Before we enter on Report Stage of this Bill, I should indicate to the House that amendments Nos. 9 and 10 in the names of Senators Robinson and Keating are out of order on the ground that they are outside the scope of the Bill as read a Second Time. The Senators have been notified accordingly. Amendments Nos. 1 and 8 are related and may be discussed together.
Health (Family Planning) Bill, 1978: Report and Final Stages.
I move amendment No. 1:
In page 2, between lines 16 and 17, to insert the following:
"‘abortifacient' means an appliance, instrument, drug, preparation or thing which terminates a human pregnancy;".
These amendments were down on Committee Stage and I agreed to table them again on Report Stage so that there could be further discussion on the amendments and what they are all about. It is common case between all sides of the House that we do not want to admit, through the medium of the Health (Family Planning) Bill, any element of contraceptive practice that could also be abortifacient. The Minister says that the protection against anything of an abortifacient nature is contained in the Offences Against the Person Act, 1861. Sections 58 and 59 of that Act deal specifically with the offence of abortion. I would remind the House of the terms of those sections. Section 58 says that:
Every Woman, being with Child, who, with Intent to procure her own Miscarriage, 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
—the first part of it deals with the woman and the second part deals with a third party—
and whosoever, with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall unlawfully administer to her or cause to be taken by her any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, shall be guilty of Felony,
and penalties are provided. Section 58 makes it an offence for a woman or for a third party to procure an abortion by administering poison or by using an instrument. Section 59 says that:
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 or employed with Intent to procure the miscarriage of any Woman.... shall be guilty of a Misdemeanour,
Section 59 prohibits the supplying of the means of procuring an abortion. Those two offences are perfectly clear, but an essential ingredient before those offences can be committed in the eyes of the law is that there must be an intention to procure the miscarriage. There must be an intention to cause an abortion. The prosecution must prove beyond reasonable doubt that the person being prosecuted had the intention of procuring a miscarriage, either the woman who takes the abortifacient, the third party who supplied it to her, or the third party who administered it, before an offence can be committed under the 1861 Act.
Section 10 of this Bill reads:
Nothing in this Act shall be construed as authorising—
(a) the procuring of an abortion;
That is quite clear because that is already the law under the 1861 Act.
(b) the doing of any other thing the doing of which is prohibited by section 58 or 59
Of the 1861 Act which I have just read out——
(c) the sale, or importation into the State, manufacture, advertising or display of abortifacients.
The section does not go on to provide that the sale, importation or display of these things shall be an offence.
The Minister relies on the 1861 Act as providing a defence to the dangers that might ensue if abortifacients were sold, imported into the State, manufactured, advertised or displayed, because the 1861 Act prohibits abortion. It does, but it only prohibits abortion when the State can prove that the abortifacient was taken, administered or supplied for the purpose and with the intention of procuring an abortion. What we are trying to guard against is the type of device, the effect of which is not clear, a device which could have an uncertain effect, which stifles the act of conception before conception takes place, in which case it is a contraceptive as commonly understood by that term or, alternatively, which might abort a conception immediately it has taken place. It is that sort of device that we commonly refer to when we speak of abortifacient.
Consider the situation in which that sort of device is on the market and is being supplied and it is not scientifically clear as to what its effect is. As the law stands, even if the scientific effect of that device could be established, although I am suggesting it cannot be established because of the confused nature of the subject and the imprecise state of scientific knowledge on this subject, there is a grave danger that the effect of some so-called contraceptives is to procure a miscarriage in the wording of the 1861 Act. The Minister says that his defence against the supplying of such devices is the two sections in the 1861 Act. If the Minister calls the 1861 Act as a defence and a prosecution is mounted and that prosecution is brought by way of indictment which must follow the wording of the 1861 Act and must allege that the noxious thing, poison or the instrument, was taken or administered or supplied with the intent of procuring a miscarriage, that is the case that the Minister will have to prove. The Minister is bringing this case in relation to these instruments that we are calling abortifacients, instruments or things, whose precise effect is not certain, because we do not know whether it is a miscarriage inducing instrument or whether it is a contraceptive. The immediate defence of a person charged under the 1861 Act for supplying, using or taking this type of device, is to say, "I did not take, supply or use this device with the intention of procuring a miscarriage or causing an abortion; I took, used or supplied this device purely for contraceptive purposes". Once that defence is made the Minister's prosecution must fail. It is no longer relevant whether the device or thing did cause an abortion or whether it was an abortifacient. That is the law as it stands at the moment and that will be the law after the Minister's Bill passes through this House and is signed by the President.
That law, if passed in that fashion, is defective in doing what many people want it to do, that is, closing the loophole on devices which are supplied for apparently contraceptive purposes but which are abortifacient in their method of operation. This is something desired by everybody; this is what we want to achieve when this Bill becomes law. This Bill will fail to achieve that because it fails to deal with the type of situation where the device being used allows the user to raise the defence that he did not have any intention for that device to be used as an abortifacient.
That loophole can be closed only by providing specifically for a definition of an abortifacient that will leap this imprecise boundary between contraceptive and abortifacient so as to define abortifacient in so far as it can be defined. I admit that this is something which from the drafting point of view is impossible in absolute terms. To close that loophole I am proposing in amendment No. 8 that a committee be set up to advise the Minister whether a device is an abortifacient even though it is also being presented as a contraceptive. Accordingly, when the sale or importation or display or supply of an abortifacient is prohibited in the statute, we will know to what thing or instrument the prohibition refers. We will know that it is a thing or instrument defined in accordance with amendment No. 1 and the subject of an opinion by this committee in accordance with amendment No. 8. Then there will be a further provision making the supply and so on of that abortifacient so defined to be unlawful and to be a specific offence so that we will not have to rely on the 1861 Act where one must prove intent.
As I have indicated, the allegation of intent is rebutted automatically by the fact that the instrument in question can be alleged to be a contraceptive. The changes I am proposing in the amendment can remove that defence by removing the plea that it is a contraceptive if, after the committee have decided that the thing is abortifacient, there was a presumption under the 1861 Act that the person intended the natural consequences of the action.
The 1861 Act cannot be an effective defence until the loophole which is left by the failure to define "abortifacient" is closed. Until it is closed it is a perfect defence for anybody prosecuted to say, "This was not an abortifacient, this was not taken as an abortifacient, this was presented to the public as a contraceptive and was so used". Once that defence is open the 1861 Act is not available to safeguard against backdoor or incipient abortion. For these reasons I would strongly urge the Minister to look at these amendments and to accept them. It is common case in this House and throughout the country that no loophole whatever should be allowed which would admit in the slightest degree the principle of abortion through the implementation of this Bill.
Is the amendment seconded?
Yes.
I am rather unhappy about these amendments. It is sometimes, without going into the technical details of it, perfectly normal and proper and necessary to terminate a pregnancy. There are various procedures, various drugs and instruments which could be called abortifacients which may be used and are used by doctors of all denominations. Such procedures are often essential to the health and the life of not only the mother but also the child. There are many problems involved and I am unhappy to see an amendment worded as this at present, and I cannot support it.
Since Committee Stage concluded I have given a great deal of thought to this matter and have sought advice from the draftsman and the law officers. I am quite satisfied that the procedure adopted in the legislation is the right one and that to adopt either of Senator Cooney's amendments, particularly the first one, would not alone be unnecessary but it would be unwise and could lead to very great difficulties.
I will first deal with the question of abortion and abortifacients raised by some other Senators in this context. "Abortifacient" is a specifically defined dictionary word which has a very definite meaning. The meaning of it clearly connotes causing an abortion. There should not be any difficulty about that. "Abortion" is also a very specific dictionary word with its own special meaning.
Senator Conroy had a very important point in that the definition of abortifacient here could not possibly be accepted because it would apply to all sorts of things which would have a completely legitimate medical use. I am told that the way in which the definition is framed by Senator Cooney in his amendment would cover all sorts of ordinary everyday items, so that it would be a completely inapplicable sort of definition to import into the Bill.
To come to the situation that we are legislating for, the approach in the Bill is the right one. The section in the Bill as it is before us, as I have already explained on a number of occasions, saves the situation in regard to abortion and abortifacient. Section 10 makes it absolutely clear that nothing in this legislation relating to sale, supply, importation, authorisation and prescribing can in any way interfere with the situation as it obtains in regard to abortion and abortifacients. This legislation makes it crystal clear that the position in regard to abortion and abortifacients is preserved adequately and absolutely as laid down in the 1861 Act. Therefore, the law on the total prohibition of abortion and abortifacients in the 1861 Act stands unimpaired.
I am advised that is the right way to deal with this matter. The parliamentary draftsman would be very worried, indeed, if we were to attempt to introduce into this legislation a definition of abortion or abortifacient and thereby detract to some extent from the power of the 1861 Offences Against the Person Act. My advice is that if the law on abortion or abortifacients is to be changed it should be done as part of criminal law and as an amendment or a redefinition in the 1861 Act. That is the way in which it would have to be done. I am not at all convinced by anybody that there is need to do that or indeed that it would be wise to do that. The 1861 Act was carefully drawn and has stood the test of time. To set about changing it in any way at this stage is something that would have to be approached with very great caution and very great skill.
Senator Cooney seems to persist in making the same mistake in his interpreatation of section 59 of the 1861 Act. Senator Cooney constantly referred to the fact that the drug, appliance, or whatever, would have to be supplied with the intention of causing an abortion. That is not what is in section 59 of the 1861 Act, and it is deliberately not in it. The wording of section 59 is very specific; it says:
Whosoever shall unlawfully supply or procure... knowing that the same is intended.
The person receiving it must have the intention. The supply of the thing is not related to intention. The supplier must have knowledge that is intended but the intention would be on somebody else's part, obviously the person procuring the abortion. Section 59 was very carefully and specifically drafted on those lines and has stood the test of time. If it is to be changed, if somebody finds something wrong with it, then it would have to be changed on its own merits in relation to that piece of legislation. If we want to do anything about this we would have to go to that 1861 Act and reframe it. That is certainly not necessary for the purposes of this legislation and is indeed something which would have to be approached with very great caution.
I rely on the argument which I have been making all along that section 10 is quite adequate for the purposes for which it is intended, namely, to deal only with contraceptives, contraception and family planning. Section 10 ensures that the law in regard to abortion and abortifacients is still firmly and specifically dealt with in the 1861 Act and is not in any way weakened or impaired by the passing of this legislation.
One other argument put to me in relation to amendment No. 8 is that it seems to incorporate into itself a basic error. It speaks of something, apparently, as being both an abortifacient and a contraceptive. My advice is that that is impossible. A contraceptive is one specific thing and an abortion can only take place after conception has happened. A device cannot be a contraceptive and an abortifacient at the same time. I am further advised that, even if that were not so, the saver in section 10 of the Bill makes it crystal clear that a thing which was a contraceptive could not be sold imported, manufactured, advertised or displayed as such if it were also an abortifacient. For these reasons I am compelled to refuse both amendments Nos. 1 and 8.
Having listened to the Minister and to Senators representing both sides of the House I am happier today than I was when this Bill was introduced. I am glad that both Senator Cooney and the Minister can say that this Bill does not allow the introduction of abortion here. In their minds it is very clear that abortifacients should not be allowed to be sold legally. That, in itself, gives me great confidence that the family and the child come first. Having listened to this debate I am now certain that abortion is out.
This amendment does not make sense. It says that:
‘abortifacient' means an appliance, instrument, drug, preparation or thing which terminates a human pregnancy.
Pregnancies can be terminated at eight months, eight and a half months, seven months and six months. There is no indication here as to what stage pregnancy can be terminated without it being an abortion. If all these words define an abortifacient, then abortifacients are being used every day by some person or other in the termination of pregnancies. Where the amendment refers to abortifacients only and the termination of human pregnancy without any further explanation it does not make sense. It could be said that at any stage an appliance, drug or whatever used by a person to terminate a human pregnancy for any reason can be termed an abortifacient. That does not make sense.
I take the Minister's point that the word "abortifacient", in its ordinary meaning, means causing an abortion. If that is so, amendment No. 1 can be withdrawn. It does not follow however, that amendment No. 8 could also fall to be withdrawn for the same reason because that amendment gets to the heart of the difficulty I am trying to deal with in these two amendments. The difficulty concerned the device, the effect of which is not clear. I take the Minister's point that if something is a contraceptive, then obviously it cannot be abortifacient because conception never took place, it was stifled. I understand there are devices on the market and it is not clear at what stage in the conception process they operate. Do they operate to prevent conception? Do they operate immediately conception takes place, and thereby cause an abortion? I understand there are devices on the market that fall into that category and one is not sure what is their effect. If one was sure that they operated to cause an abortion—that is, operate immediately after conception takes place—they could be caught by the 1861 Act, and if the Minister's interpretation of section 59 is right, they would be caught by the 1861 Act, provided it would be possible to prove that the device in question operated after conception took place,
Let us deal with the Minister's interpretation of the 1861 Act, section 59, which deals with the party supplying the means for procuring an abortion. The Minister read out the section and it says: "whosoever shall supply" and so on "knowing that the same is intended to be unlawfully used or employed". The Minister made the point that the word "intended" referred to the recipient of the thing and not to the supplier of it, and that consequently the intention of the person supplying it was irrelevant. He said it would not be necessary to prove intent on the part of the person supplying it because the intention in the section refers to the recipient, not to the supplier. I disagree with that interpretation because the section says: "Whoever shall unlawfully supply a thing knowing that the same is intended"; the word "knowing" refers to the supplier and not to the recipient.
It is a well settled principle of interpretation that mens rea is necessary in the statute when the word “knowing” is used. The word “knowing” here can mean only that the person supplying it knew what it was going to be used for, in other words, that there had to be intention or knowledge, or mens rea, a general guilty intent on the part of the person supplying the abortifacient. There would be a serious disagreement of interpretation between the Minister and me on the element of necessity for mens rea on the part of the person supplying the abortifacient. I would have no doubt, having regard to well settled principles of interpretation, that when the word “knowing” is used in reference to the person supplying, this requires the State to prove mens rea before that person can commit the offence. I would disagree with the Minister's interpretation of that section, and with respect, I would disagree with the advice he received in that regard.
Consequently, I disagree with him when he says that the position is preserved by the 1861 Act. It is preserved where the device is supplied and intention can be proved, but that is as far as the position is preserved; it does not preserve or protect the position where the device is in this grey area, a scientifically imprecise area, as to whether it is a contraceptive or an abortifacient. I concede that there are devices and it is impossible to tell which they are, whether they are contraceptives or abortifacients. If this Bill passes, as it is drafted at the moment, it will not be an offence to supply these doubtful articles because (a) there is no way of knowing what they are and it is open to a person to say they are contraceptives. I am suggesting that amendment No. 8 plugs that loophole by a committee saying this is a doubtful thing, this is an abortifacient under this Act and therefore out of bounds. If you do not provide for that committee, there is no way in which a court can be told that the thing is one or the other and the benefit of the doubt must go to the defendant.
Section 10 is totally unnecessary if the Minister's case is right, because the 1861 Act is law and is there in the Statute Book. Why does the Minister have to come in with this section 10 and tell us what we already know, that the 1861 Act is the law against abortion. I cannot see any need for section 10 unless there is some residue of doubt in the Minister's mind, some worry that there is, unwittingly perhaps, some new situation arising from this Bill that the 1861 Act does not cover or might not be seen to cover. The doubt is caused by the availability of a device, the effect of which nobody can be sure about. I am asking the Minister to agree to set up a committee to advise him as to whether a particular thing is, or may be, an abortifacient even though it is, or is also presented as being, a contraceptive. If he agrees, if this committee come into operation they may say that this thing is an abortifacient, even though it could have all these other effects.
What we need is a provision in this Bill to make the supply, importation and so on of that doubtful device an offence, because it is not an offence under the 1861 Act as the law presently stands for two reasons. One, intent would have to be proved, and that would be well nigh impossible because it could be refuted by the defendant saying "this is a contraceptive and it is not intended to procure miscarriage", or, secondly, "the 1861 Act does not apply at all because there is no scientific way of proving that the particular device is abortifacient". That is why I say that if the Bill becomes law, as it presently stands, there will be no sanction whatever against persons who supply articles and who do not know and do not care, whether the effect is contraceptive or abortifacient. Such articles can be supplied with impunity if this Bill goes into law as presently drafted.
Amendment, by leave, withdrawn.
Amendments Nos. 2, 3 and 4 are cognate and should be discussed together.
I move amendment No. 2:
In page 3, line 23, to delete "not".
These amendments have been tabled for the first time on Report Stage. They arose from the long discussion on Committee Stage on section 3 of the Bill relating to family planning services and relating in particular to the future, or what appears to be a lack of future, of the family planning clinics. There was a very long drawn-out discussion. It appeared to irritate the Minister that the discussion went on for so long but it was very difficult to get from him any clear idea of what his intentions were in relation to the powers he was taking under this section, and, in particular, how he would exercise those powers in relation to the family planning clinics. However, after a considerable period it seemed to become clear that there had to be a certain gap between the coming into effect of the Act itself and of this section and the possible future licensing or consent for the operation of a family planning clinic, even if that family planning clinic fully satisfies the regulations and the criteria contained in this section.
There are many people, even in the Fianna Fáil Party, who do not appear to realise that the section as it stands appears necessarily to mean the ending of all family planning clinics in the State who give advice on artificial contraceptives unless, at some future time, the Minister decides to consent to them operating within the terms of the Act either purely on an advisory basis or on a basis of being able to sell contraceptives if there is a pharmacist and a pharmacy actually physically located on the premises of the family planning clinic. I think many people still think the situation is that, after the Act comes into being, the Minister may reflect on the matter and decide that he will or will not consent to the operation of some or all of the family planning clinics. Perhaps the Minister felt, when he originally brought in this Bill, that he had reserved himself that much discretion in the matter. It seems clear that the wording of the relevant subsection as it stands would preclude the Minister having any discretion and that he would necessarily have to wait a period of time before he could favourably consider any application from a family planning clinic to continue to offer a service to the public. When we discussed this the major clarification came from the Minister himself. He explained what was meant by the two phrases on which he would have to satisfy himself under section 3 (3) (b). Section 3 (3) has two parts to it. Paragraph (a) provides:
A person other than a health board may, with the consent of the Minister and in accordance with regulations for the purposes of this subsection, make available a family planning service, not being exclusively a family planning service such as is referred to in subsection (2).
meaning a family planning service that extends to advice about contraceptives. Paragraph (b) provides:
The Minister shall not give his consent to the making available of a family planning service under this subsection unless he is satisfied that it is in the public interest to give it and that the service is reasonably required to meet a particular need.
Under this section the Minister has to satisfy himself on two counts, first, that it is in the public interest and, secondly, that it is reasonably required to meet a particular need. When pressed by a number of us on Committee Stage, the Minister expressed the view that a particular need in that subsection meant that the system which he proposed to establish under this Bill had broken down or had proved to be inadequate. I have not got the Official Report here but I think the Minister would accept that that was his clarification of what was meant by "a particular need".
That was somebody else's clarification of what they thought I meant.
When the official Report comes out, I hope tomorrow, we can all look to see what the Minister said about a particular need. If in his reply he gives some other definition of what is meant by a particular need then perhaps some of the concern which I feel about the operation of this subsection may be removed. The Minister said that—or I understood him to have said—a particular need meant he would have to be satisfied that there was an inadequacy, or a loophole, or a failure in the system which he was establishing under the Act which would be operating through the GP and the pharmacy with family planning clinics offering a natural family planning service and the health boards offering this kind of service. The difficulty we identified on Committee Stage was that this would necessarily involve a gap in time, perhaps months, even years, before the Minister would be in a position to comply with the subsection and to satisfy himself that it was in the public interest and that it was reasonably required to meet a particular need.
Senator Keating put it to him at that stage that it was a very unusual provision to have it phrased in the negative, "that the Minister shall not give his consent unless he is satisfied" on the two counts. He suggested it would avoid this problem of necessarily requiring dislocation if the section were recast in a positive sense that the Minister "shall give his consent to the making available of a family planning service under this subsection unless he is satisfied that it is not in the public interest to give it and that the service is not reasonably required to meet a particular need". I understood the Minister to say he would be prepared to accept an amendment along those lines, except that it would necessitate going back to the Dáil. Once again I suppose we will have to wait for the Official Report to see if my understanding was correct, I thought I heard him say that he would be prepared to accept an amendment, which has now been tabled for Report Stage, which would express the particular requirements of this subsection in a positive rather than a negative way, and would avoid this problem of dislocation of the services of the family planning clinic before the Minister could, in the future, license them.
If the subsection read as this amendment proposes, it would read that "the Minister shall give his consent to the making available of a family planning service under this subsection, unless he is satisfied that it is not in the public interest to give it and that the service is not reasonably required to meet a particular need". This, we believe, would have a number of advantages. It would be less brutal and less abrupt in its operation than the present subsection. The Minister would be in a position, if he was satisfied at some future time that the operation of a particular family planning clinic was not in the public interest and did not satisfy a particular need, to withdraw his consent or he could refuse a future application for consent.
What the Minister is saying here—and it is a very unusual provision—is that once this section comes into effect, the services being offered by the family planning clinics cease, or certainly cease to be lawful, cease to be able to be operated under the terms of this Bill until and unless at some future time either the people involved in these existing clinics, who at that stage will be out of a job and out of lawful activity, or some other people in some other town or city in Ireland, apply to the Minister and seek to satisfy him that there is, in the public interest and to satisfy a particular need, a necessity to have a family planning clinic in that area.
When we were teasing out the implications of this section on Committee Stage we went a very long way to try to understand the Minister's intentions. It would be putting it politely to say he was coy. He was determined not to let the House know what his intentions were in relation to the family planning clinics. As we pursued the matter, and as we looked carefully at the small print, clause by clause, it became clear from the point of view of legal interpretation that the Minister appeared to be deliberately ensuring that there would be dislocation. He appeared to be intending that, as soon as this section came into effect, the family planning clinics would be unlawful if they continued in their present activities and that there would have to be a period of time before he could lawfully exercise a statutory consent and license any family planning clinics, even to offer an advisory service in the State. If that is his intention, it would have been more forthcoming, to say the least, if, when the Bill was introduced in the Dáil for Second Reading, he had made this intention clear. Then the people who were examining the impact of the Bill could have assessed the situation in a much more accurate and clear manner.
I do not believe that a number of members of the Government party, either in the other House or in this House, appreciated that this section appears to sound the deathknell of family planning clinics and that it will be only at some future time, if the strict statutory criteria are satisfied, that the Minister will be in a position to exercise a statutory discretion and license a family planning clinic or enable a health board to exercise the broader family planning services, including both natural and artificial methods of family planning, in a particular area.
The real problem is that if this is an accurate assessment of the impact of this subsection we will have a very difficult period over the next few years for many women who seek artificial contraceptives, who, until now, have been able to go to the family planning clinics to get them or have been able to import them, through the post, for their private use. The difficulty is that even if the alternative system of the general practitioner and the pharmacist is established straightaway, it is not going to operate in the full and supportive sense of a comprehensive family planning service. It will depend on the training and disposition of individual GPs. As was pointed out at great length on Second and Committee Stages there is not full medical training in methods of family planning for general practitioners; there are some general practitioners who are very well equipped to take on this responsibility; there are others who are not properly trained or equipped and who may avail of the conscientious objection clause in section 11. There will be very real problems for women who are seeking help. There will be the arbitrary factor that they will be dependent on the training and disposition of their doctor. They will not have any alternative source of supply, or any alternative advisory body to go to.
It seems, in all humanity and compassion, that the Minister ought to have framed his discretion in such a way that if he does not agree with the operation of family planning clinics—he is entitled to his view on the matter, he is the Minister for Health—he could at least exercise his statutory discretion in such a way as to allow them to continue in operation until an alternative system is working well and until he can be sure that these who seek and who need advice on family planning and on the methods of family planning involving contraceptives, will get that kind of advice.
The whole thrust of this legislation should have been on minimising the degree of disruption and tension for people in this intimate area of their family life. If the Minister feels, as he is entitled as Minister for Health to feel, that it is a better system to have family planning services offered and operated through the general practitioner, to increase the training and so on of general practitioners, and to legalise the sale under the particular provisions of the Bill through pharmacies, once there has been an authorisation or prescription from a general practitioner, I should have thought it would have been much more in conformity with his responsibilities as Minister for Health to provide an interim period when people could go, as they have done in the past, to the family planning clinics. After a period of time, when he had satisfied himself that it was no longer in the public interest, and that there was no longer a particular need for the family planning services of the clinics, he would then say he would not license any future family planning clinics because he wanted the services to be offered in the way prescribed in the Bill.
In all his contributions in the Dáil and in this House I have not heard him make the case that the family planning clinics —one, two or all of them—are, at the moment, operating in a manner that is contrary to the public interest. I have not heard him make the case that they are not deserving of any consideration from him. I have not heard him make the case that they are contrary in a definite way to the public interest. What he has said a number of times and in a number of different ways is that he would prefer to have the family planning services operating under his scheme under the Bill, namely, through the services of the general practitioner and the sale of contraceptives by a pharmacist.
It is a unique instance, as was emphasised on Committee Stage, that people's jobs, future employment and commitment—there is a great deal of commitment involved on the part of the people who run the family planning services—are being brutally disregarded by the operation of this subsection. From the moment the subsection comes into effect, their activities will be unlawful. The only alternative for them, if they choose to make an application, or for somebody else who chooses to seek to fill the gap, would be at a future time to apply to the Minister when he would have had sufficient time and opportunity to satisfy himself positively on two counts: that it was in the public interest and that it served a particular need.
The Minister may try to say that any statutory provision which refers to the Minister being satisfied gives him a discretion and that I am splitting legal hairs by pointing out how narrow that discretion appears to be and the particular sequence of the way in which he has to exercise that discretion. There has to be a gap in time before the Minister can satisfy himself on the two counts—that it is in the public interest and that the service is reasonably required to meet a particular need. If the Minister looked at the subsection in a different way and said that as long as he is satisfied he can consent, and when he did consent to the operation of a family planning clinic, simultaneously with the coming into operation of this section, might that consent not be challenged? Might it not be possible for those who would seek to challenge the exercise of the services of a family planning clinic to claim that the Minister could not, in law, have satisfied himself that it was reasonably required to meet a particular need? The Minister explained that the particular need in those circumstances means the failure of the overall system in the Bill to operate in a particular area, either because doctors or chemists have pleaded conscientious objection or because there are not enough doctors in the area who are trained in family planning services, or for some other reason. The Minister, even though he gives himself wide power under this section and even though he has a lot of discretion throughout this Bill, cannot invent statutory requirements. They have to exist. If there is a sequence provided in a subsection the Minister is bound by that sequence and has to operate under it.
These amendments are tabled in the hope that the Minister will be prepared to go back to the Dáil on this one section, that he will be prepared to accept the amendment, which he appeared to find no difficulty in accepting in principle on Committee Stage, and that he will remove the threat of the inevitability of termination of the legal activities of the family planning clinics as they operate at the moment. They are under a very unusual threat for a body carrying out a service which many people, many doctors, many women in the State regard as essential. They are doing so with great commitment and good faith. They are entitled, I would submit, to continue in operation unless the Minister is positively satisfied after due inquiry that the continued operation of these clinics is not in the public interest and does not serve a particular need. They should have the benefit of the doubt unless the Minister is satisfied that they are positively contrary to the public interest. Instead of that, this is a brutal and abrupt measure which will terminate their existence but make it possible at some future time for the Minister to consent, if he is satisfied on two counts, to some family planning clinic operating in the future.
I am still convinced that members of the Fianna Fáil Party do not appreciate the full impact of the subsection. I know this from a private conversation with one or two of them in the past week, including one Cabinet Minister. I do not think that was the intent of this section. Unlike so many other sections of the Bill it does not seem to have any loophole in it.
I would agree with Senator FitzGerald when he pointed out that it would appear to be both lawful and possible under this Bill to sell contraceptives to an unmarried person. There are lots of ways in which this can be done under the relevant section of the Bill but this particular provision appears to be draconian and watertight. It appears that once this Bill come into effect the family planning clinics will not be able to continue in lawful operation. They are not being given any benefit of the doubt or any opportunity to justify themselves and show that the service they offer is in the public interest. It is very hard to find in any other like measure such a brutal and inevitable provision against which they appear to have no comeback, even a comeback of justifying themselves in the interest of natural justice.
I second the amendment. It is an awful pity that we cannot sit around a table and negotiate on this matter. It is anyone's argument as to whether the word "not" should be removed having regard to the following subsections. I would favour the deletion of the word "not".
Having regard to the point of view I expressed in my Second Stage speech that a very substantial minority were being discriminated against, I feel the present wording does not give an unequivocal declaration of public policy on this question of family planning services. It does not give support to those of us who do not wish to discriminate and because of the way it is worded we now feel compelled by social pressures to do so. I am a little concerned as to whether it is not discriminatory in the sense that there is very little redress for the substantial majority, if the Minister uses the very strong word "shall" particularly when it is followed by the word "not". The difference of a word would be the suitable way to deal with it.
If we were talking across the table about this matter we might be able to reach a position where there would be greater reassurance that the point I made is not as big a worry as it might appear to be, that there would be the availability of redress and that some prejudicial behaviour could be discouraged.
With regard to the removal of the word "not" and the subsequent substitution of the word "not" in other areas of the subsections, this would do the three things that I suggested and would form an unequivocal declaration of public policy. It would give support to the minorities who feel they are being discriminated against and it would not put under social pressure those who do not wish to discriminate against the idea or the concept of family planning services. It would also do something to let the substantial majority know that there is redress and that the behaviour that issues from prejudice will be discouraged by the Minister in the sense that he will recognise that a need exists.
If the words were changed those concerns would be met. We are not negotiating; we are talking about it in public. Perhaps some further views from the Minister in this particular area might go a long way to allay the concerns I expressed.
It was quite clear to me after the Committee Stage debate, which confirmed my reading of the section, that following the passage of the Bill the so-called family planning clinics will have come to the end of their day. Lest there be any doubt about that I would urge the Minister to use the occasion of this further amendment to reassure the vast majority of the public that this will be the case after the Bill becomes law.
I read the Second Stage debate in the Official Report and I was quite horrified on seeing the figures and statistics which Senator Robinson quoted as to the people who are being accommodated in these clinics. It is appallingly clear that the contribution of these clinics to casual or, indeed, even planned promiscuity is not insignificant. I have no doubt that the Minister would be striking a welcome note for the majority of the people in the country if he were now to assure them that these clinics are coming to an end. In that connection I would urge the Minister at this stage to be prepared for an outcry when he comes to enforce the law against them, but nevertheless to take reassurance of the fact that in enforcing the law against them, he will have the backing—albeit silent—of the vast majority of the people.
I want to begin by assuring Senator Robinson that in so far as I am at any time irritated it is a very passing phase and it does not persist from week to week.
We will try the Minister in an hour's time.
I must say the prospect of myself being a coy little fellow is a new dimension which I was fascinated to consider. It is an improvement on being divisive and sectarian and all the other pejoratives that were hurled in my direction during the course of this debate. Coyness is a delightful little trait which I would not entirely reject.
There is no particular significance in amendments Nos. 2, 3 and 4. I do not think they would add to or take from this section in any way. The purpose and effect of the section are crystal clear. Section 3 is to the effect that, if the Minister is satisfied that there is a need for it in the public interest, he may arrange for the provision of a family planning service by somebody other than a health board. The section happens to be put in the negative way but, allowing for all the negatives in it, that is exactly what it means. If one takes out all the negatives I have in the section and put in the negatives Senator Robinson wants to put in by means of the amendment, the section still means exactly the same thing. It is perhaps arguable that there would be a slight difference of emphasis in Senator Robinson's recast section, but it would be no more than that. The basic meaning of the section would still be exactly as it is, that the Minister for Health of the day can only license a family planning clinic if he is of the opinion that it is in the public interest and that there is a need for it.
I do not think that I am being in any way obstructive in not accepting any of these three amendments. They do not really alter the position as it will be when the legislation is passed. The position about family planning services will be that if there is a need in an area or for a class of people or from any other point of view for a family planning service being provided by way of a clinic, this can be done. The only stipulation will be that such a clinic will have to conform with the provisions of this legislation.
I should like to begin by referring briefly to the contribution by Senator Cooney which is very much at the other end of the spectrum from my own approach to this problem. He said he was horrified by statistics that I had put on the record of the House emanating from a study by Dr. Eimer Bowman of single people attending the family planning clinics. Senator Conroy rightly pointed out it was a small sample; there were 50 people involved.
I am often interested in the reaction of Senators to statistics, which they do not like, put on the record of the House. This was a factual study; it dealt with the reality. The reality is one which Senator Cooney and Senator Cranitch do not like at all. I would make the same response to Senator Cooney as I did to Senator Cranitch. What does he think these people will do when this legislation is passed? Does he really think they will change overnight their moral attitudes, their own decisions and their relationships? Does he not think that there is far more likelihood that they will seek alternative methods of getting contraceptives within the State? I would agree with Senator Alexis FitzGerald that it will be possible for single people to get an authorisation or prescription for contraceptives from practitioners under the relevant sections of the Bill. That will be more difficult and they will, no doubt, be substantially discouraged from that particular route unless they are fairly satisfied that they will get an authorisation or a prescription. Those who are fortunate enough to travel may bring back a quantity in their private baggage or some of them may risk the severe penalties in the Bill and try to import contraceptives through the post.
I believe that a certain number of young people will take a risk of pregnancy and then will be faced with the very considerable pressures in our society which influence and come close to compelling young girls or women when they have an unwanted pregnancy to seek the only other alternative open to them and go to England and have an abortion. This will be a grave problem for us all. Senators and Deputies on all sides of the Houses in the course of the passage of this Bill have deplored the existing abortion statistics. When we look at the fact that we cannot legislate for morality in legislation like this we must be very aware that reality will continue but will seek other ways of accommodating itself.
I do not think that the statistics compiled by a medical practitioner with an expertise in an area who had done a study of people visiting a family planning clinic should be the subject of moral condemnation and a justification in themselves for the legislation, so that we can all go home happily realising that this Bill is going to end all that. Surely we must have a greater understanding of the situation of a number of young people who make their own choices, have their own ideas about what is moral for them or what is going to be their practice in their sexual relations. This legislation will not affect them at all, although it may be more difficult for them to take the kind of precautions which other societies spend a great deal of time trying to bring to the attention of young people. What we are doing is closing off a number of options which are open to young people at the moment. By doing so we may be facing a much graver problem and may put those young people under very considerable pressure indeed. I do not think that reference to statistics like that can really be evidence that the family planning clinics are not acting in the public interest.
The Minister did not really answer that point. He seemed to be prepared to condemn the family planning clinics as they exist at the moment without giving them an opportunity to justify the service they have provided over the last decade and without even giving to the thousands of women who availed of the service an opportunity to express their view on the matter. There is no doubt, in talking about public opinion, that the most relevant view in Ireland is that of women of child-bearing age. Unfortunately, because of the structure of our democratic institutions it is not a view which is expressed fully enough or with the weight which it deserves on this issue. It is the male view—and a conservative male view at that—which tends to get expression.
If we thought that we were presiding at the trial and the apparent condemnation of the family planning clinics, in all fairness we would seek to know more about the work they have done, the services they offer and about the kind of supportive advisory work they have given to women on all kinds of issues, not just advice on methods of contraception but also advice on sterility, on natural methods of family planning, advice on frigidity and the whole area of sexual relations and sexual behaviour. They gave an enormous informative support to women in Ireland who had sought it and travelled great distances at times to get this type of help.
The Minister continues to be coy—I will use that polite term that seems to appeal to him. He refuses to say outright what has become clear both to Senator Cooney and to myself, though obviously we greet it with different reactions. He refuses to say outright that this is the deathknell of the family planning clinics as they operate in our society. He makes it clear that what he has reserved for himself in the subsection is the power some time in the future, if he is satisfied on the two counts that it is in the public interest and that there is a particular need either in a particular area or among a particular class of persons, to consent to the operation of a clinic provided it abides by the regulations under this section. I come back to the point I was making. This amendment does not mean the same thing as the section as it is drafted. The section as it is drafted necessarily closes the family planning clinics the day this section comes into effect. The amendment would require the Minister to consent to the continuance of the operation of the family planning clinics unless he was satisfied that it was not in the public interest and that there was not a particular need for the services offered by the family planning clinics.
I believe that the operation of the family planning clinics has been in the public interest for the last decade. One can be prepared to examine the advice that they have been giving and the services they have been offering; there can be regulations to control standards and age limits or any other kind of regulations. The service they have offered is in the public interest and it has satisfied a genuine need in our society. There are thousands of women who are extremely greatful to the family planning clinics for the services they have offered. They are being condemned without a hearing by the operation of this section. All the Minister is saying is that if he is satisfied some time in the future, then he may license a body other than a health board to offer a family planning service in a particular area or to a particular class of person.
It is a very callous dismissal of the services and the commitment of a considerable number of doctors and paramedical people who have given of their time and expertise and have done it not for any material gain on their part but because they saw, understood and felt the need. I regret that the attitude of the Minister is one of dismissing this as not being a matter of concern to him. This is something which is unique in my experience in looking at legislation. The position is that as of whatever date in September this section will come into effect the activities of a considerable number of people will be unlawful and a whole service which has operated for nigh on ten years will be closed and considered to be illegal, leaving open just this residual possibility that in the future people who come together to open a family planning clinic, if they can satisfy the Minister that it is in the public interest, may obtain a licence.
When a service is in operation and when tens of thousands of Irish women have gone along for advice and help to this particular service, why should it not have the benefit of the doubt that it serves a particular need? Why can the Minister not approach the whole problem by saying that he will ensure that there is an alternative service offering family planning advice; that he will build this up over the next few years and then if he is satisfied that that method fills the need he will not continue to allow family planning clinics to operate as they have done? That seems to be the approach which would be based on a sense of justice and humanity, based on a respect for people who have a commitment to offer medical services and advice and help in this area and who have given of their time and their efforts over the years to it.
This is a much more cruel and brutal provision than has as yet been appreciated and I hope at this late stage that the ordinary woman of child-bearing age will realise just how brutal and how abrupt it is. The family planning clinics will be rendered unlawful instantly this Bill is passed without a hearing or an opportunity to justify their activities in the public interest, without any guarantee that there will be an effective substitute and with only the gradual building up of this alternative system involving the general practitioner and the pharmacist. This will not be a welcome alternative to a considerable number of couples in Ireland.
If one looks again at the evidence from the Ballinteer survey to which I referred on Second Stage, it is clear that the people in this area, when they were seeking to have professional advice on family planning, did not feel that the GP offering that advice was preferable to a family planning clinic within their health service. That is what they wanted because they know that a family planning clinic can be more approachable, more supportive and can have a climate which is less intimidating and has more time for them and for their problems, which is more understanding in drawing them out and in helping them to understand their own sexuality and to have confidence in themselves. It is very sad that this whole possibility is being closed to women in this very abrupt and nuanced way. It is only in the final Stages of the Bill in this House that the full impact of it becomes clear. The majority of people still believe that it will be possible for the Minister to consent to the operation of the family planning clinics, that they may very well apply for a licence and will probably continue in operation side by side with the general practitioner and pharmacist.
Although the Minister still refuses to say so, his intentions are now perfectly clear. He cannot in any case consent to the operations of the family clinics for a period of time and there will inevitably be the shutting of the doors of the existing clinics and consequently the loss of the expertise and the loss of the premises. One cannot help keep up premises without being able to offer a service and remaining viable by accepting payment or contributions for that service. Without giving them any opportunity of justifying themselves in the public interest we in passing this section are necessarily deciding that the clinics have no merit, should not be able to continue and should not be able to reopen in the future unless the Minister is satisfied that it is in the public interest and that there is a particular need. They do not have the benefit of the doubt that they are operating in a way that shows a need. Tens of thousands of women do not seem to be able to justify the need for this type of service.
The Minister is turning a blind eye to the hardship, tension and dislocation which will occur over the next few years. I hope the women of Ireland are aware of this; if nothing else it will show the unreality in which this entire debate has taken place, the non-issues that we have been largely discussing and the lack either of willingness or, perhaps, ability of Members of this House to see a situation as it really is and to try to provide legislation which would be helpful and supportive and which would show a concern that couples who wanted to seek advice on the whole range of family planning methods and all the other matters relating to the relationship on which they might seek advice, would have it readily available to them.
It is clear that the Minister is dodging this yet again; he is not going to spell out the full impact of this section. It is clear to all of us—it is certainly clear to Senator Cooney and myself—than when this section comes into effect it is the end of the family planning clinics in any activity at all, even in the advisory activity.
Question: "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 3 and 4 not moved.
I move amendment No. 5:
In page 3, line 48, to delete "subsection" and substitute "section" and to delete "relating to the sale of contraceptives".
This amendment was tabled to cater for a problem which was identified by Senator Alex FitzGerald on Committee Stage. Once again it is regrettable that we do not have before us the Official Report of the Committee Stage debate. It would be helpful to be able to refer to the passage where Senator FitzGerald made, at considerable length, the point that in section 4 of the Bill there is a provision for the making of regulations but it only relates to regulations under subsection (1) referring to sale.
The Minister in this section is taking power to make regulations relating to the sale of contraceptives but he is not seeking any power at all in relation to regulations for the prescribing of contraceptives. Senator FitzGerald pointed out that this is a serious loophole in this legislation which was of particular concern to him. It seemed to leave open the possibility not only of contraceptives being prescribed to single people—I agree with him here, I think that is open under this particular section—but also the possibility of contraceptives being prescribed to people of any age. It does not fit into the rest of the structure of the Bill where the Minister takes very wide power to make regulations. It is hard to understand, since that is his approach and since he is concerned to have safeguards in the Bill, why he has omitted to give himself the possibility of introducing regulations to provide that contraceptives would not be prescribed to persons below a certain age. Perhaps he has some reason for doing this. In any case I thought it was important when the problem had been highlighted by Senator FitzGerald to table an amendment for Report Stage so that we could hear the Minister's view on this point.
Is the amendment seconded?
Yes, I second the amendment.
Section 4 indicates that the Minister may make regulations dealing with the sale of contraceptives. The effect of the amendment would be to give the Minister power to make regulations on matters arising out of subsection (2), namely, the prescribing and authorisation of contraceptives. I gather that Senator Robinson does not disagree with the need to have regulations governing the sale, so that side of the section as it stands is apparently all right——
I opposed the section on Second Stage.
We are dealing with the amendment now. We are really concerned here with whether or not it would be necessary for the Minister to take power in this section to make regulations governing the circumstances under which medical practitioners could issue prescriptions or authorisations. I do not think that is necessary. Section 2 is quite clear. It indicates the circumstances under which a registered medical practitioner can issue a prescription or authorisation and it also indicates the effect of issuing such a prescription or authorisation. I would not deem it appropriate that the Minister should attempt by regulations to limit or control or interfere in any way with the exercise by a medical practitioner of his professional functions. In fact, the Bill is very specific in another part of it that nothing in the legislation should interfere with the clinical relationship between a doctor and his patient. If that principle is to be upheld, and I believe it should be upheld, then the idea of making regulations governing the issue of prescriptions or authorisations would not be sensible. On the one hand, we would be indicating that we do not intend to interfere in this legislation with the clinical right of a doctor to deal with his patient as he sees fit in accordance with his medical opinion and professional capacity and, on the other hand, we would be saying we should make regulations governing his capacity to issue prescriptions and authorisations.
If there is any question of doctors not behaving properly under this section or indeed in any other circumstances, we now have section 45 of the Medical Practitioners Act which deals with the behaviour of doctors and their adherence to professional codes of conduct and ethical behaviour and any matters which would arise in regard to the behaviour of a doctor would be dealt with under section 45 of that Act.
For all these reasons there will not arise any need for the Minister for Health to make regulations governing these matters and, secondly, it would not be desirable that he should do so. Therefore, I do not think that the purpose of the amendment to give the Minister power to make regulations governing the activities of registered medical practitioners under subsection (2) is called for.
As I explained, I tabled this amendment because of the deep concern expressed by Senator Alexis FitzGerald. He made it clear that he would not be in favour of legislation which tried within itself to confine the availability of contraceptives to married people; in other words, he made what the Minister would call a liberal contribution in this matter. He went to some lengths to express his concern at the fact that the Minister had not reserved any power to make regulations providing for any control of age in respect of which they might be prescribed. Moreover, the impact of the section was that once the prescription or authorisation was made, the pharmacist would have no discretion to question the particular prescription or authorisation and it does not appear that it could be questioned in any other forum. However, the purpose of tabling the amendment was to ensure that the Minister was satisfied that there is no danger arising out of the section or no undue cause for worry or concern. I am satisfied that the tabling of the amendment has given the Minister a further opportunity to look into the matter and I am not going to press the amendment any further.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 4, to delete lines 35 and 36.
This is an amendment to section 4. It seeks to delete subsection (3) of section 4. Subsection (3) provides:
a person shall not supply contraceptives otherwise than by way of sale under and in accordance with this section.
The purpose of this amendment is to ensure that the kind of problem that I referred to on Committee Stage could not happen. On Committee Stage it was clearly established that the effect of this section as a whole was that if a medical practitioner was approached by a woman who sought a contraceptive that would require fitting, for example, the contraceptive cap, she would not be able to take away with her the cap that he had fitted. Instead there would be the burdensome and expensive, and what appeared to be the ridiculous, process of the woman going to the doctor and after discussion and explanation deciding that she wanted to use the contraceptive cap which, as Senator Keating said, is regarded as a much more desirable kind of contraceptive than the contraceptive pill because it does not have any similar side-affects or any potential dangers for a woman. If the decision was taken to choose the contraceptive cap as the form of contraceptive and the doctor fitted the woman, she would then have to hand back to him the particular cap with which she had been fitted. She would then have to get from him a prescription or authorisation, go to the chemist, acquire the particular item, come back to her doctor—therefore paying for a second visit—and have the cap fitted this time as her property so that then she could take it away with her and use it whenever she wished to in her marriage relationship. This is so contrary to the present practice and is so artificial and absurd that it seemed desirable to table an amendment to remove this new prohibition on the supply of contraceptives.
I think it is the kind of situation which does arise in the medical approach and medical practice, whether in the general practitioner or family planning clinic context, that when a patient is being advised on the particular form of contraceptive if it requires to be fitted then the patient normally takes that particular contraceptive away because it is one that has been fitted, one that is safe and secure and one in which the patient would have confidence in the future. Therefore, as I say, this amendment is designed to cope expressly with that particular situation and also to remove the prohibition on supply.
The Minister referred in his opening speech to the activities of commercial multinational bodies and the profits being made. We need not be concerned here about the profits of multinationals because we are talking about the supply of contraceptives in the context of their being supplied by doctors and by those who have expertise in the area. Therefore, as I say, this would remove one of the further anomalies of the very cumbersome mechanism devised by the Minister for the administering of family planning services in the State.
Acting Chairman
Is the amendment seconded? The amendment falls.
I move amendment No. 7:
In page 4, to delete all words from and including "and" in line 42 to and including "use" in line 44.
Once again, one attempts even to the last to remove some of the more weird and wonderful provisions from this legislation and one of these has to be the subsection dealing with the quantity of contraceptives which people may import in their private luggage. As was emphasised, I think on Second Stage and on Committee Stage, the whole idea of discriminating in favour of those who are in a position to travel raises important questions in itself. Those of the middle classes and the upper middle classes who are able to travel outside the country have access to contraceptives which those within the country will not have. The rather limited purpose of this amendment, tabled as it is on Report Stage, is to remove the more ludicrous and ridiculous part of the subsection. As it reads at the moment subsection (5) (1) (a) provides that "a person shall not import contraceptives into the State unless they are part of his personal luggage accompanying him when he is entering the State and their quantity is not such as to indicate that they are not solely for his own use".
The purpose of the amendment is to drop all the words following the word "luggage" so that a person would not be able to import contraceptives into the State unless "(a) they are part of his personal luggage". This is a discriminatory and undesirable limitation but at least it makes some kind of sense. It is clear that a person can bring in contraceptives in his or her personal luggage. The problem with the formula as it is contained in this subsection is that it leaves it open to the customs official to assess, presumably, the sexual prowess, or the marital fidelity, or some other strange criterion, of the person seeking to import the contraceptive and can refuse to allow that particular person to take either the whole of the quantity or half the quantity of contraceptives that the person was seeking to import.
The even more ludicrous part of it all is that there is no time scale here. It does not say they are part of his personal luggage accompanying him when he is entering the State and constitute a month's supply or a year's supply. Presumably, a person can turn to the customs official and say, "This is a supply which I envisage I need over the next ten years". I am sure this would be of great interest to the tourist as he listens to the conversation between either a citizen returning to the country or a foreigner coming into the country having to justify himself to a customs official. The subsection as it stands is riddled with ludicrous anomalies. It is an undesirable provision in the first instance and the amendment is to try at least to cut out some of its more bizarre aspects.
I second the amendment and endorse Senator Robinson's plea for the removal of these ridiculous words and this daft criterion. I had sympathy with the Minister when he described his Bill initially as "an Irish Bill to meet an Irish problem" but I think he is bringing the matter into the realm of an Irish joke if he leaves these words in the subsection.
I think I have said all I have to say about this unfortunate subsection.
The Minister leaves it to Maureen Potter to say the rest.
The only thing I can say about it is that if it were not put in here Senator Robinson would have a field day drawing our attention to the ludicrous situations which would apply if visitors and travellers were not allowed to import any contraceptives in their luggage. So, it is "Heads you win and tails I lose". I am not madly in love with this wretched paragraph (a) but I have already described it as the line of least embarrassment, of least difficulty. If we are going to have control of importation and the whole Bill is based on that principle, then we must have control of importation by persons, by individual travellers. So either we have a total prohibition on travellers bringing in artificial contraceptives into the country—I know that would be very acceptable to Senator Cranitch; he would very much like me to propose the deletion of the subsection altogether—or alternatively we try to have some sort of reasonable compromise and indicate that travellers, visitors, tourists and other persons coming into the country may bring some reasonable number of these things for their own use. That is all there is in the subsection.
No matter what approach I adopted, no matter what I attempted to do to deal with this situation, of course the proposal I would put forward would attract merriment on the basis of reductio ad absurdum. However, I know our customs officials, I know their training, their courtesy and their experience in these matters, and I am absolutely certain, as certain as I am of anything, that this subsection is not going to cause any particular difficulty. It is going to be dealt with in a normal, routine, reasonable, common-sense fashion and there will be no particular difficulty about it.
The Minister's experience is, perhaps, confined to the VIP lounge.
Fortunately my experience in most of this area is extremely limited.
The Minister is tempting me. The Minister used the words "the line of least embarrassment" by having a provision of this sort. I am not clear how this provision saves either this House or the country embarrassment. It is a very embarrassing measure to have to justify to anybody outside the country but that is another day's work.
If the Minister wanted to provide for importation for private use, which was the position following the McGee case, then the way in which it would have been logical to do so would have been to provide not just for this discriminatory provision of being able to bring in a certain amount in one's private luggage, which implies that one has been able to travel abroad, but also to import by post for one's private use. This was a freedom established following the McGee case and there was no clear evidence of massive abuse of the provision. The Minister has instead substituted a discriminatory, illogical and ludicrous provision.
I am very much attracted by the point that Senator Cooney made. If passed this will undoubtedly give rise to a rich vein of Irish humour and that is something we need. Just to show how conciliatory I can be at times, I will withdraw this amendment in order to ensure that Maureen Potter, Rosaleen Lenihan and other people will advert to it and will contrive to amuse us since we have failed to make it a more rational provision.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 7, before line 1, to insert the following:
"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 or may be an abortifacient, notwithstanding that the same is also or is presented as being 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 an abortifacient though it may also be a contraceptive."
Amendment put.
The Seanad divided: Tá, 11; Níl, 21.
Tá
- Burke, Liam.
- Butler, Pierce.
- Cooney, Patrick Mark.
- Governey, Desmond.
- Harte, John.
- Howard, Michael.
- McDonald, Charles.
- Markey, Bernard.
- Moynihan, Michael.
- Reynolds, Patrick Joseph.
- Robinson, Mary T.W.
Níl
- Brennan, Séamus.
- Brugha, Ruairí.
- Conroy, Richard.
- Crowley, Flor.
- Donnelly, Michael Patrick.
- Dowling, Joseph.
- Ellis, John.
- Goulding, Lady.
- Harney, Mary.
- Ryan, Eoin.
- Ryan, William.
- Herbert, Anthony.
- Hyland, Liam.
- Jago, R. Valentine.
- Kiely, Rory.
- Lanigan, Michael.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Martin, Thomas Augustine.
- O'Toole, Martin J.
- Whitaker, Thomas Kenneth.
Tellers: Tá, Senators Burke and Harte; Níl, Senators W. Ryan and Brennan.
Amendment declared lost.
Amendments Nos. 9 and 10 have already been ruled out of order. Amendments Nos. 11, 12 and 13 are related and should be discussed together. They are in the names of Senator Robinson and Senator Keating.
The Cathaoirleach has already informed me that amendments Nos. 9 and 10 are out of order. They would have proposed to amend the relevant section of the Censorship of Publications Act. I do not intend to discuss them but, if the Chair will just bear with me for one second, since these amendments were tabled and were matters discussed on Committee Stage, I should like to ask the Minister if he did, in fact——
We are now discussing amendments 11, 12 and 13.
I should like to ask the Minister——
Those amendments have been ruled out of order.
I accept that those amendments have been ruled out of order. I wanted to ask the Minister——
Not at this time.
I shall raise it on Fifth Stage when we are talking about the general provisions of the Bill. We could have dealt with it in one second but——
We are on amendments 11, 12 and 13.
I move amendment No. 11:
In page 8, to delete all words from and including "or" in line 21 to and including "imprisonment" in line 23.
These are amendments to remove the provision in relation to imprisonment from the relevant section of the Bill. As pointed out on Committee Stage, the penalties under this Bill are very severe indeed for the conduct which the Bill seeks to control. I was amused when the Minister, in declining to accept the amendment proposed by Senator Cooney for a definition of abortifacient, stated that that is a matter for a Bill dealing with the criminal law—a matter for the Offences Against the Person Act, or an amendment of that Act under the criminal code. He seemed to have forgotten that the penalties provided for in this Bill are extremely draconian penalties, which one does not often find in Bills under the criminal law and, as was pointed out on Committee Stage, the Minister is creating 23 criminal offences under the Bill and is providing blanket penalties. He is not distinguishing between what he regards as more serious or less serious offences—whether the offence is importing a packet of condoms in the post, or operating a family planning service which is not in conformity with the Act; whatever the offence may be, a person is open to the penalties set out in section 14.
A good deal of the discussion on this section on Committee Stage was about what was the normal procedure in stating the fines that might be levied for breaches of the Act. The Minister clarified a point, of which I certainly was not aware, and of which I think Senator Molony was not aware, that it is now Government practice, when inserting a penalty clause in a provision of this sort, to provide for the possible maximum of the summary jurisdiction—a fine of £500. The Minister then tried to suggest that it is also customary not only to provide a fine as a penalty but also to accompany it by a term of imprisonment. That is not the case, nor would it make any sense as Government policy. The Government must always have open to them the possibility of deciding whether the particular penalty for breach will be a monetary sum to be paid, or whether it will be open to the courts also to have an alternative of imposing a term of imprisonment. The choice has been made, as it stands in this provision, that not only might a person under this Act be open to a fine of a very considerable amount of money, but also open to the possibility of six months' imprisonment on a first offence and a year's imprisonment for later offences. The fact that a section relating to penalties leaves open a term of imprisonment can reflect a legislative purpose and can be seen as condemning the particular activity and saying that anybody who commits an offence under this Act is somebody who may well be condemned to serve a sentence of six months', or a year's imprisonment if the offence is repeated, or if there is a second or subsequent offence.
The amendments tabled for Report Stage are amendments which leave to the Minister the full monetary penalty under the Act. We did attempt to amend this on Committee Stage and failed, so we leave it to the Minister to insert in the sections that, on a first offence, a person may be liable to a fine of up to £500 and on a second or subsequent offence, may be liable to fines up to £5,000, but we seek, even at this late stage, to remove the prison sentences because of the fact that so many of the 23 offences under this Act are new offences and make offences out of conduct that is perfectly lawful today and will be lawful until this Act comes into effect—the offence of supplying contraceptives; the offence of importing in the post; the offence of operating a family planning clinic that does not comply with the conditions of this Bill.
The Senator recalls her own Bill——
The Minister will have his opportunity to make his contribution.
—— of 1978.
That Bill did not create 23 different types of offences, with respect.
It created its own offences and created terms of imprisonment not exceeding six months.
The difference between the provision in the Family Planning Bill, 1978—which I would be delighted to be discussing and which is still on the Seanad Order Paper—and this Bill, is that the only penalties in that particular Bill were penalties which did not relate to the moral choices and individual conduct of persons. It did not seek to prevent people importing contraceptives for private use. It sought only to have offences relating to the type of advertising of contraceptives that might be hurtful to, or might encroach on, young people, and it sought to give the Minister for Health a power to control genuine abuses and to safeguard the proper considerations in the matter. It did not provide that individuals, in their individual choice and conduct, and people operating a family planning clinic which was genuinely filling a need in a particular area, would be open to criminal penalties, including imprisonment. It is not open to me on Report Stage, as I am sure the Cathaoirleach would be the first to say, to enter into a detailed analysis of the differences between the approach and the penalties in the Family Planning Bill, 1978, tabled by the Labour Party, and this Bill, riddled as it is with new offences, making conduct illegal which was not illegal before, making people open to criminal penalties for what is perfectly lawful for them under present circumstances. The conduct is not—as it would be described in criminal law—mala per se; it is not bad in itself. We are making it bad; we are making it criminal in this Bill. There is nothing criminal in itself in importing a packet of condoms; there is nothing criminal in itself in a doctor supplying contraceptives to somebody, by fitting them and then giving them some extra contraceptives, or giving them the contraceptive that would fit, if it be a contraceptive cap. There is nothing tangibly criminal in this activity and it is wrong to open people to the blanket risk of a term of imprisonment for any offence committed under the terms of this Bill.
I feel very strongly about this because imprisonment is obviously the most serious incursion into the freedom of the individual. This is the kind of penalty which is coming under very serious and legitimate questioning in other jurisdictions for any activity. The degree to which we would impose sentences of imprisonment and confine people in institutions in that way is a measure of civilisation. There are alternative penalties open for breaches of a statute, in particular when the breaches are of the kind that I have described, where the conduct is, at the moment, perfectly lawful but will become criminal and illegal on the passage of this Bill, when it is not endangering the health or welfare of others and when it is the kind of conduct that stems from different views of morality and different attitudes towards sexual relations—the kinds of attitudes which another society might well tolerate within itself and not make criminal at all.
Since we are choosing in this Bill to introduce a whole series of new crimes either the Minister should select one or two of these offences which are particularly grave and say that they would be offences for which a term of imprisonment could be imposed, or else he should remove the blanket provision that for any offence under this Bill, when it is passed—however legitimate and justified it may seem to the individual—a person could be open to the possibility of a term of imprisonment and for a repetition of the offence that a person could be open to a year's imprisonment.
I second the amendment.
I have already gone to some trouble to explain that there is nothing particularly vindictive or punitive in this penalty section. In any legislation that mounts itself to set up a statutory arrangement—statutory control, statutory provisions regarding sale, importation and all these various matters —it is essential to have some penalties to ensure adherence to the provisions of the legislation. There is absolutely no point in providing controls and limitations and licensing provisions and so on, unless you are going to enforce them. There is nothing involved in section 14 except very normal enforcement provisions. There is no condemnatory aspect involved; there is no punitive aspect involved. Somebody earlier on on Committee Stage talked about making the punishment fit the crime. There is no element of punishment involved here. What is involved here are penalties appropriate to the provisions, penalties which are pitched at a level which will ensure that people obey the provisions of the legislation, otherwise there is no point in passing the legislation.
I am afraid Senator Robinson is hoist on her own petard on this one. I am sorry that Senator Harte has left us because he formally seconded this amendment, but in the Bill of 1978, introduced by Senator Robinson and supported by Senator Keating and Senator Harte, I think in the interests of the Labour Party, almost exactly the same type of provision was made as is made in my Bill because whoever advised the Senators on the drafting of that Bill realised that this sort of provision is normal and necessary. For instance, under Senator Robinson's own Bill you can have a fine of £100 or, at the discretion of the court, imprisonment for a term not exceeding six months, or to both such fine and such imprisonment. It is exactly the same wording as is used in my Bill except that in my Bill £500 now replaces £100 but the six months stands. That fine and that sentence of imprisonment attaches to the offence of importing for sale, selling or offering for sale, or inviting offers to purchase contraceptives.
Basically, where is the difference? Of course, there is no difference because Senator Robinson's case does not stand up in regard to the legislation now before us. Whoever helped Senator Robinson to draft the 1978 Bill inserted the penalties for the very same reasons as I have put the provisions into this Bill. They are simply penalties which are designed to ensure adherence to the provisions of the legislation. They are there to ensure that the provisions will be enforced. It is a very normal procedure these days, and indeed has been for a considerable time, to associate the maximum penalty imposable by the District Court with six months imprisonment. It used be £100 as equated with six months imprisonment; it is now £500 equated with six months imprisonment. Senator Robinson, I hope, will note that I have not increased the six months. The six months imprisonment in my Bill is exactly the same as it was in her Bill.
Again, I want to make the point which I made ad nauseam on Committee Stage that these are maxima. Practically all the offences set out in the Bill are offences which are capable of different degrees and levels of gravity. Therefore, the sensible approach is to lay down maxima in the legislation and leave it to the courts in their interpretation of the statute to apply whatever fine is appropriate having regard to the gravity of the particular offence. The penalties provided in section 14 are reasonable and normal and are included simply to ensure that the terms of the legislation are enforced when the legislation comes into being.
The Minister thinks he is being clever in comparing the penalty provisions in these two different Bills. In fact, as I pointed out, the problem with the Minister's Bill which was not the problem with the Family Planning Bill, 1978—which provided for regulation but did so only in controlling what were obviously potential abuses in a major sense—is that this Bill creates 23 different offences, many of them making criminal what is perfectly legal at the moment. That is the difference. For those 23 offences there is no distinction being made in relation to the penalties; there is no difference to reflect what the Minister tried to say in his contribution, that the penalties are pitched in such a way as to ensure that the activity will be prevented, or that the regulations will be effective. They are not pitched at all to meet the particular conduct; they are blanket offences and the penalties are pitched at the maxima. The Minister has certainly conceded that. That is precisely what we are trying to amend. If the Minister had selected one or two serious offences and had tagged a term of imprisonment on to a breach of these, I do not think there would be any amendment tabled. He has not done that. He has left people open to the savagery of the maximum penalty of the law for what at the moment is perfectly legal activity. The Minister referred to the fact that there is provision for a penalty for importation for sale. That penalty would have been open under the Labour Bill—the Family Planning Bill, 1978—for importation for commercial exploitation.
I did not say that.
That is the whole point, the whole distinction, and the Minister well understands it. In this Bill, the Minister is creating a new offence under this section—importation for private use. That was the freedom identified in the McGee case, as against section 17 (3) of the 1935 Act, which prohibited importation for private use.
The same penalty for posting advertisements is in the Senator's Bill.
The difference is that the particular——
That is the Senator's Bill and this is my Bill.
No. The 1978 Bill did not create new offences out of what was regarded by many people as perfectly innocent conduct. There are many people who think it is a perfectly innocent thing to import a packet of condoms in the post. They will now find themselves, for a first offence, open to six months' imprisonment, or a £500 fine, or both. If they try it a second time they could receive a year imprisonment and a £5,000 fine. It is the unwillingness to differentiate, or distinguish, between the 23 different types of offences that is the major problem, in relation to these penalties. We tabled these amendments to be considered on Report Stage because on Committee Stage, the Minister regarded this as a matter of no concern to him, that he was just putting in these penalty sections.
It is important that any Minister who is creating a number of offences out of conduct that was not unlawful beforehand should pay particular attention to the kind of punishment or penalty that may be incurred by the individual if that individual is charged with the offence and comes before our courts. It is not enough for the Minister to say that these are automatic penalties, or that he is acting on the advice of the law agent, or that he is not particularly concerned, or to attempt to equate them with penalties in a completely different Bill which did not create these new offences, which did not make criminal activity which is perfectly lawful now and which confined the whole range of offences to the minimum under that Bill. It is a completely different approach. Within that context the offences do not bear the highly punitive quality they do under this Bill. For that reason, we tried on Committee Stage to reduce the penalties across the board.
We try now, on Report Stage, at least to omit the threat of imprisonment as a blanket penalty for even minor infringement of this Bill, or any regulation which the Minister may make under the Bill. It is a conservative estimate that there are 23 offences to be reckoned with. When the Minister has issued regulations, the count will probably be a good deal higher. It is a fairly standard practice in legislation to attempt to distinguish between what are minor infringements—they may be dealt with in that section and they may give rise to a comparatively small fine—and what are regarded as real dangers or acts that are so anti-social, so dangerous to the community, so dangerous to the whole structure of the Bill that there must be the more serious penalty of imprisonment. The Minister clearly declines to make any distinction in relation to the penalties; he is clearly not concerned that what is at present perfectly lawful activity he is condemning to these penalties of new prison sentences by the passage of this Bill. There is no point in persisting further in the matter. The Minister has certainly had time to concern himself, but does not appear to have changed his attitude with regard to the penalties.
Amendment, by leave, withdrawn.
Amendments Nos. 12 and 13 not moved.
Bill received for final consideration.
Agreed to take Fifth Stage today.
Question proposed: "That the Bill do now pass".
On Fifth Stage, I should like to make some general comments on the Bill and on the manner of its passage through both Houses. I sympathise with the Minister in the difficulty in legalising the availability of contraceptives and doing it in a mature and reasoned fashion. It is an emotive subject and views, both inside and outside this House, differ very widely on it. It is sad that, in 1979, a Minister should have chosen to structure the Bill in such a conservative and backward-looking fashion. This is a Bill that brings us back to the examining of luggage, to the squinting windows, wondering what the prescription is for in the chemist shop, to the lack of privacy of access to family planning clinics which is a feature of the present situation. This is very regrettable. If the Minister had chosen to tilt the scales the other way, if he had chosen to bring in a Bill which genuinely legalised and liberalised the availability of contraceptives he would undoubtedly have taken on a lot of criticism and he would have paid a certain price for that. However, the Minister has a secure majority in the Lower House and he would have been more than capable of weathering the storm.
This Bill will be a millstone around his neck throughout his political career; it will always be there. It will always be pointed to as a Bill which gave in to pressure from particular quarters and put the Minister in such a position that, even when reasonable amendments were offered in the Dáil and in this House, he had no discretion in the matter; he had entered into a prior arrangement with various interest groups and lobbies which deprived him of the necessary discretion to be able to consider reasonable amendments. That is one of the reasons why we have had such a thorny and difficult debate, particularly on Committee Stage. It must have been frustrating for the Minister to hear reasonable arguments and reasonable amendments being put forward and to know that he was not in the position to accept these. I should like to refer to one amendment which I tried to table today but which the Cathaoirleach ruled out of order on Report Stage. It was an amendment which would have made——
Amendments ruled out of order may not now be raised on Fifth Stage of the Bill.
I am not raising the amendment as such, I am only referring to the fact that I was trying to bring in a technical amendment in regard to the Censorship Board.
On Fifth Stage, we only discuss what is in the Bill.
The Bill at the moment provides that the Censorship Board can exclude books or periodicals which are either indecent or obscene, or would advocate abortion. The reality is that the Censorship of Publications Board have not been able to operate properly and have not been carrying out their functions since 1977, because of the difficulty which has arisen for the board, out of the Supreme Court decision——
The operations of the Censorship Board cannot be discussed now.
We are amending the Censorship of Publications Act of 1946. We are asking the Censorship Board to ban books which are either indecent or obscene, or which advocate abortion. If this was a normal Bill, if we were genuinely trying to achieve an improved solution by having a debate in both Houses, the Minister would have met this point half-way a long time ago. The Minister would have gone to the Censorship Board and ascertained that they have a problem and he would have tried to meet that problem. This is not an ordinary Bill. There is no flexibility in it and there is no desire to know. The Minister does not want to know that the Censorship Board are not functioning properly under the present system; he does not want to know that they cannot carry out the legislative intent in this section, and he probably has not made inquiry of the Censorship Board because he does not want to accept any amendment; he does not want to go back to the Dáil and that is the end of it, so we can talk until we are blue in the face.
I have only one major regret about this Bill and that is that it will sound the deathknell of the family planning clinics without any hearing, without any opportunity for them to show that they serve a need and that they are acting in the public interest. It will wipe them out without even an opportunity to present their case. They will not be able to make submissions that they should continue in operation until it has been established that they are contrary to the public interest or do not serve a particular need.
I do not have anything like the same concern about the other provisions of the Bill because, as a number of Senators pointed out, particularly Senator Alexis FitzGerald, the Bill is full of loopholes. There is no doubt that under section 4 doctors will be in a position to prescribe contraceptives for people who are not married, or will have a broad discretion in this matter and will be able to make both contraceptive advice and contraceptives available. What will happen, presumably, will be that people will learn that certain doctors are more liberal in this regard than other doctors and their waitingrooms will be fuller, the queues will be longer. What will be missing for the people, whether married or unmarried, who seek advice in relation to contraceptives will be the kind of supportive atmosphere and help that so many of them received in the context of a family planning clinic. This is something that we should regret. It is sad to hear a moral condemnation of the activities of these clinics. I would place a bet on it that most of the moral condemnation has come from Senators who have never been inside the door of a family planning clinic. They are probably afraid to enter the door of a clinic, their feelings on some of them are so high——
The two are not a corollary.
Some of the moral condemnation has been the kind of unreal description of a situation which presupposes that provided the activities of the family planning clinics are sufficiently condemned and are then made illegal by the Bill, that this conduct will stop. It is a totally unreal situation. The Minister will have to accept that in this Bill, whatever else he is trying to do, he cannot legislate for the morality of our citizens, he cannot prescribe in the legislation for their conduct afterwards.
For a great many young people the debate that has taken place in both Houses is unreal, artificial and does not in any way meet their needs or the needs of Irish society. It is passing the whole problem by. It is one of the difficulties of trying to debate an issue of this sort on which there are differing views by the vehicle of a Bill that actually moves us backwards. As Senator Keating said, the general thrust of legislation is to move a situation forward, for a Government to give a lead and for a Minister for Health in bringing in the legislation to give a lead. It is uniquely difficult to make that kind of progress in relation to family planning and in relation to access to advice and services in family planning when the structure is one which creates new offences, moves back into an era of prohibition and does not see the problem as one of trying to ensure that people have the kind of access to trained help, advice and services, so that they, as citizens, as couples, can exercise their human right and make their own choice as to the number and spacing of their children, as to the type of family planning they wish to adopt, the methods they wish to have available, and the kind of advice they wish to have available on those methods. This is a very sad example of legislation moving us back into an ear of over-regulation and over-concern which to some extent shows how cut-off the Houses of the Oireachtas and even politicians can become from the real situation in the country.
It is hard to believe that we have the youngest population in the European Community. This is not in any way to suggest that all our young people, or even the majority of young people, want access to contraceptives, or want advice about contraceptives, or are going to have extra-marital relationships, or are going, even within their own married relationship, to want to use artificial contraceptives. What it means is that, for a lot of young people, this whole subject is a non-issue. It is a non-issue at the moment because if they want advice they know how to get it and if they want to avail of contraceptives they know how to avail of them. If only we could have had legislation which would be based on a mature faith in our citizens, in particular a mature faith in our young people, which would have made this a non-issue as far as criminal regulation and penalties are concerned, and would have put the emphasis on providing the basis for a full and comprehensive system of family planning, and ensured that those in need of advice, help and access to education would have all these, and would be secure in the knowledge of it.
My deep regret in relation to this legislation is that section 3 appears to result in the peremptory closure of the family planning clinics, once it becomes law, and that is something which does not seem to be open to any doubt or to any loophole. The rest of the Bill, is, as the Minister so christened it, an Irish solution to an Irish problem. We are a little bit more ludicrous and we are a little bit more ridiculous to some of our citizens and to some of the people from outside who are comparing our approach in our legislation to what they find in other countries. Many of the prohibitions and strictures will be evaded and we will find a further Irish solution to this Irish Bill.
Now that this Bill has reached its Final Stage, possibly it is on its last legs, there are mixed feelings about it. I must confess that one of my fixed feelings is relief that at long last this subject is about to leave the Oireachtas and hopefully we will not be troubled with it again. The amount of administrative and legislative time this subject has taken up has been quite inordinate over the years. This is not surprising because the views on it are many and varied, as the Minister indicated. The Minister found many varying views in his consultations when he was considering what form the Bill would take; he found people totally opposed to any changes, some mildly opposed, some mildly in favour and possibly even some strongly in favour. In finding all those different views, the Minister had to compromise between them.
With so many compromises, and when so many people found their views compromised in the resulting legislation there had to be a feeling of dissatisfaction about it. I say to those who feel that this Bill is selling out the past on many of our traditions, to those who feel afraid that this Bill will admit to our society what is called "the contraceptive mentality" that this Bill is now to become law and that it is up to them, by their teaching and example, to ensure that the so-called contraceptive mentality, will not come to pass. I have no doubt that there is nothing to fear in that regard, because 90 odd per cent of the people subscribe to the teaching of a Church whose teaching on this subject is quite clear. I have no doubt that the vast majority will adhere loyally to what they are taught is the truth, so that none of us need have any fear of this contraceptive mentality.
On the other hand, some sections of the population will feel that this Bill is a total negation of their rights and freedoms and will feel that certain practices which have been tolerated up to now and which henceforth will be banned are their right and there may be an understandable tendency on the part of those people to want to fail to observe the law that we are about to pass. All I can say to those people is that this law, imperfect thought it may, has been passed by both Houses of a democratically elected Oireachtas and that it is now the duty of every citizen to ensure that so far as he is concerned, he will obey the democratically passed law.
The Minister will now have the job of enforcing this Bill. In the course of the debate he mentioned that one cardinal principle is enshrined in the Bill. That is that the Bill in so far as it makes artificial contraceptives now available and, for the first time in the history of our State, gives them legislative sanction, that availability will be within the context of the family as recognised by the Constitution. I would ask the Minister to ensure that in the implementation of this Bill that principle which he enunciated will be carried out in the full spirit of what he said.
I will continue in the restrained idiom of Senator Cooney who at earlier stages in the debate was very vigorous in his critique of the legislation which is about to be passed by the Seanad. I pay tribute to both parties on this side of the House for their very vigorous and strenuous assault on the Bill and their attempts to find its weaknesses, to draw attention to its inadequacies. I felt at certain stages that this critique was excessive and a bit repetitive, but that is the duty of an Opposition in the adversary system we have. The Government put forward their measures, the Opposition mount their critique, and ultimately the vote goes through.
I found myself in a special kind of position this time. I do not often vote with Governments. I am not a member of a political party and I tend to vote against a Government.
The anarchist party maybe?
Not even that. The minute it gets a seat in either House, I would feel it necessary to resign. I would resign my Seanad seat if I joined a political party.
I was not under any obligation, moral or otherwise, nor was I under any whip. When I first saw this legislation I was appalled by it. I almost felt some of the sentiments so powerfully stated by Senators Keating and Robinson. Then I looked closer at it and at our history in the matter of contraceptive legislation. I have voted for every contraceptive or family planning Bill that has come through. I backed Senator Robinson's and Senator Cooney's to the best of my ability. I felt for a long time that it is a national scandal that our legislation does not really meet the realities of the situation with regard to contraception.
I regard contraception as a freedom and a human right. When I looked closer at this Bill, I saw that that human right is being met. Unlike the other Bills on family planning that have gone forward, this Bill tried very hard to learn from the experience of those who tried to bring in family planning Bills in the past. The shipwreck of the Family Planning Bill brought forward by Senator Cooney in the Dáil was a national disgrace. I was ashamed of it as a legislative performance. It was clear that Bills as radical and progressive as those of Senator Robinson would simply not get acceptance in the Oireachtas. One can say that the country is very backward, that Senators and Deputies are very backward, but in a democracy the will of the people is implemented through the Legislature.
The Minister in this case, both by his instinct, and by a very careful series of consultations with interested parties, came up with a Bill which was firmly planted in the middle of the road, roughly where the average citizen would wish it ultimately to reside. It has been strenuously attacked from the left and from the right—not from the right and left of the House. It was attacked by, for instance, Senator Cooney who would like to see the clinics closed down, and by Senator Robinson who feels that the Bill will close them down. The Minister has been suitably delphic on this matter, he has not been in the least equivocal. The Minister said that the Bill speaks for itself.
Section 3 is an enabling section no matter what the Opposition says. Section 3 (3) (b):
The Minister shall not give his consent to the making available of a family planning service under this subsection unless he is satisfied that it is in the public interest to give it and that the service is reasonably required to meet a particular need.
That is an enabling provision. It means that a Minister can either sanction, set up, or allow to be set up, a family planning clinic if the circumstances require it. Senator Robinson said that this is a step backwards. Taking a common-sense view, society and its consensus at this moment in Ireland is not moving backwards. It is moving forward with extraordinary velocity. If the Minister were to try to bring in the police and break the clinics overnight he would be in serious trouble. The Bill recognises an on-going situation. I hate that phrase. It is a kind of contradiction in terms. The very fact that this legislation has become imperative, the fact that a Government can no longer hold back on contraceptive legislation now, is a sign that public opinion is moving forward inexorably in that direction towards a greater openness and a greater freedom. The openness of the media and so forth are all concerned with this. The common-sense view will ensure that this Bill will provide increasing freedom, not the freedom towards which we all aspire, but the freedom to achieve more freedom. When this principle has found its way on to the Statute Book, it will be perfectly susceptible to sane adjustment and amendment as the requirements of society demand. The Bill does not go far enough because it does not sufficiently provide for the availability of contraceptives to those who are not married.
From this side of the House there has been a demand from the Minister that he clarify this, that and the other; that he spell everything out in detail. The Minister has resisted this on the principle that what legislation should do is lay down principles which will be interpreted and developed as we go on. A legislative instrument of this kind, particularly in an area as ambiguous as this, should be a fairly flexible instrument. I am very glad that the Minister has not yielded and that he has left to the Bill its flexibility. I am glad that the Minister has left to certain terms of the Bill a certain ambiguity. Precise definitions in the future would defeat the very purposes towards which Senator Robinson has been pointing.
If the Bill were dealing with industrial relations I would look for a far greater clarity on it, but not in a Bill dealing with sexual relations in which there is very little clarity. One example of this is the question of family. The Minister was harried a great deal to say whether he would regard a stable unmarried couple with children as a family. I have no doubt that very soon such will be regarded as a family, but it would be to follow a very irresponsible red herring to be drawn into that area. If the Minister had been drawn into the question of the representation of the author's intention in the censorship of publications it would be to follow another red herring.
The Bill confines itself to a fairly clear statement of purpose, and to fairly broad strokes of legislation to end an anomaly which has existed and has embarrassed us over the years. Does the Bill meet the needs of Irish society? It certainly does not meet the needs of everybody in Irish society. Does it meet the needs of the broad consensus of Irish people at the moment? I suspect it does. When Senator Robinson's Bills were going through they encountered extraordinarily stormy passages in the press, but apart from a few rather extreme and rather innocuous demonstrations outside Leinster House, this Bill has not affronted the Irish public. It seems to be a Bill which has gone for the moderate mien. To be able to hold the centre position in a fairly stormy debate and to get this legislation through is an admirable performance. I never met the Minister socially so there is no friendship there and I have no particular affection for Fianna Fáil so I am unbiased in this. However, I must draw attention to the fact that Senator Keating, contrary to what Senator Robinson thinks, thinks that the Bill is a step forward. He has said that twice and even said that it was a courageous Bill. It does not go nearly as far as Senator Keating wants it to go. It goes as far as public opinion would countenance at the moment. Certainly, the situation that it will create is by no means a step backwards. Most of its provisions have been governed by that cardinal virtue of commonsense which is the primary equipment of a legislator.
There are many things in the Bill that I do not like. It does not go nearly as far as I would like it to go. I was rather tepid in my praise for the Bill earlier on but it is a Bill that we will look back to as a watershed in Irish legislation. This issue of contraception which has so bedevilled us over the past 12 years with its awful technical jargon, surrounding condoms, IUDs and devices which are to be fitted or not to be fitted and so on is the kind of thing which I objected to. Senator FitzGerald attacked me the other day with his usual eloquence saying that I was a prude and quoted the Bible at me saying, "Blessed is the womb that bore you and the paps that gave you suck". The Senator said that he had no trouble at all speaking about wombs and paps and so on. They do not embarrass me at all, that is not what I was talking about. I was talking about this whole range of very technical appliances which belong to the privacy of the individual in consultation with his or her doctor. I am still a bit squeamish about that side of the public debate. This Bill will get that out of the way, and other more important legislation may come before us.
Since I joined the Seanad the question of family planning has absolutely dominated the airwaves. It has even displaced Northern Ireland as a subject for discussion. This Bill will set it in proper perspective. It is an enabling instrument and a step forward. Far from being ashamed of this or regarding it as a millstone in years to come, the Minister and the House will look back on this Bill as a modest victory for commonsense.
It is very interesting that this legislation ended its long tedious passage through the Oireachtas in almost exactly the same way as it began. It was fascinating for me to see that on one of the amendments on Report Stage, on the final closing Stages of the long discussion, on the front bench of the opposite side of the House, Senator Robinson and Senator Cooney found themselves on opposite sides of the fence. I recall that almost exactly a similar situation prevailed when the Bill was introduced in the Dáil when the Second Stage was being debated. On the one hand, Deputy Oliver J. Flanagan gave trenchant expression to one point of view and on the other hand Deputy Noel Browne gave equally cogently an entirely opposite viewpoint.
Senator Robinson is absolutely wrong when she suggests that the Houses of the Oireachtas were divorced from the public in this debate. I have never seen a debate in the Oireachtas in which the different segments of passionately-held opinions of members of the general public were so accurately reflected as they were in this debate. The various strongly held opinions in our society today were consistently and cogently expressed here during the course of the debate. They were expressed perhaps more extensively and more cogently in the Seanad than they were even in the Dáil where they were extensively reflected. That is one criticism which cannot be made of the Oireachtas in regard to this discussion. We have had totally opposing views on practically every aspects of this Bill. The way those views were expressed reflect the manner in which those views are held throughout the community by different sections of the public.
For some of the more detached observers in the Seanad, it must have been amusing and fascinating to see Senators voting aggressively against particular provisions for exactly the opposite reasons. A very large number of these sections, amendments and provisions attracted into the same lobby different Senators for entirely different and opposing reasons. From that point of view, it has been a very interesting debate and discussion. In so far as I at any stage disclosed impatience, irritation, tedium or boredom I apologise to the House for any such lapses. Perhaps they could be attributed to the long drawn out debate which has taken place on the measure. I was unhappy to be accused of various motives and intentions when, as Senator Martin so accurately put it, all I sought was to find something that would be acceptable to the broad mass of responsible, reasonable and mature opinion in the community.
I am not so sure that I am terribly fond of this proposition that I kept to the middle of the road. Aneurin Bevan pointed out some years ago that the man who kept to the middle of the road invariably got knocked down by the traffic. In any event, the legislation is now on its way to the Statute Book. Whatever views Senators may hold about it, I want to give the House the assurance that, as far as I am concerned, it is the starting point for the inauguration of an adequate and comprehensive family planning service for the people. This is one of the serious gaps in our health services. It is something that is so desirable that it is a tragedy it has not been provided before now. It is something that affects the lives and happiness of ordinary men and women in such a fundamental way that it is something to which we should have, long ago, awarded a very high priority.
It is my view that this legislation gives me the structure, provides me with the basis, on which to construct an adequate family planning service and I intend to proceed to do that. I hope to be able, in the months ahead, to provide on a comprehensive basis for the community in a form acceptable to everybody, a comprehensive family planning service. I mean a family planning service which provides for every particular section of the community the type of family planning service they want—not what somebody else thinks they should want, not what somebody else thinks would be better for them, but the sort of family planning service that is acceptable to them, that they are happy with, and that meets their requirements. If this legislation gives me the statutory basis to provide such a service then it will be worthwhile legislation and I hope it will live up to the approval which I know the greater majority of Senators and Deputies have afforded to it.
Question put and agreed to.