and vindicate" with "protect" which is less strong.
What legal advice did the Minister receive on the words "in particular?" He appears to be saying that they imply a connection between Articles 40.3.3° and 40.3.4°, assuming that they will read harmoniously as all other provisions and clauses in the Constitution are. Does his legal advice suggest that the previous interpretation of Article 40.3.3° no longer applies because of Article 40.3.4°? The Government's intentions are spelt out in the definition of implantation and the withdrawal of suicide.
Articles 40.3.3° and 40.3.4° will be read together if a certain situation arises. Article 40.3.4° states 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, which outlines the manner and means by which that protection will be afforded. Essentially, it removes the issue of self-destruction or suicide.
How is that compatible with saying that Article 40.3.3° stands unamended, which is what the Taoiseach stated?
The wording stands, but the subsequent interpretation would be different because of the new Article linked to it.
Is it the assumption that the interpretation of Article 40.3.3° given by the Supreme Court will no longer apply because of the new Article?
The people would have decided that.
It is not because it would be in the Constitution as another provision. Is the Minister assuming that Article 40.3.3° could never be interpreted in the same way again, in relation, for example, to an X case because of Article 40.3.4°?
The Minister is saying that one provision of the Constitution will have priority over another.
I am not saying that. There is essentially a new element in the Constitution. A Supreme Court looking at the new circumstances after the referendum would have to look at both Articles.
Is it the assumption that Article 40.3.4° will have priority?
It is not a question of priority. If the people voted for a new insertion, then the two Articles would have to be taken together.
Is the Minister saying that the right to life of the unborn prior to implantation, one of Deputy Gay Mitchell's concerns, cannot be upheld by Article 40.3.3° because of this addition to the Constitution, or is he saying that persons taking abortifacients prior to implantation can be challenged in court because of this Article?
That is a possibility.
The Minister says that they can. The right to life of the unborn stands.
Article 40.3.4° and the Bill do not define when human life begins, and do not attempt to redefine "unborn" as articulated in Article 40.3.3°. Any contraception designed to prevent implantation would not be illegal or prohibited under this Bill.
Today, pregnancy tests show positive prior to implantation. Therefore, we are not talking about contraception. I am asking the Minister about abortifacients taken prior to implantation.
We are inserting a new criminal law on abortion which, as far as is practicable, defines the crime of abortion as one that takes place after implantation.
Does Article 40.3.3° still stand, and can people go to court to argue that it is unconstitutional for anyone to take an abortifacient up to implantation? A person can argue the case in the Supreme Court on the basis of Article 40.3.3°, in the same way as a woman who is suicidal can argue that she is still entitled to an abortion.
In theory, one could.
I am not discussing theory. I want a "Yes" or "No" answer. Let us forget about theory of practice because this cannot be argued on that basis.
We cannot pre-empt what people may do in legal actions. I suggest, respectfully, that in terms of the three to ten day period we are discussing——
It can be challenged in the courts.
——I cannot see how anybody could produce a criminal statute to prosecute in these circumstances.
I am not arguing with that, but asking a simple question. Does the right to life of the unborn still stand? Is that what the Minister is saying?
It can be challenged in court if a woman attempts to take an abortifacient up to implantation——
——and in the same way, a woman who is suicidal can argue in court for her right under Article 40.3.3°.
The Minister is giving a different answer to each question.
I am not.
The Minister gave one answer on the unborn and another on suicide.
No, because the Bill defines the crime as abortion from implantation. It does not define human life or redefine it as beginning at implantation.
It also does not define "medical procedure."
It defines abortion from implantation onwards as a criminal offence, not before.
The Minister is not allowing for the morning after pill at all.
The Minister is not.
The morning after pill is not an abortifacient.
I beg the Minister's pardon. The morning after pill is a different case. The Bill is not allowing for medication which operates between the period after the morning after pill and implantation, when someone knows she is pregnant. That is not allowed for and not protected.
The Minister gave a reply which was in keeping with Fine Gael's on the matter of the protocol, but there was a contradictory reply from the Taoiseach on 9 October. He stated that a new protocol was probably not necessary, but that if a change was necessary, it would not create a difficulty with member states because, on a range of issues, protocols are regularly nodded through at European Council level. Is there a doubt, as the Taoiseach seemed to be expressing? May a new protocol be required because Articles 40.3.3°, 40.3.4° and 40.3.5° are apparently not covered by the protocol?
I have extensive notes on this matter, but it can be dealt with at a later stage.
At what stage will we deal with it?
Under section 1 or elsewhere.
Tarraingíodh siar an leasú faoi chead.
We now proceed to amendmentNo. 6. Amendments Nos. 1, 8, 33 and 35 are cognate. Amendments Nos. 1, 6, 8, 33 and 35 may be discussed together.
Tairgim leasú a 6:
I leathanach 6, líne 9, "agus Forálacha Eile" a chur isteach i ndiaidh "Dhaonna".
I move amendment No. 6:
In page 7, line 9, after "Life" to insert "and Other Provisions".
The Minister's packaging of this, from his point of view, is very attractive. He calls it the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. Deputy McManus has a motion down in relation to the life at risk from suicide. I will leave that separate from my comments because it is also a provision of the Bill which is not just a provision to protect human rights in pregnancy.
There are other provisions in this Bill which I want to draw attention to by adding the words "and Other Provisions". There is provision to create the criminal offence of abortion and there is provision to legalise abortion but it is called "medical procedure in certain circumstances". There are no provisions to define what a medical procedure is in the definition section. There are provisions in the Bill to designate approved places where these abortions, to be called medical procedures, can take place. There are provisions in the Bill to define a medical practitioner. There is provision to provide for a reasonable opinion, and for the records to be kept as to what was a reasonable opinion, before this so-called medical procedure takes place. There is even a provision to define what a woman is.
A number of provisions in this Bill are not entirely to do with the protection of human rights in pregnancy. In section 4 travel and information is dealt with. It could be argued that not only does it not defend human life in pregnancy but it aids people to terminate a pregnancy as long as they do not do it in the State. If we are going to put a referendum to the people we should specify what is in the Bill because some people will not get beyond reading that this is the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill referendum and will vote for or against it. If they actually knew its contents they might make more informed choices.
The wording of the Title gives a false impression as it stands. It gives the impression that it only deals with the protection of human life in pregnancy, but in fact it could be argued that it weakens protection. It certainly does not vindicate or guarantee to defend. The innocuous addition of the words "and Other Provisions" would at least draw the attention of the voting public to the fact that the Bill contains other provisions of which they should be aware.
Deputy McManus has a line proposed about the risk to life. That is also a provision of the Bill which is in fact providing for the reversal of the judgment in the X case. We need to draw the public's attention to the provisions of the Bill. The addition of the words I suggest would alert people to the fact that the Bill is not all a rosy, one-sided, protection of human life. Other issues are involved and people need to be aware of them, and we should draw attention to that in the Title. I am not being controversial or biased on one side or the other but am simply concerned that people should be made aware that there are other provisions in this Bill.
I support this amendment. I am amazed the Minister himself did not include this in the Bill. The Long Title talks about an Act to protect human life in pregnancy and to repeal sections of other legislation and to provide for related matter. When a person goes to vote on the amendment what will be on the paper will be what we see here in the First Schedule. We know the Bill has to be displayed or available but people going into a polling station will not read all the details of this legislation. They may know a bit more about it because of the debate we have here and they may receive information in the post before they go to the polling station but essentially it is the words of the amendment that will matter. We have found before that legislation that could easily have been amended to modernise provisions could not be used because the main Title did not include the words "and other provisions" which give latitude to roll in other things related to the main thrust of the legislation.
Deputy Mitchell is to be commended on recommending that it should be included in the actual wording that will go to the people. Earlier in the legislation it says this Act may be cited as the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. Wherever that Title of the Bill appears it should include "and Other Provisions".
We know that people do not always follow the detail of something. I guarantee that if you asked people to name any party's substitutes for the European Parliament they would not be able to name them although it is an obligation to have their names on the polling station booth. When people are voting for a candidate they are also technically making a vote for the person who might substitute for them but they seldom remember that.
It is important this is clarified and that the amendment is accepted.
As Deputy Mitchell said I have another amendment proposed in relation to clarifying the Bill. This amendment deserves the Minister's consideration. What has been presented as the Title of the Bill is misleading. We could call it wrongful advertising such as that in cases where people do not get what is promised. It includes restrictions that do not apply at the moment under Article 40.3.3° and it takes away certain protections to human life. It will impose restrictions on women's right to life and it restricts the definition of the unborn to "following implantation".
It is important that the Title is changed to reflect what is in the Bill. It also copperfastens the principle of travel which we may come back to later. That is a subject of some disquiet for people who maintain they are pro-life and not pro-choice. The reality is that choice is exercised by Irish women and in this case would be protected in this Bill but women just have to exercise that choice elsewhere.
There is a difficulty with the Title. In Alice in Wonderland the queen of hearts said "Words mean what I want them to mean, nothing more, nothing less". The Title of this Bill is what the Minister wants the Bill to be but it is not what the Bill actually is. He has a duty to speak plainly and truthfully about what is being proposed and should inform people that in making a decision they are choosing whether or not to restrict further women's right to life as enjoyed by them at the moment.
I support this amendment. The Title of the Bill should reflect the various provisions in it. For example, while the Minister and the Taoiseach in their presentation at the press conference and subsequently during the debate in the House, spoke about what the Bill will do for women in Ireland, they immediately added that it would not stop Irish women going to England for abortions and that this was in the Bill. That should be reflected in the title.
The Taoiseach has been very strong in stating there will be no restrictions on travel. Last week we heard there are now about 7,000 women per year having abortions. In the opinion of the Government, doctors and nurses in England are capable of acts, which under this proposal, are close to homicide and will attract equivalent sanctions. However, we are quite happy to say this is forbidden in Ireland while at the same time building into the Bill the freedom to travel. It is an extraordinary contradiction and hypocrisy. The Bill's presentation is very odd. The title should at least reflect more correctly the reality of the Government's view on this matter and what is to be put into the Constitution.
I am not entirely convinced by the arguments advanced. By definition, the short title of any Bill is short. If we consider the Finance Act or any other legislation, the short title never encompasses every aspect. The long title reads: "An Act to protect human life in pregnancy to repeal sections 58 and 59 of the Offences against the Person Act, 1861, and to provide for related matters".
Members have advanced the view that if we accept Deputy Mitchell's amendment, which basically adds the words "other provisions", we might somehow enlighten the electorate more. I am at a loss to see how the electorate could be enlightened any further by inserting the phrase "other provisions". Deputy Mitchell did not make that point. He suggested that the contents of the Bill should be more greatly reflected in the short title. It would not advance in any way the cause of the electorate to insert the words "other provisions" as this would not convey any additional information.
I am not prepared to accept that reply. If this Bill ever leaves these Houses, it will go to the people to be voted on. Apart from a small number of lawyers, very few people are equipped to read and interpret legislation. They will be swung by their impressions of what is in the legislation. The first impression they will get is that the title of this Bill - Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill - relates uniquely and solely to the protection of human life. However, that is not the case. A whole range of other issues to which I referred is also included. I want people to be alerted to the facts in order that they can ask what are the other provisions and thereby become informed. Then they can vote in whatever way they want. This is a central point.
My words are innocuous and do not influence the Bill one way or another. They certainly could not influence somebody to vote for or against the amendment, but the addition of the words "and other provisions" to the title of the Act would alert people to the fact that its provisions do not solely relate to the protection of human life in pregnancy.
Subject to legal advice, I will come back to the Deputy on Report Stage. We have already provided for related matters in the long title and I will see if we can incorporate something similar in the short title.
I will resubmit the amendment on Report Stage.
Tarraingíodh siar an leasú faoi chead.
Amendments Nos. 7, 9 and 34 are cognate and No. 15 is related. By agreement, amendments Nos. 7, 9, 15 and 34 may be discussed together.
I am sorry, Chairman. I should have alerted you earlier that amendment No. 15 is not related to amendment No. 7 and I do not want it to be taken now.
It is an issue on its own.
It is a much more central issue. When we reach amendment No. 15, we should debate it.
By agreement, amendments Nos. 7, 9 and 34 may be discussed together.
Tairgim leasú a 7:
I leathanach 6, líne 9, "(Seachas Beatha atá i mBaol ó Fhéinmharú)" a chur isteach i ndiaidh "Chosaint".
I move amendment No. 7:
In page 7, line 9, after "Pregnancy" to insert "(Other than Life at Risk from Suicide)".
This amendment would allow the Bill to be defined more clearly and would signal that the Act excludes the risk of suicide in terms of the right to life of the woman. It is important that we do not pretend that this is not the Bill's purpose. It is the kernel of the Bill and of the referendum, which will be a repeat of 1992. It is dressed up in a new way but it is the same old chestnut. In 1992, the people refused to exclude the risk of suicide from the constitutional protection of women's lives. However, the Government is now coming back with it again. That is not to say that the Bill does not have other things in it, but the most important provision by far is to exclude suicide as a risk to the lives of women. We will have a fuller debate on this when we discuss amendment No. 15.
There was and still is a terrible stigma about suicide and mental illness. The Minister has stated at public meetings on health reform that it is a pity that we do not talk about mental illness and he is absolutely right. Suicide, in particular, has been a shame about which people were afraid to speak. There were obviously religious and philosophical issues surrounding it. When I was growing up, we all believed that Ireland had almost no suicide and only amoral countries like Sweden had high suicide rates. We thought that was something to be proud of. Deputy Neville can speak more eloquently and in a more informed way about this than I can. The issue of suicide was suppressed in the same way abortion is today. It was a secret shame about which people could not speak.
Thankfully, we are coming into a more informed, generous and compassionate era when people can speak about suicide. We have been alerted to the fact that we could be moving towards having one of the highest suicide rates in the world. It is interesting that the review group recommended we should legislate and include safeguards in order that suicide would be recognised as a risk but would not be in any way abused. The expert review group on the Constitution had no difficulty in defining the principles through which that could be achieved in legislation.
We have already had two cases, the X case and the C case, where two very young girls, one aged 14 and one aged 13 were suicidal. In the recent debate on Second Stage, the Minister declared why he would not allow the risk of suicide to be maintained in the new Bill. He said it would not be appropriate. Occasionally gougers, usually with a drink problem, come to my clinic and ask for £20. My stock reply is that it would not be appropriate for me as a TD to give them the money. What I really mean is that I do not want to give them the money. When the Minister for Health and Children says it would not be appropriate to include the risk of suicide in the Bill and maintain the protection of women, what he is really saying is that he does not want to do that. The expert review group on the Constitution, headed by the most distinguished public servant still living, Dr. Ken Whitaker, who would describe himself as totally against abortion and did so at the hearings, made it very clear that, although it may be awkward, the interpretation by the Supreme Court is that there is a risk of suicide, that this must be recognised and that we must live with reality. Deputy O'Flynn——
On a point of order, are we dealing with amendment No. 15 which also deals with suicide?
No, I made it clear that we are dealing with amendment No. 15 separately.
Yes, but the debate is dealing with the substantive issue of suicide. That is fine. I just wanted to clarify the point.
The argument I am putting forward is about putting the issue of suicide into the Title of the Bill. It is not about anything else.
The debate is also about the issue. Let us not be disingenuous. I just wanted clarification.
The Minister has a difficulty.
I have no difficulty. However, at first we were told that the amendments were to be taken separately. It is clear from any reading of it that they are being taken together. I have no problem with that. I wanted clarification as I intended to address whether we should include it in the Title. Amendment No. 15 deals with the issue itself. That is a fair reading of it. If we had taken a decision in the beginning to deal with the Title first and amendment No. 15 separately, that would have been fine.
That indicates the underdeveloped approach the Minister is taking to this Bill.
The Deputy should talk less nonsense.
May I speak?
I asked a question on a point of order. I take offence to the personal attack in which the Deputy is engaged.
There was no personal attack.
I will ask a simple question. Is the Deputy informed as to how I will respond from what has been said?
We have decided that we will take amendment No. 15 separately. We are now dealing with amendments Nos. 7, 9 and 34.
I am entitled to seek clarification. That is all I want. The Deputy should get off her high horse.
If I ever get a chance. Is the Minister finished giving out?
The Minister got out of the wrong side of the bed this morning. Can we deal with the issues at hand, please?
I do not want to talk about the Title of the Bill and the issue of suicide in a way that does not deal with reality. I am not concerned with semantics. This is part of the genuine difficulty. The Minister's presentation suggests that we are just having an ordinary debate and a bit of a ding-dong about things that do not have fundamental importance to the lives of women.
That is unfair. I reject that.
That Minister must stop interrupting.
I will not accept that charge.
The Minister will have an opportunity to rebut any charges. Deputy McManus has the floor.
The Bill is titled the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. It could equally be described as the Twenty-fifth Amendment of the Constitution (Deprivation or Withdrawal of the Protection of Human Life in Pregnancy for Certain Women) Bill. I must talk about it in these terms. It is wrong for the Minister to make out that I am going off at a tangent, or that I am dealing with issues that can be dealt with elsewhere. The way the Bill is presented is misleading and inaccurate. It is a sleight of hand. I am entitled to put my argument in my own way, flawed as it is. The risk of suicide is serious. I accept that the Minister may want to deal with this subject when we come to amendment No. 15. I have no problem expanding my argument at that point.
Suicide is a reality and those who imagine that pregnant women do not commit suicide - an idea peddled time and again - need to be challenged immediately on clear medical grounds. The risk of depression is higher among pregnant women than among those who have recently given birth. There is some protection concerning suicide but it is not absolute. There is clear evidence from the X case and the C case, where two young, badly abused women felt suicidal. This was upheld by expert medical opinion. This Bill would mean that, in the circumstances that arose in the C case where the young woman was a ward of court, we, as a society, would prefer the woman to kill herself rather than have an abortion. That is what we will be saying if we support this Bill and this sentiment must be expressed in the Title of the Bill.
I get weary when I hear that one must be either pro-life or a mad abortionist. The Minister was trying to whip up that issue again today. I would consider somebody genuinely pro-life if they could say to me publicly that if their daughter was mutilated, abused, raped, became pregnant and was suicidal, they would stop her having an abortion. I would consider those who say they are pro-life consistent if they stood at the airport and tried to stop the 7,000 Irish women travelling to Britain each year.
I consider myself anti-abortion in the sense that I do not want 7,000 women to have abortions each year. I would hope that my daughter, even if subjected to the circumstances I outlined, would find the strength to carry through the pregnancy. However, I do not wish to live in a country where we have the kind of regime which says that where a little girl cannot find that strength, we should condemn her to suicide. In effect, that is what we would be doing and that is the importance of my argument.
I am sorry if the way I present it is offensive to the Minister because I do not mean it to be so. Perhaps it is because I feel so strongly about this matter that at times I make personal references to the Minister. This issue must be addressed in the Title so that the public is informed about the choices it is making.
This should be referred to in the Title of the Bill because we had such a serious public debate in 1992 in relation to the X case. One of the Minister's colleagues talked of the collective sigh of relief when Irish people knew that the young woman was not to be forbidden from travelling abroad. There is something almost misleading in the Title of the Bill. The Minister has said that it is up to the people to decide, but there is a need to spell out that the Bill changes the situation which led to the collective sigh of relief in 1992. The reference "(Other than Life at Risk from Suicide)" would make it clear to people what is being done.
The Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, excludes the judgment in the X case. It states to the 7,000 women who have abortions each year that they can travel abroad. If the Minister is serious about facilitating the public to make an informed decision on this matter, he needs to spell out more clearly the provisions of the Bill to give people an opportunity to understand his proposals. A more accurate reflection of the Bill's contents in its Title would be appropriate.
I do not think it is good enough for the Minister to present the Government as being wonderfully democratic, simply because it is holding a referendum. The manner in which the referendum is put to the people is equally important. The quality of the information given and the style of the presentation of the Bill are worthy of great consideration. Many consider referenda to be the purest form of democracy, but that is not necessarily true as we saw with the Nice treaty referendum. The people have to be well informed, receive strong political leadership and be given good information. We owe it to them to spell out in great detail what is proposed, especially given that there was a "Yes, Yes, No" vote in 1992. The Title of the Bill should reflect what is being put forward by the Government.
The Minister has argued trenchantly that Article 40.3.3° will be interpreted harmoniously with Article 40.3.4°. The previous interpretation of Article 40.3.3° by the Supreme Court, that the threat of suicide should be accepted as a ground, will no longer stand. It has been expunged on the basis of additional clauses being inserted into the Constitution. I call for the addition of the words "(Other than Life at Risk from Suicide)" to the Title of the Bill to ensure the Supreme Court would be unable to reinterpret Article 40.3.3°. Deputy Gay Mitchell has rightly argued that the Bill is about more than the protection of human life, as it is concerned with approved places, defining medical practices, what constitutes a reasonable opinion and the euphemistic definition as a medical procedure of the destruction of a foetus as a side effect of chemotherapy, for example. The Deputy was right to say that there are many things in the Bill and that there has been a great deal of fudging.
The Minister said in the Dáil that the main reason the Bill is before us is because the Government is following the advice of the courts to vindicate in law the right to life of the unborn and the rights of the mother. The Bill is the Government's method of vindication through the law. In a short intervention yesterday, Deputy McGennis spoke of "the supremacy of the people." The voice of the people must be heard in a constitutional referendum. We listened to them in 1992, when they said "Yes" to the right to travel and to obtain information, but "No" to what was referred to as the substantive issue. In other words, we listened to what was referred to by the Minister of State, Deputy O'Donnell, at the time as a collective sigh of relief. She also said the X case was a clear illustration that there are certain areas of human life and activity where the law cannot and should not attempt to interfere. It seems she has forgotten those comments, as she is backing the Government's proposal, but we change our opinions as the years go by.
When asked in the Dáil if there is a difference between this proposal and that rejected in 1992 the Minister for Health and Children said there is such a difference. In 1992, he said, the people voted on the proposed wording of the constitutional change itself, but not on the legislation that would have followed had the amendment been passed. In this instance, according to him, the people are voting on the same amendment, but the legislative proposals have also been included. I do not believe we will vote on the same amendment, as the people's decision to implement legislation upholding the Supreme Court ruling in the X case is to be overturned. The people were satisfied with the Supreme Court's interpretation of Article 40.3.3°, protecting the life of the unborn and the mother and accepting the threat of suicide as a threat to life and, therefore, a ground for abortion. I accept the Minister's comment that successive Governments allowed the ruling to stand, in order that a suicidal woman wishing to have an abortion here would have to go through the courts, leading to another X case.
Although no action was taken by Governments, the action needed was the implementation of the will of the people. The Minister has said he wishes to give them a chance to decide, but he is reversing their will by presenting them with a new argument. His argument would stand up if we had put legislation on the table before the referendum in 1992, saying that it would be enacted if the referendum was successful, as was the case with the divorce referendum. There should have been legislation after the people had spoken, but successive Governments, including most parties, failed to do so. The Minister has argued that there will be a harmonious court interpretation of Articles 40.3.3° and 40.3.4°. The extra words the Fine Gael amendment proposes would mean that the courts could say the 1992 interpretation of Article 40.3.3° is unavailable, as the Bill would be explicitly named The Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) (Other than Life at Risk from Suicide) Bill, 2001.
It is a lie to say that the Bill, as it stands, is concerned with the protection of all human life in pregnancy. The life of a woman who would prefer to commit suicide than be pregnant and give birth is in danger and not covered in the Bill. This amendment is trying to ensure voters will know that a "Yes" vote, by excluding the risk of suicide, will overturn the decision made in 1992, just as Deputy Gay Mitchell was trying to tell the Minister that the Bill covers other provisions. There is nothing subversive about this amendment, which tries to ensure honesty and fairness by saying to people not to doubt that their 1992 decision is being discarded, although they will be better informed at the end of the debate on this referendum.
Deputy Gay Mitchell is absolutely right that people's attention will wander from the detail of the Bill during the gap between the end of the debate in this House and the referendum. The Minister might try to get away with saying, "We have passed the protection of human life in pregnancy Bill and, therefore, human life is protected," but it is not fully protected during the lacuna between conception and implantation and is not protected if a woman is suicidal, as was the case with the girl in the X case. It is a misnomer to say that the Bill will protect human life in its entirety. None of us can find a law to copperfasten the protection of human life, even as regards road laws. To help ensure his interpretation of Articles 40.3.3° and 40.3.4° is taken harmoniously by judges who might have to interpret any court challenge which might arise, the Minister should include this wording. The judges will not be able to revert to the kind of interpretation they gave on Article 40.3.3° in 1992 because the Minister has copper-fastened their inability to state that The Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, provides total protection, including for women at risk from suicide, by inserting "excluding human life".
I would like the decision taken by the people in 1992 to be legislated for. Not everyone takes that view - in this instance I appear to be arguing against it - but if the Minister wants to ensure there is no constitutional weakness in Article 40.3.3° and that an interpretation taken in isolation again would not be the same as previously, he will have to insert these words.
Deputy McManus adequately made the point that there are occasions when there is danger to life caused by a person being suicidal. This was confirmed by the master of the Rotunda Hospital during the proceedings of the All-Party Committee on the Constitution. I have discussed the matter with other psychiatrists, one of whom told me that, while he has never personally come across this, it can and does happen. The same applies to threats to life caused by physical conditions. It is very rare for interventions due to a physical condition to cause an abortion. I am not aware of the frequency of interventions caused by physical illnesses which threaten the life of the unborn and interventions which threaten the life of the unborn caused by the risk of suicide.
There is a certain level of discrimination. The Minister argues there should be an intervention to endeavour to save the life of the mother where her life is endangered because of a physical illness. While such interventions will not always be successful, for example, in the case of cancer, I fully accept the need to intervene to improve the life chances of the mother. The same should apply in the case of a real and serious threat to a woman's life through suicide. As things stand, there will be no intervention in these circumstances. Does this not amount to discrimination against mental healthvis-à-vis physical health?
We are not discussing amendment No. 15.
I appreciate that.
Deputy Neville would never take advantage——
I agree, but we have dealt with this issue.
The Deputy is delaying the Fianna Fáil Deputies who wish to speak on the amendment.
I am trying to make the point that the issues of suicide and to a certain extent mental health have been buried for generations. It is only in the past four or five years that there has been a reasonable recognition of the suicide crisis. More people die through suicide than road accidents yet spending on suicide prevention programmes is £1.2 million while £21 million is spent on road accident prevention aside from Garda costs.
If the Minister does not include suicide in the Title, it will continue to be buried in the way it has been for generations. Instead of allowing suicide to remain hidden we should be up-front and insert "suicide" in the Title. Let us debate the differing views when the referendum takes place.
Deputy McManus has raised a reasonable point, which is similar to the matter I raised. I know how people would respond if asked whether they are for or against abortion. However, when faced with the sort of issues and concerns put to them when Deputy Reynolds was Taoiseach, they looked at the complexity of the issues and voted against the proposal. Under Article 5° of the Constitution we must accept that the people ultimately make policy. I am supportive of anything which would draw to the public's attention the contents of the Bill. We should not try to subvert that.
We do not agree entirely with every section of the Bill. There would be something wrong with us if that was the case and, indeed, I am sure the Minister had to compromise on some of the wording in order to get collective agreement in Cabinet. We are doing our best, however, to propose wording. I want the people to know what the issues are to allow them to democratically decide for or against in the referendum. I have no difficulty in drawing people's attention to the effect of the constitutional amendment, which would be to reverse the X case.
I was director of elections for Fine Gael for referendums on the Single European Act, the Maastricht treaty and the Amsterdam treaty; I cannot remember being director of elections for any of the referenda we lost. The thorny issue of defence was frequently raised during those debates. My response was to state that the treaties contained no provisions for defence, but that defence could well arise in a future treaty and I expressed my view that the matter should be addressed in terms of European security and defence. My point is that if one is up-front with people and informs them of what the provisions entail, they are equipped to decide. No one has ever taken me to task for telling the truth and, in fact, in debates Deputy Gormley has been so kind as to state that at least one knows where Fine Gael stands on security because we are up-front about it.
People are entitled to know. I am not sure I would be confident that, left in the hands of the Referendum Commission as it currently stands, people's attention would be drawn to the contents of this Bill. I note there is a proposal to amend the way in which the Referendum Commission does its job. There is a case for abolishing the Referendum Commission and finding a way to allow people who are involved in the issues to put the case. There are people around this table who could do so articulately. The Referendum Commission will engage some lawyers who will draw up the case for and against the amendment from legal experience. There is a case for drawing to people's attention the fact that this reverses the X case. One way of doing so would be to put in the Title.
If we respect Article 6° of the Constitution, we need to inform the public of the contents of the Bill. Article 6° states:
All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
If the people are to make that ultimate decision on national policy in accordance with the common good they need to be aware of the contents of the question before them. I do not believe the public is informed. I hope it will be during the debate, so that it can make an informed decision.
When the Minister discussed the suicide issue, he said frequently that the risk of a woman committing suicide during pregnancy, if it ever arose, was probably very low. Deputy Neville raised a very interesting point concerning the legislation being introduced. The constitutional amendment allows that, in pregnancy, where there is a real and substantial risk of the loss of the woman's life, other than by self-destruction, a medical procedure carried out by a medical practitioner at an approved place, in the course of which or as result of which, unborn human life is ended may take place. It is very rare that a woman's life is at risk for medical reasons during pregnancy although I understand it happens and that obstetricians want to be absolutely clear they are protected. Will the Minister provide information, based on scientific research, to the committee regarding the percentage of such cases? I know there are also some statistics in respect of suicide. The rate is very low, obviously, but not negligible.
Will the Minister tell us what the rate is?
He may be able to tell us what it is in both instances. What is his background information? It is a very interesting point——
On what basis is it right that the amendment concerns physical ailments and not mental ones? That is really the question.
If the Minister has information on that, could we have it? It is obviously more than a percentage issue. I want to know the Minister's background scientific information on the issue.
I support the amendments and think it is important that we have clarity and that the people know we are rolling back the X case. With regard to what Deputy Mitchell said, under Article 6, the people are sovereign, not politicians or the Government. That is why the McKenna judgment is so important and why I supported the Referendum Commission. We should take the advice of the All-Party Committee on the Constitution, which advocated a three month run-in in which the facts could be established, such facts to be given to the Referendum Commission which could then do its job properly. Let it do its job properly. It is unacceptable not to give it any lead-in time and then say it is making a mess of its task. I will fight tooth-and-nail against any attempts by people in this House to undo the McKenna judgment or to undermine the Referendum Commission.
I was not taking issue with Deputy McManus at the outset. I was simply trying to find out which way we would approach the debate, in terms of whether we would discuss everything together or separately. Now we are discussing them separately.
In respect of the title issue, there has been a huge overstatement this morning of the capacity of the title of a Bill to encapsulate all its provisions. This happened in the earlier debate and now it is happening in this one, as if the title of the Bill were the sole instrument used to inform the public of its contents. If we are seriously suggesting that we must depend on the Bill's title to inform people how they should vote, then we are all in serious trouble. We will be totally up-front in terms of what we are proposing, just as we have been. There is no secret in the Bill. We sent it to the Opposition spokespersons. We published it and its content has been well covered by the media. Therefore, there has been an overstatement in terms of the title's capacity to elucidate every aspect of the Bill.
The amendment tabled by Deputy McManus is clearly raising the issue of suicide alone. She wants to include that in the short title. I and others might argue that there are other equally significant features of the Bill that should be in the short title, if we wanted to take that particular approach. Section 1(2) deals with a number of issues. Whereas the Opposition has never been too keen to highlight the significance of the legislative provision in terms of protecting the life of the mother, we have argued cogently on the Government side that that is a very significant feature of this Bill, one which is as important, if not more so, than any other feature which was not legislated for heretofore.
Will the Minister reiterate his comments? Is he saying the Opposition has never supported the provision in relation to——
I said the Opposition has never highlighted it. In terms of commentary——
It is obvious that it has supported it.
In terms of commentary, that is the case.
On what grounds?
The Labour Party would argue that, in terms of some of the statements I have read, it is as if the section did not exist and that we were diluting and reducing it etc. That is a point of view. We strongly believe that section 1(2) is a very significant feature of the Bill where the protection of the life of the mother is concerned and in terms of conditions that would impact on the mother's life during pregnancy. Particular conditions could certainly do that.
The Bill refers to the protection of the unborn. It is a very significant feature of the legislation in terms of the prohibition of abortion after implantation. Equally, one could argue that that should be in the title. I do not accept the fundamental point.
With regard to the broader issue, the report of the all-party committee dealt very extensively with physical conditions, mental illness and suicide. We took on board a lot of what was said during that debate. Obviously, one has to assimilate the plurality of views articulated on the issue - and there is a plurality of views.
Deputy Owen was fair enough in saying that no Government has attempted to legislate for the X case, particularly since 1992. We should reflect on why that is so.
There have been no abortions of the kind for which the Minister is now legislating.
When one advances one argument over another, one should eventually start publishing the template. In other words——
There has been——
It has not been done yet. If people are to be fully informed of their choices, those who criticise the proposal before the House - which is to remove the suicide issue as a factor in allowing for abortion - are obliged to produce the legislative template that would facilitate the X case.
One could have the two together.
The Government has made clear its position on this. Deputy Owen drew attention, in a very fair way, to the fact that successive Governments did not produce a template. One of the reasons they did not is because there were huge logistical issues to be resolved. There may also be political reasons why it was not attempted, either during the terms of the Fianna Fáil-Labour Government or the Rainbow Government.
No legislative template to facilitate the X case was ever advanced by the Legislature or any Government. I make the point sincerely, not in any crass political way.
The Minister is drawing the wrong conclusions.
People are saying we should be up-front in terms of the debate. If one talks of informing the public of the debate, the referendum and the detail and title of the Bill, there is a strong argument to be made for producing an alternative template - a legislative one - which would facilitate the X case.
During the course of the Oireachtas debate it was suggested that one can quote from different people. Let us consider the psychiatric evidence that was advanced, bearing in mind DeputyNeville's point. He has been one of the strongest parliamentary advocates on the issue of suicide and has been quite committed on the issue. There is no inherent discrimination here but, from the views of both psychiatrists and obstetricians, it is far easier to measure the physical risk than the suicide risk. Many psychiatrists would argue that abortion is never suggested as a treatment for suicide. I could quote a number of people, but perhaps we will reserve that until we are dealing with amendment No. 15 which deals with the substantive issue of suicide.
There are no absolutes here. Medical advice was given to the committee concerning Eisenmengers syndrome, eclampsia etc. A medical practitioner could have said to the committee that specific medical conditions would definitely affect the life of the mother if the pregnancy were to continue to the end of its term. There was not the same degree of certainty on the psychiatric front.
There is not the same degree of certainty in the psychiatric area.
Exactly, that is the point.
That does not mean that people are not treated in, or committed to, mental hospitals. Just because that certainty is not there, and there is no certainty in any of this, it is more subjective than other areas of medicine and I accept that. I believe that in circumstances where the life of the mother is at serious risk——
Dr. John Sheehan argued that there is no fail-safe way of saying whether a person will or will not commit suicide.
On the other hand psychiatrists make decisions every day of the week about protecting people whose lives are at risk because of suicide and put them in hospital.
There is a mechanism there.
Professor Clare made reference to that in his submission to the committee. His original statement was that psychotherapists could not be definitive about that and he made the Deputy's very point that even though they do that we have brought forward legislation to modify that.
I get the impression that the Minister does not fully understand the limitations of medicine generally. The idea that a doctor can say absolutely whether there is a physical threat to a woman's life and that she will die unless certain things are done is also very unrealistic. It is a question of judgment and there is a risk there. It is not absolutely black and white. Terrible decisions have to be made by doctors using their best judgment. It is not as if a doctor can say that a woman will die on Tuesday unless she is operated on by Monday. We all know people who were told they were going to die three or four years ago but who are still with us. It is not an exact science, even in the area of physical threat. The only psychiatrist who felt that this was a clear cut issue and that there could never be a risk to a woman's life was a young and obviously very able psychiatrist, who argued the case for Youth Defence.
I have to take a little bit of time to refer to the hearings as I am concerned that this point is not being addressed sufficiently well. The psychologist came in and dealt with the issue of suicide.
In any professional or clinical context, the threat of suicide must be treated with utmost care. It is our view that suicide clearly presents a threat to life, and indeed it is treated as such in most clinical settings world-wide.
The risk posed by a threat of suicide can be comprehensively assessed, although it is still difficult to predict the likelihood of a completed suicide based on a threat of suicide. Assessment includes assessment of suicidal ideation including frequency, duration and intensity of suicidal thoughts, final acts such as giving away possessions and previous history of attempted suicide. Assessment of mood, coping skills, interpersonal support, and stress are also included, with methods including psychological tests, interviews, checklists and rating scales. Clinical psychologists in particular are highly trained in assessment and psychologists in Ireland are currently involved in assessment and intervention in relation to suicide through their work in the health services and the prison service.
We conclude that the clinical assessment of the risk posed to life by the threat of suicide is possible, and that indeed clinical psychologists are highly trained and competent to perform such an assessment. The possibility of false threats, which can themselves be assessed should not be a deterrent to acknowledging the serious risk to life posed by the threat of suicide.
We can further state that it is our view that there is little evidence that pregnancyper se provides protection against suicidal ideation or suicidal behaviour. The evidence regarding suicide and pregnancy is highly tentative, and has been obtained primarily in countries where abortion is available. Therefore where there are low rates of suicides among pregnant women, this may be attributed to the fact that those who are suicidal have had abortions. On the other hand, there is considerable evidence that crisis pregnancies clearly present a high-stress situation, although obviously that does not necessarily result in suicide. However, the X case quite clearly presented a case where pregnancy was experienced as so traumatic as to result in a suicidal state.
In short, crisis pregnancy may result in a suicidal state which poses a risk to the life of the mother. We therefore support the judgment of the Supreme Court in the X case.
It is very clear that where there is a body of psychologists like that——
Who produced that?
This is from a very impressive body of psychologists which includes Professor Hannah McGee from the Royal College of Surgeons. One has to recognise that even though it is difficult to assess, the experts are telling us they can assess it and indeed sufficiently good assessment was carried out and in both the X and C cases and was adequate to make a judgment in favour of the applicant.
The Minister has alluded to the idea that it is somehow up to the Opposition to prepare the legislation. The argument is being put that if the Minister is going to do something - and everybody recognises that he is doing something, we are not taking that from him - the problem is that he will do something that will make things worse. If one has to make the choice between doing something to make things worse, or not doing anything, there is an argument for not doing anything.
Quite clearly women who have had a physical threat to their lives have been saved by Irish doctors. I was very conscious of the fact that the masters of the three maternity hospitals came into the hearings and made it very clear that they carried out abortions - and they used the word "abortion" - on women whose lives were at risk. They were quite comfortable about coming to the hearings and making that point. They were not comfortable with the ambiguity in back-up legislation. We are all agreed that there should be legislation. The difficulty is that the legislation being brought forward will, in my view, make things worse. Dr. Whitaker has set out the template to ensure the assessment of the risk from suicide is done in such a way as to meet the need.
Meeting the need is the purpose of the report of the All-Party Committee on the Constitution which Deputy Brian Lenihan recently launched. Before the Minister decides to shoot down my proposal I ask that he reads that report. It does not deal with the titles of proposals on referendums but it has a very strong recommendation that pervades throughout it - the people must have clarity and information. The spirit of that report has been undermined by the Government's approach to this Bill. Were the Government interested in providing maximum information it would not have had a difficulty in having this debate in the Dáil Chamber. It is quite clear that no matter how hard we work here, as a consequence of it being referred to a select committee, the information will not get out. We all love media coverage, but in this instance it is more important that the arguments are heard in the public arena. That is unlikely to happen because of the method chosen by the Government. If anything that increases the onus on the Minister. When he is presenting this Bill and entitling it he must say what is in it. The only reason people are being asked to vote on this is because of suicide. There is absolutely no reason other than that. The reason this is to be put to referendum is four little words, "other than self-destruction", and the fact the Government wants to revisit 1992 and overturn the people's decision on suicide.
However, the Minister is holding back this information and not including it in the Title of the Bill. That is being kept secret because he would like to think this is about protecting human life. In his terms it may be about protecting human life, on which I would not argue. However, it is also about taking away a protection of human life, which is not covered. The Title should reflect the choice people are making when they mark the ballot paper. The Minister has a duty to let them know, whether they are male or female, whether they are thinking in terms of their own or their daughters' or their sisters' lives, that in marking the ballot paper they are choosing whether to do away with the right to life of women suffering from mental illness, psychiatric disturbance or the kind of crisis pregnancy experienced in the X and C cases.
On the proposed amendment, the Minister says it is not possible to include everything in the Title of a Bill and that we are not stuck with people having to recognise what is being done only on the basis of what is in the Title. The Minister may be wondering about all this paper that I have on front of me. It includes copies of the Minister's speech in the Dáil and his remarks on the publication of the Bill. I also have copies of the remarks of both the Taoiseach and the Minister of State, Deputy Liz O'Donnell, on publication of the Bill. I had to search through them to find the sentence that clearly states that this legislation is about overturning the 1992 decision. There is hardly any reference to this in the Minister of State, Deputy Liz O'Donnell's speech which is a masterpiece of obfuscation which enables her to get over the embarrassment of being reminded of what she said in 1992.
It is necessary to go well into the Minister's speech, the first pages of which refer to how much the proposed Bill will protect human life and so on, to find a reference to the fact that the effect of the proposed Bill will be that a threat of suicide will no longer be a ground for legal abortion.
The Taoiseach's speech opened with the announcement of the package of proposals for constitutional legislative reform in relation to the protection of human life in pregnancy, the life of the woman and the unborn. What it contains is very commendable. However, when it gets to the nub of the reason this legislation is being introduced - to remove the threat of suicide as a reason for legal abortion - it is masterly. It states that the proposed law also provides that a risk of suicide will no longer be a ground for legal abortion in the country. That would be fine if there had not been a referendum in 1992, when the people said they wanted a regime that provided for a legal abortion where a woman's life was threatened by the risk of suicide, and voted "No" to efforts overturn the judgment in the X case. If there is no coyness about what is really being done in this legislation, why is it not in the very first sentence of each of the Taoiseach's speeches?
The Minister's speech makes no reference to the fact that this legislation is intended to overturn the decision of the people in 1992. He very commendably states that it addresses the complex issues and at the same time ensures pregnant women will continue to have access to all necessary medical treatment if problems arise in the course of a pregnancy. However, there is no reference to the fact that it will not cover them if there is a risk of suicide. I point this out because, having been a Minister, I know what work goes on behind the scenes to prepare this type of document prior to a major publicity campaign. This is a masterly effort to prevent people from really knowing what this is about. That is the reason inserting this amendment is the only honest way to go, given that there are people who might want to vote for this referendum and do not want the risk of suicide to be included and that there are people who want to ensure the judgment in the X case is legislated for. This amendment has been tabled because of the tendency to obfuscate on these matters, and - Deputy Mitchell is right - because we can all be guilty of some form of hypocrisy, for example, in calling something a medical procedure when the doctors themselves say that they carry out abortions to save the life of a woman.
Some do, some do not.
Some do. There is no point in pretending. We really have to be honest and, after 20 years, are big and bold enough to be so. Every ten years since I was elected to the Dáil we have had to deal with some element of this. We had a referendum in 1983, another in 1992 and now, in 2001, we are having another. I hope the Minister will not oppose this amendment. It may be advantageous to the Government and the referendum may be carried if that is what the Minister wants. This is important.
The Minister himself raised the question in his response and quite reasonably asked what template others would set out in relation to the various issues that arise. This question is central. The Minister has told the committee that he has received legal advice on the matter. Is he definitively telling the committee that it is not possible for the Oireachtas to overturn or modify the outcome of the X case by legislation alone and that it must be done by way of constitutional amendment? Could the Oireachtas, if it wanted to, take up the sort of template suggested by Dr. T. K. Whitaker and alluded to by Deputy McManus? Is that option open to us? I would like a clear and definitive answer to that question.
To legislate for the judgment in the X case.
The essence of the criticism levelled at the Oireachtas by the courts - it was a valid and reasonable one - was that it did not go on to legislate to deal with the issues approved by the people in 1983. What I am asking, because everybody presumes and claims it, but the Minister has the Department and his officials and has gone into this, is whether he is telling the House and this committee as an absolute certainty that we cannot affect or change the decision of the Supreme Court in the X case by legislation alone?
On the same point, legislation should always be clear and understood. Nobody is under any illusion other than that the judgment in the X case is the central issue. To go back to the point that Deputy Mitchell has just made, it would be worthwhile to have a rehearsal of the arguments that suggest that it is not possible, except by going this particular route, to change the judgment in the X case. I am aware of what Dr. Whitaker had to say, but in a significant case like this which is so absolutely significant and relevant to the core issue of the original referendum in 1983, whatever the wisdom or otherwise of that was, I would like to hear the Minister rehearsing the arguments in response to it.
We are in a committee to tease this out——
I am smiling because there was a comment earlier
——because a committee is a place where these issues can be teased out in a more calm atmosphere than in the Chamber itself. It has always been my view that the Supreme Court decision could not be reversed.
We cannot obviously overturn a Supreme Court decision without going to the people. That is elementary.
The point I made earlier - it relates to the issue of suicide and the X case - was that there is a view, which I acknowledge and respect, which advocates that instead of doing what the Government has decided to do it should legislate for the judgment in the X case. That is a view the Labour Party and certain elements of the Fine Gael Party have advanced.
As I said earlier, it is instructive that since the X case no Government has attempted to legislate for the X case. This amendment is about amendments to the Title. The argument is being advanced that we should amend the Title as an instrument of informing the public about the options before it. If we really want to put options before the public, there is a duty on those who are opposing the template we have advanced. All Opposition parties have produced Bills previously. The Opposition has the option of providing the legislative template that would facilitate the X case so people could see the difference or the implications of legislating for that case. How would the Opposition legislate for the risk of suicide in terms of a Bill? I am making a fair point. If people are sincerely advancing the point, and Deputy McManus will respond that the obligation is not necessarily on the Opposition——
The Minister is trying to interpret what I am saying.
The Deputy said that making matters worse is an option one should not take, that one should do nothing rather than make matters worse. I believe we are not making matters worse. I have reflected on what has occurred over the last ten years. It is instructive that Governments with a political composition of people with a predisposition to the view that we should legislate for the X case did not do so. That was the rainbow Government. The Fianna Fáil/Labour Party Government did not do it either. Perhaps it was not politically possible for it or the rainbow Government to do it, but neither Government legislated.
This Government is under pressure from Independents.
The Deputy's party was under pressure from some, but it did not legislate. The public does not have before it a legislative template to facilitate the X case.
The Minister did not answer Deputy Mitchell's question.
I did answer it. We cannot overturn the X case.
Can one legislate to limit it?
No, one cannot limit the constitutional finding.
How does Deputy Mitchell think we could legislate against a judgment of the Supreme Court? I am not trying to trap the Deputy because it is a valid question. Having studied constitutional law for some time, I am of the opinion that one cannot legislate that way. Is there an opinion on the other side that one can do so?
I am not a qualified lawyer but I have a degree in political science and I have been my party's spokesperson on constitutional issues. In all these matters we always accept what is the politically correct thing to do. Milton Friedman wrote a book called Free to Choose in which he refers to the Belmont Syndrome. I believe Belmont is a school at Yale and Friedman describes how eminent economists at that school taught a principle of economics simply because it was always handed down. Subsequently, the principle was found to be false. Friedman calls this the Belmont Syndrome, where nobody ever questions something that is generally accepted simply because it always has been accepted.
The courts have criticised the Oireachtas for not legislating to give effect to Article 40.3, the article which states that this country shall with due regard to the equal right to life of the mother and shall guarantee in its laws to respect and as far as practicable by its laws to defend and vindicate the right to life of the unborn. Is the Minister saying that we cannot pass legislation under Article 40.3.3° which would acknowledge the right to life of the unborn and vindicate that right with equal regard to the right to life of the mother? If we were to draw up legislation incorporating both those elements, which we have been criticised for not doing, can we not set the conditions ourselves?
We can only pass legislation under 40.3.3° as interpreted by the Supreme Court. That is the only way we can do it.
It would be wrong to say that there must be an option put to the people in relation to legislation. That is not how referenda are carried out. However, if it were the case, there is a clear option already defined by the expert review group on the Constitution. The framework would provide that the integrity of the X case decision would be retained but that safeguards would be put in place. I met the chairman of the review group and I wondered in amazement at the fact that the group, which included the previous Attorney General, David Byrne, was able to come to a consensus on this issue. He said that there was no great difficulty. There was a difficulty about drafting what the template would be——
There was a difficulty.
There was a difficulty in terms of detail but not in terms of the general view that there should not be a constitutional referendum. Let us take it out of politics altogether. This was the recommendation of the expert review group on the Constitution. The Minister is right that no Government took up that challenge but at the same time it was a guide and indicator for any Government which felt the pressure of a minority of Independents or decided it had better deal with the matter for whatever reason.
It is ten years since 1992 and the C case has also happened. The principle was established by the Supreme Court decision in the X case that there was a right to life for women and that was upheld in the C case. It was not that she had a right to travel but that she had a right to life. The judge made that point clearly. We should look at the Supreme Court decision. There were various comments by the different judges. According to page 24 of the committee report, Mr. Justice O'Flaherty said that until legislation is enacted to provide otherwise, he believed the law in this State is that surgical intervention which has the effect of terminating pregnancy,bona fide undertaken to save the life of the mother where she is in danger of death, is permissible under the Constitution and the law. In his view, until there was definition by way of legislation, that right was protected by the Constitution and by the law. That was his judgment.
The Minister is not the judge and I am not the judge. However, when a Supreme Court judge makes such a statement, we have to take it on board. The judge went on to say that the danger had to represent a substantial risk to the mother's life, though this does not necessarily have to be an imminent danger of instant death. The law, he said, does not require the doctors to wait until the mother is in peril of immediate death. He continued: "I would regard it as a denial of the mother's right to life if there was a requirement of certainty of death in her case before termination of the pregnancy would be permissible." He is allowing for the fact that even in medical practice nobody can be sure whether a person will live or die. He said:
In my opinion the true test should be that a pregnancy may be terminated if its continuance as a matter of probability involves a real and substantial risk to the life of the mother. The risk must be to her life but it is irrelevant in my view that it should be a risk of self destruction rather than a risk to life for any other reason.
He is saying that it is only a matter of probability but if there is a probability, it is justified. It is protected by our law and Constitution and it need not wait until the last minute when the woman's life is in peril. In his view it is irrelevant and immaterial whether that threat is from physical causes or mental causes.
That is thestatus quo regardless of whether the Minister likes it and regardless of whether Governments have abdicated their responsibilities. The Minister is proposing to change that and remove that right to life in a particular set of conditions relating to a mental or psychiatric crisis.
Does the Minister wish to respond?
No. We have dealt with that issue already.
There is no dispute that Article 40.3.3° is as it is inserted. The Supreme Court has no argument about this.
May I ask Deputy McManus whether she is going to withdraw the amendment, or does she intend to press it?
I would like to continue this discussion for a moment or two after lunch.
We will suspend the sitting until2 p.m.
Deputy McManus, before lunch you indicated you might withdraw the amendment and introduce it on Report Stage.
I indicated that I wanted to discuss it a bit further. I will not discuss it too much further but I would like to put a question to the Minister because he raised the question of the template. Is the Minister telling the committee that one could not, for example, introduce an ordinary Bill such as section 1(2) of the existing Bill accompanied by a section which would say "except in the case of suicide, the following procedures must be in place"? I am not suggesting this should be done but is the Minister telling the committee it is not possible to do that in ordinary legislation under Article 40.3.3?
To do what?
To do what I just suggested. Will I play it out for the Minister again?
To legislate for the X case?
No, to introduce legislation——
No, one cannot.
I am sorry but I think one could. Is the Minister saying one could not introduce ordinary legislation to say that the guarantees in Article 40.3.1° to vindicate the personal rights of citizens by our laws by means of section 1(2) followed by a statement concerning the threat of self-destruction, which is certified by three, four or five doctors? Is the Minister telling me he could not qualify it in that way through ordinary legislation?
One can qualify it but one cannot eliminate it.
I am sorry, I do not agree.
Is the Deputy saying to allow for it?
I am saying that one could qualify it.
That one could qualify the full intent.
I am raising the question.
One can put a scheme in place to legislate for the X case.
It is a very remote possibility, according to all evidence, but one could put a scheme in place to provide for such a remote possibility. I would have to think this out. The only solution to the problem, since the Minister raised the question of the template, is not a constitutional amendment and a convoluted one at that. My point is that there could be other solutions to the problem.
Not if one wants to remove the issue of suicide. That is the point.
This is really the sole purpose.
One could legislate for the X case but one could not legislate to remove the——
My worry is that we would introduce so many qualifications to Article 40.3.3° that my learned friends in the Supreme Court will have great opportunities to pick and choose and make the law for us as suits them in a way that, perhaps, will not suit those voting for change. We must consider that possibility.
Deputy McManus, are you pressing the amendment?
Cuireadh an leasú agus faisnéiseadh go rabhthas tar éis diúltú dó.
Will the Minister reconsider this for Report Stage?
We will debate it.
Níor tairgeadh leasú uimhir a 8 agus a 9.
Amendment No. 12 is related to amendment No. 10. Amendments Nos. 10 and 12 should be taken together by agreement.
Tairgim leasú a 10:
I leathanac 6, líne 23, "Má" a scriosadh agus "Faoi chuimsiú fho-alt 3o, má" a chur ina ionad.
I move amendment No. 10:
In page 7, line 24, to delete "If" and substitute "Subject tosubsection 3°, if”.
I am always amazed at how connections between amendments are made. I cannot see any connection in this instance but I am happy to consider the amendments together. They are both concerned more with legalistic points than with political debate. I am concerned, Sir, that you suggest these amendments are connected when they are not.
I suggest we consider them separately.
I will consider them separately for the sake of the debate.
Subsection 2° of Part 2 of the First Schedule states: "If a law, containing the provisions set out inAn Dara Sceideal - The Second Schedule to the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Act, 2001, is enacted by the Oireachtas, this section, other than the amendment of Article 40 of this Constitution effected thereby, shall be omitted from every official text published thereafter, but notwithstanding such omission this section shall continue to have the force of law.” However, subsection 3o qualifies this bald statement. It states: “If such a law is not so enacted within 180 days of this section being added to this Constitution, this section shall cease to have effect and shall be omitted from every official text of the Constitution published thereafter.” One differs from the other and, according to the legal advice I have obtained, it would be better and clearer if amendment No. 10 is accepted because it would link and provide harmony between the two subsections.
This amendment provides: "Subject tosubsection 3°,”. The subsection provides that if such a law is not so 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. If the law is enacted within 180 days this section will be inserted in the Constitution. Why was this procedure adopted? Why did the Minister decide to introduce a proposal to allow the Oireachtas, de facto, to ignore the decision of the people? For example, if we do not act this will not be inserted in the Constitution. While we cannot amend it when the people have decided, the Oireachtas - it may be a new Oireachtas - may not act within the 180 days specified, in which case the will of the people will have been ignored. Is there a precedent where the Oireachtas, having submitted a proposal for an amendment of the Constitution to the people, has provided that it may not insert the proposal, if approved by the people, into the Constitution?
The earliest date for the holding of a referendum on this proposal is some time in the spring, next February or March. That would mean the Dáil would have to act on the result of the referendum after the Easter recess. However, if there is an unexpected general election and the new Dáil is led by a Government dependent on the support of Independent Deputies who ask it not to act on the result of the referendum, the proposal will fall. Would this not mean that, de facto, the will of the people, who are the ultimate policy makers as expressed under Article 6 of the Constitution, would be ignored? Why are we allowing this type of procedure and is there a precedent for it?
Amendments Nos. 10 and 12 are separate in terms of their function. Subsection 2° of Part 2 of the First Schedule provides for what will happen if a law is enacted while subsection 3° provides for what will happen if no law is enacted. They provide for two separate eventualities. If the word "If" is deleted, subsection 2° will be subject to subsection 3°.
It is not a major point.
I am aware of that.
On the one hand, there is a provision for what will happen if a law is enacted but there is also a provision for what will happen if no law is enacted. Subsection 3°, therefore, qualifies subsection 2°. It would be clearer if it was specified that subsection 2° is not an absolute because it is qualified by subsection 3°.
Our advice is that no linkage is necessary but if the Deputy wishes, I will seek further clarification of the matter.
We can consider that aspect for Report Stage.
With regard to the point raised by Deputy Mitchell, the Government wants to address the issue from a legislative and constitutional viewpoint. We want the people to have the ultimate say on the issue and this constitutional formula was devised to facilitate that broad objective. No Bill to amend the Constitution can contain two proposals.
Is there a precedent?
The Good Friday Agreement provided a similar but not identical approach in respect of Articles 2 and 3 of the Constitution. That was conditional on the Agreement being implemented subsequent to the referendum.
That was conditional because other steps, beyond the influence of the State, needed to be taken. This proposal is not so constrained.
It was conditional on the Republic of Ireland fulfilling its obligations.
However, measures had to be taken on the other part of the island and elsewhere which, if not taken, meant this State would not act. Why in this instance are we providing that the Oireachtas may ignore the will of the people if they vote to amend the Constitution? Why not provide that if the people vote to amend, the Oireachtas shall enact the necessary amending legislation? As it stands, the Government could decide not to proceed with the passage of the Bill through the Oireachtas if there was a general election pending. Why are we allowing ourselves the option of overriding the will of the people?
I have explained it. One could not put two propositions to the people in the one proposal. The law must be enacted within 180 days. I do not dispute that there is a possibility of the people's views being overridden but, in my view, it would be highly unlikely that the Oireachtas would reject the opinion and views of the people.
Let me put it to the Minister another way. Is there anything we can do to change this so that we must enact whatever the people decide rather than say that if the Oireachtas does nothing, the legislation will not be enacted? We seem to be providing a way out there where we, a minority of the people, could overturn the will of the majority, the ultimate legislature. Under Article 6 of the Constitution the people are the ultimate legislature, yet we could frustrate their will expressed in a referendum. I do not understand why we need to do that. Is there no other machinery which can be used?
If I read out my note to the Minister, perhaps he would comment on it because it is appropriate now that this matter of whether there could be two proposals or one proposal has been raised. The Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill therefore consists of a constitutional amendment within a constitutional amendment, containing a piece of legislation which, itself, is to be enshrined within the Constitution. This is an unprecedented format for amending the Constitution and it breaches Article 46.4 of the Constitution, which the Minister says he is not breaching.
The Government's proposal contains two separate and distinct amendments to the Constitution together with a new type of constitutionally enshrined legislation. In order to carry out this procedure in a manner compatible with the Constitution, Article 46.4 should have been amended first in a separate referendum. Since it has not been, the manner of the introduction of the proposal itself amounts to an unconstitutional process.
This matter was raised by the Labour Party in a question to the Taoiseach. In the Taoiseach's reply in the Dáil, he conceded that the Second Schedule is not a constitutional amendment and does have legal effect. Since it is not a proposal for the amendment of this Constitution, its inclusion in the proposal to amend the Constitution is clearly contrary to Article 46.4. The Taoiseach also conceded that the Good Friday Agreement is not a precedent for this process. Therefore, this is an unprecedented and unconstitutional procedure for amending the Constitution following the introduction of legislation.
That is a legal opinion which clearly diverges from the one the Minister has in that it raises the question about the use of two proposals which cannot be done unless Article 46 is altered. I would be interested to hear the Minister's views on it.
That is of the core issue. Article 46.4 states:
A Bill containing a proposal or proposal for the amendment of this Constitution shall not contain any other proposal.
The Labour Party did raise this issue in the House. In essence, the proposal before the people is Article 40.3.4°. There is only one proposal in the Bill to amend the Constitution, namely to insert into the Constitution the text set out in the First Schedule. The text of an envisaged criminal statute, as set out in the Second Schedule, is not a proposal within the meaning of Article 46.4 of the Constitution. The Bill we are currently debating does not propose that the schedule containing the envisaged legislation should, of itself, have any legal effect in the event of a "Yes" vote. A "Yes" vote in the referendum on the Bill to amend the Constitution would give effect only to the constitutional amendment involved. The only way in which the terms of the Protection of Human Life in Pregnancy Bill can become law or have any effect is through a separate subsequent decision by the Oireachtas to enact the Bill. It is because it is not possible - this is Deputy Mitchell's point - to propose a criminal law and a constitutional law in the same Bill that the present amendment was drafted as it was. As I said, it was drafted deliberately to avoid containing two proposals and it does not contain two proposals.
The legislation, the text of which is set out in the Second Schedule, is not being enacted at this stage. All the people are voting for is to accommodate that legislation in the Constitution if the Oireachtas, at a later stage, passes it into law.
I will pray for the Minister.
We have dealt with this already but it comes back to the point that we wanted to provide a legislative response within a constitutional context. It may be unprecedented but it is constitutional.
It is an extraordinary proposal, to put it mildly. It is no wonder the High Court is ruling on the activities of these committees.
Tarraingíodh siar an leasú faoi chead.
Amendment No. 11 in the name of Deputy McManus is a drafting amendment.
Tairgim leasú a 11:
I leathanach 6, líne 23, "dlí," a scriosadh agus "dlí" a chur ina ionad.
I move amendment No. 1:
In page 7, line 24, to delete "law," and substitute "law".
It may seem a small matter to remove a comma from a Bill. I recall being in Opposition on Committee Stage of a Bill on an agriculture matter which went on for many days and the only change I achieved was the insertion of a full stop, but it was still worthwhile. I wish to be helpful. Irrespective of whether this is constitutionally sound, we might make sure that it is grammatically sound.
I sought advice on it before I came here this morning.
Is it different?
It cannot be different.
The legal advice is that it would be ungrammatical. If we take out the comma to which the amendment refers, we would have to take out the comma after "2001".
No, that is a comma to do with the title.
I will come back to the Deputy on Report Stage. My advice was that it would be ungrammatical.
I am very surprised to hear that. Are we going to get a consultant in to advise us on this one?
As the committee will be aware, the office of the parliamentary counsel advises us on these matters but it is not infallible. It is staffed by legal draftsmen. I will come back to the Deputy on Report Stage.
I genuinely find it hard to believe that that actually requires a comma.
I will come back to the Deputy on the matter on Report Stage.
Tarraingíodh siar an leasú faoi chead.
Tairgim leasú a 12:
I leathanach 6, línte 37 go 39 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
"4° D'ainneoin aon ní ibhfo-alt 2° nó 3° den alt seo, maidir leis an leasú ar Airteagal 40 den Bhunreacht seo a dhéantar leis an alt seo, ní bheidh sé, go dtí go n-achtaítear an dlí dá dtagraítear sna fo-ailt sin, intriailte ag Cúirt ar bith, faoi aon fhoráil d’fhorálacha an Bhunreachta seo nó ar shlí eile, agus ní bheidh feidhm ag forálacha Airteagail 26 agus 27 den Bhunreacht seo maidir leis an mBille le haghaidh dlí den sórt sin.”.
I move amendment No. 12:
In page 7, to delete lines 37 and 38 and substitute the following:
"4° Notwithstanding anything insubsection 2° or 3° of this section, the amendment of Article 40 of this Constitution effected by this section shall not, pending the enactment of the law referred to in those subsections, be cognisable by any Court, under any of the provisions of this Constitution or otherwise, and the provisions of Articles 26 and 27 of this Constitution shall not apply to the Bill for such a law.”.
I am concerned at the provision in the Bill which states "The provisions of Articles 26 and 27 of this Constitution shall not apply to the Bill for such a law.". Obviously, this does provide for an exception which, in normal circumstances, one would not wish to see in terms of the role of referring the Bill. Article 26 states "This Article applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas other than a Money Bill . . . ". This article provides powers to the President to refer a Bill to the Supreme Court. Article 26.1.1° states:
The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on a question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.
There are three exceptions to that rule which is clearly there to act as a safeguard, a protection of the public good in case the Oireachtas gets things badly wrong. Certainly in this instance there is a danger of a majority in the Oireachtas or a minority, I should say, supported by the Independents, getting things badly wrong.
The inclusion of this provision in the Bill runs contrary to the established constitutional legislative process whereby all legislation, with three exceptions, is subject to this presidential power. The exclusion of the Article from the legislative process, under the powers of reference in Articles 26 and 27, in the case of what will be known as the Protection of Human Life in Pregnancy Act, 2002, amounts to giving this legislation an unprecedented super-constitutional status. It also raises questions about the procedure adopted by the Government in incorporating the Bill, which cannot be referred as a consequence of what is set out within it.
The amendment deals with a particular concern about what will happen in the period of up to 180 days before the Bill becomes law. There will be an interregnum period of 180 days during which the Constitution will refer to "the Act", but it will not exist until the decision is made by the Oireachtas. During the period before the Oireachtas makes that decision, the Bill should not be an issue raised in court because the courts will be put in a position where they will not be able to state what it means. It will not have meaning, even though it will have been decided upon by the people. The Supreme Court should not be put in a position where it would be obliged to state that the Constitution is incapable of being interpreted. There is a slight danger that this could happen because of the limbo the Bill will occupy prior to the Oireachtas making its follow-on decision.
The Minister for Health and Children is not likely to do so - because it is clearly not the case - but if he was to cite the model of the Good Friday Agreement, the reply I would have to give is that in that instance the referendum proposed to amend Articles 2 and 3, contingent on a Government making an order on a future date. What is proposed here is an amendment to Article 40 with immediate effect, but with no immediate meaning. There is no precedent for this because the Bill deals with the present - the word "shall" is used - it does not deal with the future. We will be faced, therefore, with a curious knock-on effect from this rather peculiar proposal, the design of which some refer to as "elegant" while others state the opposite.
Following the referendum, we will be left with a Bill that will not have meaning because of the time lapse involved. The Constitution must be protected. The Supreme Court, in the event of a case coming before it, should not be obliged to say that it does not know what is happening or that it cannot interpret matters because the Bill will not have meaning.
I refer to the wording, as it stands, in the First Schedule, which Deputy McManus is proposing to amend, although her amendment uses the same final phrase used in the subsection. The Schedule states, "The provisions of Articles 26 and 27 of this Constitution shall not apply to the Bill for such a law." However, Article 26 states:
This Article applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas, other than a Money Bill, or a Bill expressed to be a Bill containing a proposal to amend the Constitution or a Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of this Constitution.
There is a reference to Article 24 contained in Article 26. In addition, Article 27 contains a reference to Article 23. I do not wish to cause further confusion——
Matters are becoming clearer by the day.
——and I do have a point to raise. Article 27 states:
This Article applies to any Bill, other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution, which shall have been deemed, by virtue of Article 23 hereof, to have been passed by both Houses of the Oireachtas.
The position is, therefore, that there are four Articles involved even though only Articles 26 and 27 are affected. Is it sufficient for theMinister and Deputy McManus, in their alternative wordings, to simply refer to Articles 26 and 27? Is it not also necessary to refer to Articles 23 and 24, to which Articles 26 and 27 refer?
The amendment seeks to add an explicit statement that the amendment of Article 40.3 will not have any effect, pending the enactment of the legislation, on the protection of human life in pregnancy. This does no more than state what is already apparent since the proposed Article 40.3.4°, which refers to "the Protection of Human Life in Pregnancy Act, 2002," could not have any application if such an Act had not yet been passed by the Oireachtas, as a separate item of legislation, subsequent to the "Yes" vote in the referendum. Similarly, as the proposed Article 40.3.5° refers to any proposals to amend the "Protection of Human Life in Pregnancy Act" in the future - assuming it is passed in the first instance - this could also not be construedas having any effect until that legislation isenacted.
Deputy McManus inquired about what the Supreme Court would do if it was presented with a particular case in the 180 day period between the passing of the amendment and the passing of the legislation by the Houses of the Oireachtas. The court will not be in a position to take the legislation into account at that stage because it will not yet be law. It will not, by definition, have effect at that point.
But will not be in the future, it will be in the present. It will exist on foot of the decision made by the people.
The Bill will not have been passed by the Oireachtas. The proposed Article 40.6.3° states, "If such a law is not so enacted within 180 days of this section being added to this Constitution, this section shall cease to have effect and shall be omitted from every official text of this Constitution thereafter."
If that is the case, why does it not refer to the future?
Subsection 2° will apply if it is passed, while Article 40.6.3° will apply if it is not passed.
I accept that. However, I am referring to the interregnum where it will exist, but will not have any meaning.
It will not have the force of law either.
While it will not have the force of law, it will be included in the Constitution. This will create difficulties for the Constitution from which we should be trying to protect it. The difficulty has been created by the Government. How can the Supreme Court issue a decision stating it cannot interpret the Constitution?
The people would have decided. The entire proposition is being put to the people.
But there is a time lag between the people deciding and the Bill being passed.
The people are deciding that it only has effect if it is passed by the Oireachtas subsequently. In other words, the people will be asked to give authorisation to the Oireachtas to pass legislation.
It does not have meaning until the Oireachtas passes the legislation. However, it exists, which is very peculiar. We could put forward various arguments about this but there is a legal issue, which I ask the Minister to examine because it is not a simple matter whereby everything is postponed until the Bill is passed by the Oireachtas. The people make a decision, which will impact on the Constitution, but the Bill does not have any meaning until the Oireachtas passes it. Within that interregnum there is a constitutional problem and there could be a challenge in the Supreme Court.
I will come back to the Deputy. I am satisfied that the situation is covered. My legal advice is to that effect but I will clarify it.
If the people passed the constitutional amendment but it had not been referred to the Dáil and a future Government decided not to put the legislation before the House, would that create a constitutional problem? The legislation must be put before both Houses followed the referendum. If the Dáil did not process it or did nothing, would there be——
Our proposition provides for that eventuality in the manner describe where it would cease to have any effect.
Is there any way the amendment would have its own constitutional power because it would have been put to the people even though——
We are putting the entire proposition, including the provision to go back to the Oireachtas——
Does the Minister think there would be grounds for someone to say that because it was enacted by the Dáil having been approved by the people——
No, because the people are also being asked to give authorisation to the Dáil to pass it.
That raises questions about referendums. It is a new mechanism.
It would raise serious questions about the Oireachtas if it refused to recognise the voice of the people.
That is not my point. I refer to the legal status of a referendum which has been passed by the people.
They are being asked to pass provisions other than Article 40.3.4°.
I appreciate that but that would not rule out somebody saying——
They are being asked to pass the entire package. Irrespective of one's political views or positions on the issue, given there is a plurality of views on it, all democrats would accept the superiority of the people's decision ultimately, even if they did not like it. Knowing the plurality of views in the Oireachtas and the likely make up of the Oireachtas in terms of political parties after the next general election, it is a 99% certainty that the superiority of the people's right to decide would take precedence over one's subjective or party's views. That is probably true of all Members. I am not sure any of the 166 Members would take a different view.
This is an important issue, which was also raised yesterday. Deputy Noonan asked the Taoiseach to explain precisely how the Government proposal in legislation is reconcilable with the present constitutional position, which contains a general right to life of the unborn, and whether the legislation could affect the present constitutional provision. The Taoiseach stated: "The legislation envisaged does not infringe the general right to life of the unborn. It provides that in specific circumstances after implantation its intentional destruction amounts to an offence". It changes the right to life of the unborn in the sense it is divining that right as being a non-criminal act up to implantation.
The Taoiseach also stated: "The terms of the proposed amendment would make it constitutionallyintra vires for the Oireachtas”. My attitude was thanks very much. It was as if we are all going out of our way to introduce ultra vires legislation. I can hear the Attorney General saying it will make it intra vires for the Dáil to pass legislation because there is such a rum crowd without him there that the House might pass ultra vires legislation. I am being facetious but I did say “so what?”. We always try to pass intra vires legislation. The Taoiseach stated it “would make it intra vires for the Oireachtas to enact legislation in the terms set out in the Schedule should they choose to do so. It would be the people’s amendment of the Constitution making the enactment of such legislation constitutionally intra vires that would underpin the legislation, if enacted.
These questions are valid because doubt has been created in the Taoiseach's replies if this happens during a change in Government. It is not obligatory for the new Parliament to enact the legislation. If the people vote for the amendment, all they are doing is making itintra vires for us to pass the legislation and it would not be obligatory for us to pass it.
I accept that.
It would not be a case of the legislation, if enacted, altering the existing meaning of the Constitution. However, the legislation will alter the meaning of the Constitution because it will amend Article 40.3.3° to delete the Supreme Court's interpretation of it by referring to the risk of suicide. By introducing the legislation, the Constitution will be amended. We want to alter the meaning of Article 40.3.3° now, otherwise there would be no purpose to the legislation.
The argument that the Minister could not envisage a Government which would not pass the legislation is covered by "if enacted" or "should they choose to do so".
The Minister's reply is reasonable and we can presume that no Dáil would have the arrogance to overturn the people's verdict. However, there is an issue here which we are addressing. For example, if supporters of Youth Defence or Dana were elected to the next Dáil and they wanted this legislation overturned at all costs, they could argue that the people, in voting for the referendum, left it open to the Oireachtas to ignore the will of the people and by doing nothing, the Oireachtas would use the authority given to it. Will the Minister consider reversing the process so that the constitutional amendment would become law unless the Oireachtas passed the legislation if he required some further act to be done? I would prefer if there was no further act to be done and the will of the people was sacrosanct and what they say under Article 6° became the law.
If because of the machinery being used, the Minister must provide a further role for the Oireachtas, albeit as a rubber stamp or as a blocker, perhaps the process should be the other way around so that this will become the law unless the Oireachtas does otherwise. This could potentially be overturned by a small minority of people. There could be a small party in the Oireachtas whose price for stability or support for the Government could be something of that nature. It is more than an academic point. Does the Minister have this in the right order?
In terms of Deputy McManus's amendment which deals with the intervening period between the passing of the amendment and the enactment of the legislation, the status of the legislation is that it is a Bill and not an Act. It does not have effect.
We have already dealt with Deputy Mitchell's point in so far as criminal law and constitutional law cannot be proposed in the same Bill. It is because that cannot be done that the current formula has been devised.
Is it the Minister's way of getting around the difficulty?
In doing that, has the Minister not put the cart before the horse? Could he put the horse back in front? Could he not require that the further step would be that this will become law unless the Oireachtas——
I examined it inside out and kept reverting to legal advice to tease out the possibilities of this and to see if it could be done another way. The answer was that it could not and that this is the only way.
The trouble is that one would not have to overturn the will of the people, just ignore it.
However, ignoring would be——
That was done in Northern Ireland.
It was similar but not the same. It was a similar idea in that we made the constitutional amendments to Articles 2° and 3° conditional on the signing and implementation of the Good Friday Agreement.
That could be done in this case.
This is a similar model.
It is a different model. It is like a Ford and a Toyota.
It is a similar principle, namely, the subsequent validating, enacting or giving effect to legislation depending on agreement.
It is the other way around.
This could fall by accident if we do nothing, for example, if there are three elections as there were in 1981 and 1982. God forbid it should happen again. I was a Member at the time. The Minister should re-examine the question of the Oireachtas doing nothing. Perhaps it should do something positive to give effect to the will of the people. If we do nothing and the legislation falls, the will of the people could be overturned by accident.
It gives me a six month timeframe. When it returns to the Oireachtas, obviously there will be nothing to amend. It will have to be enacted in so far as the people have decided it. It would not take weeks.
I am still trying to figure out exactly what the Minister says about the Bill in regard to the constitutional amendment. If it is passed, what is the Bill's status? This is separate to the points made by Deputies Mitchell and Owen which are important issues and probably more important than mine. What the Minister is doing is unprecedented and he needs to know what he is doing.
It is unprecedented.
The status of the Bill is unclear. When the Minister says it is a Bill and not an Act, does that mean it does not have any meaning for 180 days, even though the people have voted for it?
It has no meaning.
It has no existence.
It has no effect until it is enacted by the Oireachtas.
If the Supreme Court is asked to interpret that, does that mean it would say it had existence but no meaning or that it does not exist until the Oireachtas——
It has no effect or application.
Does it have an existence?
Physically it does.
It has an existence but no meaning——
It has a physical existence in so far as——
——and it is in the Constitution.
Its existence would be——
A published Bill.
Yes. Its existence is as a published Bill, but it does not exist as an Act.
The proposed Bill does not state that there will be a time lapse and that the imperative is into the future as regards Articles 26° and 27° but that it shall apply and that "the life of the unborn . . . shall be protected". That does not suggest that it will happen in future but that it must apply now. I do not understand this. What is the Minister saying?
It is very simple.
I know it does not have any effect. That is not the question. What is its status?
A published Bill.
I am asking about its status in relation to the Constitution. I am not talking about a Bill published in the House. The Minister says that, within the Constitution, there will be a Bill which has no effect.
Yes, because the entire package on which the people will vote further entails the passing of that Bill by the Oireachtas.
Does that mean that, during the interim period, we will have a type of phantom in the Constitution?
The proposition is Article 40.3.4° and, for it to have any effect, the Bill must be passed by the Oireachtas.
The people's word would not be implemented unless the Bill was implemented.
If the people vote for the amendment to the Constitution, the Bill will lie until the Oireachtas passes it. Another scenario has come to mind. If the referendum is held on 15 February and the people vote for the amendment but it is challenged in the courts, could the Supreme Court find against the referendum wording prior to the enactment of the Bill to put it into operation?
A finding cannot be made on it.
It is not constitutional until the legislation is passed by the Oireachtas.
It is not added to the Constitution until the Bill is enacted.
Yes, that is correct.
That is a problem for the Supreme Court which the Minister should not create. He cannot leave it to the Supreme Court to say that it cannot interpret the Constitution because there is this phantom wandering around for 180 days until we lay it to rest.
No one can challenge it.
They cannot challenge the referendum as passed because it does not exist.
No, it exists but does not have any meaning.
That is exactly what I am trying to deal with. It is not advisable to let the matter lie when it is open to challenge.
The Supreme Court would have to accept that the people have put this proposition into being. They will have approved the entire gamut of the proposal.
We will enact the legislation.
Yes, but the people will have approved of that or will have authorised it.
Yes, but that is all they will have done. They will only have authorised it and we might not enact it.
That will be made clear to people in advance and they will either pass it or reject it on that basis. If the people decide, the Constitution is interpreted on the basis of their decision.
No, because they do not know what is the end of the story.
They do not.
There are two ends to the story. One is that it is enacted within 180 days and the other is that it is not.
The difficulty is if it is the subject of a court action within that period because we do not know what choice will be made.
We do know because the proposition is that the Bill must be enacted by the Oireachtas within 180 days if the referendum is passed. If it is not enacted, it has no force in law and, therefore, the Supreme Court cannot apply it.
Regarding the question of the Oireachtas enacting the legislation, I did not get an answer about Articles 23 and 24, although I am sure the Minister will come back to it.
The legal advice is that they have no bearing on it.
It is enough to deal with Articles 26 and 27 because they are mentioned and contained therein. There is no need to mention them separately.
The Minister says there are two options in relation to this legislation. One is that we enact the Bill in its entirety and give effect to what the people decided. The other is that we do nothing and the will of the people is ignored. Is there a third option which could be left to the Oireachtas, to ignore the will of the people and amend the Bill? Is that option being left open?
I am not suggesting it should happen but it would be dangerous to give options when the people have voted. Is there an option that would allow the Bill to be amended as an ordinary Bill, which would ignore the will of the people?
No. This Bill cannot be amended.
It cannot be amended and put in the Constitution, but the effect of amending it as an ordinary Bill would be to ignore the wishes of the people. Could that be done?
The Deputy could write a new Bill that is in conformity with the constitutionalstatus quo. However, a Bill cannot be written which is not in conformity with the status quo. This Bill, as all Members agree despite their different views, seeks to change the constitutional status quo.
It seems that there is an ordinary Bill before the House. The constitutional amendment is called the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. The Bill itself is called the Protection of Human Life in Pregnancy Act, 2002. It is a different provision. Will that Act still be before the Oireachtas and would there be a third option open to the Oireachtas - to amend it as an ordinary Bill and ignore the people? Is it wise to give ourselves these options? Should we not comply fully with the will of the people?
That option is not open. It states that if a law containing only the provisions set out in An Dara Sceideal, the Second Schedule to the Twenty-fifth Amendment of the Constitution Act, (Protection of Human Life in Pregnancy) Act, 2001, is enacted by the Oireachtas, this section, other than the amendment of Article 40 of the Constitution effected thereby, shall be omitted from every official text of this Constitution published thereafter. That means only the provisions set out in the Second Schedule. Subsection 3° states that if such a law is not so enacted within 180 days of this section being added to this Constitution, this section shall cease to have effect and shall be omitted from every official text.
The Minister is missing the point.
I know what the Deputy is saying.
The Minister is talking about the Constitution and quoting——
No, the Second Schedule in the Bill. Only the provisions set out in that can be enacted; no other provisions can be enacted.
It is very difficult.
However, if some other Deputy or group in the Oireachtas wants at some stage——
Introduce a Private Members' Bill.
No, another separate Bill could be brought in, but that would have to reflect the constitutional status quo.
Does the Minister agree that this is a unique way of putting a referendum to the people?
Does the Minister agree that it is limiting the power of the people to decide an issue in a referendum because, in effect, the Minister is tying this down to a decision of the Oireachtas at a later stage? It also ties down the Dáil because it limits our powers to do what we would normally do to change legislation. On both counts the Minister is changing the way referenda have been held in the past. It is the first time a decision of the people will not be taken in its own right as a final decision to put a provision into the Constitution. The power of the people is being limited because the Minister is saying this has to go back to the Dáil. He is also limiting the power of Deputies because he is saying we cannot change the legislation. They are two fundamental changes.
The third change affects the role of the President. Can the Minister comment on the changed role of the President in relation to this legislation and the constitutional amendment?
The President will have no power to refer it to the courts because it would already be declared——
That is right. The Minister is changing the role of the President in relation to legislation in this referendum also.
The people will decide.
Will the Minister comment on the role of the President in relation to legislation and the change in that role because of this legislation?
The Deputy's original point related to limiting the right of the people and the Oireachtas. There are a number of approaches here. Some people feel we should have a solely legislative approach. A number of others feel the people should have a right to have view on this. We took the latter view, that the people should be consulted on this issue given that they were consulted before. Equally, we took a view, which was also taken by the all-party committee, that if one went the constitutional route alone it would not be satisfactory because there is no one single paragraph——
The Minister is talking about the all-party committee on the Constitution.
The Minister has done that twice. He should not imply that there was some kind of consensus on this.
I did not.
The Minister said that was the recommendation as if that was——
No, I have always said there were three recommendations.
I am not trying to get at the Minister; I just want clarity in terms of the record. The record must state that there was no recommendation from the all-party committee. There were three positions.
I say that all the time.
The Minister should be clear. Sometimes he tends to forget that.
No, I do not. What I was trying to say before the Deputy's interjection was that everybody agreed that there was no single paragraph one could put into the Constitution. Everybody on the committee agreed——
Youth Defence did not.
I am talking about Oireachtas Members of the committee.
They agreed there was no single paragraph that could go into the Constitution to resolve the issue, as was done in 1983. The Oireachtas has moved on from the 1983 position and, therefore, we wanted to legislate as well. If one wants to facilitate going back to the people and the legislative approach, which is required to put into law the various protections regarding medical procedures, etc, it was necessary to have a legislative and a constitutional approach.
But not tying it into the Constitution.
The Minister is taking a constitutional approach.
We are taking both.
The Minister does not have both.
Clearly, we have both. There is legislation and a Bill——
Which is being incorporated into the Constitution.
Yes, and it is because of the desire to achieve that that this unprecedented and unique constitutional formula has been devised. Many legal commentators have spoken about this in terms of constitutionality——
More about its cleverness.
More its cleverness. Some call it ingenious.
We agreed about looking in the mirror yesterday.
I have yet to hear an independent legal person question its constitutionality.
I have not heard it.
We will give it to the Minister.
I asked about the people's will being limited.
The people will decide it themselves. The people can reject that if they so wish.
Does the Minister agree it is a limitation of the people's power?
It is a balance. Some people felt the Oireachtas should do it all, but some Oireachtas Members did not agree with that so we will go to the people. However, one cannot put two proposals to the people. It is not constitutional to put two proposals——
But it is effectively——
We are making the point to the people that the most effective way to deal with this matter is specific legislation that lays down what is and what is not permissible. We did not do that after 1983 or 1992. We are also saying that if we wish to consult the people, this is the way it must be done. That includes giving the people the authority to authorise the Oireachtas, within 180 days after the passage of the amendment, to enact the Bill.
It is changing the experience of the Irish people in relation to referenda. These are the facts.
I accept that point. There is no argument that this is a novel way of approaching the issue.
Novel as it is, it is worth stating that, in effect, the will of the people is subject to——
The people will have to make that decision.
I appreciate that fact.
Therefore, I would argue that the will of the people remains supreme.
No, it is still subject to the Dáil passing——
The people will have decided that it should be that way.
I appreciate that fact. However, by using this method the Minister is introducing a new form of referendum which is fettered - I am not sure what is the best word to use. The process of a referendum is now linked to the passing of legislation in the Dáil which limits its outcome. The people will know that is what they are doing, but I am restating it for reasons of clarity as it is worth doing so.
The key point is that people will know that is what they are doing.
It is a totally different form of referendum.
Will the Minister rehearse the arguments among his colleagues as to the reason he did not follow the procedure followed in the divorce referendum? In that case the legislation was printed and available for people to see, but not enacted until the constitutional amendment. That process retained the power of the people to decide on the policy issue that they wished to change the Constitution to allow divorce. They could see the broad outline of how that would be achieved but, having passed the referendum, they allowed the Oireachtas to work out how it would be done. What arguments were made behind the scenes which led to the Minister's decision not to follow that procedure? Was it because he, or the people with whom he dealt, did not trust the Oireachtas? There has to be a reason this complex mechanism is being used. In the case of other referenda there was an outline of the legislation so people had something to discuss. What is the reason for the Minister suggesting there is a need for guarantees?
That is not what I am not suggesting.
That means we are not trusted.
Our experience is that people need guarantees on this issue.
Is the Deputy withdrawing the amendment?
I hoped the Minister might take it in the spirit in which it was presented. I am trying to be helpful.
This issue is as complex or as simple as one wishes. However, I stated that the key point made by Deputy McManus concerns the interregnum. On the basis of my legal advice I am satisfied that is okay, but I am going to read over the clarification on the strength of the contributions to this debate.
I will withdraw the amendment on the basis that I can refer to it again.
Tarraingíodh siar an leasú faoi chead.
I wish to raise a couple of issues which were not discussed during debate on the amendments. The Bill states, "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." Throughout the Bill there is constant reference to the President as male. I accept this is the wording in the Constitution which never anticipated that a woman would become President. However, is it necessary to stick with the male gender in an amendment? Would it give rise to a conflict to live up to the reality that we have our second female President? I do not know what the niceties of this are, but if, de facto, a woman can become President perhaps it is time the Constitution referred to "his" or "her". This question has not been dealt with and it is proper that we do so, particularly as the President is being bypassed in this process.
Section 6.2° to the First Schedule states:
If a law, containing only the provisions set out inAn Dara Sceideal - The Second Schedule to the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Act, 2001, is enacted by the Oireachtas, this section, other than the amendment of Article 40 of this Constitution effected thereby, shall be omitted from every official text of this Constitution published thereafter, but notwithstanding such omission this section shall continue to have the force of law.
What happens to those sections? Is a copy kept of the original Constitution, as passed, and amendments to it? When the Constitution was ratified in 1938 it was possible, for example, for the Oireachtas to amend it for a period, and it did so. Is a master copy kept of the original Constitution and the deleted wordings, other than in the printed version? One could not include them in the printed version as one would not be able to read it. However, is a record kept of the wording we now propose to delete? What happens to the deleted articles and wordings?
The gender issue could more properly be referred to the Oireachtas All-party Committee on the Constitution, chaired by Deputy Brian Lenihan. We also raised this issue at the time of the drafting of the Bill and it would be inconsistent with the Constitution itself——
His Excellency, President Mary McAleese.
I take the Deputy's point, but this issue needs a wider application to the entire Constitution. I presume Deputy Lenihan's committee dealt with this issue, but I am not sure.
Before Report Stage could the Minister clarify whether we can include the words "his or her" in this amendment?
I will clarify that issue.
I thought the Interpretation Act dealt with the issue of gender. It dealt with the issue as regards the law.
Yes, but not in terms of the Constitution. It would be cumbersome to change the wording in one or two articles and leave "his" in the other articles.
I will seek further clarification regarding Deputy Mitchell's second question. I presume records are kept in the Attorney General's office but I will check that before Report Stage.
I wish to refer to the issue raised by Deputy Gormley as regards the methodology as presented in the First Schedule, what it entails and what its net effect will be. I am unclear from the Minister reply as to where we stand as regards EU and international law or the possibility of a challenge. The protocol to the Maastricht Treaty strictly excludes EU law from application in Ireland as regards Article 40.3.3° of the Constitution. The solemn declaration of 1 May 1992 was later inserted to expressly exclude from the ambit of the protocol the freedoms to travel and information. Thus the protocol only applies to the issue of abortion itself as effected under Article 40.3.3°. This exclusion would not cover the new provisions in Articles 40.3.4° and 40.3.5° which could be challenged under EU law. Does the Government intend to do something about this or to leave the matter lie and see if someone challenges at EU level the new provision outlined in the First Schedule?
In the SPUC versus Grogan case in the European Court of Justice in October 1991, the court held that medical termination of pregnancy constituted a service within the meaning of the Treaty of Rome where it was performed in accordance with the law of the State in which it was carried out. The court in that case ruled it had no jurisdiction since there was no commercial link between the activities and information provided in Ireland and the providers of terminations in England. The judgment leaves open the possibility that EU law may be invoked in future and it challenged the provisions of Article 43.3.4° and 43.3.5°. This is not excluded by way of the Maastricht Treaty protocolumn Does the Minister have a strategy in this regard or is he currently in negotiations in regard to any attempt to expand on the Maastricht Treaty protocol? Have there been any discussions between the Government and the EU and, if not, is this not an issue?
The right to life of women and men is protected by international legal instruments, including the United Nations Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. By ruling out suicide, the international law protecting women's right to life is undermined. Under this proposal, the equal right to life of the woman becomes inferior and the right of the foetus or the unborn becomes superior. Where a pregnant woman is suicidal but denied abortion, in a situation where that abortion is deemed necessary treatment for her suicidal condition, her right to life is not protected.
The international prohibitions on torture and inhumane or degrading treatment are international instruments that prohibit torture and inhumane or degrading treatment or punishment. If a woman is denied abortion on the grounds that she is suicidal and is, therefore, forced to carry her pregnancy to term under constant and ongoing risk of suicide, this could amount to a breach of her right to freedom from inhumane or degrading treatment under international law. Such a ban could also be contrary to the right to protection by the universal declaration, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of all Forms of Discrimination Against Women, particularly because of the extra burden imposed on women who are unable to travel abroad or in respect of women who have encountered such difficulties in travelling abroad and who have abortions later. To deny a pregnant minor such as X or C an abortion could also be contrary to the UN Convention on the Rights of the Child.
Given that we have come to the point of assessing whether the First Schedule is a proper way forward, the Minister needs to address the issues of where that sets us in relation to international conventions to which we have signed up and European law and the rights that women, in particular, have within that context. Is it the case that the Minister is in some way trying to ensure an opt-out in order to back up this approach?
On the First Schedule and the 180 day period, under the terms of Article 46.1 it is proposed that the life of the unborn in the womb shall be protected in accordance with the provisions of an Act which at this stage does not exist. The point I am trying to make is that it is not "shall" as "will be in the future" but "shall" as "must". It is a present imperative rather than a future tense. How can the people direct the courts to ensure the rights of the unborn are protected in accordance with an Act which has not been passed by talking about that interregnum period? The Government proposal is that, unlike the 19th amendment to Articles 2 and 3, this amendment does not make it contingent on a future Act. It is to come into immediate effect with the provision that it may lapse if not buttressed by legislation within 180 days. If it comes into immediate effect, it will not have any immediate meaning because it will refer to legislation which does not exist. If it has no meaning on the day it comes into effect, it is very difficult to see how an ordinary Act of the Oireachtas can give meaning to an article of the Constitution which did not exist when passed by the people. After all it is the people who change the Constitution, not the Oireachtas.
While I accept the Minister will get advice on that point, I wish to record my concerns. I ask him to respond to the approach outlined in the First Schedule and the fact that women have managed to gain certain rights at international level. No matter what this Government does or whether the people include something in the Constitution which infringes those rights, it may cause a conflict of some other dimension if we incorporate certain universal Bills of rights into the Constitution.
Does the Minister have any concerns about including detailed provisions, some of which have been subject to public or international anti-human rights scrutiny? Perhaps there will be a conflict between what is expressed in international human rights conventions, matters which are subject to public international law. It does not just arise in regard to abortion in the Bill but to the whole area of aids, abets and counsels referred to in section 2(3). That section may raise questions about freedom of expression. It could be seen to be a breach of freedom of expression rights at an international level because the legislation also moves into the area of freedom of expression. The legislation criminalises actions and fields of communication which fall short of an abortion. It may be that it will open up a whole new area of constitutional challenge about the nature of freedom of expression. Including detailed provisions may result in setting up a conflict between international human rights law, as accepted by us, and the provisions which will be included in the Constitution. I think only two other countries have dealt with abortion by way of constitution.
When the Taoiseach answered questions on 9 October, he gave slightly contradictory answers. At one stage he said that if it is not covered by the protocol, a protocol can be nodded through at the Council of Ministers. Is it that easy to nod through a protocol on such a complex issue? If that is the case, I would be interested in the implications for the Nice Treaty. I would like clarification on this issue because I genuinely believe it is an area which the Government has not fully considered. What discussions have taken place with our EU partners on this issue and what are the likely implications?
I am concerned about the constitutionality of some of the provisions in the legislation. Section 6.1o.5° reads, "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 the Human Life in Pregnancy Act, 2002. I thought the purpose was that the Houses of the Oireachtas would not be able to amend this Act as set out in the Second Schedule once the referendum is passed. It states "as they apply to a Bill containing a proposal or proposals for the amendment of this Constitution." At the beginning it states that this Act may be cited as the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Act, 2001. Then it mentions the Protection of Human Life in Pregnancy Act, 2002, which is what is laid out in the Second Schedule. If this is passed by the people, do we not have to enact an Act, called the Protection of Human Life in Pregnancy Act, 2002, which will be initiated as a Bill and become an Act? Why is the word "amend" here as we will not have any power to amend the Bill as it passes through the Oireachtas?
That is to deal with any subsequent amendment to the Act. If a legislator seeks to amend this Act, it will have to be put to the people in a referendum.
Before we conclude, I thank the Minister and his officials for attending and the Deputies for their judicious attention to this Bill.