I reported progress on section 5 and I was dealing principally with subsection (1) (a). This subsection permits the importation of contraceptives without a licence by a person when the contraceptives are part of his personal luggage and their quantity is not such as to indicate that they are not solely for his own use. I drew the attention of the Minister and the House to the consequences of the condition imposed by this paragraph. One could have a field day in ribald speculation as to how it is going to be enforced and who is going to make the decision.
Health (Family Planning) Bill, 1978: Committee Stage (Resumed).
Question again proposed: "That section 5 stand part of the Bill."
Following yesterday's discussion I would be inclined to say ribald.
At this stage it opens all sorts of possibilities. Is the customs officer to be the sole judge of the quantity? Will different criterias be applied to foreign infidels coming here? Will the Director of Public Prosecutions have a different view from the customs officer who makes the initial decision? The condition is so daft in its possible consequences that it discredits the subsection in question. I can see the need for paragraph (a) though I might not agree with it. I would ask the Minister to justify the retention of the words in the subsection.
I must confess that I am not greatly enamoured of this subsection. The only way I can put it is that it is perhaps the line of least embarrassment. If one accepts the principles of the legislation, one is inevitably forced to some such provision as this. The principle of the legislation is by now accepted by the House. There is a general concensus that artificial contraceptives should be reasonably available to married persons for family planning purposes but that there should not be uncontrolled or unlimited availability of artificial contraceptives to the community as a whole without regard to category or age. That inevitably forces us to the position of controlling importation, which section 5 is all about. There would be no point in making these provisions if the importation of artificial contraceptives was not under control, so we have to set up a reasonably acceptable system of control.
The importation of contraceptives is strictly confined in a way that controls the overall purpose and philosophy of the legislation. One must recognise that the individual traveller, whether he is a citizen of the State or a visitor, is entitled to some provision in regard to this coming into the country. This provision is put forward in order not to raise an intolerable and unacceptable situation where every person coming into the country had to be rigorously examined. This is the compromise put forward. I do not claim that it is a brilliant compromise. A look at the different factors will inevitably drive one to provide something along these lines.
I am not terribly concerned about the question of customs officers being embarrassed. They are skilled and they deal with this sort of thing as part of their normal duties. Travellers import all sorts of intimate items in their luggage. Customs officers have to deal with the totality of a person's luggage as it appears before them on the counter. Some of the items may be of an intimate personal nature, but customs officers deal with them in a courteous, understanding and sympathetic manner. From their point of view there would not be any great problem in administering the provision any more than there are any particular problems in administering other similar types of provisions with which the customs code abounds.
In section 3 of Senator Cooney's own Bill he provided:
Where he is satisfied that contraceptives are not reasonably available to a married person because of the distance from that person's place of residence to the nearest place where a person holding a licence under section 2 carries on business, the Minister may grant to that married person a licence under this section to import contraceptives of such class or classes as may be specified in the licence, subject to such conditions (including conditions as to quantity) as may be so specified...
I am not criticising that provision. Senator Cooney, in endeavouring to meet that difficulty, put forward that section. It seemed to him that that difficulty had to be met. Much the same type of criticism can be levelled against section 3 of Senator Cooney's Bill as can be levelled against section 5 (1) (a) of this Bill.
The provision is not one which would endear itself to anybody, but I believe something like it has to be put in to deal with a situation which could be quite intolerable and unacceptable.
I have to express the hope that common sense will prevail in this area. It is not my intention, or anybody's intention, that there should a frenzied outbreak of activity by customs officers enforcing section 5 (1) (a). All they would be concerned with, I understand, is to ensure that this provision is not used to drive a coach and four through the legislation. It is reasonable to have visitors bring in these items for their own use, particularly if they are readily available to them in their own country. That is the reason for the provision. On the other hand, Senators will immediately see that unless there is some control the importation restrictions could be completely nullified. I have to defend this provision on the basis of being a reasonable compromise and being the line of least difficulty in the situation.
I have a great deal of sympathy with the mode of defence that the Minister offers, such as it is. He tells us that it is in the line of least embarrassment. It also seems to be the most damning indictment of the Bill. Out of his own mouth came something more effective than anything I heard from this side of the House. He said: "If you accept the principle of the legislation you are forced to some such provision as this". This is a shaming provision in that it will work in the sense that it is not operated. Yesterday the Minister and I had an exchange about whether law is supreme in relation to everything else. I did not agree with him when he said that it is.
Only in a democracy.
That condition was presumed by both of us. To claim supremacy it has to be good law; it has to be law that is intended to be implemented. This will only be acceptable on the basis that it is not implemented. I understand the difficulty that this basic principle of the Bill has brought us to. It is not enough to say that common sense will prevail. We will not pursue the ludicrous thing of the determination of number in that regard, though it is shaming for any nation to be trying to enact a section as ludicrous as this one.
It is a now practical reality that all arrivals areas have green and red channels. There is the "nothing to declare" channel and the one where you declare something. Which channel to take is a practical decision for tens of thousands of people. Does a person tell a customs officer and does he say how many? Does he then consult some magic book of words that has been crocheted somewhere in the depths of a Department and either pat you on the head or take them away from you?
This provision forces people to violate their conscience as did the previous legislation. I think the Minister misunderstood me on Second Stage. I was not talking about use. I was talking about importation when I described the way my conscience had been violated for all my adult life. This provision puts people in the same position.
It was never an offence to import them for one's own use.
I would need to acquaint myself with the detail of that. I am not a lawyer. Another lawyer here says that under the 1935 Act he thinks it was an offence.
I am harping back to my own days in Justice. I do recall that persons who were clearly importing artificial contraceptives for their own use were permitted to do so, whether it was an administrative matter or not. That was the administrative way in which the matter was dealt with. It may have been strictly illegal.
It was illegal, not strictly illegal.
I know it was dealt with administratively in my time.
In my time there were more pressing problems.
I did not mean to indulge in that digression except to illustrate the point which the Minister has brought out better than I could by his intervention and by the interesting phrase "strictly illegal". If the law is to be supreme it has to be good law and be enforced. Apparently there was an administrative arrangement that the public did not know of whereby the law, which was not important in a major economic sense but in an ordinary personal human sense in regard to the atmosphere of the country in which we live, was not being enforced, we are now told a long time afterwards by some administrative arrangement.
We get into crazy grey areas which demoralise everybody and bring the law into contempt. It makes us a laughingstock, both internally and externally and the former is much more important. There is already one comic book on the Bill and there may be more. It is a very funny book, but it could not be funny if the subject matter were not proper subject matter for that sort of sad and cynical comedy. This is a perfect illustration of the mess we are in. I think he ought but I do not expect that he will say any more about the administration, about the regulations, about that genuine dilemma of the red and green channels and so on. These will be left to the sort of obscure administrative arrangements that there is a law on the Statute Book that can be brandished on the basis that everybody knows it will not be implemented. That is a bad situation.
Part of this difficulty—it could have been said anywhere in the debate but it is appropriate to say it now—arises because of the immense spectrum of public opinion. That is the reality and we all accept it. Political parties, other than my own, have a duty to try to move public opinion away from the received attitudes of half-a-century ago and try to make the case for a more progressive and liberal law. I recognise that the Minister is trying to do that in an administrative way, which is intensely unsatisfactory, contradictory, chaotic and ludicrous. The situation would be far easier for all of us if people were prepared to grasp that particular nettle across the spectrum of political parties and to argue the case for a more liberal situation from all political angles.
I hope we will not get too bogged down in this matter. There will not be any great difficulty at the green and red channels. All that concerns us is: "Are you importing these things for your own use or are you importing them for sale?" People not importing them for sale go through the green channel. A hippie or a smuggler, or someone trying to break the law should go through the red channel, but it is doubtful that they will. Generally that applies to the various concessions in regard to cigarettes, alcohol and so on.
People are allowed to take a certain amount of these things, whether in quantity or volume. If they are within the limits they go through the green channel. If they are not within the limits they have to decide whether they should go through the red channel and confess all to the customs officers. The distinction is very clear. It may not be always clear in its administration. If a person imports any of these items for his own use and does not intend to sell them, and they are not of a quantity that would indicate going into business and selling them, then there is no problem.
The Revenue Commissioners do not rely entirely on the searchers at the airports or seaports to deal with this situation. If somebody is trotting back and forward, importing contraceptives illegally for commercial reasons, I think the Revenue Commissioners will quickly cop on to them. I recognise that it is not a perfect mechanism, but I believe that it will not give rise to any serious problems in its administration.
If the reasonable remarks of the Minister were to be guaranteed to us as the guidelines of the people putting it into effect, the situation would be better than it may well be.
I undertake to write along these lines to my colleague the Minister for Finance.
That is an undertaking that we are pleased to hear. There is another aspect which seems to be working in the opposite direction. The acute social problem that arises in the context of the very large families arises generally among working-class people with low levels of education and often where there is a drink problem with the breadwinner, the male. The circumstances of numerous pregnancies closely spaced, bad housing accommodation, erratic income, irresponsible male parent and so on, produce a next generation that will be a charge on the body politic, one way or another. The role of contraception in that context for the protection of the mother and the existing children is extremely important. I think rhythm methods in that context are not of great interest. The most appropriate in that context, both by price and the rest of it, is the condom. It is fine if one has the money to travel. We ought to note that the Minister is simultaneously cutting off the current source of supply, which is the famous under-plain wrapper, the posting of condoms from various suppliers in the UK to whatever address the person wants to use. That is the major and convenient source of supply. Going to a doctor for a prescription and going to a chemist is offered as a replacement for a postal transaction which is now being discontinued. The discontinuing of the postal transaction can be circumvented if one has the money to travel. The Minister must know that what is widely practised is something intermediate between a commercial transaction and a personal transaction. In other words, somebody gets supplies for five or six friends. If they are passed on at cost, there is no trading in that sense. If a customs officer found a supply for six families in somebody's luggage it would not be contravening the section. However, there seems to be a differentiation on the basis on income. People with good educational standards, good housing, high incomes, able to travel, regulate family size and have been doing it for generations. Whatever methods they use, the vital statistics reveal that as you go up the socio-economic scale the family size diminishes. It is fine if one can go to Liverpool or Belfast or somewhere like that, but it seems to be a differentiation against the section of the population which most need the sort of rubber goods, to use the slang phrase, that are transported in this way.
Our common worry is the unsatisfactory conditions which the Minister has had to include. We should look at it to see if we can halve the paragraph and exclude this unsatisfactory criterion.
I take the Minister's point that there is a jurisprudential value in inserting a prohibitional piece of legislation, withstanding the fact that the enforcement of the prohibition may be difficult. The Minister referred to the Bill which I introduced. In that Bill there was a prohibition of that kind, a prohibition on the sale by pharmaceutical chemists of contraceptives to all unmarried persons. Such sale was made an offence. It was put to me that it was unenforceable. It might not literally be unenforceable, but its enforceability might be difficult because the gathering of proof could be difficult. That did not take from its deterrent value. The inclusion of a prohibition acts as a deterrent. It signals certain attitudes which responsible people will obey.
What the Minister wants to do in this section is to signal that importation for personal use is acceptable for personal use to him but that if it goes beyond that it will be an offence. That is all he wants to do because he has admitted here that the enforcement of this could be difficult and could lead to odd situations. All he wants to do is to put on the record that personal importation is not an offence but hopes to guard against an abuse of that reasonable exemption. If this was to be redrafted on the lines that they are part of personal luggage accompanying a person when he is entering the State and are not for resale that would meet what he has in mind, and then it would be a matter for the Revenue Commissioners. The Minister rightly says that the Revenue Commissioners know what is going on and if there was some personal importing on a regular basis going on the Revenue Commissioners would be able to produce the necessary evidence that that was taking place. But at least it would be a more dignified paragraph than the paragraph as presently drafted. The Minister might consider that, although I feel in suggesting any amendments here in this House that I am beating my head against a stone wall to some extent, certainly suggesting an amendment at this stage of the parliamentary year when the other House is about to finish and if the amendments are accepted in this House it would mean legislation could not be processed until the Dáil came back. I feel that we are a sort of political harem here at times, but even more so this time of the year. Those on the far side do what the Minister wants and we on this side can only look on helplessly. So I do know that this whole debate is slightly unreal at this time of the year because the chances of getting any changes in the legislation are literally nil. But I would urge on the Minister that the words I have suggested would be less undignified and less prone to criticism from quarters that I and the Minister would be keen not to give the opportunity to criticise the Bill any further.
I want to return to something the Minister said. He said that if one accepts the principle of the legislation one is forced to some such provision as this. They are his words and not mine and I wonder if they are true in the new circumstances. The reason that people in the past—and here we are talking specifically about condoms—brought in suitcases full and flogged them and made money on them was because of their unavailability. The State, in my view improperly, created a total unavailability and that generated a situation of smuggling and they were not in essence different from any other article in short supply or illegal.
My disapproval of this Bill is known but it is fair that I say that it does mark a step forward; it is an inadequate one in my view but it is undeniably a step forward. With the provisions of the Bill and with the analysis they have had it is clear to me that not alone will contraceptives be available to married people on a doctor's prescription but, in fact, in the reality of it they will be widely available here. The unenforceability of the Bill, in practice, makes it better though it makes it bad law. In the reality of what life is like in the Republic of Ireland it is an improvement. But that being the case it seems to me that the motive for smuggling this suitcase full at the customs disappears because the manufacturers, London Rubber Company or whoever, have retail distribution mechanisms; they have wholesale agents and retail agents so the things can be legally brought in now. The pressure, therefore, to do this illegal thing will diminish. If it happens at all it will happen on an absolutely tiny scale by people who, in regard to the general supplier, have no significance whatsoever. So it seems to me that in the atmosphere that the Minister is in fact engendering and in the physical situation that he is engendering by this legislation the motivation for smuggling will disappear. No smuggler could do it as economically as a wholesale and retail mechanism working through the chemist shops. Nobody could compete on price. In that context this undesirable line of least embarrassment approach becomes unnecessary because it seems to me to be——
Is the Senator arguing for the provisions?
I am arguing for the dropping of the whole of section 5 as being unnecessary and irrelevant in the context, and that there is no need for the embarrassment because the Minister has created a situation or is in the process of creating a situation where the temptation and the reward of smuggling will both cease to exist.
That could hardly be true because, if I understand the purpose of the Bill, it is to provide contraceptives for family planning among married people. Therefore, the smuggler would surely have a market among unmarried people.
I am very glad to hear Senator Keating say that the Bill is a step in the right direction. This is a slight reiteration but most of the critique that is being launched at the Bill demands clarity and precision and condemns what is said to be the ambivalence, the contradictoriness, the ambiguity of some aspects of the Bill. I stressed yesterday that if it were a Bill on industrial relations as distinct from a Bill on sexual relations, the seeking of that kind of clarity would be valid. But even Senator Keating's last speech seemed to me itself to be quite ambivalent. He recognises the ambivalence of this situation. For instance these family planning clinics have been in existence for 12 years or so. When the Coalition Government were in office, after the shipwreck of Senator Cooney's Bill, which was a national disgrace and which I hope nobody here regards as anything else, the Government winked at the massive large scale importation of contraceptives into this country which was of the most dubious legality. But they did not prosecute because they knew it was one of these strange ambiguous areas where that kind of precision which one was looking for was not possible. The Minister is being accused over and over again of ambivalence, ambiguity and, sometimes, dishonesty. But there is a lot of dishonesty in the criticism itself.
Senator Martin has raised something and is taking the heat off the Minister at this stage. He has raised the point about the attitude of the National Coalition Government after the failure of the Bill that I introduced. The implication was that breaches of the law were being condoned by the then Government. I want to say quite categorically that that is not so. There was no question of any situation that was brought to my attention where the breach of the law was taking place where I in some way connived with this non prosecution. The system does not work that way. Breaches of the law are reported to law officers of the State for prosecution by them. I want to make it quite clear here that I did not, nor did any of my colleagues, interfere in any way in the mechanism of the enforcement of the law so far as this area or any other area was concerned.
I want to make a simple point. That is a good adroit answer by Senator Cooney and I am not casting any aspersions on his integrity.
It may be adroit to Senator Martin's ears but it is the plain unvarnished truth.
Is it not the plain unvarnished truth that the clinics existed openly under the Coalition Government and that something that was deemed to be a gift was in fact a sale, that there was an extreme ambiguity about the legality of these clinics all the time and that the police, for what reason I do not know, refused to take cognisance of this? I think they were perfectly right to do it. I do not blame anybody for it. I am merely saying that the area is a grey one. It is a difficult area to legislate for and the type of clarity that is being sought and the kind of pressure being put on the Minister to explain is not altogether fair. That is my view.
I want to take issue with Senator Martin. We all understand that there is a need and we are aware that the Minister had to legislate keeping that need for ambiguity and lack of clarity in his mind. Senator Martin accepts that there is a need for that kind of ambiguity in this area. But that does not stop him or us or anybody else from expressing unease at having any hand, act or part in passing a Bill about which we are not proud; I suspect the Minister is not proud of it and I feel that we would be absolutely failing in our duty if we were to rush through this Bill and get it through the Committee Stage very quickly without questioning anything because we cannot possibly be clear in this area. That would be an extraordinary failure on our part.
On the section itself I do not understand why, if the whole Bill's purpose and aim are to make sure that single people do not have access to artificial contraception, there is no mention at all of the marital status of citizens of this country who are importing contraceptives for their own use. The whole purpose of the Bill, as the Minister has said earlier on, was to restrict——
Possession by a single person or a married person or anybody else is not an offence. It is only sale and importation that is an offence.
Question put and declared carried.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
On section 6 (2) (a), (i) and (ii), in regard to manufacture, the manufacturer must either supply to a chemist or be a chemist himself. I take it that the meaning of line 41 is that a person is a person specified in the said section 4 (1) (b) (i) who is, in fact, a chemist. It is very odd because chemists are a certain sort of person with a certain sort of training who are no more likely to have manufacturing expertise or special knowledge in this area than almost anyone else in the population. Any sort of scientist, doctor or manager would have the same sort of expertise because we are not into an area that the chemists possess particular skills in, so I was just wondering why that was there at all.
The Minister may license people provided he is satisfied that they are the appropriate sort of people and provided they have not been convicted of an offence under the Act. There is no particular provision for pharmacists in regard to manufacture. Perhaps I could suggest to the House that this section is dealing with something very remote. I do not believe that anybody is ever going to set up to manufacture contraceptives here.
It could arise in the case of the pharmaceutical industry manufacturing contraceptives or something that would have a contraceptive effect. In that case and for that sort of thing would the Minister's licence be necessary?
They would come under the normal drug code. We have very up to date legislation on drugs.
They would not require a licence under this Bill.
There is certainly one company, Syntex, which is a world leader in this area. I do not know whether they are currently manufacturing hormone pill contraceptives but when the Minister says that he doubts that it would ever happen here, I think it may have been happening here for some years. I am not certain but it would be perfectly possible and likely.
Question put and agreed to.
SECTION 7.
Amendment No. 12 not moved.
Question proposed: "That section 7 stand part of the Bill."
Perhaps the Minister would clarify it for me. I do not know whether or not I am reading it correctly. I am reading it to mean that casual advertisements for contraceptives in magazines, newspapers or in the media generally or their display on an uncontrolled basis will be prohibited by this section and that any advertising or display that takes place is going to be only such as would be allowed by the Minister.
Yes. That is so.
Could the Minister give us at this stage some idea of what he will have in his regulations? I must say that I would be very keen to see very strict control on advertising and I agree that this would need to be strict to be in accordance with the general policy of the Bill that the availability of contraceptives is going to be on a very restricted basis and for family planning reasons only and only to families within the constitutional concept of that word. I would take it that the Minister will ensure that any display advertising which takes place will be totally in line with that policy.
The Senator, in saying that, is very much in line with the almost overwhelming opinion that emerged in the course of my consultations. Whatever else people disagreed about, everybody was agreed that there should not be uncontrolled commercial advertising of contraceptives. It was really in pursuance of that very generally expressed wish that I put in this section. It enables me to make regulations, and my idea of the regulations would be to restrict advertising in relation to contraceptives to doctors, nurses, pharmacists and anybody else who has a part to play in the provision of family planning services, much the same as obtains in regard to drugs at present; the advertising of drugs is, to a large extent, restricted to professional people. So the intention of the regulations would be to make sure that the wholesale or widespread commercial pushing of contraceptives would be forbidden. On the other hand, the regulations would make sure that everybody who needed to have access to information about products would be able to have that information available to them.
Is the Minister satisfied that he will have power in his regulations to restrict or prevent the sending of unsolicited material through the post? In the amendment which I took from the 1974 Bill and which I did not move there was a specific prohibition on the sending through the post or delivering of any unsolicited advertisement. Could the section as drafted allow the regulations to take in that situation?
I am advised that I would have that power.
Question put and agreed to.
Section 8 agreed to.
SECTION 9.
I move amendment No. 13:
In page 6, line 36, to delete all words after "planning".
We have had two sections agreed, one without comment and certainly two with no dissent, but this one goes right back to the core of my objection to the Bill. It seems to me gratuitous that the Minister is giving away something that he did not have to. The more research there is into the area of human reproduction, as indeed into the vast variety of other subjects, the better as far as I am concerned so that there can be no possible disagreement with the concept of grants out of Oireachtas moneys to finance or assist the financing of research into methods of family planning.
The methods of family planning I tried to ennumerate very approximately yesterday. Of those methods the rhythm method, the determining of the time of ovulation and the abstaining from intercourse during a fertile period, is a method that is for philosophical and religious and indeed aesthetic grounds especially acceptable to wide sections of the population in this and in other countries and is therefore deserving of research moneys and indeed, in the Irish context, of special attention. No reasonable person would deny that. But in this section which is about research and about knowledge and about the funding of research why introduce that distinction that they should not relate to the use of contraceptives? This is what I commonly call the attitude of dirtiness, that contraceptives are something that we have to permit out of our liberality to those people who think that they are necessary but that they are really not a good thing and that the State disapproves of them. This section will bear a lot of talking about but I propose to stop in a moment simply to hear what the Minister has to say. He is a person who is well able to fight for his corner and to defend his point of view. Why did he make that concession to what are to me the most obscurantist forces in Ireland in a quite unnecessary way? Why not insist on the freedom of research across the whole sprectrum of what is considered relevant by the competent researchers? That seems to me gratuitous.
Senator Keating is reading something into this that is not there at all. Under the existing machinery all the facilities I need to carry out research into artificial contraception methods are available to me.
And natural methods also, since the Minister has made the distinction.
There is some doubt that natural family planning is not a medical matter. As I said, a mother could instruct her own daughter about natural family planning methods. It might possibly be argued by some Comptroller and Auditor General or somebody else that it was not medical research. It is simply to remove any doubt about that that this section is in here. There is no ideological significance in this section. If I thought there was or if I thought that there was going to be any difficulty caused to any Senator by this section I would never have put it in. It is just to make sure that whatever funds are necessary for research into natural family planning can be provided by the Oireachtas.
I might mention that there is going to be a very important seminar in October with the advice and assistance and guidance of the World Health Organisation into natural family planning methods. It will be a very important seminar of an international standing and I want to assure the House that it will be a totally objective and scientific seminar. It will not be a seminar set up to propagate any particular point of view. It will be a seminar which will be devised to organise, to bring to us here the very latest up-to-date scientific medical thinking on natural family planning methods. It is something well worth while and I am hoping that it will be a success.
It is in that context that this provision is put in here, to enable us to do this sort of thing lest there be any criticism by somebody that investigation and research into natural family planning methods was not medical research proper and therefore funds could not be made available through the Medical Research Council or the Medico Social Research Board or through any of these other agencies.
Until I heard the Minister's explanation, slightly incredible though I find some parts of it, I was inclined to feel that section 9 was just a piece of cosmetics, an exercise in breast beating by the Minister to copperfasten what he has been saying is his general policy.
The Department of Health, let me say, are very much in favour of breast feeding.
Pardon?
The Department of Health are very strongly in favour of breast feeding.
The Minister is trying to copperfasten publicly what he has been saying in his general policy, that contraceptives would be available in a limited way only and for married couples only, to reassure people who might think that he was providing loopholes, that in fact he was not doing so, that loopholes in marriage today would be contrary to his wishes and that this section was again to emphasise his bona fides in this regard. While I do not agree with the practice of artificial contraception I sympathise with the point of view that read this as implying that those who might have that point of view were somehow outside the pale of all sorts of official recognition and were somehow lesser citizens without the law who would not get any assistance for scientific investigation in their particular aspect of that practice. The Minister now tells us that he has been advised that natural family planning is not a medical matter and that if he were to provide moneys in the absence of this section that the Auditor General could come along and criticise that expenditure on the ground that it was not expenditure for a medical matter.
The Minister is letting himself down in putting forward such an argument to us here because he is notoriously a man of intelligence and common sense and I am surprised that he would attempt to justify his acceptance of the advice that natural family planning is not a medical matter. It is so riddled with medical connotations that that is a patently absurd proposition. To go on and say that he would be apprehensive of the reaction of the Auditor General if he gave money to the Medical Research Council or some of the other bodies under his aegis for work in this area——
The Senator does not realise fully what I said. I did not say that I am advised it is not a medical matter. It could be argued that it has no medical research content. There is a voluntary organisation consisting almost exclusively of non-medical people who are very positively and definitely interested in research into natural family planning methods. It would be my intention to consider making funds available to that organisation for the purposes of their research, examination and study. That might not be strictly regarded as medical research. It is just to remove any lingering doubt there might be in that area that I put in this section.
It would be the qualifications of the body rather than the work they would be engaged in?
For me, as for Senator Cooney, the Minister's explanation makes the situation worse. In the face of this continued distinction of natural and artificial, I accept the Minister's use of the word "natural" and use it myself. I am on the record very extensively as suggesting that that characterisation is, when analysed, without meaning. I know that it means something to large numbers of people. If one wants to be rigorous, scientific or analytical about it, it has no meaning. That is a false division into natural and artificial. It is an argumentative and pejorative one rather than descriptive. It is anti-scientific and creates confusion in people's minds.
The Minister spoke about a symposium in Ireland on natural family planning which he said would be objective and rigorous. Under that name it will not. If it describes itself as a symposium on natural family planning, many serious scientists will have nothing to do with it because they recognise that it is argumentative, pejorative and anti-scientific. If one wants to have a symposium on rhythm methods, by all means. That is an extremely interesting, important subject. If one wants it to be in the realm of serious science, the term natural family planning is a total giveaway.
The Minister goes on to say that natural family planning is not a medical matter and that a mother can instruct her own daughter. The range of contraception runs from the very easy, like a condom, to the very difficult, like a rhythm method. Rhythm methods are important and interesting. We have to say they are very difficult. It needs a great deal of instruction, discipline and character as well as a good deal of knowledge to operate them successfully.
Let us not pretend to people that these are easy. I do not see that a doctor needs to instruct somebody on the use of the condom. If we go through to caps, then there is need for medical instruction. Taking the pill is easy and the dates are easy, but it should not be done without careful medical examination because we know the dangers. To say that a mother can instruct her daughter on rhythm methods——
She may be an instructress. There are trained, civilian instructresses. Why is the Senator against rhythm methods?
I have nothing against rhythm methods. I am on record as saying that they are interesting, important and ought to be researched and promulgated. My argument against natural family planning is that it is a bogus category introduced into science and into hard knowledge from outside and improperly promulgated in this Bill.
The phrase is not used in section 9.
The prohibition on contraceptives is used in the section.
The Senator is objecting to the whole phrase "natural family planning". It is not used in section 9.
I agree it is not used in section 9 but it was used extensively by the Minister——
It is my intention to make research into all forms of contraception, whether involving natural or artificial contraceptives or not. Is that not the assurance the Senator is looking for?
It is part of the assurance I am looking for. I would hate to see a circumstance where under a heading for grants for research, money was given to a non-medical pressure group to propagate, with non-scientific methods, a particular unscientific point of view. I do not know what organisations exist. I am in favour of the funding of research. I am not in favour of funding by the Oireachtas of pressure groups that propagate points of view that do not stand the analysis of science or the rigour of research. Everything the Minister says makes me more worried about this section and not less worried. I am extremely disappointed with his responses on this section.
Is the Minister's intention to make funds available for investigation into artificial contraception in this country?
Yes.
I disagree with the viewpoint expressed by Senator Keating and I do that with all respect. I object to the term "non-medical pressure groups". I think he means to include in these groups those who are doing everything they can with limited resources up to now to examine in a big way the natural family planning board. A tremendous amount of work has been done by Dr. Billings and his associates. I am informed that the results are very satisfactory and people who normally would have no interest in such a development are now taking up this system.
Natural family planning is a natural thing. Conception, being born and dying are all natural things. The Almighty, whom we invoked this morning in the prayer at the beginning, saw to it that these things be inbuilt into the human frame. Natural family planning is a follow-through of that. The methods used by the natural family planning associations, seminars and advisory bodies fall into line with what the Creator has already in mind. The other type of activity known as artificial contraceptive methods carry out their business with a certain amount of deception. They are trying to cheat the Almighty. They pretend to take part in an exercise to cooperate with the Almighty in the creation of new life. At the same time, they take every possible precaution to make sure that that life will not be created. Life is the greatest thing that God has given us. Vita, or, as we call it in our own language, an beatha, is the greatest gift that God has given us and He has has given us the privilege of co-operating with him.
Those who foster the natural family planning development are just following in line with the Creator's wishes. Down through the centuries, before the Billings method was discovered, children were born and people followed the natural way. They did not have a medical man present at every birth but people were skilled in these things. The knowledge was passed on from mother to daughter down through the centuries. If it was not, none of us would today would be here at all. God has created these things and the natural family planning methods are a follow through in line with the wishes of God Almighty. I can assure the Minister and everybody in this House that people are very pleased at the emphasis placed on natural family planning methods in this Bill and that moneys will be available for further research. The people behind this research should not be described as pressure groups. The pressure groups are those people who are trying to foist the other type of contraception. The people in favour of the natural family planning method have the support of the overwhelming majority of the people.
Everyone in the House favours in principle the natural—I cannot think of a more acceptable word.
It is an acceptable word.
I know what the Minister means.
There are many thousands of women in this country whose life would take on a much more satisfactory dimension if they could be assured of some effective natural family planning method. That is the fact. We must do everything in our power to try and meet the wishes of that very large section of our community. They are very sincere and genuine about it. In so far as artificial contraception has a headstart in this area there is no great need for me to advocate artificial contraception methods for families. The general pressures of the situation are such as to make sure that artificial contraception and its advantages, such as they are, will be brought sufficiently to the attention of people. There is a need to emphasise to people that perhaps there is an alternative to artificial contraception.
In my entire approach to health matters, I am emphasising naturalness and positive health. If there could be a method of family planning which did not involve the use of artificial contraceptives and was effective, that would fit in entirely with the best modern approach to health. It would meant that women have a full knowledge of their own physiology and are in control of their own health and welfare in this very important area. It may be optimistic to propagate that sort of theory at this stage because the knowledge and research being carried out is not yet adequate to enable anybody to come forward with a philosophy of that sort. It is well worth pursuing and we must pursue it. That is basically the approach in this legislation. That is why I put in this provision, to make sure that there is no statutory barrier to follow up something which could possibly be argued not to have a medical research content.
Senator Keating used the words "pressure groups." I want to assure him that he is not correct in making any such assessment of some of the people I have in mind.
I made no such assessment. I did not want to see the funding of pressure groups. I have not characterised any existing group as being a pressure group.
One of the organisations I have in mind is far from being a pressure group. They are very sincere dedicated people. I had to go to them to try to get opinions and views from them. They like to work quietly and unobstrusively in their own way and they do not want to be involved in political activity or pressure groups of any sort. They have their own view, their own approach, their own belief and their own outlook. They would not, under any circumstances, lend themselves to pressure activities or political pressure of any sort.
There is no need for Senator Keating or any other Senator to be upset or pessimistic about the approach in this regard. The facilities and funds are there for research for artificial contraception methods. If the Seanad dwells on it for a moment, it will realise the need for that. Apart altogether from any question of carrying out research into artifical methods of contraception for the sake of contraception, there is a very real need for a lot of research into many of these items and products from the medical and safety point of view and for the health of our womenfolk. Research into artificial contraceptives will have to be fully catered for. The greatest possible amount of knowledge we can assimilate will have to be provided for the medical profession in particular. Side by side with that, we should pursue research into natural family planning methods.
It is a dangerous thing in the Seanad to use arguments loosely because Senator Cooney, quite legitimately, took me up on my reference to the Comptroller and Auditor General. I was not making a major point that the Comptroller and Auditor General would query this. If there is any doubt it is better to remove it when we are dealing with a statute. This provision would help future Ministers for Health in procuring funds from perhaps a reluctant financial establishment.
Ministers for Finance are never reluctant to give moneys to colleagues.
In the light of what the Minister says, would he indicate what need there is for the last nine words which say: "that do not relate to the use of contraceptives"? If he tells me that there is a doubt as to whether research into rhythm methods of contraception could be funded because there is a doubt as to whether this is a medical matter I will believe him. If he wants to remove that doubt, it is adequate to say: "the Minister may out of the moneys provided by the Oireachtas make a grant to a person to finance or assist in the financing of research into methods of family planning." That is nice and comprehensive. It is perfectly natural in the Irish——
It still might not be regarded as covering natural methods. The Senator has been pressing all along for greater clarity and spelling out of definitions. I do not see why he should object to this piece of extra clarity.
It does not increase the clarity, it diminishes it. Yesterday on the definition section the Minister had to say that the three devices I asked him about were not contraceptives. But, of course, they are. He had to say that or it would be a nonsense. What we seek to do in this is to remove those last nine words. That is the substance of our amendment. Amending the section actually clarifies it for the Minister because, as I take the sense of what he says, the Minister wants to have the power to spend Oireachtas moneys on every sort of investigation into family planning, both so-called natural and so-called artificial, the whole spectrum. That, without the last nine words, gives him that absolutely, explicitly and clearly whereas introducing the word "contraceptive" into it introduces an unclarity.
Why is the Senator flogging this? He assures me that he is not against natural family planning, but I cannot resist the suspicion that there is some subconscious hostility in his mind.
If it was subconscious I would not know about it. I can only put my opinion on the record and I have done that a number of times.
Can the Senator at this late stage not accept my approach, that this is what I feel is the right way of doing it? I may be obscurantist or wrong headed, but this is my advice and my approach. I do not think, even from the Senator's point of view, that it can do any harm.
I do not propose to go on much longer about this. I am not reassured, as I have said. I do not believe it is the best way. It is bad drafting and it is unnecessary for what the Minister wants. If he has a suspicion that I am fundamentally hostile to rhythm methods, which I deny, I can only reciprocate with the suspicion that he is fundamentally hostile to every other form of contraception.
Maybe we are both prisoners of our Freudian past.
And present.
I wish to comment on the remarks made by Senator Cranitch. I am glad he is in the Seanad because he articulates a particular point of view with extraordinary clarity. I do not mean it personally offensively when I say it is a point of view that I am in total disagreement with. It is very desirable, if we are serving our function, to have the various points of view that are real in this nation on the records of the House. There is, in what he said, if I were filibustering, material for some hours of discussion. I propose to be very brief but I feel impelled to say a little about it. He said that is was desirable to "fall into line with what the Almighty had in mind".
The difficulty that many people have is the difficulty of being certain as to what the Almighty had in mind. Senator Cranitch is certain. There are other churches in the same Christian or Judeo-Christian tradition and there are other persons within his own church who have great difficulty in knowing what the Almighty had in mind. Where there is legitimate doubt there has to be a certain humility. The Senator also said, later on, "following along in line with the Creator's wishes". The same thing applies. He may be certain but he ought to see the doubt that exists in society and he ought not to be too anxious to try to legislate this certainty into the law of the land where the doubt is a legitimate one. I am simply making the pluralist argument. But if he describes the effort at preventing conception as an effort to cheat the Almighty, as an effort at what he calls deception, then the more money spent on methods of rhythm contraception, the more money spent on perfecting the Billings and other techniques—I am anxious to see that money spent, I believe that to be desirable research—then the more effective will the cheating of the Almighty become. The precise object of the Billings technique as well as all the other methods of contraception is to separate the act of intercourse from fertilisation. That is what everyone who uses a contraceptive of whatever kind is trying to do. If the category of users of what he called artificial contraceptives are trying to cheat the Almighty, so are the users of rhythm methods. They have the same object. To use Senator Cranitch's words, they are taking every precaution possible to ensure that life will not be created. Whether they do it by rhythm or other ways their intentions and results, if their methods are effective, are precisely the same. Therefore, he seems to be articulating what I can only call highminded woolliness and imprecision of thought.
Senator Keating has pre-empted me in that. I was going to make some remarks on Senator Cranitch's observations. I envy him his certainty about the Almighty's wishes in this respect. In view of the fact that there is virtually no scriptural evidence of the Almighty's intentions in this regard it is very hard to know what He means except for the simple injunction to increase and multiply and fill the earth. We do not know that that is the Divine intention. It seems that, to be logical, Senator Cranitch should vote against this Bill and particularly section 4 where the Minister has told us that a person may go to a doctor and provided he establishes his bona fides he will be helped to have no family at all, to dodge having a family. That certainly is not the Almighty's intention. We know that. I agree that if we look at the Billings methods as what it is, it is pregnancy evasion. I do not see that anyone can seriously maintain a moral difference between that and other methods.
On the amendment and on what the Minister has said, the Minister has used the phrase "countless thousands of women who would like to have the natural family planning method developed", made acceptable and so on. I accept that. That raises a question, the answer to which we have not got yet. Precisely, in percentage terms, what kind of a majority was there, among the people that the Minister consulted, for a Bill which was slanted in the direction of natural family planning? He mentioned various bodies in his reply to the Second Stage. Would it be possible to tell us what was the attitude of these different bodies specifically? If the Minister would say that is a breach of confidence, then we cannot accept that this Bill has the moral force, so to speak, of those bodies behind it.
On section 9, I would simply like to see what I said on Second Stage. If it is not intended to set one method of family planning against the other, and if the Minister desires section 9 in order to give research into natural family planning additional statutory force and pressure, on the Minister for Finance for example, then the other powers the Minister has already would make it possible to assist research into other methods of contraception. It seems to me that for these reasons section 9 should not discriminate by the inclusion of the last nine words.
I would like to comment on what Senator Murphy said. The Almighty said to man "increase and multiply" but as regards the size of families and so on the essential point is this—one method versus another—that in the natural family planning system we are using what the Almighty has already given. He designed the human frame; He designed the rhythm, periods and all these things and we are just using those. Where there is the artificial or unnatural means of preventing conception, the original phase of life, we are introducing something else. This is a comparatively new business and has only become widespread since the huge explosion in the contraceptive industry whereas other methods—including the simple method of abstention—have brought the human race quite safely down along through the centuries since man was first created.
Is the amendment withdrawn?
One sentence and only one sentence——
Was the amendment moved?
I am speaking to the amendment. I was not aware that the Almighty had designed or created thermometers or calendars, or PH meters, or galvanometers, or a variety of other devices which are used in connection with the so-called natural method.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 19; Níl, 5.
Tá
- Brennan, Séamus.
- Brugha, Ruairi.
- Conroy, Richard.
- Cranitch, Micheál.
- Donnelly, Michael Patrick.
- Dowling, Joseph.
- Ellis, John.
- Goulding, Lady.
- Harney, Mary.
- Hillery, Brian.
- Jago, R. Valentine.
- Kiely, Rory.
- Lanigan, Michael.
- McGlinchey, Bernard.
- McGowan, Patrick.
- O'Toole, Martin J.
- Ryan, Eoin.
- Ryan, William.
- Whitaker, Thomas Kenneth.
Níl
- Harte, John.
- Keating, Justin.
- McAuliffe, Timothy.
- Moynihan, Michael.
- Murphy, John A.
Tellers: Tá, Senators W. Ryan and Brennan; Níl, Senators Harte and McAuliffe.
Question declared carried.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
Section 10 has three paragraphs in it:
Nothing in this Act shall be construed as authorising—
(a) the procuring of abortion
(b) the doing of any other thing... prohibited by section 58 or 59 of the Offences Against the Person Act, 1861...or
(c) the sale, importation into the State, manufacture, advertising or display of abortifacients.
First of all we should clear our minds about the 1861 Act. That Act makes it an offence for a woman herself, or for a third party to administer any poison, or noxious thing, or to use any instrument with the intention of procuring the miscarriage of that woman. Section 59 makes it an offence to supply a poison, a noxious thing or an instrument knowing that the same is intended to be used with intent to procure miscarriage. In those two offences the element of intent must be present. There must be an intention to procure a miscarriage before the criminal offence of abortion is committed. This Act does not in any way interfere with that legal position, but what we are considering now is a new dimension in this area—a device which, without any intention on the part of the person taking it, a device which incidentally procures a miscarriage, that is, causes an abortion. What we want to do is to ensure that such devices, or instruments, or things will not be available to members of the public.
The section is odd in the sense that it does not make it an offence to sell, import, manufacture, advertise or display an abortifacient. All the other sections have a paragraph at the end which says:
A person who contravenes this section shall be guilty of an offence.
That paragraph is missing from this section. I read it that if a person brings into the State something which has been agreed or legally established as an abortifacient he does not thereby commit an offence. It is not authorised by the Act, but it is not prohibited and made an offence.
Regarding the amendment that I moved at the commencement of this debate giving a definition of an abortifacient, if we could succeed in making their sale or importation an offence the courts would know what they were dealing with was, in fact, an abortifacient. Would the Minister, first, tell us why the sale, importation, manufacture, advertising or display of abortifacients is not specifically prohibited and the breach of that prohibition thereby made an offence? Secondly, why does the Minister omit the word "supply" in relation to abortifacients? The sale, importation, manufacturing, advertising or their display is what is referred to in this section as not being authorised by the Act. It does not include the word "supply", so that by inference the supply of abortifacients could be authorised. Those are two questions, first, why there is no prohibition such as to cause an offence; secondly, why the word "supply" is omitted.
First of all, it is important to reiterate that this Bill does not deal with abortion but with contraception. Therefore, from the drafting and the statutory points of view, all we are concerned with here is to ensure that this legislation does not impinge on or take from, in any way, the 1861 Act. That is the line that has been taken by the draftsman, and I think very effectively.
I am looking at Senator Cooney's own Bill in 1974, section 9 of which says:
A person shall not manufacture, import, sell, offer for sale, advertise or invite tenders to purchase an abortifacient.
The Senator did not mention "supply" in his Bill. My understanding of the Bill is that there is no need to mention "supply" because "supply" is covered in the 1861 Act, as is the question of an offence. Again, here, we must be guided by the draftsman. He adopted a certain approach in this regard, at my instance. I wanted it made absolutely clear that the wishes of the overwhelming majority of the people in regard to abortion and abortifacients would be given expression to in this legislation and from there on it was a drafting matter for him. This is his solution to the problem, to ensure that this Bill does not in any way weaken the position and at the same time that there is no interference with the provisions of the 1861 Act.
There is a critical factor missing in the Minister's argument and it is this. I agree with him that abortion is a different subject from what is in this Bill and nothing to do with it, and the saver is not necessary. To understand my argument in relation to abortifacients we have to look at what is abortion under the 1861 Act. Abortion under that Act is where a woman herself, or a third party, with intent to procure a miscarriage, does certain things. The essential ingredient of that offence is that there must be intent to procure the miscarriage, and the administering of the poison, or the use of the instrument, has to be done with the intent of procuring the miscarriage. The point I am making to the Minister is that we now have a situation that was not thought of in 1861. We now have devices available——
Is the Senator adverting to section 59 of the 1861 Act?
Section 58. Again in section 59 there is the essential ingredient, to commit the offence under section 59:
Whosoever shall unlawfully supply, or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure—
There are two knowledges there, one on the part of the supplier and one on the part of the person who is going to use it. Intent is an essential ingredient of both section 58 and section 59. There cannot be either the offence of procuring an abortion under section 58, or providing the poison or drugs to procure it under section 59, unless intent is present in both situations.
The point I am making is that we now have devices available which procure abortions incidentally, and where intent does not arise. We all want to see a situation where abortions are not accidentally or incidentally caused as a result of an attempted contraceptive practice. That is why I say to the Minister that his Bill is defective in procuring that end. His Bill does not make it an offence to provide abortifacients. In other words, the Bill says their use is not authorised. If they are used and cause an abortion no offence is committed unless it can be proved—and this would be impossible to prove—that they were taken with the intention of procuring an abortion. Obviously, the defence would be that these were taken as contraceptives and it is purely incidental or coincidental that they had the effect of being abortifacients.
I think the Senator is misdirecting himself in law. This section achieves one single purpose and that is to ensure that in so far as this legislation is concerned, it does not authorise abortion, abortifacients, the sale of abortifacients or anything else. That being achieved, we are then back to the 1861 Act entirely. I am quite satisfied, and my advice is that the 1861 Act—old though it may be—has stood the test of time and is still quite satisfactory to deal with the situation. It would be unwise to tamper with it unless there is some overwhelming case for doing so. Sections 58 and 59 together deal with the situation adequately.
I would not be too categoric about the law, but surely to have a criminal offence of any sort you must have intent. I would have thought that intent was one of the essential ingredients of any crime. Section 58 makes it quite clear that the woman in question must have the intent to procure an abortion. Section 59 makes it unlawful to supply something to a woman who has the intent to procure an abortion. The intent is not applicable to the person supplying it.
It is, with respect. The Minister has not read the section which says "knowing that the same is intended to be unlawfully used".
That is not intent. Knowing is not the same as intent. So it would be an offence for somebody to supply any of these things.
I respectfully disagree with the Minister. Once the word "knowing" is used, that in law means that mens rea must be present.
You must have knowledge and intent in all criminal matters. Senator Cooney is not now quarrelling with my section; he is quarrelling with the sections of the 1861 Act.
No, No.
They have stood the test of time, and my advice is that they are quite adequate and in fact, it would be unwise to tamper with them.
I think I should repeat what I have said. The 1861 Act creates the offence of abortion. There are two sections dealing with the offence, section 58 which makes it an offence for a woman herself, or a third party, to administer a drug, or use an instrument, with the intention of procuring an abortion; section 59 makes it an offence for a person to provide a drug, or an instrument, knowing that the same is intended to be unlawfully used with intent to procure a miscarriage in any woman. One is the offence of the person herself, or a third party, doing the actual abortion and the other is the offence of the person providing the instrument to carry out the abortion. That is the 1861 position. That position is not altered in the slightest degree by anything in this Bill. It is quite clear that that law in relation to abortion is not touched. There must be an intention to procure a miscarriage before the offence can be committed under section 58. There must be knowledge, which in the eyes of the law is also an ingredient of mens rea, what mens rea means under section 59. Intent is an essential ingredient under both sections. If that intent is present and the prosecution can prove the intent was present, then the offence of procuring an abortion is committed.
We want to guard against the inadvertent procuring of abortion arising from the use of drugs, or instruments, which are supplied, or used, for contraceptive purposes, but because of their medical or physiological or physical effects have not, in scientific terms, a contraceptive consequence but have an aborting consequence. There was no intention on the part of the person who took it to procure an abortion. That person could not care less.
You cannot have an offence unless there is intent.
Would the Minister let me finish? The person who takes this drug, or uses this thing, could not care less whether the device is purely contraceptive, or whether the device is also abortifacient. What I understood we were concerned about was to deal with this new situation, which is totally divorced, in legal terms, from the 1861 offence of abortion. This is a totally new situation, where devices are now available which have this effect. What I understood we were concerned to deal with was to ensure that such devices would not be available here under the guise of contraceptives. This has nothing whatsoever to do with the 1861 offence of abortion, which relies entirely on the concept of intent. We are now dealing with devices, or drugs, or apparatuses which have a dual effect and the person taking them could not care less what the consequence is, as long as they do the job.
My wish is that we do want to be involved and want to care what their effect is. We do not want to permit the marketing of abortifacients under the guise of their being contraceptives. The intent of the 1861 Act has nothing to do with this. It is an entirely new situation. This Bill should prohibit the sale, or supply, or importation of abortifacients and that prohibition should be made a criminal offence. Consequently, the abortifacient needs to be defined, as I proposed in my initial amendment, for the guidance of the courts in deciding if a particular thing is an abortifacient. Or also in an area where it cannot be objectively defined in a statute, or does not come within the definition, there should be a committee from time to time to advise if a particular thing is, or is not—if there is any doubt about it to give the benefit of it in favour of the community and ban the particular device.
The word "supply", I concede, was missed in the 1974 Bill. That does not make my argument any less valid now that the word "supply" should be included in this Bill. The 1974 Bill made the sale or importation of abortifacients a criminal offence. The Minister's Bill does not so do. The position is now that there is no legal sanction against the supply of abortifacients.
That is not so.
That is so, because the only way a legal sanction could be imposed for the use, or supply, of abortifacients would be to prove that the person using it used it knowingly, and with intent to procure an abortion, or that the person supplying it supplied it with the intention, or with the knowledge, that it was going to be used with the intention of procuring an abortion. Only if you can satisfy either or both of those criteria do you come within the ambit of the 1861 Act because if an abortifacient is supplied or is taken and the person says: "I took it for a contraceptive", even though everybody—the rest of the world— might know that its scientific effect was to be abortifacient, no offence is committed. There is no doubt about that. What I am suggesting to the Minister is that abortifacients should be outlawed, independently and separately from the 1861 Act, because it cannot be tied in with the 1861 Act, because it requires the criteria of intent to be fulfilled before there is an offence.
I can only repeat that Senator Cooney is interpreting the law incorrectly. First of all, this section is quite clear. It makes it specific that nothing in this legislation shall diminish or weaken the existing position as regards abortion or abortifacients. I am quite satisfied, and I am advised, that sections 58 and 59 of the 1861 Act fully meet the situation. I was very anxious about this and unless I had received these most solemn assurances from the draftsmen and the legal advisers, I would not have proceeded as I have. I am, as I say, fully advised and assured that sections 58 and 59 are quite effective, that they have been so for many years, in dealing with the situation. I do not accept Senator Cooney's interpretation of section 59. Section 59 is quite clear "that whosoever shall unlawfully supply..." Senator Cooney began by saying that supply was not mentioned anywhere. It is specifically mentioned in section 59.
It is not mentioned in section 10 of the Bill.
I think if Senator Cooney was honest with us now he might admit that he was unaware of the provision in section 59. However, I could be wrong on that.
I have it in front of me.
You were talking in terms of section 58 when you began the speech.
I will let the Minister finish.
It seems to me, and I am advised, that section 59 is quite clear, quite adequate and quite satisfactory. It is an offence, punishable by imprisonment, to supply anything that would cause an abortion to any person who intends to use it to carry out an abortion.
Exactly.
That is the law which has stood the test of time and that is a very carefully drawn section in my opinion and it is still as valid as the day it was drafted. If you think about it for a moment, if it were otherwise, the law would be totally ineffective. If, as I think Senator Cooney wants to do, you were to make it an offence to supply an abortifacient to somebody simpliciter, that would lead to a ridiculous situation. Things which could be abortifacient could be used in various medical ways which would have nothing to do with the procuring of an abortion in a human being. Therefore, you must have——
The Minister is now making my argument.
You must have the purpose of supplying an abortifacient for the purpose of an abortion. That is what section 86 in the 1861 Act does.
What Senator Cooney said has caused me some concern. In spite of the Minister's explanation, I have some residual concern about this. As I understand it, the 1861 Act deals with the offence of procuring an abortion, and in relation to any offence the questions of knowledge and mens rea are applicable. But there is surely also a thing, a physical happening, called an abortion. As I am trying to understand it, I wonder is there in the 1861 Act a definition of what I am calling the physical happening of an abortion as distinct from the offence of procuring an abortion. As I read it anyway, this section is all right as far as it is dealing with the procurement of an abortion but when you come to the word “abortifacient” that is, on the face of it, a reference to something that causes the physical happening of an abortion, regardless of any mens rea or any attempt to procure it deliberately. I would like to be reassured that the Minister would consult the law officers further on this point to make sure that he is not, by using the term “abortifacient” referring only to things used to procure an abortion in the sense of an offence under the 1861 Act, that in fact the word covers things which have the effect of causing the physical happening of an abortion.
I think it does not matter whether things have that effect or not. The ingredient that makes them unlawful is that they are used with the intention of having that effect. The 1861 Act, section 58, reads:
"Every Woman, being with Child, who, with Intent to procure her own Miscarriage,——
the section does not use the word "abortion"——
"shall unlawfully administer to herself any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, and whosoever, with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child...
Then it goes on to deal with the third party. It is quite clear that before that offence can be committed, before the offence we commonly call "abortion" can be committed, that is, in other words the "procuring of a miscarriage", there must be an intent to commit it on the part of the woman herself, or the third party who intervenes. Section 59 says:
Whosoever shall unlawfully supply or procure any Poison or other noxious Thing, or any Instrument or Thing whatsoever, knowing...
Again, once the word "knowing" is brought in there, that means that the person must have the intention; it must be mens rea; the word “knowing” being used in the statute has no other legal implication but that.
knowing that the same is intended ...
—if there is any doubt about it the word "intended" is specifically used—
knowing that the same is intended to be unlawfully used or employed with Intent to procure the Miscarriage ...
So, section 59 makes it an offence to provide the means to procure a miscarriage, in other words, to allow an abortion to happen, but no offence is committed if the means are provided inadvertently or if the means are provided for some other purpose, for example, for the purpose of effecting a contraceptive result. No offence is committed, because the means, to come within section 59 of the 1861 Act, must be provided knowingly to procure a miscarriage. So, if they are provided to procure contraception, but unwittingly, because of the nature of the thing, they also procure a miscarriage, the offence of abortion as it is commonly called is not thereby committed.
What I am saying to the Minister is that we rely totally on the 1861 Act to preserve the law as it says in the Act. We are moving into a new legal scene where we are dealing with devices which can have incidentally an aborting effect, which incidentally can procure a miscarriage. We have to deal with that situation, and to say that that situation is covered by the 1861 Act is to misread the effect of the 1861 Act in a contemporary context. The 1861 Act only dealt with intention. It does not deal with the situation where a miscarriage is procured, if you like, accidentally or incidentally following the taking of a contraceptive drug, or following the fitting of a contraceptive device, because the answer for a person prosecuted under the 1861 Act, which the Minister says is our protection, is to say: "Intention is missing; no offence has been committed. I took this drug, or I had this appliance fitted for contraceptive purposes." That is a perfect defence to a prosecution for procuring a miscarriage under the 1861 Act because the indictment under the 1861 Act would have to specifically allege that the drug was taken or the device was fitted for the purpose of procuring a miscarriage. That is the way the offence would have to be set out in order to obtain a conviction. The perfect answer to that is for the person to say: "I took this drug; I had this device fitted for contraceptive purposes only, not with the intention to procure a miscarriage."
It is for that reason that I say that this new legal dimension has to be covered specially and specifically in this Act. We cannot rely on the 1861 Act for the reasons that I have given. It does not cover the situation that has just been illustrated. Take for example, an IUD about which there is some doubt, or perhaps a drug about which there is some doubt. If a person should be prosecuted for fitting an IUD or for wearing an IUD that person has a perfect defence in law. The only way that person can be prosecuted, according to the Minister, is under the 1861 Act, and be prosecuted for procuring an abortion. The indictment——
But mine is not a criminal statute.
Exactly.
If the Senator wants to deal with the 1861 Act it is a separate matter. He should take that up with the Minister for Justice.
The Minister has accepted this. The Minister has relied on the 1861 Act, saying that there is no need for us to go any further with regard to abortifacients: that is covered by the 1861 Act. The case I am making is that the 1861 Act does not cover abortifacients. I am giving the example of the person with the IUD which is believed to be an abortifacient in its operation. The person is prosecuted for wearing that. The prosecution could only be taken under the 1861 Act.
Is the Senator suggesting a prosecution for the use of a contraceptive?
No, but for the use of an abortifacient. Does the Minister say that abortifacients are permissible and should not be prosecuted?
No, I am saying that——
Does the Minister say that the use of abortifacients should be prohibited and that their use should be prosecuted?
Yes, but that is not for this legislation. This is contraceptive legislation.
Yes, but the next question for the Minister is: how does he propose to prosecute for the use of abortifacients? He has no offence created in this section.
I would not be prosecuting. It is not the Minister for Health who would be prosecuting.
How would the Director of Public Prosecutions prosecute?
That is a matter for the criminal law. Take that up with the Minister for Justice in regard to the criminal law.
There is no criminal law. This is the point I am making, that we have to make a criminal offence of it.
I am not making a criminal law.
The Minister does not want to ban abortifacients?
I do want to ban abortifacients.
Then, the Minister must impose a sanction for their use. The Minister cannot rely on the 1861 Act to impose a sanction. He must impose a new sanction in this Bill, or show to this House that there is a sanction already available in the criminal law. That is the position.
I want to make this point, and I want to make it absolutely clear because Senator Cooney is saying, from my point of view, very dangerous things, that I do not prevent the sale of abortifacients—my whole approach to this Bill is that I am totally against abortion or abortifacients.
I concede that the Minister is. What I want the Minister to do is to ban them.
The Senator asked very particular questions with serious implications as far as I am concerned. I have enough to do in this legislation dealing with the contraceptives. Abortion is a criminal matter and a matter for the Minister for Justice. At the moment the criminal law in regard to abortion and abortifacients is in the 1861 Act. That Act was there in Senator Cooney's time as Minister for Justice. If it was defective perhaps Senator Cooney should have done something about it in his time. My advice is that it is not defective and the worst thing we could do in this situation is interfere with it in any way. It has stood the test of time and should not now be interfered with. My solemn obligation is to make sure that my Bill confines itself strictly to contraceptives and does not in any way open the door for abortion by virtue of the passing of this legislation. Section 10 effectively ensures that, and that is in so far as this legislation is concerned. If Senator Cooney wants to go back and challenge the whole basis of sections 58 and 59 of the abortion law and the criminal law, that is a separate day's work.
I began my explanation in this matter by saying that I was advised that so far as this legislation is concerned it is better not to undertake any interference with the 1861 Act. If Senator Cooney wants to interfere with it, he has a means of doing so, but my section 10 is very specific in making sure that nothing in my contraceptive legislation will interfere with the law on abortion.
I have no criticism whatever of the 1861 Act. It is fine as far as it goes. It makes it a criminal offence to procure a miscarriage.
And supply abortifacients.
And supply abortifacients with the intention of procuring a miscarriage. It does not make it a criminal offence to supply abortifacients for contraceptive purposes. That is the point that I am trying to get across to the Minister.
It does.
No, it does not because it does not create an offence. Your Bill says that nothing in this Act shall be construed as authorising the sale or display or importation of abortifacients. That is all your Bill says.
It throws the whole situation back into the context of the 1861 Act.
It does. It throws it back to the 1861 Act and the 1861 Act requires attention. It is the perfect defence to anybody prosecuted.
You cannot have crime without intent.
That is the point I am making. You cannot have a criminal offence without intent. What I am saying is that there are now devices on the market which are supplied, not with the intent of committing the criminal offence of procuring a miscarriage but with the intention of procuring a contraceptive result. The Minister is saying to me that if those devices are supplied and somebody is prosecuted under the 1861 Act he does not mind if the defence to the charge on the 1861 Act is: "I have no intention of procuring a miscarriage; this was supplied for contraceptive purposes."
The difference there is that a thing cannot be a contraceptive and an abortifacient at the same time. Let us be absolutely clear on that. There is a fundamental medical difference between contraception and abortifacient. It must be one or the other.
I understood the position to be that there could be considerable difficulty—putting it mildly —in establishing which it is. In order to obviate the risk that it might be abortifacient, I am saying to the Minister that they should be banned and not rely on the 1861 Act and necessity to prove intent.
As someone who is not a lawyer I hesitate very much to get into this. As a non-lawyer in practice I am not primarily concerned with whether or not a thing could be an offence but with whether or not it could happen. What worries me is that the distinction between abortifacient and contraceptive is desperately important for the ordinary user, and a great majority of people in this country who think the use of contraceptives is permissible find the use of abortifacients abhorrent. That is my estimate of current opinion. I wish it were true—it would be simpler for all of us—when the Minister says that there is a fundamental medical difference between contraceptives and abortifacients. I am less expert probably than Senator Conroy and more expert than some other people, but my understanding is that, for example, an interuterine device can function in either way in practice. The Minister is sure. I am not sure. In the case of the hormonal contraceptives it would seem to me without expertise on physiological— biochemical first principles to be a matter of dosage as to which way it worked and that the same product in the same person could function in both ways. So, our difficulty is that knowledge, science and reality have created an overlapping and it seems to be very important to disentangle that overlapping very clearly. I will not anticipate amendment No. 14, but it is for that reason that I support amendment No. 14. This is not, in any way, entering into the abortion and contraception argument except to say that they must be kept separate by every possible mechanism and that people are entitled to the best expert medical advice to distinguish between the two things which, in fact, currently overlap.
That is exactly my approach, Senator Keating. My approach is totally to distinguish between the two, and say that this is contraceptive legislation and abortion is criminal legislation. By virtue of section 10 we take abortion and abortifacients totally out of this legislation. I am saying that nothing in this legislation shall authorise them or permit them in any way, therefore making this very much, very positively and very definitely a contraceptive Bill while leaving abortion and abortifacients, as Senator Keating requests, in the realm of the criminal law.
Question put.
The Committe divided: Tá, 20; Níl, 9.
Tá
|
Brennan, Séamus.Brugha, Ruairí.Conroy, Richard.Cranitch, Micheál.Donnelly, Michael Patrick.Dowling, Joseph.Ellis, John.Goulding, Lady.Harney, Mary.Herbert, Anthony. |
Hillery, Brian.Jago, R. Valentine.Kiely, Rory.Lanigan, Michael.McGlinchey, Bernard.McGowan, Patrick.O'Toole, Martin J.Ryan, Eoin.Ryan, William.Whitaker, Thomas Kenneth. |
Níl
|
Blennerhassett, John.Burke, Liam.Butler, Pierce.Cooney, Patrick Mark.Howard, Michael. |
Lynch, Gerard.Markey, Bernard.O'Brien, Andy.Staunton, Myles. |
Tellers: Tá, Senators W. Ryan and Conroy; Níl, Senators Burke and Butler.
Question declared carried.
Business suspended at 1 p.m. and resumed at 2.15 p.m.
NEW SECTION.
I move amendment No. 14:
In page 7, before section 11, to insert the following new section:
"11.—(1) The Minister may appoint a Committee (referred to in this section as the Committee) to advise him on whether or not a particular appliance, instrument, drug, preparation or thing or an appliance, instrument, drug, preparation or thing of a particular class is an abortifacient (whether or not the appliance, instrument, drug, preparation or thing is also a contraceptive).
(2) The Committee shall consist of not more than five persons and shall include persons with medical qualifications.
(3) A person shall not import, sell, manufacture, supply or advertise a contraceptive which in the opinion of the Committee is also or might also be an abortifacient.
(4) A person who contravenes subsection (3) of this section shall be guilty of an offence."
I should like to withdraw it and put it down for discussion on Report Stage with amendment No. 1.
Amendment, by leave, withdrawn.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
This is the section which writes in a formal provision for conscientious objection. It reads:
Nothing in this Act shall be construed as obliging any person to take part in the provision of a family planning service, the giving of prescriptions or authorisations for the purposes of this Act, or the sale, importation into the State, manufacture, advertising or display of contraceptives.
The problem about writing in an express provision of this kind is that it begs the question about the whole structure of the Bill itself. There is nothing in the Bill which amends, nor has there been any other attempt to amend the existing law obliging people either to sell or to advertise contraceptives or to make them available. It is part of the particular attitude towards conscience that arises when we discuss this subject. It is an example of conscience working one way. We have in section 4 of the Bill a very high emphasis on the discretion and, ultimately, the conscience of individual doctors. It appears that if a doctor is not satisfied that the person applying to use contraceptives is using them for bona fide family planning reasons and if the doctor's conscience takes objection to that, he can refuse to give the prescription or authorisation. Here we have an artificial highlighting of this element which is not necessary. Nobody is being forced. There is nothing in the Bill which implies compulsion. It is a token section which is pandering to those who would seek to imply that there was in some way a compulsion in the matter and that the Bill would be better without this section.
I respect the conscience of any citizen and the freedom of any citizen not to do what he does not want to do. I would be the last person to force on anybody views, attitudes or practices which were against his or her conscience. I think I have a reputation in the area of civil liberties which will stand examination. I sense that this section conveys a wrong impression in relation to the whole area of legalising and making available contraceptives, that somehow people will be forced to use them, or forced to prescribe them, or forced to sell them. The Bill would be a better Bill without this provision.
I have no comment to make.
I should like to elicit some comment from the Minister. Does the Minister see any compulsion in the Bill that makes——
No comment.
Does the Minister see any compulsory element in the Bill that would make section 11 necessary?
I have nothing to say.
Question put and declared carried.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
Section 12 contains various complex provisions for the amendment of the Censorship of Publications Act and we are assisted by the fact that there is a table showing the effect on the Censorship of Publications Acts of 1929 and 1946. It appears that the opportunity is being lost of amending the apparent inadequacy of the procedure under the 1929 and 1946 Acts for considering the censorship of a publication. What is happening in these sections is that the provisions relating to the so-called unnatural prevention of conception are being deleted so the Censorship Board would not now ban a book or periodical because it advocated the so-called unnatural prevention of conception. However, the amendments to those Acts do not appear to deal with the problem that arose in the case that I referred the Minister to on Second Stage when he accused me of dealing with a Committee point and I said that I would prefer at that stage to give him notice that I was concerned about this matter so that he or his advisers would have an opportunity of looking into the problems.
It does seem that the opportunity arises here where we are amending precisely the sections which appear to have been considered to be inadequate by the Supreme Court in the case of the Irish Family Planning Association and Dr. Joan Wilson against the Censorship of Publications Board. The appeal against the banning of the family planning booklets was upheld by the Supreme Court because there had not been any provision for adequate hearing and an adequate opportunity to put the case by the publisher or author, or whoever wished to speak for the publishers. As I read this section it will not deal with that matter but I would be grateful if the Minister would tell me whether or not he has considered it and whether or not he has satisfied himself on this provision.
I did not imagine that Senator Robinson would find something to protest about in this section. The Censorship of Publications Act is not my responsibility as Minister for Health; it is the responsibility of the Minister for Justice. It deals with the censorship of publications. In so far as this Bill makes artificial contraceptives available it would be completely illogical when the Bill is enacted to continue to control the importation and distribution of books or periodicals merely on the ground that they advocate artificial contraception. Section 12 was put in to cope with that situation and to make the necessary amendment in the Censorship of Publications Act called for by the enactment of this legislation and has no other purpose. It is simple, straightforward and without complication.
It would be more pleasant in this House if the Minister could restrain his irritation at any contribution made by myself or Senator Keating, or some of the other Senators who are critical of the whole——
I am not telling the House that the Senator is irritating at this stage.
With respect, I am elected to the Seanad to have regard to the provisions of legislation that comes before this House. Irritated the Minister may be, but I am going to continue to do what I was elected to do. If the Minister likes, we can have a thorny afternoon of it.
Why was the Senator not here this morning to do it?
I am particularly surprised at the Minister's irritation in view of the fact that I had the courtesy to indicate to him in my contribution on Second Stage that I would be raising this provision. I should like to ask him whether he has in fact considered the judgment of the Supreme Court in the case of the Irish Family Planning Association and Dr. Joan Wilson against the Censorship of Publications Board. Has this judgment been considered by the Minister or his advisers in putting forward this section of the Bill?
I have considered all matters relevant to this legislation in framing it and putting it before the House.
That is not a precise answer to the question I put to the Minister.
I really must be given the right to make my own answers.
Very well. Again, we will let the record record the exchanges. The point that I was making—and the Minister has not really answered it—is that this Bill actually amends sections which were considered to be inadequate by the Supreme Court not for the reasons contained in these amendments but for the reason that it does not give the parties who are involved in a publication an opportunity to put their case. That is not specifically in the legislation. Although this is a Bill relating to health, family planning, relating to the various methods of family planning, and it is a Bill brought forward by the Minister for Health, it proposes to amend the Censorship of Publications Acts. It is a Government Bill. It may have been sponsored by the Minister but it has been approved by the Government. I can think of many instances where legislation which is primarily to deal with one particular subject matter, because it directly deals with relevant sections of other subject matter, takes the opportunity to correct a defect, to amend something that has been held by the Supreme Court to be deficient. The Irish Family Planning Association and Dr. Joan Wilson brought an action in the High Court to challenge the banning of the family planning booklets. They were banned on the grounds that they advocated, or were deemed by the Censorship Board to advocate, the unnatural methods of contraception. The Minister is deleting those words from the relevant sections because this is an appropriate provision; it has been contained in every Bill to amend the law relating to the availability of contraceptives. I agree with the Minister that it is an obvious measure to repeal the relevant censorship provisions. But they also happen to be the sections that were in question before the Supreme Court, and the Supreme Court upheld the appeal from the High Court in the matter and found that there was not an opportunity for the publisher or author to either make submissions to or appear before the Censorship Board before a book was banned. The situation still appears to be dependent upon the opinion of the Censorship Board without affording an opportunity to the author or publisher to make submissions.
This is still a relevant consideration in relation to any book, periodical or publication which advocates the procurement of abortion or miscarriage or any method, treatment or appliance to be used for the purpose of such procurement. The question that an author or publisher or distributor might wish to make representations to the Censorship Board on would be whether it advocated the procurement of an abortion. This is something that is relevant to the Bill and relevant to the fact that these particular sections are being amended. It would be regrettable if we had to wait until some time in the future when the Minister for Justice, given the problems of getting time from the parliamentary draftsman and time to introduce an amending Bill, would correct the system. As I understand it, the Censorship of Publications Board have not been able to function adequately since that Supreme Court judgment. Perhaps the Minister has some information on that. Is he aware that the Censorship of Publications Board are having difficulties?
It is not my responsibility.
It may not be the Minister's responsibility, but the Minister is bringing in a Bill here which proposes to amend sections of the Censorship of Publications Act. This must have been discussed at Government level and, although the Minister has not got a direct responsibility it does seem a matter that could be included in this Bill. If I were to propose an amendment on Report Stage perhaps we could deal with the matter then at more length and the Minister might consider it. I can also at that time bring along the judgment of the Supreme Court and put on the record the precise problem so that he can consider it.
Yes.
We have gone into this Bill quite a lot and the Senators on the front benches on this side of the House have certainly raised a lot of very valid and useful points. But the prospect of Senator Robinson coming in and reading us long passages from the judgment of the Supreme Court on a matter relating to censorship, which is basically the responsibility of the Minister for Justice, in the context of a family planning Bill is depressing. Everybody's temper has been frayed from time to time and I would beg her not to prolong the passage of this Bill with something which is of course of enormous importance, but which I do not think should be examined in this context. The entire operation of something so complex and which has so many ramifications totally irrelevant to family planning as the operation of the censorship board should not be dealt with in this context. I offer this suggestion in friendship. I beg of Senator Robinson to wait until the Minister for Justice is around before we open that bag of cats.
I shall reply also in friendship. Senator Martin may not be quite clear about either what I was saying or what the relevance of the particular amendment is. The case I was referring to was a case on family planning. It was a case where the censorship board banned booklets relating to family planning, straightforward explanatory booklets, because of the provision which we are now amending because of the wording "the unnatural prevention of conception". We are amending that and, therefore, we have the relevant sections before us in the House today as we will also have on Report Stage. It does seem to me that if there is any logic and economy and common sense in the ordering of public business, if there are sections before us which appear to be deficient and which have come under critical scrutiny before the Supreme Court, then it makes a lot of sense and it is also relevant to what we are leaving in the section. Are we going to wait for some other individuals to go before the Supreme Court and again challenge those sections and have somebody ask why did the Seanad not amend that?
It seems to me that the one question which bristles with difficulties is the right of an individual to make representations in front of the Censorship of Publications Board. That is an enormous problem. It is a legal problem; it is a problem that involves the Department of Justice and for that reason I would beg the Senator not to raise it here on this Bill which, after all, has had a very rough passage so far.
Again with respect, that was one of the reasons why I raised the matter on Second Stage in order to indicate to the Minister that I felt there was an opportunity here to cope with a problem to which he might not, for one reason or another, and for very understandable reasons, have addressed himself. That was why I gave time for consideration by the Minister and his advisers of this point and I seem to have been faulted on all counts by the Minister in his irritation for doing so. I still persist in my own conviction that the matter is a relevant one, that the Seanad ought to consider whether it is possible not only to amend these sections but also to correct a deficiency found through a judgment of the Supreme Court. We would be in dereliction of our duty once the matter was brought to our attention not to examine that and I therefore propose to consider the possibility of introducing the appropriate amendment on Report Stage. Question put and agreed to.
Section 13 agreed to.
SECTION 14.
In the temporary absence of Senator West I move amendment No. 15:
In subsection (1), page 8, lines 21 to 23, to delete all words after "a fine not exceeding" and substitute "£50"
At the time when amendments were being prepared I was aware that the Senator was submitting this amendment and I was in support of them and, therefore, I did not submit a similar amendment. This amendment relates to the question of penalties under this Bill and it, therefore, relates to the legislative view of conduct and of attitudes under this Bill. The penalties at the moment appear to be extremely severe and very farreaching in their implications. First of all, under section 14 a person guilty of a first offence under this Bill shall be liable on summary conviction to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both the fine and the imprisonment.
To get back to one of the examples that we were using last night, if a woman were to go to her doctor looking for the type of contraceptive that had to be fitted, for example, a contraceptive cap, and the doctor following what had been his normal practice prior to the passage of this Bill were to fit the contraceptive cap and the woman were to thank him for that and go away with a prescription for the particular material that she would need with it and then if there were to be a prosecution for a supply of the contraceptive cap which constituted an offence under section 4, the potential penalty that the doctor would incur for what had been his normal practice before that would be £500 or six months imprisonment. I use that example, not because I believe that that example is a likely occurrence but because it shows the total arbitrariness of the penalties. No matter what one does under this Bill one incurs the same kind of penalty and they are all severe. It does not matter whether it was a very slight offence or a very calculated and serious intrusion on the legislative intent and the particular controls under this Bill. Either way one incurs very serious penalties. Under section 14 (1) on a summary conviction for a first offence, the maximum that is allowable under the Constitution for summary conviction is a fine of £500. That on present advice is the maximum that would be allowed on summary conviction, so we are hitting the ceiling and, at the discretion of the court, imprisonment for a term not exceeding six months, or both the fine and imprisonment. Then when we come to subsection (2) we see the follow-through in very severe penalties for continuing:
A person guilty of a second or subsequent offence under this Act shall be liable on conviction on indictment, to a fine not exceeding £5,000 together with, in the case of a continuing offence, a fine not exceeding £250 for each day or part of a day for which the offence is continued after the first such day or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fines and imprisonment.
Again for the kind of conduct that we are talking about and for the kind of area we are involved in, the area of personal morality and sexual activity, they are very severe penalties indeed. The further difficulty may arise if the Bill is passed and there are no prosecutions for evasions of it or for circumventing its provisions. Then we have a further disregard of the law and we make ourselves look ridiculous by imposing what, by any standards, are very severe penalties—much more severe that we have for a number of criminal offences in the normal sense of the word—in this Bill but with an absence of enforcement, which means that we were not really serious. It gets back to the old question: is this for real or is it all pretence? Senator Molony was trying to find out from the Minister last night if this is for real. Will there be a serious endeavour to prosecute for evasions of provisions of the Bill or should we not pay any attention to the letter of the law? Should we allow this section to go through without particularly adverting to it?
In the light of that background and that attitude towards this section relating to penalties, I would like to support the amendment put down by Senator West to reduce the penalties in question. They still show a legislative attitude and this clearly is the majority attitude in our Legislature but it is by no means an attitude that is uncontested; it is by no means the unilateral or total view of the electorate. I would support the amending of the relevent sections in order to reduce the fine for a first offence from £500 to £50 and to eliminate the possibility of imprisonment. I would support the reduction of the fine for a second or subsequent offence from the present level of £5,000 to £100 and the deletion of a period of imprisonment. I would similarly support the deletion of £250 as a per diem penalty and substitute £25 for a continued flagrant breach of the law once it has been brought to the person's attention. Finally, I would support the deletion of the words “a fine not exceeding” and the substitution of “£50” in subsection (3).
The whole idea of imposing severe criminal penalties for breaches of this Bill is particularly harsh in view of the very differing views in the community at large about the matters contained in this Bill. It would be considered to be a very harsh—I would even use the words cruel and unusual punishment—to victimise people if, for example, they were to import contraceptives by post after this Bill comes into effect because the present law, following the McGee case, is that a person can import condoms in the post. But after the passage of this Bill anybody who is caught importing condoms for private use would face a fine of £500 or six months imprisonment; if that person were to persist in that activity and was caught a second time, the person would face a £5,000 fine and a year's imprisonment. This seems to be so out of line with the activity in question. The activity is criminal because we are deciding in this legislation that it is criminal; it is not criminal at the moment to import contraceptives. We are making a legislative decision that as of the date of coming into effect of the relevant section of this Bill it will be criminal to import by post contraceptives for private use and we are imposing sanctions. We must be very careful, in deciding on the sanctions we are going to impose, how we reflect the legislative intent.
It is not always the practice that in a Bill of this sort one finds that all offences, whatever their gravity, incur the same penalty. But that is the situation here. The Minister is not distinguishing between different kinds of offences. He is saying: whatever a person does that is in breach of any section of this Bill or is in breach of any of his regulations under any section of this Bill—which we still do not know anything about—he is liable to the criminal penalties involved; the first time he is liable to a penalty of £500 or six months imprisonment; if he does it twice and is caught he is liable to a penalty of £5,000 and a year's imprisonment. I do not know whether it gives satisfaction to certain lobbies to see this written into a section of a Bill. But it does not reflect a realistic assessment either of the conduct involved or of the realistic appraisal by our society of the activity. Do we really want to penalise people who do not want to go and have a long preliminary talk with their GP to see the GP's attitude towards supplying them with an authorisation for condoms but decides, instead of going through with that and incurring the cost of visiting the doctor, the cost of the authorisation and inquiring at the pharmacy, to write to an address published in a magazine for a packet intending to use them as they have done in the past in the privacy of their marriage? It may be that the person just does not want to have to tell his doctor all about this. Now we are saying that if somebody stops this in the post on the way in and if he is prosecuted then he is liable to a fine of £500 or six months imprisonment, or both.
I think the kind of levels proposed by Senator West for this activity are the appropriate levels. They still show a legislative intent to exercise control but they also show a moderation in the way in which a person can be penalised even for the most minor, innocent and innocuous infringements of the provisions of this Bill.
I am grateful to Senator Robinson for moving this amendment. I felt when I read the Bill for the first time that the fines set out in section 14 were so big that they could be interpreted as being almost vindictive. So I tabled this amendment which would considerably reduce the penalties. I could only envisage large fines for offences against the various provisions of this Bill being justifiable if a commercial organisation was illegally making a large profit out of the sale, manufacture or supply of artificial contraceptives. I do not see that the maximum figures given here could ever, in any sense of natural justice, apply to an individual's offences which would be on a small scale and which would be really matters of morality and they are now, in this Bill, turned into criminal offences.
I felt that it was appropriate to put down an amendment considerably to reduce the scale of the penalties. I hope the Minister will say that it is not the intention to impose the maximum penalties unless the offence is extremely serious. But once this legislation is passed—and this applies to all of the Bill and not just this section—it may be that in the hands of another Minister for Health a different interpretation could be made and a different approach to the problem could be taken; the Minister who is dealing with the Bill at present will not be Minister for Health forever; the Government of which he is a member may not be in government forever. Even if it is the Minister's clear intention to be very moderate in his application of this section that is not binding on his successors. The only thing that is binding is what we have here in section 14. I feel that these amendments are worthy of consideration.
I want to explain to the Senator that these are very normal penalties; there is nothing exceptional about them; there is nothing vindictive about them. Subsection (1) provides for a fine not exceeding £500 or six months imprisonment. That is a maximum penalty. The simple truth is that today these are the normal maxima applied in the District Court. This legislation incorporates these fines on the advice of the law officers. For my part I had nothing whatsoever to do with the settling of the level of these fines. The limits of the jurisdiction of the District Court change from time to time. The Supreme Court has laid down the maximum penalties the District Court can apply. These limits move with inflation. Six months is standard. In the Act of 1975 the figure is £50 or six months imprisonment. Six months has been more or less standard down the years for the maximum term of imprisonment the District Court can impose. That relates to an appropriate sum of money changing year by year with inflation. The figure is now £500. That is the simple explanation of subsection (1)—£500 or six months are the maxima and it is entirely at the discretion of the district justice whether or not he imposes the Probation Act or a fine of £1 or whatever. These are maxima which are now the general run of maxima in the District Court and they are the fines which are included in all new legislation to bring the limits of the jurisdiction of the District Court up to date.
Subsection (2) is different. It is clearly a case in which, as was mentioned by Senator West, commercial organisations would be involved. If a person is convicted and fined I do not think that that person is going to come before the courts again if he is a normal citizen of the sort that Senator West is concerned about. Only in very rare and exceptional circumstances would subsection (2) apply to anybody except commercial organisations. My information is that if penalties are to be such that commercial organisations these days will pay any respect whatsoever to them they have to be of this order—£5,000 and £250 for each succeeding day.
These penalties are simple and logical. They are put in on the advice of the law officers as to what is appropriate to the general situation as it prevails today in regard to penalties. It is naive to have a fine of £50 today as a maximum for the District Court, which is exactly the level it was at in 1935.
Senator Robinson and others who support her have taken a number of very puzzling attitudes in regard to this legislation and this is the latest. For a considerable portion of the debate I have been criticised because it is a nebulous Bill, it lacks clarity, is ambivalent and is a fraud because I do not intend to enforce it. That is the criticism which has been made constantly, directly and indirectly. Here we have a section which seeks to put a reasonable level of enforcement into the Bill and that is opposed. I want to suggest that if we want, for the first time, to legislate for the importation and sale of artificial contraceptives we should have an enforceable Bill. If it is not going to be enforceable I should not waste the time of the Dáil or Seanad in bringing it in.
Is it the level of the penalties that makes it enforceable?
If we are going to have legislation we have some sort of penalties which will ensure that it will be adhered to. That is all that is involved in section 14. The opponents of the Bill cannot have it both ways. They cannot accuse me on the one hand of not being serious about the Bill and not intending to enforce it and on the other hand accuse me of having a vindictive and draconian level of penalties which are out of all proportion to the sort of offences involved.
I should like to add a footnote to the effect that in this legislation the offences are primarily for the importing and sale of contraceptives. I want to repeat what I have said so often that possession of contraceptives or their use is not an offence. These penalties are part of the machinery of the Bill to endeavour to ensure that it is adhered to by the general public and particularly by commercial organisations.
This rather puzzling attitude of Senator Robinson and those who support her appeared right through and even again in a most startlingly clear fashion this afternoon. I would have thought that those who profess liberal views and a record in civil rights would have warmly welcomed a conscientious objection provision in any legislation.
A selective one.
If the Minister can show me the compulsion I will welcome the conscientious objection provision.
The conscientious objection provision is not selective. It applies right across the board. It applies to everything in this legislation.
The Bill violates my conscience and nobody is concerned about that.
It is amazing the way one can be liberal in a certain direction but it must be a particular direction. The idea that somebody professing liberal beliefs and attitudes would object to any conscientious objection clause leaves me gasping with astonishment. The same thing applies with regard to the censorship of publications. Again, how can professed liberals convolute themselves into the position of opposing, and criticising a section which, whatever else it does, at least eases——
I am criticising rather than opposing; the Minister should not be inaccurate.
——the laws in regard to censorship? But we find this double think, this ambivalence right through this legislation and I wish——
That is absolutely incorrect.
——these fraudulent liberals would come out in the open and say what they really mean about this legislation——
It might be difficult to use parliamentary language.
——and not force themselves into these convolutions, these twisted positions of, on the one hand, demanding that this Bill be enforceable, clear-cut and rigid and, on the other hand, criticising the level of penalties as being far too severe. The attitude betrays and shows the fundamental dishonesty of their entire approach to this legislation.
I am interested in what the Minister said about the way that a penalty section is added to a Bill. I am interested to hear that he had nothing to do with it at all. I noted what he said about the people who complain about the enforceability of this Bill. I do not believe that a Bill can be enforced simply because the penalties in the last section are sufficiently high. The Minister has completely and utterly misunderstood the arguments made by people in the Lower House and this House about the enforceability of this Bill if that was the interpretation he took out of it. I do not believe it was the interpretation he took out of it. I believe he is to use his own expression, so convinced at this stage in what he thinks about this, that the first word that comes to his mind of an aggressive nature will fit the bill of what he wants to say.
I have an open mind on the level of penalties but the Bill is utterly unenforceable for reasons that have nothing to do with the level of penalties. I can think of at least three pieces of legislation, all fairly recent, in which the level of penalties is considerably lower than they are in this Bill, for example, offences relating to the irregular use of hydrocarbon oil. A commercial vehicle owner using hydrocarbon oil on the first offence is liable to be fined £100. The second offence, of which I had experience in the last few days in court is £500 maximum. That is different from what is in this Bill. If I remember correctly, that was altered by a Finance Act last year or the year before.
The second instance is the merchandise licences. For abuse of the merchandise licence the level of penalty is something of the order of £100.
Give the dates of the legislation.
Road Transport Act, 1978, passed in this House last autumn. The hydrocarbon oil is governed by the Finance Act and I say it was this year or last year. The other one is the Planning Act of 1976. That is three years ago. The offences in that are offences which are offensive to the community. They are serious offences but the level of penalty is far lower.
If the Minister was to tell me that he regards these offences as being sufficiently serious to warrant——
My whole point is that these are now the standard levels of the District Court.
They are not.
They are not. They are the standard maximum.
They are the standard maximum levels now as decided by the law officers of the Government.
I am not quibbling with the Minister on this. I am just anxious to find how the system works. It is an extraordinary system. There are 23 offences created in this Bill. The Minister tells us he had no control or no interest—there is no need to wave your hand at me, Minister.
It is not a matter of passion.
I would have thought it would be a matter of some feeling and interest to the Minister. The Minister tells us he had nothing to do with it. It was of no matter to him at all.
I will re-state what I said. I said that in so far as this particular section of the Bill is concerned, it was a matter on which the law officers took the decision as to what the levels of penalties would be. I had no particular voice or interest in what these levels should be. I leave it to the law officers to decide what are the appropriate level of penalties and I act on their advice. The Senator may or may not accept my word.
I accept that.
Stop abusing me if you take my word for it.
I am not. If I wanted to abuse the Minister I would be far more direct about it.
Join the queue—have a field day.
That is of the Minister's own making.
Nobody is abusing him.
If the Minister says that is the way it is done I accept it, but it seems to me that law officers determine different levels of penalties. I quoted three instances involving legislation, the oldest of which is three years old, that is the Planning Act. The Local Government Planning Act is the oldest one of the three.
The Local Government Act?
Local Government Planning Act of 1976, not the 1963 one, the recent one. The Road Transport Act of 1978 has levels far lower than this.
I know every Bill that has gone through——
The Minister says it is a matter for the law officers. I accept that totally. It is extraordinary that the law officers are apparently given the right to pitch some offences at one level and other offences at another level. I can only quote examples from other legislation. Maybe the Minister did not understand that those other penalties existed at levels far lower, but I think if he does——
I know that every Bill that has gone through in the 12 months, in so far as District Court maximums are concerned, has limits of £500 and six months.
If the Minister would look up the Road Transport Act 1978, the Finance Act of last year relates to hydrocarbon oil offences——
Finance Acts are different. They are a law unto themselves.
They contain offences. I make the point for what it is worth.
I agree with Senator Molony that it is, as far as we are concerned, a new departure that in every provision for penalties in a section of a Bill they have to be penalties that indicate the legal maximums. Five hundred pounds is not only a legal maximum, it would be a constitutional maximum of what would constitute a minor penalty.
That is what I said.
It appears to be a new departure. We can look into this before the Report Stage to see whether it is a uniform pattern. Even if it were and there was a tendency now in legislation to insert the maximum possible penalty that can be inserted at the District Court level, that still does not get round the other major problem that we have with this Bill.
There are two major problems. One is the lack of any distinction between the gravity of the 23 separate offences, many of them making offences what is perfectly legal at present. It is perfectly legal at present to import contraceptives for private use. Now it will incur penalties set out in this Bill. I accept what the Minister says: that they are the maximum and that a district justice on a first offence, where somebody would be charged with importing a packet of condoms might well say: "I do not think that merits £500". He might well say, looking at the section: "Clearly the Legislature takes a very strong view and therefore I feel I ought to impose a very severe penalty". Judges are influenced by the scope of the penalty. I have heard judges say: "It is clear the Legislature takes this very seriously, you see the range of the penalty". Sometimes one hears criticisms from judges that there should be a greater penalty, for example, in the area of pollution. I have heard judges say that the penalties are inadequate in their view. The range of penalty is important. This is not something that the Minister can be totally neutral on and apart from, and just accept the law officer's advice and have no view on.
This is the Minister's Bill. It is his responsibility. The range of penalties is a very important matter for him. When we come to the second or subsequent offence the Minister's reply is not adequate on that point. The penalties for a second or subsequent offence are extremely severe: a fine not exceeding £5,000, a possible per diem fine of £250 and the possibility of a year's imprisonment together with a fine of £5,000. These are very severe for penalties set out in a completely undistinguishing way, applying across the board to the 23 potential areas of offences if we accept Senator FitzGerald's estimate which is a conservative one. There are a number of offences we do not yet know about because they are offences for breaches of regulations by the Minister. We still do not know what those regulations will be. It will be some time in the future when we will know what the content of those particular offences are, for which somebody can be fined £5,000 and be faced with a year's imprisonment if they were to incur a second or subsequent breach.
It is very hard to understand why the Minister feels that the higher penalties, the £5,000 and the year imprisonment, would be confined to commercial organisations. As I understood him, this would only apply to commercial organisations.
As a general rule.
That is a general speculation by the Minister. There is no general rule about it.
I accept that.
That is clarified. It is not at all clear from the text and it is a matter of subjective speculation by the Minister as to whether that would be the case.
I gave my reason.
If the Minister was seriously concerned to ensure that this more severe penalty would be confined to commercial organisations, he could do that by way of amendment. He could provide that there were either higher penalties for commercial organisations and lesser penalties for somebody who imports a packet of condoms twice in a row.
The Senator will agree that to be engaged in commercial exploitation one need not be a commercial organisation. An individual could also be trying to develop a commercial operation.
An individual could also—I am sure the Minister would accept—seek to import a second packet of condoms for his personal use within his marriage even if it was the first time he had been caught.
I said that is unlikely. If a person is caught and fined it is very unlikely——
We are dealing with a number of activities which under the present system are lawful and not in breach of the existing law. It may be that there are individuals who feel that what they are doing is perfectly reconcilable with their own moral conscience. The law does not represent that view. They may be taking the risk without realising that they incur the risk. The fines are very high. I would agree with Senator Molony that they provide across the board for the potential maximum fine, no matter what the offence under the Act. That is unusual. It may be now part of Government policy.
The risk of imprisonment is something that we ought to question. The House should have a view about the use of imprisonment. It is part of Senator West's amendment to delete reference to the sections relating to possible imprisonment whether it be for six months or for one year. He is right in this. The area of sexual morality, the conscience of the individual and private practices of people is not one where they should risk incurring imprisonment. It does not make any sense from the point of view of policy. It would be highly undesirable that people would be punished by imprisonment for breaches of this Bill. It is proper that they should incur fines for breaches of it.
I believe in sanctions for legislation even if I disagree with the legislation. I believe that the only kind of sanction which we should enforce in this area, if we decide to legislate in this area, with which I basically disagree—then the only sanction that we should impose is one of a fine. I do not know what Senator West feels about these amendments, but I feel that we should look into the whole questions of the kind of penalties that are imposed from the point of view of in the first instance penalties, £500 and six months. Is this the standard practice of the Government? If it is then we have learned something this afternoon. Also is it standard practice in the case of subsequent offences that one puts in £5,000 and one year imprisonment? That would be news as far as I am concerned but I am always ready to learn. If we had a chance to look at that, it might be possible to table a further amendment on Report Stage.
I did not intend to intervene in this debate at this stage. It is understandable in Senator Robinson's approach to this problem. In the past she has applauded law breakers and thereby encouraged them in relation to this same problem.
The Senator is at least misquoting me in my presence. He has been misquoting me in my absence for long enough.
Now the Senator wants to support the black marketeers and she wants to ensure that they can measure the situation——
This is about par for the course, is it not?
——in relation to the profitability of operation. One would think that, having listened to Senator Robinson for so long and having heard her views, at this stage she would be concerned about law breaking, black marketeering and the other factors that have been worrying the Minister and responsible Members of this House. I hope that this nonsense will now cease and that a realistic look will be taken.
That is a bit feeble.
Senator Dowling, without interruption.
I can understand Senator West in his approach to the problem. It is quite different from Senator Robinson's, who has in the past been applauding law breakers in this House and outside it.
I had not intended to intervene on this section.
The Senator should have maintained his good resolution.
In the face of the provocation that we have just heard it is more than I can manage. The Minister very well understands why. I propose to give the widest possible circulation to the Seanad record containing Senator Dowling's outburst. Coupled with the remarks of Senator Crantch earlier today, at the opposite end of the spectrum we have two superb examples, one of them an earnest and serious one and one a trivial piece of flac and prostitution of this Chamber. It is perfect. It is a classic and must be deeply embarrassing for the Minister to have such defenders.
I know that, at this stage, the Minister is not accepting these amendments. The ranks will stand firm and this will be in due course the law of the land. I do not propose to either plead or argue with the Minister. The exchanges between Senators Molony and Robinson and the Minister have been between lawyers. I simply want to put a layman's understanding on what we are now purporting to do. If I am wrong, I will be happy to have the Minister correct me. It is a cliché, a truism and part of the libretto of a Gilbert and Sullivan opera that the punishment should fit the crime, that there should be a relation between a punishment and an offence.
There are such things as in terrorem penalties.
Thank you for your elucidation, Minister. I would have thought that the question of determining the punishment or range of punishments would be an exceedingly important part of the Minister's input, in other words, the political and not the technical input into a Bill of this kind. We have heard Senator Robinson as a practising barrister say that she has heard that judges take note of what they call the intention of the Legislature as expressed in the level of punishment.
What the Minister has told us is that this is a sensitive issue, creating new offences and known to violate the conscience of many people. These acts which would now be punishable acts, are currently very widely and legally done. In all those circumstances, the Minister abdicates his responsibility in regard to the determination of the level of punishment. This is done by some persons called law officers. The law officers are not elected, not answerable to An tOireachtas and not influenced, by his own statement, by a Minister. Written mechanically into this Bill are the District Court maxima for some "offences" which are so trivial as to be the norms of practice among all of the younger age groups, whatever Senator Cranitch may say, things that nobody experiences as wrong, sinful, immoral or law breaking. The District Court maxima are written in by faceless people without an input from the Minister. That to me is an abdication by the Minister. He reproaches me with using the word "appalling" but I am appalled, in the context of this Bill, as I have been so many times before. Why did the Minister not have an input? Why was it the law officers who wrote down the District Court maxima in this mechanical way? Is this not a relevant point in the legislation at which to express an attitude as to the triviality or otherwise of these offences and indeed——
I do not think that this particular automatic mechanical section merits all this heat and passion. This is only an enforcement provision. What Senator Keating was more or less getting around to saying in the latter stage of his argument is that these should not be offences at all. Maybe he is right, but they are offences. When we make offences we must have some penalties.
Some of the 23 ought to be and others ought not to be. It ought to be graduated.
That is a separate argument.
Acting Chairman
The Minister without interruption.
With regard to the law officers, they are only advisers. They advise on the level of penalties. I accepted their advice. I do not know what is going on in the courts or what the practices are down there but the law officers know. It is they who will have to enforce this legislation. Senator Keating should realise that. It is the law officers, the Director of Public Prosecutions and that legal side of the Government that will enforce this legislation, not me. They will have a perfectly legitimate view as to the level of penalties appropriate to the enforcement of this legislation. In my view, these penalties are not at all related as punishment for crimes. It has nothing to do with criminality or the degree of the defence. It is not a question of punishment fitting the crime. It is simply a very mechanical section to make sure that when we pass these laws governing the sale, importation and manufacture of these items, if we are serious about our business we shall have a level of penalties which, in the opinion of the law officers, will ensure that the law is accepted and obeyed.
I accept the Minister's general explanation as to the maximum level of fines of the District Court. I accept, unless one regards them as very minor offences and wishes to give an indication to a district justice that he is not to fine a person more than £10, that one puts in this limit now which appears in most but not all, enactments that went through the Houses of the Oireachtas in the past two years. There are exceptions. The Road Transport Act is one of them.
As against that, there is another issue and, that is whether or not a term in prison should exist as an option. I accept that the law officers are the people who watch what is going on in the courts and who determine the nature of legislation in that respect. If one is talking about the level of fines, it is not a bad idea to have them uniform provided the district justices understand that that is now a policy of the legislature and that they are not to have cognisance to the fact that one piece of legislation might ordain a maximum of, say, £50 and another a maximum of £500 and provided they do not regard one as a more serious offence because there is a greater range of penalty. I generally approve of legislation drafted along those lines. It is very important, and the Minister should have been concerned with whether or not a sanction of imprisonment should be associated with offences under this legislation. It is fine to say that the penalty is not meant to fit the crime or that we are not concerned about the criminality of it. The simple truth is that this legislation, very short in its nature, with 16 sections, creates 23 offences.
The drugs Bill does exactly the same.
Accepted. I doubt in terms of offences related to sections that any Bill would score as high as this, even, let me say, a criminal justice Bill. The point I am making is this. I am sorry to hear the Minister say that he was not concerned as to the level. If we were talking purely about the financial fine, that might be a matter for the law officers. If in all legislation we pass the maximum is going to be put there and it is up to the district justice to decide, then it is a mechanical thing. It is not the case in legislation that has been passed where there was a uniform maximum £500 fine that a term of imprisonment would apply. Who determined in relation to the offences——
As long as I have been looking at legislation that tradition has been there—six months, £500, the two side by side.
Even Bills passed during the past few months?
Which legislation?
The Milk (Miscellaneous Provisions) Bill, 1979 provides for offences—a person who fails or refuses to comply with provisions of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500. There is no mention whatever of imprisonment.
Which legislation is that?
Milk (Miscellaneous Provisions) Bill. They are in alphabetical order. The Minister was associated with the Act dealing with tobacco products control of advertising sponsorship and sales promotion. Section 3 offences—on conviction under this section the defendant should be liable to a fine not exceeding £500 and in the case of a continuing offence to a further fine not exceeding £25 for each day on which the offence is continued. There is no mention there of six months imprisonment. That is why I say it is important. The Minister's point is made in so far as the £500 is concerned. There is a £500 maximum in those two cases but in neither of those enactments where offences were created was there reference to a term of imprisonment.
I do not have any information at hand but my distinct recollection is that this is standard— a sum of money or six months imprisonment. I am going back as far as 1935. It is in that.
When the Minister mentioned this a few moments ago, Senator Markey went down to the library and brought up these. We glanced through them and I found two of them which took a matter of four minutes to look up. It could not be standard practice.
The Senator is not accepting that £500 is the maximum?
I accept that in a general sense. Unfortunately in the volumes we brought up the Road Transport Act is not included, but the Road Transport Act, the Minister can take it from me, was passed in this House last year.
Where is all this getting us?
It is very important because what the Minister is telling us is that a decision has been made. We do not know by whom. The Minister understood that it was standard practice that in every offence that was created under enactments there was a £500 fine and or six months imprisonment. It is an extraordinary way of doing business. It is not standard practice. Out of six enactments that were passed by the House in the last few months I quoted two instances and five minutes research——
The Supreme Court has related the two to each other.
I am surprised that the Minister is confused on this. In so far as the jurisdiction of the District Court is concerned, the Supreme Court has determined that there is a maximum jurisdiction and has assisted the Government in saying: "If you want to send someone for three years, you cannot do it in the District Court". That is all the Supreme Court has said.
It has done more than that. I happen to know as I was very involved in a case at the time. The Supreme Court specifically said "£100 or six months is what we will tolerate". That was some years ago. It stipulated those two things, related to each other, and that has always been the tradition in the District Court, six months related to a maximum fine and nowadays I understand it is six months related to £500.
How does the Minister explain the two enactments that I have just quoted on five minutes research? This matter can be considered on Report Stage. The Minister has told the House that this is a matter of standard practice and I fear applying any implication to or interpreting the Minister's words in any way because in the debate we have had in this House over the past two days no matter what interpretation one put on them one was wrong and the Minister, more often than not, did not have an interpretation that he could put on his own words.
The Senator, I am sure, speaking again from recollection, was one of those who accused me of having an ambivalent attitude to this legislation, that I was not serious. I think he asked the question, was it for real, and now he is attacking the Bill because the penalties, he says, are excessive.
I challenge the Minister to show one instance where I said that. My first remark on this section was that, in fact, I was in two minds about the level of penalties. I stood up to ask a question merely because I was astonished to hear that the law officers were the persons who determined the level of penalties. That was the only reason I still ask it and if we were discussing the Milk (Miscellaneous Provisions) Bill and that point was made by a Minister I would stand up similarly knowing nothing about the Milk (Miscellaneous Provisions) Bill and make the same point. We are dealing with a very important point. We are dealing with whether or not men or women are sent to prison for committing offences. We are now being told by the Minister that it was not of concern to him, which was fair enough. It was of concern to somebody.
I never used the word "concern".
The Minister said he was not concerned about it.
No. I said I accepted the advice of the law officers. It was not of very great interest to me.
Very well, it was not of very great interest to the Minister. I will not quibble over words. But I will say this, I believe that the Minister, having in his Bill created 23 offences, should have been concerned to see whether or not they were offences that warranted the sanction of imprisonment. The Minister tells me that he understands it to be standard practice that once an offence is created, it automatically attracts a term of imprisonment. It is standard practice, the Minister said, if an offence is created which is triable in the District Court, that a term of imprisonment attaches to it. So, presumably, if there is a Bill introduced here——
The tradition in the District Court is a maximum fine and/or six months in prison.
That is its jurisdiction. It is not the sanction that is always imposed. For example, if one has licensing laws for one's bicycle and they update the penalties for non-compliance, will there be a maximum fine of £500 and/or six months imprisonment? I would ask the Minister to consider this matter on Report Stage. He obviously has not previously concerned himself with this section. It has not been of any great interest to him but I would ask him to think about it a little bit.
The first point I would like to make is this, that from the point of view of the ordinary citizen, as between individual Ministers deciding the level of penalties in these Bills, the law officers are, obviously, far better qualified to do it. I have the highest respect for the Ministers but I do not think that they are necessarily the right people to decide which set of penalties should be imposed in a particular case. You have also the problem, which has been pointed out and which has been reflected in legislation in the past, that different Ministers impose different levels of penalties. In fact, there is no doubt about it, if one goes back for enough there is an enormous variation between Bills and frequently the lesser offences carry the higher penalties. If the law officers, who after all do know about these things and are paid and trained to know about them fix a common level, then it is in all our interests that this should be done.
I agree with everything the Senator said.
Secondly, where there is provision in any particular Bill, it does seem to me that general imprisonment is necessary in this Bill for the reason that you are dealing potentially with people who might be in the business of importing contraceptive appliances in order to make a very large profit. Now, I can imagine some company, or some individual who was in it for the money, thinking in terms, perhaps, of making thousands of pounds, thinking "The worst that can happen is a fine of £500". He will then take the risk.
£5,000 and £250 a day.
No. First offence £500, so he risks it if he has not been caught before. £500 is the limit and forget about the £250. It has nothing to do with it. He has half a million of these things coming in in some way. He has never been caught before. There is no considering that offence.
He cannot sell them all at once.
The maximum penalty is £500. He is not going to care about that. He will care about a potential six months in jail and it seems to me, therefore, that the law officers are perfectly correct in bringing that penalty into this legislation. But I think we are all getting into a convoluted state on this. As the Minister pointed out several times already, these are maxima, and surely to goodness we can trust our judges of various kinds to behave like reasonable men and not like raving lunatics. Just because the Bill says £5,000 and six months, or whatever it is, it does not mean that the courts are going to impose these penalties. There are, as the Senators opposite know much better than I do, a very large number of criminal offences in this country for which the penalty is life imprisonment. There must be scores, if you added them all up. How many sentences of life imprisonment are, in fact imposed? The fact that they are in the legislation does not mean the courts impose them. The courts take a reasonable attitude and if you do get an occasional district justice—I would not like to say there are such people, but were there unreasonable district justices—who imposes unreasonable sentences, then you could appeal, and with a reasonable likelihood a more reasonable Circuit Court judge would remit or reduce the sentence. If we are going to spend our time with all this legislation in digging out the maxima and saying it is ridiculous to be fining somebody £5,000 for this, that and the other, quite clearly we shall never get anywhere, because Bills come through all the time. The Minister has pointed out that a large number of Bills have gone through in the past 12 months with this provision about imprisonment. Where was Senator Robinson when these went through? Where was Senator Keating? They did not object. It is because this Bill, because of its nature, lends itself to this kind of an approach, and I think it is a mistake. We must really trust our courts to take a reasonable attitude to this.
To all offences?
Regarding the business about not producing records and having a jail sentence—I really think to be put in jail for six months for not producing a record for the tax gatherer would be a little excessive.
Just my point.
There are offences here which, potentially, could be very serious indeed and would have capitalist individuals in the business of making a great deal of money very rapidly. I really do not see, therefore, how you can avoid——
And socialists could not support that.
Thank you, Senator Yeats, for making the points I was trying to make. I agree that——
Acting Chairman
It would help the debate if the Senator addressed the Chair.
I would like to thank Senator Yeats for confirming the point I have been trying to make. He did it extremely well. I agree fully with everything he said. Every offence must be judged and measured. The point that the Minister was making however, was that there is a standard penalty that applies to them all. The position, as he said himself of the Milk (Miscellaneous Provisions) Bill, is that they are offences that do not warrant a term of imprisonment. I accept that completely and that is the way it should be, and if there are offences which do not warrant a fine of more than £50, well then we should insert a maximum of £50. As the Minister said, the district justice may decide to impose a £1 fine or apply the Probation Act, but we must have some regard to maximum levels and also, I think, most importantly, we should concern ourselves with whether or not terms of imprisonment should apply. All I have learned over this is that it was not considered by the Minister whether it was appropriate that terms of imprisonment should apply in relation to offences under this Bill. That is a matter I regret. I think it is a great pity that he did not think about that. If he has not done so before now, I would ask him to give some thought and be satisfied that it is appropriate, because it is his Bill, as he said.
I support Senator Molony in saying that we clearly have, in this section, raised an important question as to the approach of the Minister and his attitude heretofore to this section. He had told us that he has regarded it as a purely technical measure and that he was not personally concerned—I think that was the word he used—or was not personally interested in the levels at which the penalties were set, or the fact that there was imprisonment as well as fines here. He was under the impression that it was standard practice and that, therefore, it was if you like, a routine measure. He must now be aware that it is not standard practice in the sense that there are a number of exceptions to it and I am sure by Report Stage we can identify further exceptions to it. To impose a potential sentence of imprisonment is very much a policy matter and is a matter of responsibility to the Minister. If the climate of debate and the give and take in this debate were better perhaps the Minister would say, as one often hears the Minister say "Well I will look into that for Report Stage". I have lost all hopes that the Minister would say that so, perhaps, what we should say, at this stage, is "We will look further into the matter and maybe we can put down an amendment, or consider it again on Report Stage, when we have looked more closely into the range of penalties." I do not believe that this Bill is an appropriate measure for criminal penalties. It may be that one could argue that for a particular identifiable offence, committed in a particular identifiable way, one could possibly have a sanction of imprisonment, but not as we have here. What we have here is the identification by us of at least 23 offences, some of them for breaches of regulations about which we know nothing at the moment, and global, blanket penalties, including the possible penalty of imprisonment in each and every case; imprisonment for importation of contraceptives for private use, which is legal at the moment; imprisonment as a possible penalty for fitting contraceptives by way of supply, which would be an offence under this Act.
No, fitting is not supply.
The Minister was not in a position to tell us that last night. That is interesting. Is there a definition of fitting? Perhaps we can come back to that too on Report Stage, because I think it is an important point.
Surely it is plain English?
If the fitting includes supply, presumably it has to come in under supply unless the Minister puts in a definition into the definition section which would exclude it.
I said early on what the offences under this legislation are. Both these things are not offences.
Importation for private use is not an offence? Importation by post?
I said fittings. Using fittings, having possession of—these are not offences.
What I am referring to, as the Minister well knows—I have used the example several times—is fitting which includes supply, which is the normal practice at the moment, of a private contraceptive that requires fitting.
Supply is; fitting is not.
That covers the point I was making. Since the legislative decision to impose a possible prison sentence as a sanction is a policy matter, it is a matter for the Legislature and for the responsible Minister, it is not a policy decision for the law agents to take. Perhaps we can return to this section on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 16, 17 and 18 not moved.
Section 14 agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."
There is one problem I have with regard to section 15 and that is that it relates to the question of offences by bodies of persons. Then it goes on to refer to an unincorporated body of persons and to create the possibility of an offence by proxy, an offence by somebody who just happens to be a member of a miscellaneous group of people, but may find himself or herself personally charged with an offence and liable to the kind of penalties or the terms of imprisonment that we have been discussing. Section 15 provides that:
Where an offence under this Act is committed by a body corporate or by a person purporting to act on behalf of a body corporate or an unincorporate body of persons and the offence is proved to be committed with the consent or approval of, or to have been facilitated by any neglect on the part of any person, who when the offence was committed was a director, member of the committee of management or other controlling authority of the body concerned, or the manager, secretary or other officer of the body, that person shall also be deemed to have committed the offence and may be proceeded against and punished accordingly.
That seems to me to be very broad in its scope, in so far as it relates to an unincorporate body of persons. I do not think the same difficulty would arise in relation to a body corporate, and a person acting on behalf of a body corporate would be identifiable, would presumably have taken the kind of activity that could be established or a defence could be established. It seems that somebody who happened to be a member of a committee relating to a particular body—I am thinking of a family planning clinic which was not incorporated, which was not operating under any very defined structure but was a voluntary body of which there were a lot of members who were called the committee and there was no other committee—and this persons was not involved in the day to day affairs, or may have been out of the country at a particular time and that particular family planning clinic continued in operation and found that it was being prosecuted and that each individual on the defined names list of committee was being prosecuted. Then I think that there is a danger that the person would be liable, by proxy to be charged with a criminal offence and be prosecuted under this Act.
The Bill seems to be cast in very broad terms indeed. It reminds me a little of the kind of language in the Offences Against the State (Amendment) Act, 1972, the possibility of committing an offence as a member of a group, or, indeed, the Forcible Entry Act—if you are on the fringes of activity and there is a possibility that you may be involved in it. The wording here, if there is "any neglect on the part of any person", is there a duty on somebody who is a member of a committee, in those circumstances, to be such an active member that they do not neglect to be present at a meeting where a decision is taken to decide to continue to provide family planning services, for example? Perhaps the Minister would give some indication of the scope of the section, so that there would not be any danger that somebody might be charged with an offence by proxy.
I cannot add anything to what the section says. Again, it is a section inserted on the advice of the law officers and it is to deal with a situation where an offence is committed by a body corporate or an incorporated body of persons. The idea is that somebody should be liable for the offence committed by the body in question.
The particular sentence I was worried about is "facilitated by any neglect on the part of any person..."
That would appear to be open to the interpretation that the Senator says.
Question put and agreed to.
NEW SECTION.
I move amendment No. 19:
In page 9, before section 16, to insert the following new section:
"16.—(1) The Minister may make an establishment order to establish a body to perform the following functions:
(i) to review the operation of this Act;
(ii) without prejudice to the generality of paragraph (i) hereof to review the operation and effect of the family planning services to be provided under section 3 of this Act;
(iii) to collect information and conduct enquiries whether in or outside the State with regard to the sale and supply of contraceptives and matters allied thereto including the particular need therefor and the public interest to be served thereby as the same are referred to in section 3 (3) (b) of this Act;
(iv) to make such recommendations (if any) as the body deems fit as to the amendment of this Act or of any amendment thereof or of any law applicable to sexual intercourse between human beings;
(v) to perform such other functions as the Minister deems fit; and
(vi) to report from time to time to the Minister on the foregoing matters.
(2) Every report to the Minister made by a body established under subsection (1) of this section shall be laid before each House of the Oireachtas within six months of its being made.
(3) All the provisions of the Health (Corporate Bodies) Act, 1961 as adapted by this section shall apply to a body established under subsection (1) of this section."
This is an amendment tabled by Senator FitzGerald. It proposes to set up a body to do certain things set out in the amendment, principally to review the operation of the Act. In view of the fact that this Bill is going into unknown waters, a lot of it will be implemented by way of regulation and there is a lot of speculation as to how it is going to work out in practice. The amendment is desirable. It sets up this body that will review its operation and make recommendations for the improvement of the law, should any improvements turn out to be necessary.
I support the amendment, primarily because the show which we had here over the past couple of days—a farce, a charade, call it what you like—is far removed from the reality of the ordinary facts of the contraceptive scene in Ireland. The fact is that people have been availing of these, acquiring them through illegal ways, have been distributing them through illegal ways and, I believe, will continue to do so; they are not really concerned about this measure because they were not asked to be concerned about it. This measure was not concerned at all with them. My view, and I reiterate it—I expressed it on Second Reading of the Bill —is that the whole problem was created in 1935, when this proposition was first introduced.
Hear, hear.
The thing to do, if we had the courage to do it, would be to amend the 1935 Act, get rid of that section that has offended the Constitution, and set up a committee now to review the position, to see what abuses occur, if any, judge the situation as one gets the opportunity to judge it.
That is not what is involved in the amendment.
If the Minister would bear with me. That was what I suggested on Second Stage.
We decided that. Perhaps we were wrong but we took a decision on that.
I was not aware that the Minister had considered it specifically. I am impressed to hear that he did.
I think the Senator is misunderstanding the Minister.
Perhaps I am.
Rightly or wrongly, the House took a decision against the Senators.
Acting Chairman
The Second Reading has been passed. In other words, we are discussing amendment No. 19, which relates to section 16.
I have my own views on the whole subject. I think I am entitled to put them because I put them forward as a reason for supporting this amendment.
Not strictly on Committee Stage.
I beg the Minister's pardon. I am entitled to advance what arguments I think are properly in support of this amendment.
Subject to the control of the Chair.
Subject to the control of the Chair, of course. I felt that was the right thing to do because over the past four or five years we have had this open situation after the McGee decision, that people could import contraceptives. As Senator Martin said, thirteen-year-olds could import contraceptives. There has been no evidence that thirteen-year-olds are importing contraceptives. There has been no evidence of a particular abuse that has arisen because the Supreme Court found a portion of section 17 of the 1935 Act to be repugnant to the Constitution. I felt there was an opportunity to de-criminalise this whole issue, let it roll and see what happens.
The Minister certainly did not agree with that approach. It is his job to decide what to do. In bringing in this measure he has himself acknowledged that it may go before the courts and be found to be unconstitutional. He has acknowledged that it is imperfect, that it is his Bill and that it is the best he can do. Fine. I would accept all of those things that the Minister says, but I believe that sufficient views have been expressed, and seemed to be fairly well grounded, to suggest that this legislation could be improved by amendment, if there was agreement on policy. For that reason, with this piece of imperfect legislation, it is in the best interests of the community that there should be some review body there to concern themselves with the operation of the Act. In very many ways it is going to affect people in the community, whether it be properly married couples in the eyes of the State, whether it be couples living together, married or half-married or unmarried, whether it be a spinster of whom I spoke last night who must now produce to the chemist the prescription issued pursuant to the Health (Family Planning) Bill, whether it be the family planning clinics themselves. A lot of people will be affected by this. It will be seen to be a fairly ineffective piece of legislation in an area in which it might be desirable to have some very effective regulations and legislation. It is an area where there is great division of opinion, clearly an area in which people can become impassioned and very concerned, from all sides. The proper way to proceed now is to entrust the issue to some form of review body who can watch the situation as it develops, report to the Minister and, if necessary, bring in amendments to the section.
I support this amendment tabled by Senator Alexis FitzGerald, for the reasons given by the Senator who has moved it. The debate, both in the Dáil and in this House, has revealed that none of us knows enough about the overall situation, whatever our particular personal views and convictions may be. We do not have as much information as we should have. We do not have enough information on the degree to which the pill is described in circumstances where another contraceptive would be better for health reasons, or all kinds of reasons. We do not know how many single people are applying for, and using, contraceptives. We do not know nearly enough about the statistical pattern, or the social pattern. I am recalling Senator Conroy's words that we should be careful not to misquote statistics or not to distort the statistical picture. It is important to have a follow-through on legislation like this. I am fundamentally opposed to the major provisions of this Bill, but it looks as if it will be passed by the Oireachtas.
It would be important to have a responsible follow-through by means of a body to examine the situation. For example, if, as it seems likely now, the family planning clinics are going to close down, or have to close down, there will be a very difficult period of perhaps as long as two years before there is the easily available substitute for people who require that kind of a service. Some of them may be lucky and find that their individual GP is already well trained and supportive in that area. Others may find that they have much greater difficulty in getting access to advice and access to methods of family planning, including contraceptives.
It would be most helpful to have a body specially established by the Legislature to examine and monitor the operation of the Act to see where particular difficulties lay. The Minister should welcome the establishment of such a body, because it would help him to address himself to his responsibility in relation to consenting to the future operation of family planning clinics, if he is satisfied that that is in the public interest and that there is a particular need. It is very difficult to see how the Minister can satisfy himself on those two grounds unless he establishes some such body and has an active way of monitoring the Act, of receiving reports of its operation, getting an independent assessment of the overall situation which would have much more respect and credibility in the community, and not to take upon himself too subjective a discretion as to whether or not the public interest, or the needs of the particular area, require that they be a family planning clinic in that area.
As I forsee it, the next couple of years will be very difficult, very harrowing ones for many women in Ireland who want access to family planning services. I feel they would be at least in some way reassured if a body were to be established to monitor the effects of the Act, even a body to whom they could address their difficulties, compliants or constructive suggestions. I strongly support this amendment.
I find myself unable to accept this amendment, principally because I do not think it is necessary. If I wanted such a body, I have already ample powers under the 1947 Health Act to establish it. Section 98 of that legislation enables a Minister for Health to set up any such body that he wishes. From that point of view it is not necessary to insert this section here. Apart from that, I am not sure that such a body would be of any great assistance to me. Most of the functions which it is proposed to attribute to this body are functions of a very important nature and I think are appropriate to the Minister for the time being, himself or herself. Therefore, I have doubts as to the efficiency, or the benefit, of such a body as this. If it does appear that it is necessary, however, then I already have powers to set it up.
The difficulty of the Minister saying that he recognises the particular functions that would be performed by such a body if it were to be established, if he were to accept the amendment, is that he says they are, if I understand him, so important that they would be matters for the Minister himself or herself, which is encouraging. The difficulty is that one of the important provisions of this amendment would be that such a body apart from having a certain independence and function to perform in relation to monitoring, to getting further information, to asserting the position, would report to the Minister and the report would be laid before the Houses of the Oireachtas within six months of it being made. That I think would be a very important function because it would give us, the Members of the Dáil and Seanad, an opportunity to read these reports and to be a great deal better informed about the situation. The records of the debates in both the Dáil and Seanad are perhaps the greatest proof of the need which we all have—I include myself in that very much—for better, harder, statistical, empirical information about the whole situation and about the impact of this Bill on our community, on women in Ireland who have had up to the passing and coming into effect of this Act had access to the family planning clinics, how they manage to find other sources of contraceptives or what the general situation will be.
Perhaps the Minister would look at it again. He does say that he feels that he has power under the Health Act of 1947. The difficulty there is that I do not think there would be the provision for the reporting to him and the laying of the report before both Houses of the Oireachtas. That is something that would be very well worth while from the point of view of the Oireachtas and its further information and further monitoring of the situation. If he had some degree of sympathy with the amendment of Senator FitzGerald perhaps he might consider the matter at Report Stage from the point of view of the information for the Oireachtas which would not be provided as I understand it by the establishment of a body under the Health Act. He might consider the matter again.
Amendment, by leave, withdrawn.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."
The Minister gave us some information that the Bill will not be brought into effect in August. Is he in any position to give us——
That is section 17.
Sorry, that is right. I have just remembered that I wanted to ascertain the scope of section 16 (1). It is a formulation which to the best of my knowledge is not standard. I do not think I have seen this particular catch-all power given to a Minister before. Can the Minister draw my attention to any other statutory provision which has a similar power? It appears to allow the Minister to have very broad power of making regulations.
It is exactly the opposite.
It is exactly the opposite? Perhaps the Minister would explain?
It gives him power to make regulations in regard to matters which are specifically referred to in the Bill as being the subject of regulations.
If the particular sections give the Minister power to make regulations why does he need this particular power to make regulations?
That is the structure of the Bill, the drafting of the Bill. Section 16 (1) is quite clear, that the Minister has general power to make regulations for anything referred to in the Act as being the subject of regulations. It is quite a restrictive provision in fact. It does not permit me to make anything like a general regulation.
The reason why I pursue this is that the Minister may recall that yesterday Senator FitzGerald was very concerned that under section 4 of the Bill there is a provision that a person shall not sell contraceptives unless the sale is in accordance with regulations for the purpose of this subsection relating to the sale of contraceptives, and he made the point that he felt this did not allow the Minister to introduce any regulations controlling the type of prescription. For example, there was no possibility of regulations providing that somebody under the age of 15 should not be prescribed contraceptives or given an authorisation for them. He felt strongly that the Minister should have this power and the Minister referred him to section 16, subsection (1) at that time. I did not quite understand what that reference was.
If I wanted to do that, but I did not agree that I wanted particularly to do that. If I did, it would probably come under the Title in relation to any matter ancillary or incidental to such matters. That would be the regulations governing the sale of contraceptives.
That establishes the point I was making that this is rather broad——
No because section 4 subsection (1), paragraph (a) refers to regulations. As I have said, the power in section 16 (1) is only to make regulations where the Act already indicates that regulations should be made.
Yes, but the point is that the phrase is used in such a way as to give the Minister a much broader power than he appears to be admitting to—"or in relation to any matter ancillary or incidental to any such matter". He has already given us an example.
But that must be a matter which already has been indicated in the Act as being subject to regulation. It is quite restrictive.
Yes, but most of the sections of the Act, the operative sections, are subject to regulations.
No. Section 2 is specifically not subject to regulations, for one.
When we were on the Second Stage we was that there are a large number of sections that are, sections 3, 4, 5, 6, 7 and 8. There is a very wide power to make regulations.
It is part of the process of legislation. It is a bit late in the day to question it now.
With respect, I have heard Senator Yeats on this side of the House eloquently make at least part of the points that I am making now, which I think he would admit.
But I have——
Question put and agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."
Perhaps the Minister has seen the light at the end of the tunnel, and as we are coming to the last section now he might be prepared to be a little more forthcoming on when the Act or particular sections of this Act may come into effect. Does he intend to bring the Act as a whole into effect despite the fact that he has flexibility in the matter? Does he intend to bring certain sections into effect sooner than others? Can he give us any information on that?
I provided the flexibility so that if I thought it necessary I would be in a position to avail of it.
But you are very near to the point where this thinking will be a matter of reality. Can you not give us any information?
What might become a matter of reality?
The fact that the Bill is presumably going to go through this House in a fairly short time and then it will be up to you to decide.
Of all the Bills that ever went through the House, this Bill did not go through it in a short time.
I can assure the Minister that if he looks at the records of this House, this Bill has not taken a particularly long time. It may be irritating to him: he obviously had a certain sense of time scale which was not the sense that some Senators have had. There has been no filibustering: there has been no undue delay and it seems to be that because the Minister is unaccustomed to the procedures of this House he might think otherwise.
I do not want to be contentious in these final stages but it seemed to me that the Senator who has just spoken used parliamentary device available to her, adopted any particular stance that she could possibly adopt, on totally contradictory sections of this legislation to keep us here as long as possible.
I can assure the Minister that is not the case.
The record will show that it is unfair.
I have already given my opinion about bringing the Act into operation. We have just had a discussion on the normal regulations section.
It is not a normal regulations section; I have never seen one exactly like this before.
When will the Act come into operation? That is the only question now.
Whenever I feel the time is appropriate.
No wonder the Minister said there was irritation and insecurity with an answer like this.
I have already given an assurance that there will be no rush. I used the words "indecent haste" but apparently that offended somebody's sensibilities.
A Freudian slip.
Question put and agreed to.
Title agreed to.
Next Stage?
Next Tuesday.
Could it not be Wednesday?
No, Tuesday.
What time?
The House will meet at 2.30 on Tuesday and I presume it will be the first business.
Report Stage ordered for Tuesday, 17 July 1979.
The Seanad adjourned at 4.15 p.m. until 2.30 p.m. on Tuesday, 17 July 1979.