I move: "That the Bill be now read a Second Time."
It is an honour and privilege for me to have the opportunity of introducing, on behalf of our party, a Bill which, if approved by the Government, would mark a significant step forward in recognition by all sides of this House of the need for a new status and indeed recognition of the rights of Irish women. The Bill itself is a simple one. I believe there is substantial sympathy on the part of the Government to its general tone. In regard to its detailed content and actual expression we are open to suggestion or consideration of amendment. I have no doubt that the Minister will have something to say about that later. But there are certain things we are not open to and I hope to spell these out.
The reason for the introduction of this Bill is simple: in the situation obtaining, statutorily speaking, affecting this issue of criminal conversation, we recognise what is now widely perceived to be an affront to equality of human rights for Irish women. I do not think anybody seriously contests that any longer. The time is now opportune to grant Irish women the dignity and status of full equality in law and in all the social and economic implications arising therefrom. There are many of these areas. The growing concern expressed by organisations, or women's groups, by concerned citizens and individuals everywhere testifies to the fact that action is needed now and that the time for words is past. I am struck also by the fact that there is not really any excuse for action being deferred any longer in an area such as this. Often we are told that economic considerations, lack of resources and so on may defer or postpone indefinitely much needed and desirable innovation. This is not the case here. This Bill does not involve any extra charge on public funds. It is essentially a commitment to rid our Statute Book, our way of thinking and our way of life of an Act which deems a woman to be the property of her husband and which places her in a position of inferior status and restricted dignity relevant to her husband. That situation is no longer tolerable.
I feel there is substantial support throughout this House, and certainly throughout the country, for the ideal contained in this Bill. If we are now of the view, almost unanimously, that action needs to be taken to ensure that there will no longer be these discriminatory elements in our legislation, then not merely the criminal conservation tort should be abolished but a systematic, urgent analysis should be made of all legislation in this area with a view to ridding our legislative framework and all that it contains once and for all, of any nuance or discrimination against people because of their sex.
I appeal to the Minister to consider embarking on a new, dynamic drive to achieve that modest goal, a goal which is decreed to us, not merely by bodies such as the European Court of Human Rights but by our own innate sense of the Christian dignity of women. Sadly, the record of Irish Governments in relation to progress in law for Irish women is not good. Surely in 1980 there should be no need for this country, once again, to be dragged into the European forum to have extorted from it, usually from an apparently unwilling Government, a Government who ultimately grant, with some begrudging, new legislation, new attitudes or innovations which have to be forced on them by a more enlightened international process than we have managed to cobble together in this Chamber.
We are told this is a time of tight resources. If so, there is an obligation on the Government and on the Minister, particularly in this area, to embark urgently on the introduction of legislation which in many cases requires not financial resources, or major infrastructural rearrangement of the way in which we do things in society, but perhaps the most difficult of all commitments, the enactment of sometimes courageous, often difficult, but essentially just, equitable and necessary legislative innovations, now timely and essential if justice is to be seen to be done to Irish women.
Our basic thesis—and I should like to know if the Minister is willing to concur with us—is that the present position relating to the entitlement of a husband to take an action, the action of criminal conversation, against another male is no longer acceptable to anybody. Such an action has been discredited all over the world. Our Law Reform Commission, in their extremely comprehensive and very helpful paper on this and related subjects, dated 1977, clearly said also that the present situation was not tolerable any longer. I was pleased to hear the Taoiseach say, in his presidential address to the Fianna Fáil Ard-Fheis on 16 February 1980:
There are, however, still areas of discrimination and difficulty for women. Full equality is the aim of Fianna Fáil.
He further said:
...I would like to give this Ard-Fheis an assurance that we intend to proceed as rapidly as circumstances and resources permit and that we will not be satisfied until women enjoy a status in our society equal in every way to that of men.
That is a enlightened, constructive and helpful sentiment. If the Government propose to bear it out in reality surely it will mean that this universally accepted wrong, at present being perpetrated in Irish law in relation to criminal conversation must go. Otherwise those words are shallow and have no meaning. The Taoiseach said as soon as circumstances and resources permit. Resources are not at issue in this. I am not sure how flexible the definition of "circumstances" may be but I should like to hear the Minister say what circumstances could possibly inhibit the Government in a commitment at this time to ridding our Statute Book of the anomaly which treats people, because of their sex, as being different in relation to their legal rights.
The Bill before the House may not be perfect. Indeed, I consider it wrong that in the constructive working out of this type of proposal, the research facilities available to members of the Opposition are negligible beyond the minimum assistance available to anybody in the House, of the most routine and mundane, secretarial nature. Therefore I do not put this Bill forward on behalf of our party as if it was the last word in this area, or as if it was the ultimate say in relation to criminal conversation. It might very well be, in its technical detail, open to amendment, it may not be the ideal Bill with which the Minister, with his presumed legions of back-up and research assistance, would be able to come up—those good people in the Department of Justice and others who can help him draft into law the commitment, promise and, hopefully, vision of the kind of Ireland he wants, particularly one in which men and women are treated equally.
The Bill may not be perfect. I have no reason to consider it imperfect, but I enter the caveat that there might be technical aspects which need tidying up. Some interpretations of the Bill have lent themselves to unhelpful interpretations and extrapolations. I suspect there may be Members who are not totally zealous to ridding our Statute Book of this tort. Behind it all there is a commitment by everyone to ensure equality of access to law and the ideal of treating everyone equally in law.
Regardless of whether or not the answer now before the House is the right one, the mere voting down of this proposal is not adequate because it is widely recognised and accepted that the implication in the present situation, which, loosely interpreted, denies to a wife a reciprocal right to take action open to her husband, is not acceptable in constitutional terms—this is under article 40, which guarantees equality of rights under the law—and would not be acceptable in the European Court of Human Rights to which, very sadly, a number of Irish women have had to go to gain justice from an often begrudging Government. I hope this will not occur in this case. If the Bill is unacceptable in its present form it should not be deemed so by its mere voting down. I want a firm commitment this evening from the Government—whether or not they propose to introduce their own Bill and, if so, when and what kind of Bill it will be.
It would be remiss of me, a mere male who is not as au fait as many people are with criminal conversation implications and with understanding the affront which it is clearly seen to constitute to Irish women, if I did not mention the debt which Irish society. I and my predecessor, Deputy O'Keeffe, who embarked initially on the work in this area, owe to the women's organisations. Our concern in this area commenced when my predecessor in this spokesmanship, Deputy O'Keeffe, drafted the outlines of the Bill before us, researched the background to it, consulted widely and took every reasonable step to ensure that this proposed legislation was appropriate, fitting and met the objections of women in our community. These women's groups are numerous and include many who have clearly spelled out their opposition to the present situation and others who have been less vocal but who have indicated, directly or indirectly, that they would support the kind of progressive, enlightened, reformist attitude to legislation in this area now demanded.
They include Adapt, Aim, Ally, the Association of Widows of Civil Servants, the National Federation of Business and Professional Widows Clubs, Catholic Protection and Rescue Society of Ireland, Cherish, Cork Federation of Women's Organisations, Council for the Status of Women, Irish Countrywomen's Association, Irish Federation of Women's Clubs, National Association of Widows of Ireland, Irish Housewives Association, Irish Women's Aid Society, Joint Committee of Women's Society and Social Workers, the National Council for Single Women, Single Women's Association, Women Elect and Women's Political Association. I am sure there are others and I hope I do not cause offence by not referring to them. All of these in their various ways have expressed the view, some more strongly than others, that reform in relation to legislation affecting women is long overdue.
We are affording the Government this evening the opportunity of saying what their intentions are in this regard. I was pleased by the effort of many of these organisations to try and encourage the more reticent of our politicians to take the first timorous steps along the road of enlightened reform in this area. I am impressed that the Irish Country women's Association have time and again referred to the need for the abolition of criminal conversation. It is an organisation which, I am sure we all agree, does marvellous work for women and can hardly be said to be in the forefont of legislative demand or other proposals which would be open to the accusation that they were not helpful, for example, to the stability of marriage or moral standards in the country. This demand spread through women's organisations all of whom have shown a serious, studied, constructive socially conscious approach to this issue. I believe they represent the feelings of the overwhelming majority of Irish women. In a Parliament largely dominated by men it is important that this voice be represented. There are others in all parties better able to represent that voice than I and I hope they will participate in the discussion.
The situation we want to change is the capacity of a husband to take an action for damages against a person who has had sexual relations with his wife. This is the action of criminal conversation. The consent of a wife to the relation does not affect the entitlement to sue. It is not necessary that the adulterous conduct should result in the separation of the spouses. Conduct by the husband, however disgraceful it may be in itself, can only affect the question of damages and not the basic right to take the action. The view and experience to date has been that this right of action is unhelpful for a number of reasons and does not achieve the ideals which I presume those opposing change would seek to pretend it does.
I am sure we are all concerned about the question of marriage breakdown and marriage stability, If we are, let us have the wisdom and courage to discuss the issues which are germane to that problem. This legislation, rooted back in the mists of time somewhere in the middle of the 19th century, cannot be seriously argued to be in any way essential to any issue relating to the stability of marriage. On the contrary, the few cases that have been taken have largely served only to assuage a sense of perceived outrage, perhaps vindictiveness in many cases, on behalf of the individual and, on the other hand, the casual interest of the readers of some Sunday newspapers.
I have never yet seen a shred of evidence, and I would like those who seek to oppose this Bill to produce it if it exists, that the present legal situation has ever helped to heal one marriage, has ever helped to do justice to the children involved, has ever helped to do anything but hammer the final nail in an already dying or dead human relationship, and surely marriage is primarily a human relationship. None of us would seek to bludgeon our way into having changes enacted in areas of intimate, stable relationships between man and wife. It is no harm that the State should, particularly if there is evidence that legislation is, in fact, pointless and irrelevant and not achieving the ends, presumably, for which it was designed, withdraw gracefully, if possible, from that area. This is one such area. A marriage is fundamentally about human relationships. If the State wants to help marriages, let it do so by giving all the professional, counselling, financial and other aids necessary to build and maintain stable and happy marriages in these times of difficult economic and other pressures. Negative, divisive legislation, such as this, does not help to do so. This is not the view merely of this speaker, but of law reform commissions around the world.
A number of arguments can be advanced against the present situation. Most of them have been quite admirably dealt with in the Law Reform Commission's report to which I have already referred. These arguments are central to our opposition to the present situation and our request for enlightened change in that area. The most fundamental objection, of course, must be one of two very central arguments: the implicit inequality in relation to equal human rights for women involved in an action which allows a man to take a court action and not to grant his wife a reciprocal advantage. It is fair to say that there are some who say that such an action is open to a women. If it is, then women are not aware if it, nor have they ever undertaken such an action, presumably because they have been wisely advised that such an action is not, in fact, open to them. There is, therefore, at the very least a very substantial burden of evidence and argument to indicate that this is an action for a man against another man and is not open to the first man's wife.
The other essential argument, apart from the question of equality of human rights, is the notion of ownership, of subjugation, of proprietary interest to which women are subjected in the context of this action. The implication is that the woman is, as the almost medieval expression has it, the chattel of her husband. I do not think that anybody in this House, and, I hope, very few outside it, would testify that that attitude is sustainable today, if it ever was sustainable. If it is not sustainable and is not acceptable in this House, then we must do something about it. The "we" this evening can be either side of the House. The acceptance of this Bill would mark a major step forward in this area and would serve perhaps above all, to highlight the need for reform throughout this area of legislation affecting women. Failing that, the Government have an obligation to spell out clearly what precisely they are going to do, how they are going to do it and, most importantly of all, in view of these hazardous and difficult political times, when they are going to do it. There is no guarantee that any of us will be around for too long and I want any commitment in this area to be one that is enacted very soon.
The proprietary notion, the notion that a man somehow owns his wife more than she owns him—if ownership, indeed, is an acceptable expression in this context at all—is also repugnant. Some describe it as being barbaric and we would agree with that. Surely we cannot sustain the idea that two human beings, equal in the eyes of our Constitution, somehow differ when it comes to their rights in law in marriage. The rather bar barous theoretical basis of the action, savouring a proprietary interest in one's spouse, offends against not just what the Law Reform Commission, slightly quaintly, puts it "modern notions," but also offends against a deeply ingrained sense of justice in the equality of human rights for all people, regardless of their sex. This argument has won wide judicial support throughout the world and I have no doubt would, if contested here. Let us hope that an enlightened Government and an enlightened Minister will not wait for such time as we have to have the unseemly, unnecessary, prurient exhibition of a sordid case passing through the courts, before whoever is in Government at the time is dragged into the eighties, even if not kicking and screaming, even if objecting slightly.
Would it not be nice for a change for this House not to react to groups outside, to the loudest lobby, but saying, in principle, because we believe it in our hearts that here is a wrong and we are going to introduce the reforms necessary to correct that wrong? Would it not be wonderful for the Taoiseach and the Minister for Finance to recognise that it does not cost a great deal of money for a change and that here is a way we can make progress, where the quality of life will improve for people. Women, many of them never directly affected, but indirectly affected, nevertheless because of their fellow feeling for women who are in their position or who are in their neighbourhood or in their community, will appreciate that things are improving, that a parliamentary system works and that it does not have to depend on people beating down the doors outside. To do that, all that is necessary is to accept a modest Bill which is already the law in many countries in the European context and also, indeed, in Northern Ireland, where, no doubt, we would be very keen to make a good impression in this area as, I hope, in every other area. We have particular cause to be sensitive in relation to this or any other legislation.
There are other arguments made against this Bill, some stronger than others. One says that the action no longer transfers any ulterior legal benefit upon the plaintiff. Formerly, the action would have been a prerequisite to his entitlement to a parliamentary divorce, but that does not arise here. Therefore, this necessary prerequisite action, preliminary to divorce, because we do not have divorce, is not an argument or another reason for the dropping of this legislation, unless, of course, the Government propose to introduce divorce. I am not aware that that is the case at present.
Another argument says that perhaps, even in this context, the wrong person is being penalised. The Law Reform Commission refers to this argument. I am not sure that penalising anybody in this situation is the right answer. At best, and at heart, the essential argument to retain this legislation is our concern surely with trying to heal a marriage in difficulty and knitting together the strands of the lives of two people, whose co-existence has been sundered or shattered. If that is the case, public punishment and assessment and awarding of damages and all of the scandal that goes with them are hardly the cornerstone of a new day for the people involved. A much more human, intimate, sensitive, compassionate approach is necessary. There is no harm, in passing, to refer to something else. These are the eighties and the response of society—which is at the kernel of any legislation and our attitude to it—must also bear in mind trends as they evolve, trends in values and in the norms of society. What was perceived to be an outrage and a wrong in the nineteenth century may no longer be perceived to be the same kind of outrage or the same kind of wrong. What could be deemed, on one hand, to be an irrevocable step towards damaging fundamentally a marriage in, say, the twenties may no longer be that today when men and women have a new understanding of sexuality, of human relations and, perhaps, in some cases new attitudes to the confines which traditionally have been accepted in these areas. So, legislation of all kinds should be open to regular review particularly if it is legislation affecting an intimate human relationship such as we are talking about here.
Another argument—and this is the experience of people in law—is that the primary use of this legislation as at present enacted—and it has not been carried out very often—is in relation to its usefulness as a weapon for blackmail. Clearly, there is not much point in taking an action unless the person against whom you take it has substantial funds so that you can get substantial damages. That does not seem to be very good law because the wives of the poor— because poverty and beauty and physical attraction or whatever motivates people in this area are not intrinsically related and the husbands involved should surely be treated the same way in law as anybody else. But in fact there would not be much use in taking action here in this area. Therefore, I presume the actions are not taken. Accordingly, we have another anomaly because this is an action which is useful only if one happens to be able to sue a wealthy person. I suppose it is not outside the bounds of human ingenuity to contrive a situation where the person against whom an action—in some cases deliberately constructed—might ultimately be taken would be a person of substantial means because the scandal, defamation of character involved and even the unproven allegation would be such as to encourage a person to settle very rapidly before any court case. Accordingly, it appears to be the learned experience of eminent legal and other minds here and in other countries that there is a particular opportunity for blackmailing here. If this is the case and if the advantages to be gained from retention of this action are no longer valid, clearly we have another argument for getting rid of it in its present form.
It might be helpful to glance briefly at the situation in regard to this type of legislation in neighbouring and other countries, not because it is necessary for us to follow slavishly whatever happens in Britain or Northern Ireland— although we seem to do that commonly in any case—but because the basic body of legislation which we have here is similar in many respects and very much so in this case.
I want to make a further point about the essential kernel of the action of criminal conversation. The assessment of damages involved and the notion on which damages are assessed is unseemly, to use an inadequate word. In awarding compensatory damages we are told that regard should be had to (a) the actual value of the wife to the husband and (b) the need properly to compensate the husband for the injury to his feelings, the blow to his marital honour and the hurt to his matrimonial and family life. When I tried to grasp how one could assess the value of one's wife I found difficulty but the Law Reform Commission sought to advance my knowledge by saying that the value of the wife may be considered from two points of view, the pecuniary aspect in relation to which her future and her assistance in her husband's business and such allied matters are relevant and the consortium aspect, that is in relation to which the wife's general qualities as a wife and mother and her conduct and general character are relevant.
The very assessment of the damages is done on a basis which degrades. Without saying much more on that aspect, it is time that we were men enough to say, "Let us have the courage to change things that clearly need changing". I could develop that at some length but time and perhaps inclination do not allow it. The idea that this action is not reciprocal while not being completely unanimous is very strongly in favour of the view that this action is only for men. This is founded on the argument that historically the action has been based on the servile position of the wife relative to her husband and, according to the Law Reform Commission, the tendency in English decisions relating to negligently caused loss of consortium and the harbouring of a spouse has been to deny a right of action to a wife on the basis that these actions are anomalous and that it is better to confine the anomaly as far as possible rather than extend it further. That is an extraordinary statement which says that actions on this basis are essentially anomalous and therefore rather than extend them to women they should be restricted to men instead of admitting the anomaly, doing the right thing and getting rid of it.
It has been frequently brought to our attention that this is one area in the many areas where women are increasingly demanding equality of treatment in social, economic, cultural and educational matters and every other matter which can be changed literally almost by a nod of the head of the appropriate Minister. Therefore, we deliberately brought before the House this evening a Bill which is not complex, not enormously expensive, not designed to create any political or financial embarrassment for the Government but simply to afford them an opportunity of saying with us and with the Labour Party "This House is able to say, yes, there is a wrong here and we are going to change it".
The situation in Britain and Northern Ireland is that the tort of criminal conversation has been abolished for over a century. A replacement action there is now deemed to be no longer any use and the Law Reform Commission in Britain has, as recently as 1977, said that it, too, felt that the action involved in actions for adultry was no longer useful and that in the thousands of cases of divorce which come before it something like four cases had been raised in relation to pursuit of damages in this area.
If we are really concerned about marriage, this legislation has nothing to do with it. It is not worth the defence which may be made for it. Perhaps at one stage when people were different, when there was less emphasis on human relationships, when it was not as open to people as it is now to change their attitudes to the social norms and values of society, when a more restricted attitude was the norm, perhaps then that legislation had some value. I do not know, but I know that in 1980 in does not and we would like to change it.
A number of arguments have been put forward to retain the action and to these I want to refer briefly. In doing so I must omit, because time does not allow, any survey of similar legislation in other countries but those interested will see that the essence of what I am saying is correct, that this particular legislation is not on the statute books of other countries and that where a replacement action was introduced, it is not effective if by effective we mean helping to create the harmony and quality of human relationships essential to a marriage if it is to be a good marriage. The arguments against removing this legislation are something like these. We are told that the former concept of the action in which a wife was supposedly akin to a chattel of a husband has been replaced by the view that the action protects the stability of the marriage relationship and that this view could clearly involve a right of action for each spouse. I would find it anomalous if a statute, a Bill or a ministerial regulation enacted to do one thing by some mechanism in it or by the passage of time had come to be construed as something else. It is a very dubious argument and, as far as I am concerned, it is not acceptable because that is not what the initial intention was. The passage of time surely does not erode the principle of an enactment set out a long time ago.
The second point is that the legal position of married women has changed radically from the time when the action for criminal conversation originated. They now have certain advantages which they did not have then, like equal succession rights, equal rights to guardianship and so on, and therefore the action for criminal conversation should not be allowed to remain frozen in its historical condition.
Advances have been made in those areas, small in some cases and large in others, and this is another area where we should be willing to have the courage to make similar advances. Article 40 of the Constitution apparently tells us that the woman may have the reciprocal right here if she contests it. Allowing for the fact that this is a possibility, I believe that the essential tort does not help marriage, that a vague reference to the rights of women under the Constitution does not help women who in many cases are economically disenfranchised and that failure to amend this law is cowardice on the part of the Legislature.
There are other points as well but in my view they are spurious and have not at their core the concern or the commitment which I believe this House has in the eighties to enact legislation and to have attitudes and innovations fashioned in the belief that men and women in this country are equal in human rights and all that follows therefrom. I appeal to the Minister to give a sympathetic hearing to the Bill to do everything possible to introduce the spirit of this Bill and to co-operate with the House in doing this at the earliest possible date.
