Before we commence Committee Stage I would like to inform the House that Amendment No. 2 to the Thirteenth Amendment of the Constitution Bill is outside the scope of the Bill as read a Second Time.
Vol. 134 No. 8
Before we commence Committee Stage I would like to inform the House that Amendment No. 2 to the Thirteenth Amendment of the Constitution Bill is outside the scope of the Bill as read a Second Time.
Tairgim leasú a 1:
I leathanach 5, idir línte 13 agus 14, an méid seo a leanas a chur isteach:
"(a) i bhfo-alt 2º den téacs Gaeilge, trína focail ‘agus ceart chun taisteal laistigh agus lasmuigh den Stát' a chur isteach i ndiaidh na bhfocal ‘agus maoin-chearta';
(b) i bhfo-alt 2º den téacs SacsBhéarla trí na focail ‘and the right to travel both within and outside the State' a chur isteach i ndiaidh na bhfocal ‘and property rights'."
I move amendment No. 1:
In page 4, between lines 14 and 15, to insert the following:
"(a) in subsection 2º of the Irish text, after the words ‘agus maoinchearta' of the words ‘agus ceart chun taisteal laistigh agus lasmuigh den Stát';
(b) in subsection 2º of the English text, after the words ‘and property rights', of the words ‘and the right to travel both within and outside the State'."
This amendment seeks to insert after subsection (2) the words "and the right to travel both within and outside the State". The purpose of the amendment is to put beyond doubt the right to travel both inside and outside the State.
This amendment, like the other three amendments are worded in a negative form —"shall not limit the freedom to travel between the State and another State". What we want to do is confer the right to travel and specify it in the Constitution. The direction the amendment should have taken was to confer the right rather than a negative statement restricting it or saying that the right "shall not limit". In this proposal we are adding a new subsection to state that the right to travel both within and outside the State shall be conferred on the citizens of this country.
The purpose of this amendment which proposes to insert additional words into Article 40.3.2º seems to be to create a positive right to travel as if such right did not already exist. The suggested amendment seems to assume that there is no general right to travel under the Constitution. I am unable to agree that there is no existing constitutional right to travel. Reading the judgments of each of the five judges in the Supreme Court in the X case it was clear that such a right does exist. I would refer the Senator——
I must interrupt. We appear to have received the wrong note. It would appear that Amendment No. 1 is outside the scope of the Bill and is, therefore, out of order. Amendment No. 2 is in order. I regret that as amendment No. 1 is out of order it cannot be moved. Can we move on?
Could we have an explanation why it is outside the scope of the Bill?
It has been moved.
My information is that it is outside the scope of the Bill as read a Second Time.
Technically, once it has been moved in the House——
We started a process and the proper procedures have been gone through. The amendment was moved and at the moment the Minister is replying.
That would seem to be correct. Would the Senator consider withdrawing it. If not, we must continue.
I do not see any problem with proceeding. If we can get a convincing explanation why it is not within the scope of the Bill we will accept that.
We will allow the debate to continue if that is how Members feel.
I refer Senators to the following statements of each of the judges. The Chief Justice spoke of the very fundamental nature of the right to travel and its particular importance in relation to the characteristics of a free society in the context of harmonising interacting constitutional rights. Judge Hederman referred to: "the exercise of the constitutional right to travel". Judge McCarthy referred to "the right to travel having been identified as one of the unenumerated rights guaranteed under Article 40 of the Constitution". Judges Egan and O'Flaherty also referred specifically to a right as such to travel.
In the face of those statements, it seems to be unarguable that there is a right under the Constitution to travel. However, the judges made those statements without reference to EC law. In fact, it was made clear that no decision on any question of European law was necessary for the court to give its judgment. If EC law is taken into account in considering the travel issue, since travel is of fundamental importance under the EC Treaties and since those treaties are part of our constitutional law, it is inconceivable that travel could be regarded as other than a fundamental right of persons in this country.
In the circumstances, I am satisfied that the wording of the Bill is correct in assuming that there is an existing constitutional right to travel. The Bill removes the restriction imposed in the X case by reference to Article 40.3.3º of the Constitution.
The exercise of the right to travel has, of necessity, to be subject to restrictions in certain cases. For example, the law lays down conditions to be imposed by the courts on the grant of bail, including a requirement that the person concerned surrender his passport and reports at frequent intervals to a Garda station. Persons who are wards of court cannot be taken out of the jurisdiction without the express permission of the court. If a positive affirmation of the right to travel were to be written into the Constitution, as is suggested, that affirmation would have to be couched in such a way as to allow for exceptions such as these. That would take us into an area of addressing issues which there is no need for us to address in this Bill.
All that it is necessary for us to do is to remove the restrictions on freedom to travel which were imposed in the decision in the X case by reason specifically of Article 40.3.3º. That is what the proposed amendment to the Constitution does. It would be unnecessary and it would not be sensible to do any more.
I do not deny what the Minister is saying, that there is an implied right to travel in the Constitution, but there is no affirmed assertion of the right to travel in the Constitution. It is there by implication. The judges' decisions quoted by the Minister imply that the right did exist. There is no assertion that there is a fundamental right to travel and what I am seeking to do is to insert a positive statement asserting the right of all citizens to travel within and outside the country.
I am not sure that I can accept the point made by the Minister. The Minister is referring to a situation where a crime is alleged to have been committed and obviously the law will cater for that situation; there is, I understand, a positive assertion in the European Convention on Human Rights and the United Nations Convention on Human Rights. I cannot see the logic of the Minister's argument that there would be a problem with a positive assertion within the Constitution of the right to travel for the citizens of this country.
There is a general right. People have many rights which are not specifically enumerated in the Constitution but they have been taken to be implied in the general human rights clauses in the Constitution. The Supreme Court has on a number of occasions, and not just in the X case, laid it down in the clearest terms that people generally have a right to travel. That is a fundamental human right.
A difficulty arose in the X case. In one specific type of case the Supreme Court decided by a majority of 3:2 that a person's right to travel outside the jurisdiction could be taken away in those circumstances. The Bill proposes to remove any restriction that can be placed on a person who wishes to travel outside the jurisdiction in the circumstances which occurred in the X case. If we were to write into the Constitution a general right to travel we would have to couch it in such a way that it would be subject to such restrictions as may be imposed by law. It is understood in the general right to travel given through court judgments that the right to travel is subject to the restrictions which the courts accept as being necessary, such as in the case of bail. That is the general right that exists; it is a general right implied from court judgments that is subject to such restrictions as the law has to impose in certain cases. A further restriction was found to exist because of the specific interpretation by the Supreme Court of Article 40.3.3º in the X case. We are removing that.
I will not dwell on it any longer other than to make the point that is precisely the reason I am putting forward this amendment. The amendment to the Constitution that we are proposing here, namely, that this subsection shall not limit freedom to travel between the State and another state, only refers to Article 40.3.3º and does not confer a right to travel to a citizen in any other capacity.
It is there already.
We disagree on that. It is not there in a positive capacity. The Minister said that the Supreme Court adhered to it as being there, but it is there by implication not by assertion.
It is. The Supreme Court have asserted it.
The Supreme Court have, but the Constitution does not contain it.
There are many rights asserted by the Supreme Court that are not specifically contained in the Constitution.
What the Supreme Court has said is that it believes there was an implied right for citizens to travel. There is no assertion in the Constitution to that effect. What we want to do is to state that, because all that the Bill does is state that there shall not be a limit on the freedom in relation to this subsection. I would have thought it would be reasonable to expect that a fundamental statement of the principle of the right to travel within the State and outside the State would be acceptable to a lawyer and to the people of this country. I will not pursue it beyond saying that it is something I would have liked to see asserted positively in the Constitution.
Most human rights that citizens have by virtue of the Constitution are not specifically enumerated. It would not make any difference to me personally whether I had a right by virtue of a decision of the courts or by virtue of the fact that it was written down in the Constitution or written into legislation. It would not make any difference in practice. I take the point about asserting it, but it would not make any difference in practice. The courts have asserted it in no uncertain terms over a long number of years. It is a well established fundamental right. It can be clearly implied from the very broad terms of the fundamental rights provisions in the Constitution.
If we were to write it in, one difficulty I can see is that we would have to write it in in the same way as the right to information is being written in. It would have to be written into the Constitution that people would have the right to freedom of travel subject to such restrictions as may be imposed by law. Maybe that would be just as well as for——
I accept the Minister's amendment.
A specific assertion of the right to travel written into the Constitution does not add anything to our law because it is there already as is clear from a number of Supreme Court and High Court decisions.
Tarraingíodh siar an leasú faoi chead.
Tairgim leasú a 2:
I gCuid I, leathanach 7, line 4, "stát" a scriosadh agus "dlinse" a chur ina ionad,
I gCuid II, leathanach 7, line 7, "state" a scriosadh, agus "jurisdiction" a chur ina ionad.
I move amendment No. 2:
In Part I, page 6, line 4, to delete "stát" and substitute "dlínse",
In Part II, page 6, line 7, to delete "state" and substitute "jurisdiction".
The amendment is that we would substitute for the word "state" the word "jurisdiction". On this little island we have one State but you might say we have two jurisdictions. Northern Ireland does not consist of a legal entity in terms of a Government or in terms of a state.
It is part of another jurisdiction.
That is precisely the purpose of the wording. In those circumstances, considering that there are different capacities in relation to the availability of services to terminate pregnancies which operate in a different way in Northern Ireland and in Britain, it would be useful for us to prescribe more clearly the availability of freedom of travel, that it should be not just within an entity in terms of a Government entity but in terms of a jurisdiction which could be part of a state.
The amendment seems to be based on the suggestion that there is a distinction for practical purposes between the word "jurisdiction" and "state" which could have a bearing in some way on the right to travel. However, there is no basis that I can see for making that distinction and I am satisfied that the amendment is not warranted.
The word "state" is used in Article 29.3 of the Constitution which provides that Ireland accepts the generally recognised principles of international law as its rule of conduct in relations with other states. It would be preferable to keep to what is already contained in the Constitution. Moreover, international agreements such as the EC Treaties and the European Convention on Human Rights Treaties use the word "state".
I am satisfied that the amendment as framed will fully achieve its purpose and that no difficulty whatever should arise because of the use of the word in question. The purpose of the proposed amendment to the Constitution is to ensure that people travelling to and from Ireland cannot be restricted by virtue of Article 40.3.3º. I am satisfied that the text of the Bill fully achieves that objective and for that reason it does not need to be changed.
I accept the Minister's explanation.
Tarraingíodh siar an leasú faoi chead.
Amendments Nos. 3 and 4. Amendment No. 4 is an alternative and both may be discussed together.
Tairgim leasú a 3:
I gCuid I, leathanach 7, líne 4, "nó saoirse chun seirbhís a fháil atá dleathach sa dlínse eile sin" a chur isteach tar éis "eile",
I gCuid II, leathanach 7, líne 7, "or freedom to receive a service lawful in such other jurisdiction" a chur isteach tar éis "state".
I move amendment No. 3:
In Part I, page 6, line 4, after "eile" to insert "nó saoirse chun seirbhís a fháil atá dleathach sa dlínse eile sin",
In Part II, page 6, line 7, after "state" to insert "or freedom to receive a service lawful in such other jurisdiction".
Amendment No. 3 is to add to the existing wording in the Schedule after "state" the words "or freedom to receive a service lawful in such other jurisdiction." There is no limit on freedom to travel or to receive a service in the jurisdiction. The reason for this is to ensure that there would be no limitation on someone going abroad, to receive services lawfully available abroad, on the grounds that an injunction could be taken out without the amendment to the Constitution proposed in this Schedule in relation to freedom of travel. Where somebody is going abroad to seek services that would not have been lawfully available in Ireland, it should be made clear that no injunction could be taken out either in relation to the travel or the purpose for which the person was travelling.
It is not often I disagree with my colleagues in the Labour Party but their amendment is a kind of an obfuscation of our amendment. Our amendment simply adds to the phrase in the Schedule the words "for the purpose of terminating the life of an unborn".
My two colleagues and I are heartily sick of the fuzzy language, the nod and wink, the determination not to admit to what we are really doing in this exercise, which is to pretend that we have one set of high moral standards at home while making every possible effort to guarantee that people can practise any standards they want, as long as it is not within our sacred jurisdiction. That is not much of a cause to defend.
In the amendment on the right to travel we are actually saying to Irish women that if they are pregnant and the pregnancy does not conform to our extraordinarily narrow constitutional, almost orthodox, Catholic view of their rights in this area, they can travel outside our jurisdiction to do whatever they like about their pregnancies. But, we ask them not to do it here where it might upset our sense of the aesthetics of traditional Irish culture. I am, and I suspect my colleagues are, heartily sick of it.
The High Court did not stop a young girl from travelling to Britain, they stopped a young girl from travelling to Britain to have an abortion and this proposed amendment of the Constitution is a direct response to that. It says we do not want to even pretend to attempt to stop people travelling abroad to have an abortion. It is not a question of travelling abroad on holidays or to explore the cultural values of clinics in South London, but to have an abortion.
It would be a great step forward for Irish society if we confronted Irish reality, not Irish myth, imagination or some sense of moral superiority. That is why, without much hope of it being accepted, I want this amendment put before this House.
The first step to deal with any issue in society is a willingness to confront it. The prissy wording of the amendment of the Constitution, as proposed, is a denial of reality. That is not the way to confront any problem, whatever view one takes on how it should be dealt with. Our amendment, proposes to insert the words "for the purpose of terminating the life of an unborn" in the Schedule.
In supporting Senator Ryan I would like to point out that, even according to what the Minister has been telling us and filling in the reason he thought Senator Costello's first amendment was unnecessary, by the same logic he should accept ours. I agree with the Minister's statement that there is not and never was a question of the general right to travel being limited. He is perfectly right in saying that, apart from anything else, it is an integral part of our membership of the European Community that we should endorse this right. By the same token, we should also endorse the right to full information. That is now being made clear. If it is superfluous to insert into the Constitution that a person has a right to travel, subject to the usual limitations of criminal involvement, and so on, then the only purpose of this amendment is to ensure not a person's right to travel but a pregnant woman's right to travel. That is really what is intended here.
According to the Minister all this is made necessary by, and is within the terms of, the Supreme Court judgment and of Article 40.3.3º. Specifically under Article 40.3.3º, it is not the Minister or myself who will be injuncted from travelling, but pregnant women, and pregnant women who are going to have an abortion. Why should not we say what we mean? Why not call a spade a spade?
Like Senator Ryan I cannot take this hypocrisy, this pretence that what is at issue here is upholding a sexless person's right to travel, when the Minister has already admitted that is not necessary, that it is already in the Constitution.
I would like to put a question to the Minister on this amendment. Like other speakers, I feel this is a hypocrites charter. We know what is trying to be achieved and why.
And we know who the hypocrites are.
Maybe we could be told by the Minister who the hypocrites are.
We will be asking the Senator her policy on the substantive issue when we come to it, because it is not clear after hours of debate.
Could we please stick to the amendments.
Could I ask for the Chair's direction as to whether the Minister is in order talking about the Fourteenth Amendment to the Constitution when we are now on the Thirteenth. Is that in order. Perhaps the Chair would explain the rules of this House to the Minister? I know he is not long in office.
I do not intend to be here, unlike Senator Doyle.
The Minister probably will not be here next week or the week after given the way things are going. Could we take that as advance notice to Seanad Éireann of the Government's intention? We now know where we stand.
Could we, please, return to amendments Nos. 3 and 4?
Thank you, Cathaoirleach. I am delighted to comply with your request.
He is only talking about moving to another Ministry.
Rush to his defence Senator Honan.
Would Senator Doyle, please address her comments through the Chair.
Could the Cathaoirleach confirm what Senator Honan said?
I did not hear what Senator Honan said.
That next week or the week after the Minister will be moving to another Ministry she seems to have information——
Of his own choice.
Would the Senator please return to the Bill?
I will return to this very important issue.
Given our two tier health service and the two tier access to medical services — arising from the difference in the waiting time for treatment between the public patient and the private patient — will medical card holders get whatever services they now request which are not available in this country and which are paid for in other states? Will they be free to travel for those services we dare not mention on their medical cards?
My colleague, Senator Doyle, talked about hypocrisy but if we go back to 9 June 1992 all the major parties, excluding the Independents, Labour, Fianna Fáil and Fine Gael signed a charter, pre-Maastricht, on two issues. They may not be in agreement on the substantive issue but on the two prongs of these referenda — the right to travel and the right to information — they broadly agreed on this method. I cannot see why there is such a furore over it.
I cannot accept what either Senator Costello or Senator Ryan said. Senator Ryan disagrees with Senator Costello on the wording but the right to travel is much broader. One cannot say it is being proposed by referendum simply to get over the problem of the X case. That is only one objective it will achieve.
It is specifically for that purpose.
This right to travel is much broader. Take one example, divorce is not allowed in this country. Irish people have travelled abroad and got divorces that have not been recognised within the State.
Those who can afford to.
Many people travel abroad for other reasons, whether we accept it or not. Basically, what we are doing here is ensuring that what arose in the X case will not occur in others. To narrow it down and say the right to travel is to do with having an abortion abroad would totally defeat the purpose. It is a much broader issue.
If anybody is being hypocritical it is the people in Labour and Fine Gael on the other side of the House who agreed this before the Maastricht Treaty referendum, for the sake of Maastricht but who are now trying to throw the cat among the pigeons. The situation is quite clear and unequivocal and, with respect to my colleagues across the way, I see no foundation for the argument put forward by Senators Costello and B. Ryan in relation to the wording. It is very clear and succinct and I commend it.
I can see a certain logic in what Senator Murphy and Senator Ryan are saying. However, I am satisfied that the Bill as it stands will ensure that a woman who wishes to travel abroad to avail of a service in another jurisdiction — a service that is unlawful here but lawful in that other jurisdiction — would have the right to do so in the knowledge that an injunction may not be taken against her to stop her travelling.
In answer to the point made by Senator Murphy there is no good basis for any suggestion that, even though a woman is by virtue of an express provision of the Constitution not to be injuncted from travelling abroad, she could still be injuncted from having an abortion after she travels abroad. If we were to write in this extra wording we would be assuming that in some way a person who has been given the freedom to travel abroad could find an injunction being taken against her here in this country in relation to what she might do while abroad. Whether a woman whose life is not in danger is having an abortion, or whether somebody is plotting against the Government of a foreign state or whatever, an injunction here could not be taken to stop them engaging in the activity after they have travelled abroad.
What about before travel?
It cannot be before travel because we are giving her the freedom to travel.
If the purpose is for——
If the purpose is for having an abortion, she cannot be injuncted. That is what Article 40.3.3º is saying. It is confirming the general right to travel.
Well, is it? That is the point. Is it actually doing that?
It is. We are giving the person a right to travel. We are not allowing any restrictions on the right to travel under the Thirteenth Amendment to the Constitution Bill, which states: "This subsection shall not limit freedom to travel between the State and another State." This refers not only to travel to the other state but also to travel back because of the use of the word "between". If we were to add the extra wording, we would be assuming that after we had given her the freedom to travel abroad she could not do certain things abroad — in other words, that we could effectively take an injunction against her to stop her doing those things while abroad once she had exercised her right to travel which we are giving her. I do not think we can operate on that assumption because it has no basis in reality.
There is no good basis for any suggestion that, even though a woman is by virtue of an express provision of the Constitution not to be injuncted from travelling abroad, she could still be injuncted from having an abortion after she travels abroad. Of the three Supreme Court judges who in the X case found that a general injunction against travel abroad could lie where there was no real and substantial risk to the mother's life, two explicitly rejected the idea of an injunction confined to restricting a woman from leaving the jurisdiction for the purpose of having an abortion outside the State on the basis that such an injunction would not be effective to protect the right of the unborn to life.
Again, just to reiterate, if you look at Judge McCarthy's judgment in the Supreme Court, he says there are various activities which are not legal here but which are legal abroad. He thinks it is the law that we cannot injunct people from going abroad to engage in those activities. He went on further to say that treason against the Irish Government, which obviously is illegal here, may be plotted abroad. A person may exercise their freedom to go abroad to plot treason against the Irish Government here, which might have profound effects here, but there is no law or no provision which would allow such a person to be injuncted. As a matter of fact, I would say there is no form of human activity, no matter how despicable it might seem to us, that is not legal somewhere in the world. For example, I am informed that in some African states activities which would be regarded under the Irish law as murder can be freely engaged in. If somebody wants to travel to central Africa to engage in a spot of head hunting or something of that nature, can we in practice stop those people? We are not entitled to stop them going abroad and it would be impractical.
That is the point about saying we are allowing people to travel, but we will not have abortion in this country. People can travel to engage in head hunting and to engage in various other forms of activity which are not legal here. Does the fact that they can do so mean we should make all those activities legal here? I do not see the logic of it.
Let us take the other parallel situation presented by the Minister: somebody who is on bail and whose passport can be taken so that they are not allowed to travel because of an offence in this state. If this subsection applies to is 40.3.3º, which says it shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life as distinct from the health of the mother and if a woman is moving to another jurisdiction for the purpose of termination of a pregnancy which is not permitted within the terms of 40.3.3º, could it not then be argued that an injunction could be taken, either in advance or subsequently, in relation to an offence contrary to the subsection where, for example, the health of the mother, the risk of suicide, or indeed rape or incest was involved? Can an injunction not be taken out in advance or subsequently because services that would be unlawful in this jurisdiction would have been performed abroad?
I do not want to pursue this unnecessarily, and I am not going to be sanctimonious, but let us be a bit careful about our analogies. We want to move a little bit beyond African head hunting at this stage in the late twentieth century, really.
I was just taking an extreme example.
I know, but apart from that the difference between the Minister of State's analogy and this situation is that in this case we have written into the Constitution a high flown guarantee about the rights of the unborn which we as a society decided was sufficiently important. I do not think there is anywhere else in our Constitution where we have written in one subsection a high flown statement of a noble principle and where the next section says are not going to do anything about it. That is the problem. That is where the dual standard arises. I do not believe there is anything in any part of our Constitution or in any part of our law which would enable one person to take another person abroad who had rights under our Constitution with the view to taking those rights from them. I do not think we would allow that. We do not allow it in the case of families where there are disputes about custody.
What I am saying and have said since 1982 is that this whole thing is a debacle, a mess, full of contradictions and an unwillingness to confront Irish reality. I have also said the solution would be to get rid of Article 40.3.3º completely. If we will not do that let us at least confront the reality of what we are doing. We are writing high sounding phrases into the Constitution and then bolting down a hole as fast as we can to make sure we will never be embarrassed in any circumstances by any of the unpleasant consequences of those high sounding principles.
We are not talking about divorce. This right to travel is the right to travel that might be affected by Article 40.3.3º and nothing else. It is therefore the right to travel abroad to have an abortion. I accept it is the intention of the Government that the amendment to the Constitution, as proposed, will have exactly the same effect whether or not the wording Senator Murphy and I propose is inserted. I accept that is their intention, but I am slightly worried that might not be the effect. It is high time we started to get around to being explicit about our intentions in this area. If it is our intention to have a high flown guarantee in the Constitution followed by an equally low flown guarantee that it will not have any significance for anybody who has some money, what we are actually saying is that we will not enforce our rigorous laws on abortion on the rich but we will be very sanctimonious and very good Catholics about imposing them on the poor.
In that connection we might recall that when the Supreme Court gave its judgment in the X case the collective sigh of relief that this girl was at last free to travel was to be heard loudly around the country, not least by the Catholic bishops, because they were also let off the hook. Our amendment is meant to pinpoint the hypocrisy of this whole thing as Senator Brendan Ryan has said. It struck me while the Senator was speaking that he referred several times to the right to travel, but in fact the amendment does not say anything about rights; it uses the expression "freedom to travel". May I ask the Minister whether there is a distinction here and whether freedom is not as strong a legal concept as a right.
I would also like to ask the Minister whether he is aware it is now claimed that, irrespective of what you put into this amendment and no matter how you guarantee the pregnant woman's right to travel for an abortion — which is what is really meant — there may be other factors or concepts in the Constitution which are superior — the rights of the family, for example, which are stressed so strongly in the Constitution and which in a recent article are interpreted to mean that, irrespective of what you put into this amendment about the right to travel, the husband or the parents will still have a superior claim to determine the destiny of a pregnant woman whom they claim is under their jurisdiction. Will whatever is put in be, in effect, cancelled out or in conflict with the superior rights of the family in the Constitution?
I am glad of the opportunity to participate. Unfortunately, I have a busy teaching schedule so I cannot remain here. It does not indicate any lack of interest in the Bill.
I wonder could we change the Order of Business to accommodate Senator Norris.
I hardly expect that is possible. I would like strongly to support this amendment. It is at least a little breath of honesty, something to which we have not been treated by the Minister who said in his speech: "The effect of the amendment is to afford full protection to the lives of pregnant women." Central to the legislation is to permit abortion. It is time we stopped evading this issue. I recognise the anxieties of all people. It is a very human thing to want to live in a nice, neat ordered world where there are no jagged edges and we are not troubled by complex moral issues. Unfortunately, we do not. We have to face up to this reality, sad as it may be.
I would like to echo what Senator Murphy said about the complexities of the constitutional situation. He is of course perfectly right. There is a phrase in the Constitution — I cannot remember it exactly — which says something to the effect that the family has rights antecedent and superior to all other rights. That would seem to me to be a fairly weighty consideration in looking at this matter. I am very happy to support this amendment.
I would like to come back to the point I raised. The Minister has not yet been able to respond to it. It has also been referred to by Senator Brendan Ryan. It is the implied different treatment of better off women versus the poorer women in our community in cases of crisis pregnancy. There is an enormous problem here. If by what we are doing here today we are allowing the country to breath that collective sigh of relief that has been referred to, I would like some assurance from the Minister that our health code will ensure equal treatment of all women in crisis cases by allowing those who cannot afford to avail of services abroad to get supplementary welfare or help on their medical card to avail themselves of whatever service any women in a crisis pregnancy feels she needs or is advised to avail herself of by her doctor and those counselling her. Could I have an assurance that this freedom to travel will allow all women to be treated equally?
I recognise that a number of genuine points have been raised by Senators Norris, Murphy and B. Ryan. Senator Doyle's point is purely political and all I can say in response to it is that I will pass on her comments to the Minister for Health.
There is nothing political about treating all women equally.
In relation to the other points that have been made, the right to travel is a general right which has been implied from the fundamental rights provisions in the Constitution by the Supreme Court and by our superior courts generally, over a long number of years. It was found that the writing of Article 40.3.3º into the Constitution caused that fundamental right to travel, which has been implied, to be restricted in this particular type of case. What the amendment I am proposing is saying is that Article 40.3.3º can no longer be interpreted to limit the general right to travel in any way in the future. In other words, as a result of this an injunction cannot be taken in cases like the X case which may come up in the future.
I did not fully follow all the logic of Senator Costello's case about an injunction to be taken after somebody has come back. It would not be much good taking an injunction against somebody after they had done whatever it was they were to be injuncted from doing in the first place. Maybe I am misreading what the Senator said. It is well known that throughout the world people will always cross borders to avail themselves of facilities which they do not have at home. There is nothing reprehenisble about that. That is a general feature. Senator B. Ryan is backing himself into a logicalcul de sac, if he will forgive me for saying so. If we accept the reality that people cross borders to avail of services they are deprived of in their own country — if they could get them at home they would not be crossing borders to get them — it does not make much difference if it is by virtue of the Constitution, by legislation or by court decision they are deprived of them in their own countries. We accept that and what we are doing here is allowing them to do so.
"Right" or "freedom"?
May I respond to Senator Murphy? He has raised a good point. The right is general and flows from court decisions interpreting the fundamental rights Articles. The exercise of that right will not be in any way interfered with in the circumstances of the X case. From that point of view I do not think there is any particular significance or any ulterior motive in the use of the word "freedom" instead of "right". The Senator may be right. It might have been more appropriate to use the word "right" but I do not think it will make any difference in practice because the intention is clear.
I very much regret having to make this announcement because there is quite a good debate taking place, but it is now 11.30 a.m. and in accordance with the Order of the House today I must now put the question.
I had risen to speak and you had recognised me but then the Minister——
I am looking at my watch and it is almost 11.31 a.m. The Order of the House requires that I should put the question. I regret that is the case.
Is í an cheist: "Go n-aontaítear an Bille leis seo sa Choiste, agus go dtuairiscítear an Bille don Teach gan leasú, agus leis seo to gcríochnaítear Céim na Tuarascála agus leis seo go ritear an Bille."
The question is: "That the Bill is hereby agreed to in Committee and is reported to the House without amendment and Report Stage is hereby completed and the Bill is hereby passed."
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.