Tairgim: "Go léifear an Bille don Dara Uair".
I move: "That the Bill be now read a Second Time".
On behalf of the parliamentary Labour Party I commend the Bill to the House. In the final analysis, the debate on it is about trust. To be specific, it is about whether we should trust the Coalition Government to ensure that the rights of pregnant women and girls to travel abroad and obtain any and all information they need about their pregnancy will be fully protected once the Treaty on European Union is accepted, if it is, in the referendum on 18 June. A great many people, many of whom are still considering the issues and have yet to make up their minds, want to know the answer to that simple question before they decide how to cast their vote in the referendum.
Those people are asking themselves the following questions. Can the people of Ireland trust a Government that sent a senior counsel into the Supreme Court to tell that court that if an English citizen came to Ireland and found herself pregnant and if it became known to the Irish Attorney General that she intended to go home to England for an abortion he would have no choice but to seek to prevent her doing so? Can they trust a Government who promised to deal with the issue of travel and information by amending the Protocol to the Maastricht Treaty and, when they failed to secure an agreement on that, refused to consider ways and means of either deleting or unilaterally renouncing that Protocol? Can they trust a Government who held up a so-called solemn declaration as having all the force of European law — I was on a radio programme one morning when the Minister for Foreign Affairs made the utterance that the solemn declaration had all the force of European law? Only this week the European Commission's legal services explicitly stated in the course of a dispute with the British Government that, "a Declaration can never deprive an Article in the Treaty of its practical effectiveness".
Perhaps the question to which people need an answer, one that has not been forthcoming, is, why was the Protocol inserted in the first place, who was it meant to appease and what was it meant to protect? All we know is that the Protocol was inserted in stealth at a meeting of Foreign Ministers towards the end of November last year. We were never told in this House or elsewhere that it was to be inserted or what is was meant to do. All efforts, since it came to light, to elucidate on that question have come to nought. For example, in the X case in the Supreme Court counsel for the family repeatedly asked that all documentation relating to the Protocol be produced. On the third day of the hearing counsel for the State disclosed that there had been no written representations to any other state in relation to the Protocol and, as far he was aware, no oral representations were made either.
How did the Protocol come about? Where did it come from? What magic wand was waved to produce this Protocol which has caused so much damage? The only clue we can find is an annotation in the Common Market Law Report of 7 January of this year. This annotation, which does not have the force of law, was prepared and inserted a month before the X case even arose. It makes it clear that it was the intention of the Irish Government, and the understanding of other member states, that the Protocol was intended "to ensure that no further challenges should be brought to the European Court of Justice against the anti-abortion provision in Article 40.3.3º of the Irish Constitution". The significance of this lies in the fact that the European Court of Justice, in the so-called Grogan case, left open the possibility that a ban on information could be overturned in a future case. In other words, the Protocol was intended to at least copperfasten the ban on information.
At the time the Protocol was designed and negotiated nobody anticipated that the circumstances which gave rise to the X case would result in an injunction being sought. However, there is no reason to believe that the Government would have been deterred from proceeding with the insertion of the Protocol even if it had occurred to them that it would subsequently be interpreted to deprive Irish women of their explicit European right to travel freely between sovereign states in the European Community, and to deprive them of that right without recourse to appeal to the European courts. That Protocol was designed and added to the Treaty because it was politically expedient for the previous Taoiseach and Minister for Foreign Affairs to enter into a secret understanding with some powerful elements in the so-called pro-life movement.
It has been said again and again by the Government, and others, that the Maastricht Treaty and the Protocol involve no risk to rights of travel and information. That is the contention they have repeated on the national airwaves since this controversy arose, but that is demonstrably and patently untrue. Unless the Government act to copperfasten these rights, if they believe them to be important, the Protocol will present a serious risk to them, and there is no denying that basic fact. At this stage the only clear and safe way to copperfasten those basic rights is to write them into Irish constitutional law. We should be under no misunderstanding about this. This is not something that Europe has inflicted upon us. Neither is it something that arises from any potential obligations we may have as a member of the soon-to-be European union. The effect of the Protocol may well be to prevent the European institutions protecting the rights of Irish women. The Protocol deprives the European Court of jurisdiction in any dispute about these basic rights. In that sense, the Protocol is profoundly anti-Europe.
No Government who are willing to stand over that Protocol and refuse to take the options available to them in the course of the debate on this constitutional amendment can describe themselves as a Government who are committed to the notion of European citizenship. There is an element of total hypocrisy in a Government seeking to affirm the benefits of the new integrated Europe or the establishment of European citizenship and at the same time seeking to obscure the fact that a large section of Irish citizens will enter Europe as second-class citizens and will remain so until these basic rights have been re-established.
Most politicians and most members of the general public who watched the Progressive Democrats' annual conference in Waterford will have been impressed by the speech of the Leader of that party when he pledged himself and his party, in ringing tones and with great solemnity, to protecting the full rights of Irish citizens in Europe. It is a pity that he and members of his party are not here to listen, if not to contribute, to this debate. At its conclusion the Progressive Democrats will be given the opportunity to stand up for those rights. To use this Leader's famous phrase, they will be given the opportunity to stand by the Republic. If they fail to do so they can never again argue that their first priority is the equality of every citizen.
Before going into the details of this Bill it is necessary to set out in some detail an analysis of the general situation which has arisen subsequent to the Supreme Court decision in the X case. Although we are dealing tonight with only some of the implications — the issues of travel and information — it is necessary not to forget the substantive issue to be dealt with. I intend to address also the substantive issue of abortion. We have made the most careful analysis we can as a political party of each of the individual judgments issued by the members of the Supreme Court. Arising from that analysis we are clear that the Supreme Court has found the following:
1. Within the terms of Article 40.3.3º of the Constitution abortions are lawful in certain circumstances, specifically in any situation where there is a real and substantial risk to the life of the mother.
2. Under the terms of our Constitution, in certain circumstances the right of a pregnant women to travel abroad can be curtailed.
Regarding the first point, the permissibility of abortion, the key judgment is contained in the following quotations, the first of which is from the judgment of Mr. Justice Finlay.
I, therefore, conclude that the proper test to be aplied is that if it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother, which can only be avoided by the termination of the pregnancy, that such termination is permissible, having regard to the true interpretation of Article 40.3.3º of the Constitution.
The second quotation is from the judgment of Mr. Justice O'Flaherty:
Until legislation is enacted to provide otherwise, I believe that 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. The danger has to represent a substantial risk to her life though this does not necessarily have to be an imminent danger of instant death.
The third quotation is from the judgment of Mr. Justice Egan:
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..."
The fourth quotation is from the judgment of Mr. Justice McCarthy:
. . . when there is real and substantial risk attached to her survival not merely at the time of application but in contemplation at least throughout the pregnancy, then it may not be practicable to vindicate the right to life of the unborn... This conclusion leads inevitably to the recognition that the wording of the Amendment contemplates abortion lawfully taking place within this State.
With regard to the second point, the right to travel, I want to put on the record the key passages from each of the Supreme Court judgments. Mr. Justice Finlay stated:
I would be forced to conclude that if there were a stark conflict between the right of a mother with an unborn child to travel and the right to life of the unborn child, the right to life would necessarily have to take precedence over the right to travel.
Mr. Justice Egan stated:
The right to travel can only effectively arise in reference to an intention to procure an unlawful abortion and must surely rank lower than the right to life of the unborn.
Mr. Justice Hederman stated:
If that involves restraint upon the removal of the protected life from the jurisdiction it necessarily involves the restraint of the movement of the pregnant woman. A restraint upon leaving the territory of the jurisdiction of the Courts would in the ordinary way be a restraint upon the exercise of the constitutional right to travel but the competing right is the preservation of life and of the two the preservation of life must be deemed to be paramount and to be sufficient to suspend for at least the period of gestation of the unborn life the right to travel.
I wanted to put all those specific judgments on the record of the House.
The implications of the court's judgment in this matter are profound. It can be argued that technically abortion is available in Ireland on an unregulated basis, subject to there being a genuine and substantial risk to the life of the mother. If that position were to be maintained for any length of time, the theoretical risk to health and indeed the lives of women would be very considerable.
At the same time, despite the provisions of the Constitution, it can be argued that in the absence of any regulation, there is no effective protection for the life of the unborn.
In addition, the judgment clearly has profound implications for what has been seen up to now as a basic right, the right of free travel. It can be argued that we now live in a State where the only pregnant woman who would be free to travel abroad in a completely unfettered way is one who is in imminent and visible danger to her life. In the light of the judgments, and, of course, of the Protocol, the restoration of this right cannot be achieved merely by legislation. Both of these implications can and must be addressed. The Labour Party's view is that failure to do so would be an abject failure by the Legislature and the Executive.
The Bill we have asked the House to consider deals only with the issues of travel and information, not because they are more important than the substantive issue of abortion itself — clearly, that is a crucially important issue as well — but only because the Protocol to the Maastricht Treaty has made the issues of travel and information extremely urgent.
We must, I believe, take a lead from what Mr. Justice McCarthy said in the Supreme Court in his judgment which was as follows:
In the context of the eight years that have passed since the Amendment was adopted. . . the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case.
When we eventually come to consider the substantive issue of abortion, we will have to remember that the only guideline to be found in the court's judgments is the guideline of, "a real and substantial risk to the life of the mother". Nowhere in the judgments can we find any guideline as to who ought to assess this risk on an ongoing basis, as to any limits that ought to be placed on where operations might be carried out and in what conditions, or as to the maximum term of pregnancy within which a termination may be permitted. These are issues which, if other options are ruled out, must be addressed by the Legislature.
Among the options to be considered now, as we prepare to deal with the substantive issue of abortion, is that the Eighth Amendment to the Constitution be deleted by referendum. However, it is entirely probable that the deletion of the Eighth Amendment, in and of itself, would make not the slightest difference.
In this connection, I would point out the first sentence in the judgment of Mr. Justice O'Flaherty when he said, "the enactment of Article 40.3.3º in 1983 did not I believe bring about any fundamental change in our law." It is quite clear that the courts have taken the view, notwithstanding anything specific in the Constitution, that the right to life of the unborn must be protected not-withstanding anything that was done or purported to have been done in 1983.
Alternatively, it would be possible to seek to replace Article 40.3.3º with an article which prohibited abortion in all circumstances in Ireland. Such an amendment would be asserting that the mother's right to life was subordinate to that of her unborn child. Even if it were acceptable to insert such an article in our Constitution — and I and a great many others would argue that it is entirely unacceptable — the reality is that such an amendment would be unlikely to change the view of the court expressed in this case, that a mother at serious risk to her life must be protected. It would be in obvious and total conflict with the personal rights contained in Article 43 of the Constitution.
In any event, as I said, any such proposal would be bitterly, and rightly, fought on the grounds that a complete ban on termination in every case would immediately give rise to extreme danger for women at medical risk through, for example, uterine cancer or ectopic pregnancy. It would be widely seen as an intensely hypocritical approach to a complex and painful problem.
A third option would be to seek to amend the Constitution to set out therein a range of possible grounds on which terminations might be permitted. However, it would be clearly immensely difficult — in my view impossible — to list such grounds in so inclusive or comprehensive a way as not to leave any further room for doubt or ambiguity. Although a number of additional permutations and combinations are possible to imagine, I find it almost inconceivable that a formula can be developed, to be enshrined in the Constitution through a referendum, which would not be the subject of an intensely divisive campaign.
I also believe, having carefully considered the judgments of the Supreme Court, that it would be virtually impossible to devise a formula for a new insertion in the Constitution which would pass the test that the court has devised — the probability of real and substantial risk to the life of the mother — any better than the existing formulation. In those circumstances, it seems clear that we must sooner or later address the legislative changes that are necessary and constitutionally possible to give effect to the court's judgment.
The Supreme Court has decided that there are certain circumstances in which abortions are permissible under our Constitution. For all the reasons outlined above, we must start from the point that there is no going back from that judgment. We have in our Constitution, as a result of the Supreme Court decision an equality of rights between the unborn and the mother, except where there is a real and substantial risk to the life of the mother, where the mother's life must take precedence. That is a position that will be supported by most reasonable people.
We need new legislation to give clear guidelines on this matter. Such legislation must, in addition to taking careful account of the judgments of the court, also deal with a number of factors, including independent psychological and medical procedures for assessing risk in any mother seeking the termination of a pregnancy; qualifications of the persons authorised to carry out the medical procedures involved in terminations; the maximum term within which terminations may be permitted and the degree to which information and counselling in respect of terminations will be made available.
In addition, action now must take account of the views expressed by Mr. Justice McCarthy in his judgment. He said:
Legislation may be both negative and positive: negative, in prohibiting absolutely or at a given time, or without meeting stringent tests: positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family.
We cannot ignore the need to establish a whole new, and adequately resourced, counselling agency to deal with all of the implications of this situation.
To return to the main issue before us tonight, I want to refer for a moment to the position that would arise if the Maastricht Protocol was deleted. While clearly, its deletion would be preferable to the present situation, it should not be forgotten that the Supreme Court did not issue any judgment on the European law aspects of the issue of travel in the "X" case. Therefore, it is entirely arguable that if the Protocol was simply to cease to exist, the paramount legal view on this issue would then be that of Mr. Justice Costello in the High Court. He is the only judge who has examined this issue as a matter of European law, as opposed to Irish constitutional law alone. He has already found that under existing European law, it is permissible for the Irish State to restrict the right of travel to protect the right to life of the unborn. His judgment in the matter is not capable in the present circumstances of being appealed to Europe, since it has been overturned, on an interpretation of Irish law by the Supreme Court, although the Supreme Court took no account of European law aspects of the case.
In these circumstances, therefore, and for all the reasons I have argued, I believe that the only safe thing to do, in order to restore a fundamental right of travel which is now threatened in the case of every pregnant woman, is to amend our Constitution, and to do it now. The Bill we have published and which is before the House tonight would have the effect of achieving that and would enable the citizen's rights involved to be extracted from the Maastricht Referendum and the Maastricht debate. Our Bill is the only way that can be comprehensively achieved. The effect of our Bill is to provide for the holding of a referendum to insert into the Constitution the rights to travel and information that have been put in doubt by the combination of the recent Supreme Court decision and the Maastricht Protocol. If our amendment were adopted by the people the full test of Article 40.3.3º and a new Article 40.3.4º would read as follows:
40.3.3º 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.
4º Sub-section 3 of this section shall not be invoked to prohibit or interfere with the exercise of the right—
i.to travel to and from the State for the purpose of receiving services lawfully available in other jurisdictions, or
ii. to obtain, within the State, information and counselling relating to such services.
The provision of such information and counselling may be regulated by law.
The wording is clear and self-explanatory. We believe there ought to be no provision in the Constitution which could be used to prevent pregnant women and girls from travelling abroad to receive services which are lawful in other jurisdictions, or to obtain in Ireland information, including counselling, in relation to such services. Our proposed amendment achieves those objectives. It also provides for the dissemination of such information and arrangements for counselling to be regulated by law, enacted in this Oireachtas, in order to ensure that all such information and counselling is of a proper quality and conducted in an appropriate setting.
In addition, the words chosen ought to be non-controversial. No group has argued against the right to travel and none has argued against the right of women to be informed. For that reason, we can see no reason this or very similar wording should not be accepted and enjoy widespread support across the political divide and among every party in this House.
It has been our intention since this Bill was published to seek cross-party consensus. We sent the text to the Leaders of each political party in this House and asked if they wished to co-sponsor the Bill. In that way we wished to approach this issue in a non-political, non-partisan way.
It is worthwhile mentioning that we did, in fact, receive a courteous reply to that approach from the Taoiseach in which he indicated an unwillingness to depart from the timescale he had previously set out. He indicated clearly he had no problem with the general thrust of the Bill. He also said in his letter, on behalf of the Government, that no action would be taken to offend against the spirit of the consensus that exists on the issues of travel and information.
The bottom line is that this Bill demonstrates that the issue can be addressed properly and in good time. A failure by the political system, and especially of the Government, to address the rights to travel and information in the context of Maastricht, could be a recipe for disaster.
I should like to sum up the situation. First, the referendum on Maastricht is inextricably linked with the issue of travel and information as it affects women. To say otherwise is to deny a basic reality. Unless that linkage is broken, it will be impossible for many citizens, particularly women, to vote in conscience for a Maastricht Treaty that otherwise they would be prepared to support. Second, the Government have argued that the issues of travel and information are too complex to deal with in the context of the referendum on Maastricht. That argument is erroneous. The issues of travel and information are not complex. However, the situation that could arise if they are not dealt with prior to the Maastricht Referendum is shrouded in complexity and danger.
There are some things we can be certain of; once the Maastricht Referendum is passed — if it is passed — so is the Maastricht Protocol; once the Maastricht Treaty has been adopted unchanged it will remain in force, incapable of being changed, at least until there is a full meeting of the new inter-governmental council, any changes agreed at that level may well not have any legal force since they will not be properly ratified. Therefore, in the absence of any other change, the Maastricht Protocol could defeat one of the main purposes of the Treaty itself — the notion of a common and equal citizenship with a broad range of rights, including the basic right to travel between the component parts of the new European Union. The concept of citizenship is fundamental to the Union Treaty and it is being compromised by the position adopted by the former Taoiseach and the position currently adopted by the Government.
The adoption of the Maastricht Protocol copperfastens judgments like those I quoted earlier and removes the possibility in future cases of an appeal to the European courts. We have argued in the past, and we still believe, if it were possible to delete the Protocol now it would mean that the primary source of law in the area would be the decision of Justice Costello in the High Court, since he was the only one to pronounce on the issue as a matter of European law, and the European law issue was not examined by the Supreme Court.
For all these reasons it is of fundamental importance that the right to travel and information be dealt with now. The Taoiseach and others have suggested that that right could be left to one side until the autumn, and that they can be trusted at that stage to deal with the issues. That means the Government are asking women and girls to agree, at best, to an interregnum period during which they will have rights that are less than those of every other European citizen, at worst, they are asking women and girls to believe that the issue will not be lost sight of because of some other crisis or instability or because they have capitulated to a pressure group. We live in volatile and difficult times.
For any Government to ask its citizens to issue them with a blank cheque in respect of a basic right such as this is unacceptable and it becomes completely intolerable when they refuse to take the necessary steps. In 1983 the people of Ireland voted overwhelmingly to insert a provision into the Constitution to protect the life of the unborn, subject only to the equal right to life of the mother. Despite the claims used by many people, there is no reason to believe the great majority of the people of Ireland want to see that balance of rights between the mother and the unborn child disturbed. Neither is there any reason to believe the majority want to see the right to travel and information, which is available to every other citizen in Europe, denied to any citizen of Ireland.
The Supreme Court interpretation of the balance of rights has given rise to the need for a complex and detailed examination of all the legislative options. We fully recognise that and it is not our intention to interfere with the process of examination and analysis that the Government have undertaken. As I have already said, the issues of travel and information do not require the same complexity of analysis and should be acted upon immediately. Now is the time to address these issues.
The Labour Party Bill before the House is the vehicle for the Government to show their good faith and bona fides in this regard. I commend the Bill to the House.