Seanad Éireann díospóireacht -
Tuesday, 14 Mar 1995

Vol. 142 No. 8

Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill, 1995: Committee and Final Stages.

Question proposed: "That section 1 stand part of the Bill."

Mr. O'Kennedy

There are definitions in section 1 which are inadequate and misleading. I wonder in the circumstances whether the Minister might consider amending or changing some of them. The term "termination of pregnancies" is, by itself, clear enough; most people will understand what that represents. However, we then find it is defined in terms that changes the nature of what is meant in a different format. It now means the "intentional procurement of miscarriages of women who are pregnant". The emphasis has been changed. There is no reference to the effect it has on the other being, the termination of life of the other being. People are very familiar with the notion of miscarriage. It is used in any context in respect of a woman's experience during pregnancy. It is a well known term; it means something that happens to the woman over which she has no control and relates only to the woman's experience.

I have found, not only in the debate in this House but in the general way matters are couched, that we are not facing up to the awful reality of abortion. We call a termination of pregnancy "a procurement of miscarriages". It is much more than that. It is the termination of a life in being, although there may be a miscarriage as well. Why do we try to soften the reality by presenting it in a format which does not make us face the reality? If someone will tell me that it does not mean the termination of an unborn child's life, then I will listen; but until such time as I am told that, I find that this kind of presentation is calculated only to confuse and understate the awful consequences of what is perpetrated. The initial statement is simpler and clearer than the manner in which it is defined and perhaps the Minister can give me some guidance on that.

This section also defines a "person to whom section 5 applies". Maybe this is why the Minister said in his general statements when introducing the legislation and in observations outside of this House that it would not apply, for instance, to a friend or a relative of the woman. I see nothing in this legislation that clearly defines and gives that effect. I want to inquire if the Minister is relying on this definition to justify his statements, if friends or relatives are excluded from this provision? If the Minister is not relying on this definition, which one is he relying on? Many people may agree with the Minister in saying that friends and relatives should not be subject to any penalty for giving personal and bone fide advice, but where in the Bill is this clearly defined? This section says "a person to whom section 5 applies"— those who would be subject to the disciplines or the constraints of the legislation —"means a person who engages in, or holds himself, herself or itself out as engaging in the activity of giving information,"— this definition is trying to make the English language even more complex; why do we not just say "engaging in giving information, advice or counselling to individual members of the public in relation to pregnancy."?

I raise again the query I had on Second Stage of this Bill. What is there in this section that does not give free rein to an active member of the Irish Family Planning Centre or the Well Woman Centre from acting in an individual capacity, seeking out someone and presenting themselves as a friend with an interest to help? We now know from the honest statements of the Irish Family Planning Centre what its purpose is through the formal agreement it has with abortion clinics in England; and the Well Woman Centre has similar formal agreements. At least they are honest, although we can ignore this if we wish. I am anxious to ensure that such people cannot avail of loose drafting to behave as if they are dissociated from the organisation in which they work and operate by presenting themselves as a friend. If this is the consequence of this section, could the Minister assure me how such people will not be allowed to drive a coach and four through this by simply changing their status and saying: "I am not now an official of the Irish Family Planning Centre. I am not now an employee of the Well Woman Centre. I am now acting in a personal capacity. I just met her as a friend". I want to stop that and to leave no doubt that such misrepresentation and distortion can happen.

A "woman" is defined in this Bill — in a Bill that lacks precision on a range of fronts, I find this definition strange — as "a female person". The only presumable intention there can be behind that is that it extends the definition of "woman" to the widest possible range from birth to death, otherwise it hardly needs to be defined. A female person, like her male counterpart, will stay female from birth until death. Presumably this definition is intended to extend the meaning of the word "woman". Where "woman" appears here in relation to abortion, abortion information and abortion services, we are talking about any female from a young girl to an old woman.

I am concerned. I have had telephone calls this morning, not from lobbyists. The people that have affected me most in the last few weeks are mothers, many of whom cried. I got a letter this morning from a person who apologised for invading my privacy, saying they are not members of any organisation or political party and do not belong to any lobby group, political party or group, pro-life or otherwise, but is simply a concerned parent. I thank that concerned parent and many others. Concerned parents are asking if we will allow young girls have information on abortion. Are we saying that our society is such that we can legislate so a youngster from the date she becomes pregnant can have this information? What safeguards are we writing into the legislation to protect that youngster?

Far from clarifying what is meant by a particular phrase, the definitions in this section confuse and distort the meaning of the original phrase. "Termination of pregnancies" is defined as "a procurement of miscarriages of women who are pregnant". I prefer the original phrase without it being defined. If we are to talk about the termination of a pregnancy, we should say what it is — the termination of a life, not just a miscarriage.

Dr. Henry

Like Senator O'Kennedy, I was concerned when I saw the term "miscarriage" used because I thought it a laypersons term and not descriptive enough. In order to be sure of the exact meaning of the definition, I purchased last year's Collins Medical Dictionary and its definition of a miscarriage and abortion is the same — the termination of a pregnancy before the child is viable. It is fair enough to use that term. However, I understand what Senator O'Kennedy means. There is an old medical dictionary in the Library which defines it as "the termination of a pregnancy before 28 weeks". Medically we now know a child may be viable earlier than that and some dictionaries now give a date of 24 weeks, while other just say "before the child is viable".

I cannot help Senator O'Kennedy about the definition of a "friend" because it is often hard to know who one's friends are. As regards the definition of a "woman", there are safeguards if Senator O'Kennedy is worried about young teenage girls going to doctors to get Act information about abortion services outside the State. Unlike in England — I am not sure about other jurisdictions — the child has no right to statutory health care in Ireland and this is health care legislation. A doctor would know who was a minor. It is fair to use the term "woman" because doctors will be careful when considering this legislation and it will not be casually applied. In today's Irish Medical News, Fergal Bowers said abortion could be a minefield for the medical profession. The legislation will be carefully applied by the medical profession and the definition of a “woman” is reasonable.

Mr. Finneran

As regards the definition of a miscarriage, there is always a conflict as to when a life is viable. Senator Henry said that at one stage it was thought life was viable at 28 weeks but now some journals state 24 weeks. In fact, some will say a life is viable at 16 weeks. It is a matter of interpretation and for debate, both nationally and internationally. The debate in the House today will not resolve the issue of the viability of a foetus.

Is there a safeguard to ensure against the abuse or misuse of the term "friend"? While I see the Minister's difficulty in regard to the legislation, he should assure us that there will not be an abuse of this term. On Second Stage Senator O'Kennedy outlined certain agreements reached to accommodate a procedure which would allow organisations to operate under legislation. We do not want loopholes in the legislation, although I am not sure how watertight it is in this regard. Perhaps the Minister will reassure us.

On the question of whether a child has a statutory right to health care, I am not sure of the situation under this legislation. Where does a relationship between an 11, 12 or 13 year old, their doctor and parents begin or end? The public must be assured of a definite three party approach between a child, its parents and doctor in this situation.

Minister for Health (Mr. Noonan,

Limerick East): I would like everybody to accept the bona fides of the Bill. There is not an underhand approach by me, the Attorney General or the parliamentary draughtsman to sneak provisions into the Bill without——

Mr. O'Kennedy

No such suggestion was made. I am conscious that what we pass here will be interpreted by the courts and not by us.

Mr. Noonan

(Limerick East): There is a fundamental misunderstanding in the way some Senators approach the Bill. The constitutional right to information was given in 1992 and an obligation was put on the Houses of the Oireachtas to regulate that information. This is not an enabling Bill, but one which restricts the manner in which information may be given. If one looks at it in that context rather than arguing as if it was giving rights for the first time, it falls into place more easily.

Senators raised three areas of concern in the definition section. As regards the definition of a woman, a woman is defined in the Interpretation Act as an adult. If I were to put in the term "a woman" without defining it, that would mean the restrictions in this Bill would not apply to persons under 18. I am sure no Senator would suggest that there should be a far more liberal regime of information provision for persons under 18 years than for adults.

I can see why Senator O'Kennedy is looking at it from that angle but if one looks at the Bill as one which restricts the manner in which information can be provided under the constitutional right, then to exclude people is to exclude them from the restrictions. That means they can have the information without restriction. It stands to reason that we have to include under age people so that the information is restricted.

The second point relates to the definition of the termination of pregnancies. I assure the House there is no intention to have a euphemistic approach. Euphemisms are not being used so that unpalatable facts are made palatable, because we say "termination of pregnancies" rather than "abortions". The reasons are legal and drafting. The expression "termination of pregnancies" is defined for the purpose of the Bill as "the intentional procurement of miscarriages".

The definition is necessary because in normal usage the phrase "the termination of pregnancy" includes childbirth and unintended miscarriage. One can describe the birth of a baby as the termination of a pregnancy — the baby was born and the pregnancy terminated. If a woman has an unintentional miscarriage that is also a termination of pregnancy. In order to state precisely what we are about we have to——

Mr. O'Kennedy

In the context of this Bill a normal birth is not what is meant by a termination of a pregnancy.

Mr. Noonan

(Limerick East): That is right. That is precisely why it has to be redefined as the intentional procurement of a miscarriage, which is abortion. That is why it is confined to that. The reason for the phrase “termination of pregnancy” and the “procurement of miscarriages” is that the only legislation on the Statute Books on abortion is the Offences Against the Person Act, 1861. Section 58 of the 1861 Act remains the relevant provision of our criminal law on abortion. That section makes it an offence to unlawfully use any means to procure a miscarriage.

In terms of drafting, this does not have to be consistent with Collins Medical Dictionary or the Oxford English Dictionary but it has to be consistent with previous Statute law, and the only previous provision is the 1861 Act. We must carry forward the same terminology so there is no divergence. It is not a question of being euphemistic; there are legal and drafting reasons and reasons of definition why that has to be included.

What does the definition of "a person" include and exclude? If one again thinks of the Bill in terms of restricting the way in which a constitutional right can be vindicated, the restrictions are confined — first, to Act information as defined in section 2 and, also, to Act information being provided by persons, as defined here. Under the Act "a person" means "a person who engages in, or holds himself or herself out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy". The restrictions do not apply to a friend, a sister, a mother, a husband or anybody in a private capacity.

As well as being just and fair, the law must be practicable. It is not possible to legislate for what a mother tells her pregnant daughter sitting at home at the fire at night; it is not possible for the law to intrude there especially when there is a constitutional right to information. What we can catch within the terms of the Act is anybody who self-institutes as a person or a body which advises on pregnancy. It is that situation to which the restriction applies.

Senator O'Kennedy could argue that, for example, the person acting in an organisation as a counsellor during the day becomes a friend at night to somebody else. As a friend he or she has the same rights as any other friend or as a sister or mother. However, if he seeks to use the resources of the agency at any point he is then an employee or an employer or a person within the scope of the Act.

Of course, there are times when people act in a professional capacity or a public capacity and act as a member of a family as well — we all do. If one gives a member of one's family advice on something to do with their rights vis-á-vis the county council or planning permission, for example, one is not doing it as a Senator or TD but as a member of a family.

The opening position is that there is a right to information since 1992; it is additional to the right of general information which prevailed until the referendum was passed in 1992; it at least extends to the giving of names and addresses, and this Bill restricts the manner in which the Act information will be provided. The restrictions apply to persons as defined in the definitions section, in colloquial terms, to persons who self-institute as advisers on pregnancy, whether they are in a counselling agency or are GPs. It does not apply to other people.

Those are the reasons for the definitions and they are good and valid reasons.

Mr. O'Kennedy

While I am reasonably satisfied and reassured by some of the Minister's responses I am less than reassured by some others, the more significant ones. With regard to the definition of "a woman" I can see the reason why the Minister mentioned it. While it seems to be a superfluous definition I accept the basis for it. In that it embraces all female persons, I suggest that the decision in the referendum be interpreted in a strict way for young female persons and a protective attitude should be adopted in counselling them.

I am not as happy with the other points. With regard to the definition of "termination of pregnancies", the Minister pointed out that we have to be consistent with the Offences Against the Person Act, 1861, the Act which created the crime; the person we were determined to protect was the unborn child. The 1861 Act did not distinguish between the born and the unborn and for that reason, in so far as we are amending legislation, I see no reason, and I have not been convinced by the Minister, the definition of a termination of pregnancy should not be expressed for what it is — the termination of the life of an unborn child. Nobody would suggest it is other than that. They may give reasons justifying why the woman is entitled to do it, but they would not suggest it is other than the termination of the life of an unborn child.

When that is the case, why are we watering it down, distorting it and misrepresenting it as an "intentional procurement of miscarriages" as if the only life concerned or affected was that of the woman who miscarried? Miscarriage is, it should be noted, not an active but a passive response. The term "miscarriage" in this context conceals the effect on the unborn person. I appeal to the Minister to note there is nothing in the last legislation — the Offences Against the Person Act, 1861, which understandably and properly criminalised it — to deal with this which in any way constrains any draftsman from including what we are talking about.

The last time I took issue with a draftsman in this House was in 1965. I was told by the then Minister for Justice, Deputy Lenihan, that the parliamentary draftsman would be "in high dudgeon". I do not have much concern about the discomfort I cause to parliamentary draftsmen; I want the law to say what we want to implement and I do not want it to misrepresent what we are doing.

There is nothing in what the Minister has said about the definition of termination of pregnancy in the Bill which justifies this euphemism and distortion, although it may not have been done deliberately. If a draftsman in the Office of the Attorney General or elsewhere — I may even know the person concerned — is upset, I am sorry for their sensitivities but I am much more concerned about the precision of this definition.

The Minister has said one cannot legislate for what happens between parents and children in the family home; I understand that and long may we not attempt to intrude there. By and large, communication with my children has shattered all my illusions and I have pleaded with my teenage daughter to allow me to retain some of them. There is a special relationship between parents and children and we should not interfere with it.

Nonetheless, there are many definitions in various statutes of "family" and "dependants". If the Minister is anxious to exclude personal, intimate communications between parents and children it can be done. The Civil Liability Act, 1961, contains many such definitions, extending to grandparents and in some cases great-grandparents and granduncles. I suggest he and his draftsman look at that Act because nothing is being done here. I agree that a family member——

Acting Chairman (Mr. Sherlock)

I remind the Senator that this has been debated at length and it is now 11.35 a.m.

Mr. O'Kennedy

It is irrelevant whether it has been debated at length. You will notice, Sir, that a number of Members are not here at all. If you tell me——

Acting Chairman

I advise you, Senator, that the discussion has taken 35 minutes.

Mr. O'Kennedy

I do not take issue with that.

Acting Chairman

As Chairman I am advising you that is the case and I remind you that there is repetition.

Mr. O'Kennedy

On the matter of fact I do not take issue with you; it has taken 35 minutes. Having said that, what point is the Chair making?

Acting Chairman

There is repetition.

Mr. O'Kennedy

I have not repeated myself.

Acting Chairman

I ask you to conclude your remarks.

Mr. O'Kennedy

I did not deal with the definition of "dependants" or "family" in the Civil Liability Act at any point before this.

Acting Chairman

I ask you to conclude; there are other matters to discuss.

Mr. O'Kennedy

I have been clear. I ask you to clarify your remarks because I will always yield to the authority of the Chair. You have said I am engaging in repetition. I ask you to point out where I previously referred to the definition of "family" and "dependants" in the Civil Liability Act, 1961.

Acting Chairman

The Chair is advising the Senator he is repeating himself, the matter has apparently been discussed adequately.

Mr. O'Kennedy

Sir, I heard what you said, but I have made no reference prior to this to the Civil Liability Act — I think you will agree with that. In so far as I have not, how can I be repeating myself?

Acting Chairman

I am advising you to resume your contribution which must be relevant. My job is to have the debate conducted in a constructive manner and I advise you to do that.

Mr. O'Kennedy

That is precisely what I intend to do. As a Member of the Oireachtas for some time, and as a Member of the Seanad, I am conscious of the need to adhere to my obligations as a Member.

Acting Chairman

You also have an obligation to be constructive.

Mr. O'Kennedy

You will appreciate, Sir, that what constitutes constructiveness is subjective. I know people get impatient when a discussion goes on for some time but that is the parliamentary process and not too many here will trespass on anyone's impatience. We have a job to do.

Acting Chairman

That has nothing to do with it Senator, I ask you to conclude your remarks.

Mr. O'Kennedy

Would the Minister consider including the definitions to which I have referred in the Civil Liability Act, 1961, or related definitions to ensure the people he is properly concerned about — mothers and daughters — are specifically defined and will not suffer any criminal taint? Equally, those who were not included in that protection should not be sheltered by the Bill. That is all I ask the Minister to do.

Another matter that arises — the Chair is ready to rise before I make this point. It is not repetition.

Acting Chairman

I remind you, Senator, that since you are putting a point to the Minister, I call on him now to reply.

Mr. O'Kennedy

On a point of order, on the Committee Stage, the procedure is that one makes one's points and the Minister answers, which is what I propose to do.

Acting Chairman

If the Senator has a point to make, make it.

Mr. O'Kennedy

I will do that.

Acting Chairman

You are not constructive. You should have regard to the Chair——

Mr. O'Kennedy

That cuts me to the quick. I have one other point to make.

Acting Chairman

I will allow you to make that point.

Mr. O'Kennedy

My constructiveness or otherwise is a matter of interpretation; perhaps the Minister will say this is not constructive and the Chair will not be reassured. I ask those who are listening to my remarks and who feel uneasy to first hear what I have to say.

Acting Chairman

Before I call the Minister I ask you to conclude.

Mr. O'Kennedy

My final question relates to the time involved. The Minister made observations in his last reply on the termination of pregnancy before 28 weeks or before 24 weeks. Why should what is meant as a termination of pregnancy not be defined within a given time scale? In other words can the termination of pregnancy extend to anything that happens after 24 weeks or 28 weeks? Can we define it in terms of time as well as the definition in the Bill?

Acting Chairman

Senator, I have given you a lot of latitude.

Mr. O'Kennedy

Latitude? I protest when you refer to latitude when I am addressing precisely the definitions contained in the Bill. If you are suggesting that we are discussing the issue at some length, I accept that; but I protest when I am told that I am being given latitude before I even mention the point. Is there any point in attending the House at all?

Acting Chairman

It is my duty to conduct the business of the House with propriety. I have stated, Senator, that you are not being constructive and that I have given you a lot of latitude. I now ask you to conclude before I call on the Minister, which I am now about to do.

Mr. O'Kennedy

I find this intervention from the Chair rather sad.

Acting Chairman

I call on the Minister to reply.

Mr. Noonan

(Limerick East): Two points have been raised again. The first is in respect of the whole area of friend or sister or mother or grandparent and so on. This is the definitions section of the Bill and the definitions section in any Bill defines words or expressions which will be used repeatedly in the course of the Bill so that it is easier to understand and so that, for example, every time “person” appears in the text of the Bill, we do not have to write in the four lines of definition. We simply write in the four lines under section 1 and state what “person” everywhere in the Act will mean. The words “friend”, “grandparent”, “parent”, “sister” and “brother” are not used in the Bill, consequently there is no need to define them. This is what a definitions section is about and it is unreasonable to demand that the definitions section of this Bill does what no definitions section in any other piece of legislation does.

The second point is in respect of the general conditions of pregnancy to which information under the Bill would apply. There is a general provision written into the Bill and it is in respect of information about services available abroad, so it must comply with what is legal abroad; that is the constraint on it and it runs right through the Bill. For example, the first prescriptive section of the Bill is section 3 and section 3 (1) (a) (I) (A) states:

the information relates only to services which are lawfully available in that place and to persons who, in providing them, are acting lawfully in that place,...

This is where the constraints which Senator O'Kennedy requests are mentioned.

Mr. O'Kennedy

I have never questioned the Minister's intention or his bona fides and I do not wish to start doing so now. In so far as that those who are not protected by the provisions of the Bill will be guilty of an offence, a crime, it is important to define those people, and the class of people, who will not be made amenable to criminal offence. I see no precedence in this or any other legislation — and I speak as much as a lawyer as a politician — for not defining the type and category of people who will not be made amenable to crime. There are precedents in other legislation which will help the Minister to ensure that those very people will be excluded from any criminal sanction.

Mr. Noonan

(Limerick East): With respect to the Senator, in any piece of criminal law, once you define the persons who are amenable to restriction under the Act, it excludes those that are not. Once you define those that are subject to the law under an Act, then those that are not subject to the law under the Act are not subject to the law under the Act.

Mr. O'Kennedy

The Minister will find that this is not the case at all in any definitions section in any legislation, criminal or otherwise. There is a need to be specific, either in the criminal or civil law, as to whom exactly one is dealing with: who is going to have a civil entitlement and who is going to be subject to criminal sanction? The Minister remark's would constitute a woolly introduction to criminal sanction. I do not intend to pursue this matter further. However, I feel an obligation to raise these points so that the record will show that when the Bill is passed into law at least one voice, perhaps two, was raised to point out the anomalies. If that means that we have to wait an extra ten or 15 minutes, so be it.

Acting Chairman

Senator, you could have submitted amendments to that effect.

Mr. O'Kennedy

Given the hour at which the House adjourned last night, there was little chance to submit amendments. I am asking the Minister to proceed, as he can always submit his own amendments.

Question put and agreed to.

SECTION 2.

Acting Chairman

Amendment No. 1 is out of order as it involves a potential charge on the Revenue.

Amendment No. 1 not moved.

Question proposed: "That section 2 stand part of the Bill."

Ms Honan

I am disappointed that amendment No. 1 has been ruled out of order. It is essential that provision for counselling be put on a statutory basis. I welcome the commitment which the Minister made in his speech yesterday that £200,000 would be set aside initially for the provision of counselling services. As we have heard so far from the debate today, counselling is essential, both for the women who find themselves in a situation of crisis pregnancy and especially young children, with regard to themselves and their parents.

There are very few counselling services available in many parts of the country. I am aware that the Minister has asked the health boards to investigate the matter and work out the needs of specific areas, but I would also encourage him to fund much more generously the voluntary organisations who have been pro active in this area. Will provision by made by the Minister for Finance in the Finance Act, given that many essential services in this area tend to be long fingered when financial commitments are called for? It would be very irresponsible if all of the fine words with regard to the benefit of counselling for women in crisis pregnancy turned out to be meaningless.

Mr. Finneran

I have some worries with regard to the health boards implementing the wishes of the Minister. I appreciate that to a great extent the Minister can only issue guidelines, and I referred to this on Second Stage. A situation may arise where one health board acts on the wishes of the Minister as set out in his guidelines, but another may disagree very strongly with the Minister, resulting in lack of uniformity with regard to the Minster's intentions throughout the country. In this scenario the rural population may loose out and I therefore ask the Minister to consider not so much guidelines but some kind of national policy which would be available to all persons.

As I remarked on Second Stage, the alternatives to the abortion trail must be available and the information on those alternatives must be available. Therein may lie a crux, in so far as the funding for the voluntary organisations may not be sufficient, or their budget might not allow them to set up different services in different locations. It would be a pity if, due to lack of funds and enthusiasm by certain health boards, women in those areas would take the very option that many people nationally and in this House do not want, because such woman could not avail of the information services on alternatives to the abortion trail. The Minister should keep that in mind. He should think on a national basis and keep to the fore alternatives to abortion. A proper service must be put in place so that people understand the alternatives and, if possible, avail of them.

Mr. Doyle

I support the view expressed by Senator Honan. What little research has been done shows that an extraordinary number of women go to England without having received counselling. The priority now must be to encourage women to receive counselling before they go to England. The Minister should make it a priority that money that is allocated to health boards will be spent in this area.

Mrs. McGennis

I accept that my amendment has been ruled out of order but, as was stated on Second Stage, many of the provisions of the Bill mentioned by the Minister in his speech are not, in fact, contained in the Bill. A number of Senators asked the Minister to ensure that safeguards like counselling, research and education would be provided, but they are not specifically contained in the Bill. I understand that this amendment has been ruled out of order because it involves a charge on the State. Is the Minister giving an assurance to the House that the spirit of this amendment will be adopted and put in place by him?

Dr. Henry

I support Senator Honan's amendment, although it has been ruled out of order. It is very important that we are sure——

Acting Chairman

We are speaking generally to the section now.

Dr. Henry

It is essential that counselling should be of the highest quality. In addition, counselling agencies should make it clear whether they are directive or non-directive. This is important because of the opt out clause which the Minister, quite rightly, put in for doctors. Their patients — particular those with medical cards, and probably GMS patients as well — will have to be in a position to go to an alternative doctor or another counselling agency. The spirit of this amendment is important, otherwise the poorest and most disadvantaged women in the State will be those who receive the least information of any description.

Ms Kelly

I support other Senators in calling for funding for counselling, but I would add that counselling before a woman makes the decision is of vital importance. So also is counselling afterwards because many women, having made the decision, regret it. They are psychologically and sometimes physically affected by having had a termination of pregnancy. Some measure of aftercare, whether it is in the nature of counselling or medical care, is vitally important.

Mr. Dardis

It is important to underline that the amendment has been ruled out of order because it involves a potential charge on the Exchequer and not for any other reason. So the principle still stands and I hope the Minister accepts it. Yesterday, on Second Stage, I thanked the Minister for providing £200,000 for counselling agencies; but if we look at the numbers involved — 4,400 in 1993 — we are looking at an expenditure of something like £50 per head, which is pretty small. That is not to say that something cannot be done with the £200,000; of course, it can.

One of the disturbing features of matters such as this is that if we look back at the Kilkenny incest case and the Childcare Act, we frequently got assurances during the heat of a debate that something will be done. Subsequently it turns out that little, if anything, is done. At least we have had an assurance from the Minister that he is setting aside £200,000 for this purpose. In addition to the health boards, effective work can be done by the voluntary agencies in this field who should be provided with the funding they require.

Only a tiny number of those surveyed going to England for abortions had received counselling of any description, but if that counselling was available the incidence of abortion might be a lot lower than it is. It is significant that in certain jurisdictions where abortion has been legalised, such as Holland, there is a low incidence of abortion because of the amount of information and counselling available. While women there are not discouraged from having an abortion, they are given information on the basis of which they could bring a pregnancy to full term — a decision they otherwise might not make.

Mr. Maloney

The problem with the health boards is one that will have to be tackled and more money may well be needed to see that counselling services are provided. The point raised earlier by Senator Finneran is that many health boards will have problems in implementing the provision of advice or counselling. As quite a few of them will be against any form of counselling, we might find that bringing it in on a statutory basis may be the only way.

Counsellors work for health boards in other areas like drugs and alcohol, but these issues are no way near as sensitive as this issue. Senator Dardis made the point that good counselling services in other countries seem to have lowered the incidence of abortion. We must examine the whole area and try to make it mandatory for health boards to provide counselling. The £200,000 is just a start and I have no doubt that as time goes on much more money will be needed. It is something that we will have to push ahead with, although it is not going to be easy because some health boards may not react favourably towards it.

Mr. Doyle

In his concluding speech yesterday, the Minister said that on Committee Stage he would take issues raised by Members on Second Stage. In my Second Stage speech I made the point that those who have expertise in counselling believe it is important to allow a break between counselling and a final decision being made. I also made the point that women who receive counselling and are still determined to go ahead with the termination of their pregnancies, may have time to reflect on their decision while making the boat or plane journey to England. I hope the Minister will be able to provide funding to organisations here to allow them to establish units in different parts of England so that people travelling to England could receive secondary counselling there. It is important that people should be allowed to reflect again on their decision. If those people still wish to go ahead after the secondary counselling there is very little one can do about it, but it is important that they receive such counselling. In view of the fact that a number of people turn back after only one counselling session in England, more will surely turn back if they are counselled here, have time to reflect on that and are then counselled again in England. I hope that that will be the result of this Bill.

Mrs. McGennis

A good idea.

Dr. Henry

What I have to say is in support of what Senator Doyle has just said and it ties in with what Senator Dardis said. In Holland there is a five day cooling off period between when permission is given and when the abortion can take place. This is probably very important. The importance of counselling in this area must be stressed because while our figures are increasing, there was a drop of 3,000 in the 1993 abortion figures for women resident in England and Wales and it has been dropping for several years so the importance of high quality professional counselling must be taken on board in this Bill.

Mr. Norris

I know what Senator Doyle said and I am interested that his point is supported by my colleague, Senator Henry, who is a medical expert. It ties in with what Senator Wright said yesterday about co-ordination between health boards here and in the United Kingdom, but I am slightly worried as it would be unnecessarily intrusive if people who had made a very difficult decision were ambushed by a barrage of unsolicited directive counselling attempting to persuade them not to have an abortion. If this machinery is put in place it would need to be monitored very sensitively so that it is not used to intimidate people or to cause them further distress or indeed harassment.

Since we have had some marginal discussion of funding, I wish to raise the question of funding for a group which is a coalition between a whole series of groups like Cherish and Aim and so on. Is there any possibility of making funding available to this umbrella organisation because it seems to me that it is working very much in the area we are discussing in this amendment?

Mr. Doyle

On a point raised by Senator Norris, what I had in mind was when a person receives counselling here, if she travels abroad, she should be given the name and address of another counselling service before she goes, and she can reflect on the journey about the decision she is making and whether she wants to get further counselling. If she wants to get further counselling the decision will be entirely hers.

Mr. Norris

That is perfectly reasonable.

Mr. Noonan

(Limerick East): In regard to funding, this Bill was being planned when the Estimate was being put together, so I have put money in the Estimate already for the provision of counselling. I do not need to enshrine it in the Finance Bill or to go back again to the Minister for Finance; it is within the resources I have at my disposal. I am initially committed to a figure of £200,000 but when I say initially, I do not mean for 1995. If we can put effective arrangements in place I can allocate more money in the course of 1995; I do not have to wait until 1996. It is an initial commitment in that sense.

This is not the only finance available. Senators will be aware that I made a very significant increase in the funds available to Rape Crisis Centres all over the country this year and a sum in excess of £900,000 is now available for them. I have a target figure for counselling in this area of close to £1 million. We will put that in place in the next couple of years.

There are different methods of paying it. Under section 65 of the Health Act the health boards can make grant in aid to voluntary organisations. I take the point made by a number of Senators that we need a general application of this policy so that it is not totally at the discretion of health boards, especially if some health boards decide for one reason or another not to implement what we are talking about. The Minister for Health also has the power to directly fund voluntary agencies and a series of voluntary agencies are being directly funded by the Minister for Health through the Department. I would go down that road in the first instance rather than use section 65 and I will try to distribute money fairly.

I am not confined to one particular set of organisations. I will try to allocate money in a balanced way across the counselling agencies. I do not want to do it in any way which forces women to go for one type of counselling rather than another. In general terms, though, I envisage the family doctor being the person best suitable for much counselling, both in urban and in rural areas. I do not want Senators to think simply in terms of voluntary agencies providing counselling. Unless the family doctors are central to counselling it will not happen on the widespread basis we want, and it will not happen in a way which will reduce the number of women who go to the United Kingdom for abortions.

I have already written to the Irish College of General Practitioners for their views on how counselling should be best put in place. I am not sure whether we need a code of practice or whether training must be provided for counselling. Some training may have to be provided for GPs who would not have the skills in the first instance or whose skills would have become a bit rusty, but that can be provided. Those issues were raised in the letter to the Irish College of General Practitioners and I will take that forward as well.

Another series of questions asked whether counselling should be put on a statutory basis. At the moment I do not think it is necessary and if it is necessary this Bill is not a suitable vehicle. An amendment to put counselling on a statutory basis and have guidelines, a code of conduct and so on would be longer than the Bill. However, I make a commitment to the House that I will consider whether it is desirable to put counselling on a statutory basis and if so, whether it can be done by statutory regulation. If it needs primary legislation, I will introduce health legislation later in the year which will have miscellaneous sections so that can be used as a vehicle for it. However, a Minister for Health has fairly wide powers to introduce policy changes simply by directive to the health board. Much can be done by circular letter to the health boards giving them a directive to act. We will go down that road in the first instance.

A number of Senators, especially Senator Doyle and Senator Henry, raised the issue of a cooling off period, a break between decision making and counselling. In effect section 8 will have that function because while counselling is permitted right up to the point of giving names and addresses of agencies in the United Kingdom, it prohibits making appointments and arrangements. It will come to a point where a woman has been counselled, if she is still considering abortion as an option she gets names and addresses, but because the person counselling is prohibited under the Bill from making the appointment, there is of necessity a cooling off period. It is one of the reasons I will ask the Seanad to support section 8. Whether it is a 24 hour cooling off period or a 5 day cooling off period, at least it allows a woman seriously worried about her situation to leave the family doctor's clinic or the advice agency's premises, to go home and talk to her mother or her friends before the decision is made.

I will think about whether we should have another system in the United Kingdom as a second line of defence, but so few women get counselling on their way to have abortions in the United Kingdom at present that if we succeeded in introducing counselling on almost a universal basis here before women go, then we would have gone a long way. While I accept what people are saying about having a second opportunity for counselling in the United Kingdom, we are so far away from that ideal situation at the moment that the priority must be to get a counselling service established here first through the agencies and family planning services. I will take into particular account the point made by Senator Norris about suitable funding for the umbrella group he mentioned.

Ms Honan

I welcome what the Minister has said. He has gone a long way in meeting the intentions we had in putting down our amendment which was ruled out of order. I accept what he said about a Health Act later in the year. This may be a way of putting it on a statutory basis.

I am very concerned about health boards themselves defining the needs in this area. Women have not come forward. The needs are obvious when one hears of the numbers of women going abroad but are not very obvious to the health boards in question. It is essential that we adopt a pro-active role rather than wait for these women to come to us. The message must go out from health boards, and from GPs, who must be involved in this because in many rural areas they would be the only people who would be in a position to provide this service. We must send out a compassionate and caring message and let women know we are concerned if they have crisis pregnancies and that, as a State, we are willing to provide services to help them rather than having the negative approach that we do not approve of abortion and do not want to be involved with them. This is essential.

Training for GPs must be looked at, because they were not involved in family planning and counselling when they qualified. If they are not trained to provide family planning and good counselling services, which we need, we would only be paying lip service to these needs. I accept the firm commitment of the Minister.

Question put and agreed to.

NEW SECTION.

Ms Honan

I move amendment No. 2:

In page 4, before section 3, to insert the following new section:

"3.—None, of the subsequent provisions of this Act shall render unlawful the provision of information, advice or counselling, or any act done or arrangement made, on behalf of or in relation to any woman by a medical practitioner, where the termination of the woman's pregnancy would be lawful within the State.".

In moving this amendment I am asking the Minister to look again at the constitutional concern the Progressive Democrats have. I am concerned that this legislation could affect the Supreme Court judgment which allowed for the termination of a pregnancy in this jurisdiction in cases of real and substantial risk to the life of the mother. This did not just mean the immediate risk. Is this Bill consistent with the declared constitutional rights of those women for whom it is lawful to have a termination of pregnancy in order to save their lives? We know that the majority decision in the X case was that where there was a risk to the life of the mother, it may not be practicable to vindicate the equal right to life of the unborn. The interpretation by the Supreme Court of the Eight Amendment to the Constitution is the law on this issue in the absence of any legislation.

This Bill must not reduce these rights. If a woman in the limited circumstances of the X case has a pregnancy which poses a life threatening risk to her life, it must follow that the restrictions in this Bill are incompatible with her constitutional rights in that it is a criminal offence under this Bill for a doctor to advise or to make arrangements to assist in the termination of a pregnancy. The Supreme Court made that decision and these rights cannot be denied by the provisions of the Bill.

In the Minister's reply to this amendment in the other House, he talked about the rights of the unborn and how we did not seem to consider them in proposing this amendment; but we are talking about the very limited circumstances where it has been established that there is a risk to the right to the life of the mother and she is entitled to a medical termination of her pregnancy.

Mr. Dardis

I support the amendment. This matter was thrashed out in very considerable detail in the Dáil, I do not wish to go over all the ground again but I wish to emphasise to the Minister the importance we attach to this amendment. Under the X case we are all aware that if a woman was suicidal or there was a substantial risk to her life, she would be entitled under law to secure an abortion not only in England but also in this State in the event that somebody was prepared to carry it out.

As far as I can judge from what I read of the proceedings, I know the Minister asked the Attorney General for his advice on this matter not once but twice, between the Committee and Report Stages in the Dáil as well as before Committee Stage. The Attorney General gave the advice that he considered this to be constitutional. I am interested in the grounds for that advice and am not clear as to what these grounds were.

The Minister made the point that the woman, not the doctor, ultimately made the decision. Having said that, surely he can envisage cases under this limited set of circumstances where the doctor would say to the woman that he believes that in all the circumstances a particular course of action is not just best for her but may be essential for her. In those circumstances that would be illegal under the Bill. There is an inconsistency between what has been imposed on us by the law as a matter of fact by the X case and what the doctor might feel compelled to advise.

The purpose of the amendment is to try to reconcile this and avoid the situation whereby we are going to find ourselves back in the courts on a repeated basis. I expressed this fear yesterday on Second Stage, even though I accepted the principle of the Bill. I would like the Minister to address this point again to my satisfaction. I know it may be tedious for him but I do not apologise for asking him for that clarification.

Dr. Henry

Like Senator Honan and Senator Dardis, I was anxious about this section. I do not have any constitutional lawyer's expertise and was looking at it from the point of view of women's lives. I feel happier about it having looked at it very carefully. This Bill deals only with information on termination of pregnancies outside the State. It does not cover the limited number of terminations which can be lawfully sought within this country, where there is a risk to the life of women.

My only worry is that these facilities should always be available to women. They are available in most cases because these are emergency situations, whether they involve haemorrhage, high blood pressure, ectopic pregnancies, cancer of the cervix, cancer of the ovaries and so on. It is very important that we are sure that the facilities are available to these women. They would be able to avail of these facilities in England and some women from this country have been obliged to go there for them, even though their conditions were medical. I talked about changes in oncology and chemotherapy which are now available but were not available in the past for some forms of cancer. No woman, because of her pregnancy, should be denied treatment, or such treatment should not be delayed or in any way modified. She should not in a deleterious way be put in an invidious position because of this Bill. I have taken advice on this. Yesterday I referred to Mr. Dick Walsh, who said we cannot have something which will solve every case in all the circumstances. To think that is an illusion. We will have to go forward with this Bill and see how it is applied in practice.

Mr. Finneran

In addressing this amendment, I would be very conscious of the responsibility of the House and its understanding of the 1983 amendment. We must be conscious of the constitutional right of the unborn. Anything we do along the way must conform with that. It has to be in total conformity with it, otherwise we are in breach of the constitutional position.

In 1992, three proposals were put to the people. One dealt with travel. The people agreed to it and there is now a constitutional right to travel. Some people say it existed already and that there was no need for the amendment at the time. However, it was put and the people had their say. The people also had their say on the question of information, which is now a constitutional right.

The proposed amendment on the substantive issue was not agreed by the Irish people. We therefore have to fall back on the 1983 amendment to the Constitution which gives equal rights to the unborn and to the mother. I appreciate that we had the X case which resulted in the constitutional amendment in 1992, but we cannot make any changes here. We have to adhere to the constitutional right in the 1983 amendment to the Constitution. We cannot go outside of that. Some Minister or Government in the future may decide one way or the other on the substantive issue, but it has not been resolved. An amendment was rejected by the people in 1992.

We have to be fully conscious of the people's decision on the substantive issue in 1983, which is clearly stated in the Constitution. There is a constitutional right there and an equal right for the mother and the unborn child. That is the foundation on which we stand. The only issue we are dealing with today is reflecting or implementing a decision of the people in 1992 to provide information. The substantive point is not at issue here.

Mr. Dardis

One point made by Senator Finneran with which I agree is that this is not about the substantive issue. It is quite apparent from what we have seen outside the gates in recent days that there are people who want to return to the so-called substantive issue. That is not what the amendment is about. It is not a question of not being aware of the 1983 amendment to the Constitution. We are saying, as a matter of fact, that there is a court decision. We have to be conscious of the outcome of that court case and what it imposes on us.

When the Government proposals were published they were obviously aware of that in spite of the fact, as the Senator said, that the matter was adjudicated on by the people. The proposal from Government was:

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 where there is an illness or disorder of the mother giving rise to a real or substantial risk to her life. not being a risk of self destruction.

It was quite apparent, irrespective of the outcome of the people's adjudication, that it was a factor. We are saying that it remains a fact. The outcome of that case remains and the question is how we deal with it.

I note that the Minister, in his reply in the Dáil, said that there was no reference to the life of the unborn. Whether or not one agrees with abortion is not the central point. The central point is that there was a court case and a ruling was made. The question is how we fit into that ruling.

Mr. O'Kennedy

I find myself in sympathy to a considerable extent with the intention of this amendment. We are talking about an act which is lawful within the State. I do not have much of a problem with what is lawful within the State. The amendment in the names of Senators Honan and Dardis clearly confines its purpose to where the termination of the woman's pregnancy would be lawful within the State.

I find that a little more palatable than a situation where at public meetings — the section deals with this and I will leave it until we discuss the section — information on something that is unlawful in this State but lawful in another can be disseminated. There should be consistency. In the context of something which is lawful in our own State, I can see no reason why we should not give the type of protection mentioned by Senators Honan and Dardis. I have greater reservations about, for example, the provision that allows one to promote, publish or give information publicly in respect of something that is unlawful here but lawful in another State.

Mr. Noonan

(Limerick East): I wish to confirm once more that it is the view of the Attorney General that the Bill is constitutional. It is almost a cliché to say so because no Minister comes before any House of the Oireachtas proposing legislation which he knows is unconstitutional. The starting position of all legislation is that it is constitutional.

Senator Dardis is correct. After Deputies McDowell and O'Donnell made a very strong case in the other House in respect of this amendment, I returned to the Attorney General between Committee and Report Stages and he confirmed the advice he had originally given. I listened to what the Senators said today but it has not changed my view. Senator O'Kennedy has contributed without hearing the views expressed. He should remember the advice he gave yesterday about his friend David Steel and have another look at what is actually being proposed in this amendment.

This amendment, if enacted, would allow doctors to advise and promote abortion and to make appointments and arrangements for abortions in circumstances which were analogous or similar to the circumstances of the X case. Section 8 of the Bill prohibits the making of appointments and arrangements for persons as defined in the definition section. This amendment would exempt doctors, counsellors or advisers — particularly doctors — from the prohibition in section 8 in circumstances similar to the X case.

The X case is not going to go away. We all know that. I have just been handed a note saying that it is back again this morning. The person who was convicted of the statutory rape of Miss X has had his sentence substantially reduced this morning. That is a matter for the courts and not for me. It just underlines the fact that it is not going to go away.

To understand my position on this amendment it is necessary to look at what the doctor's function is in terms of advising a woman who is pregnant. Where a pregnant woman consults the doctor, the doctor's primary professional function will be a medical examination of her condition. If the doctor concludes that there is a real and substantial risk to her life, he should state that. He would then undoubtedly have a further professional obligation to advise her of the options which flow from that diagnosis. It is not his professional function to prioritise or to select a particular option. It would be indefensible if he were required or permitted to impress upon a pregnant woman an option which had the effect of selecting who should live or die. That is why I argued in the other House that undue weight was given to the right to life of the unborn in the analysis of the constitutionality of the Bill, as conducted by Deputy Michael McDowell. The doctor may starkly describe the options; the choices may be so serious and fundamental that the doctor is not called upon to make the final decision. He may point out to a woman that if she continues to carry the baby, she will die, but he cannot advise her on or promote or advocate abortion. That decision must be made by the woman.

If, as in the circumstances of the X case, there is a real and substantial risk to the life of the mother, the doctor can fully inform the woman of her medical condition if the pregnancy threatens her life. He can explain this clearly to her or to anyone else on her behalf, such as her husband or a relative. The doctor can put the full facts before the woman and her immediate family; he can inform her of the options open to her. One option allows a woman to attempt to treat the condition which is causing the risk to her life. That would be an attempt to control and accept the risk. That may sound like harsh advice, but one must remember that frequently, probably in many circumstances, one is not talking about an unwanted pregnancy, but a desirable pregnancy which a woman wants to carry to term. In those circumstances, the doctor must point out the real and substantial risk to the life of the woman. However, some women, although there is a real and substantial risk, will decide to carry the baby to term because they want the baby and because of their own moral position. It is then up to the doctor to advise on how the risk can be controlled and treated.

The doctor can also inform her about the option to seek a termination and advise her that if she does so, it could save her life. However, as regards deciding which option to take, he must not promote or advocate abortion. He must allow the woman to make a personal decision and she may consult anyone else when making up her mind. After non-directive counselling, the doctor can supply the woman with names, addresses and particulars of overseas abortion clinics and he can also supply her with all her relevant medical details which he is required to do under the Constitution and in accordance with the medical code of ethics.

In the circumstances I have outlined, the restriction in section 8 and throughout the Bill that the doctor may not encourage her to have an abortion is reasonable. There is also a restriction that the doctor may not make a referral appointment or other arrangement for her, although he can give her all her medical details and the information she requires to enable her to do so herself. These are not unreasonable or undue restrictions of any constitutional right she may have, especially having regard to the equality of rights between the unborn child and the mother contained in Article 40.3.3º. The amendment in 1992 did not take away the right to life of the unborn child. It said that the right could not be vindicated in a manner which transgressed the freedom to information and travel. In any analysis, the right to life of the unborn must be taken into account.

The mother in the X case had a constitutional right to a termination, but that does not mean that a doctor had a constitutional right to provide it. The doctor should not be put in a position of deciding who should live or die. The problem arises if the doctor moves away from laying the facts in front of a woman as starkly as he can. There is no doubt that a woman's decision making process will be influenced by the facts laid in front of her, as all her decisions are influenced in this way. The doctor is over the line if he advocates or makes arrangements for who should live or die.

I could argue that the amendment, rather than the Bill's provisions, would make the Bill unconstitutional. This amendment would put a doctor in an extremely difficult position of having to decide if it could be objectively established that the pregnancy involved a serious risk to the mother's life for the purpose of deciding whether he or she would encourage an abortion and make a referral or appointment for the woman. The criticism concentrates too much, in given circumstances, on the rights of the mother, although we would be extraordinarily sympathetic to any mother in such a frightful dilemma. However, the other life must also be taken into account in any analysis.

The amendment would allow directive counselling and arrangements to be made in certain cases which are prohibited under section 8 and which involve a real and substantial threat to the life of the mother. There are no rules about who should decide that there is a real and substantial threat. Legally, this is uncharted waters. Is the decision that there is a real and substantial threat to be made by a doctor, a nurse, a psychologist, the woman, her spouse, a panel of doctors, a court, or someone with a degree in psychology? We would not know the dimensions of such a mechanism if we included it in the Bill.

Without providing an answer to the questions I raised, the possibility arises that a small group of doctors could self institute and provide certificates about a real and substantial threat. A person practising psychology could start certifying that there was a real and substantial threat to the life of the mother. We would then have a mechanism in the Bill which would allow that person to promote and advocate abortions and to make arrangements and appointments. That is why I made the reference to Sir David Steel. Although the abortions would take place abroad, it seems that such an amendment could provide for arrangements and appointments to be made on a widespread basis in the absence of any other statute law.

There is a danger that the amendment could render the Bill unconstitutional because arrangements as uncertain and as loose as those envisaged in my statement fail to vindicate the life of the unborn in the manner required by Article 40 of the Constitution. That would create great difficulties. Any provision which excludes the provisions of the Bill from any types of abortion might be deemed to constitute a failure to vindicate the right to life of the unborn. This would exclude a particular type of abortion from the regulatory effect of the Bill; in other words, the prohibitions in section 8 would not apply to the category suggested in the amendment. To do that in a statute would mean that a particular type of abortion would be available abroad, arrangements and appointments could be made and it would be advocated that women should avail of it. It is arguable that this contravenes the right of the unborn in Article 40.3.3º. That is why I cannot accept the amendment and why the Attorney General holds the strong view that the Bill, as drafted, is constitutional.

Ms Honan

I thank the Minister for his very detailed response to the amendment, but I cannot accept his argument. I accept that the people voted for the amendment to the Constitution in 1983, which was then interpreted by the Supreme Court. That interpretation of the Supreme Court still stands because the subsequent amendment in 1992 on the substantive issue was defeated by the people.

I cannot understand that if a woman has a right under the Constitution, as interpreted by the Supreme Court in the X case — in very limited circumstances where her life is threatened — to an abortion, her doctor cannot discuss that with her or refer her within this State. I cannot understand how we can bring in a Bill which is contra women's rights as given to them by the interpretation of the Eighth Amendment. I accept fully what the Minister said about how the doctor should not make the decision, but I am talking about a woman making the decision.

The situation is farcical and we are being very hypocritical. Women whose lives are threatened are entitled to have an abortion here in very limited circumstances. We have gone beyond the decision on the right to life of the unborn. The right to life of the mother has been vindicated according to the interpretation of the Supreme Court and, is therefore, the law of this land.

We have failed as legislators, as the late Mr. Justice McCarthy said, because we have failed to produce legislation to address the 1983 referendum result. We are now bringing in legislation to deal with the information issue but we have not brought in legislation to deal with the substantive issue.

I cannot understand that if the Supreme Court gives women a right how legislation going through this House can take away that right. I am not talking about doctors proposing abortion, as the decision should be made by the woman rather than by her doctor. However, if I was entitled to an abortion under our Constitution, I would expect my doctor to be able to make all the arrangements for me. I cannot understand how I could be expected to pick up my file, walk out of his surgery and then be on my own.

We are very hypocritical and it is a shame for us to accept what the Minister has said. I am not a constitutional lawyer but as soon as I saw this Bill it seemed very strange to me that it seemed to disregard the X case. I accept what the Minister said, but I cannot understand the basis for the Attorney General's argument or his advice. I am sure many women in this country would have believed, as I did, that they had rights given the Supreme Court judgment in the X case. It now seems we are telling those women that they do not have any rights even where we decide that abortion is legal here.

As Senator Henry said, it is a mine-field for GPs but what we are discussing today will make the situation even more difficult. Up to now GPs would have felt that in situations similar to the X case they were permitted to do certain things. We are saying today they are not permitted to do any more for a young girl in a case similar to the X case than they could for a woman having what the laws of this State would deem to be an unlawful abortion.

Mr. Dardis

I submit that the State intrudes in the relationship between a doctor and patient at its peril. The amendment and section 8 are related. I agree with the Minister that the vast majority of women confronted with life threatening pregnancies would wish to bring them to term; I do not dispute that. However, the inconsistency in the Minister's argument is that where a woman decides to bring the pregnancy to term — as the Minister said, it is her decision and not that of the doctor — I am quite confident the doctor will do everything in his or her power to ensure that she receives the proper medical attention, is referred to the appropriate consultants and has all the apparatus of the medical profession available to her. If that is the case in that circumstance, it should also be the case that if she made the opposite decision it should be available to the practitioner to provide the same sort of care in the interests of the patient.

The Minister seems to believe that we are coming from a position of saying that the doctor should decide who lives or dies. That is not at all the intention of the amendment; no one would suggest that that should be the case. We are not adjudicating on the balance between the mother and the unborn child. We are talking about the circumstances which arise from the X case. When the original amendment to the Constitution was passed in 1983, I am sure everybody accepted that the generality would be that the life of the unborn would be protected. We are trying to come to terms with the problems which arise from the X case and which arise within this legislation.

The Minister presented us with a range of hypothetical cases and suggested that there could be litigation or problems as a result of any one of them. However, we are talking about a case where there is a judgment. The courts have made the decision and surely the law must be consistent with that judgment.

Mr. O'Kennedy

There is an anomaly here because the purpose of this Bill, generally, is to regulate the communication of information in respect of procedures which are unlawful in this State but may be lawful in another State. In the first instance, we are obviously obliged as legislators to, as best we can, set very strict parameters, conditions and limitations on the information which will be made available and the manner in which it will be made available because it is unlawful in this State, although it is lawful in another State.

Therefore, there is a certain inconsistency where this amendment confines itself to a situation which would be lawful within the State. It seems to say, quite simply, that where it is lawful in this State — as distinct from the generality in this Bill where it would be unlawful within this State —"none of the subsequent provisions of this Act shall render unlawful [because it is already lawful] the provision of information, advice or counselling". In the event that this was accepted and appeared on the Statute Book, it is the type of clear statement which would guide any court as to whether communicating certain information was unlawful. The text should be looked at.

I remind the Minister and my colleagues that when we are passing legislation here we should tighten it as much as possible so that the judges will not misinterpret what we pass. The examples given by the Minister as to what a doctor might or might not do, or should or should not do, are totally irrelevant, although I know his bona fides on this. He has given an opinion as to the type of things a doctor would or would not be free to do, but in terms of the law all that is irrelevant.

I am more concerned about the burden of the section generally. Senator McGennis will deal with this point, but the section enables people at public meetings or otherwise to communicate information within the protection of the law in respect of matters which are unlawful in this State. I am much more concerned about this issue, hence the amendment which has the qualities of clarity, precision and simplicity. We are not setting ourselves up as judges in this instance. We are not intervening in the doctor patient relationship.

Mr. Dardis

The Senator has his primary certificate.

Mr. O'Kennedy

The Minister may give examples if he wishes, but it is not up to us to do that. We state the law and then allow the courts to interpret it. It is also for doctors to interpret it under their guidelines, such as those of the Medical Council. The amendment is consistent, but there is inconsistency in the Minister's approach. The Bill has nothing to do with things which are lawful within the State.

If I have one reservation about the amendment, it is that it is unnecessary in any event. If something is lawful within the State, it can hardly be unlawful to communicate information in respect of it. I may have misunderstood the Minister but he mentioned the Attorney General giving advice as to the constitutionality of the Bill generally. I did not understand him to say that the Attorney General advised that this amendment would be unconstitutional. I would be amazed if any Attorney General gave that advice.

Mr. Noonan

(Limerick East): Senator Dardis raised a new point when he said that if a woman was pregnant and wanted to have the baby, but there was a real and substantial risk to her life, there would be no prohibition on a doctor doing anything to aid and assist her and refer her to consultants, etc. This comes down to the nub of the problem, which is why this type of legislation is so difficult.

Where a woman whose life is at real and substantial risk decides to continue to full term and have the baby, there is no conflict of rights between the right to life of the woman and the right to life of the unborn child once she accepts the risk. The two are moving in the same direction. It is when she decides to have a termination that there is a straight conflict of rights between mother and child. This is why in arguing the case one must give due weight to the rights of the unborn child.

If there was a definition, copperfast-ened in law, of what constitutes a real and substantial risk to the life of a mother, which could not be treated otherwise, we would not have this difficulty and some Minister, long before I came into office, would have legislated for the X case. However, if Senators recall, the difficulty in the X case in terms of drafting legislation was that the young woman involved was 14 years of age. The real and substantial risk to her life was not from the physical effects of the pregnancy, but that she had indicated that she was suicidal.

Deputy McDowell, who strongly argued this point in the other House, said it would even be difficult to start writing the heads of a Bill on the X case. Whatever about physiological reasons, which can be fairly well defined, it is very difficult to write in law, in any way which would stand up, what a real and substantial risk is in terms of psychological illness. I will not undertake to do this because the difficulty facing any future Minister for Justice or Minister for Health in framing law along the lines of the X case is that as soon as the exception is made for psychological reasons, it is impossible to frame it in any way, or put any system of adjudication in place, which would not introduce abortion in this jurisdiction on a fairly widespread basis. This is the difficulty. One might suggest——

Mr. O'Kennedy

The Minister is not being asked to do that. The amendment states where it is lawful within the State. The examples of where it would not be——

An Leas-Chathaoirleach

The Minister without interruption.

Mr. Noonan

(Limerick East): I will make the case. It is interesting to reflect on that. One might suggest that there could be a panel of medical experts, including perhaps a gynaecologist, a psychologist and a GP, which would adjudicate. However, if a young woman comes to such a panel, they listen to her and ultimately she says that she cannot face the pregnancy and will do away with herself, what panel will sign off and prevent her having a termination? This is an example of the difficulty of legislating in accordance with the X case.

The difficulties posed by this amendment are not the same, but they run in the same direction. In circumstances analogous to the X case, a doctor would not be restricted by the provisions of section 8. However, we do not know the precise scope of the decision in the X case, so we do not know precisely what scope we would be allowing a doctor if the provisions of section 8 did not apply to him. Since there is no objective way of deciding what constitutes a real and substantial risk to the life of a mother in the present state of the law, rather than in medicine, we would allow a doctor, under this amendment, to do any act, make any arrangement, give any advice or say anything.

This is why the amendment is too wide. This is also why there would be a constitutional doubt about the Bill if it was included. Those who advocate the amendment argue that without this provision the Bill would be constitutionally doubtful. I reiterate that my advice is to the contrary. The Bill is sound constitutionally, but if this was included, it might lead to doubt.

An Leas-Chathaoirleach

Is amendment No. 2 being pressed?

Mr. Dardis

I still disagree with the Minister but I am impressed by the quality of his defence.

Amendment put and declared lost.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mrs. McGennis

I ask the Minister for clarification because I hope I am misreading the meaning of the section. Section 3 states that it would be unlawful to publish or procure the publication of Act information in certain circumstances. However, it then states "unless if the information relates to services provided in a particular place." Does this mean unless names and addresses are given, the service is lawful and the method of giving the information is in a proper context? If this is what is meant in the section, I require clarification and I need the Minister to explain why it is included in the Bill.

I stated on Second Stage yesterday that I fully support giving information to a woman with a crisis pregnancy and the concept of non directive counselling. In his speech yesterday, the Minister stated:

For the first time an Irish Government is going to take on this problem [the problem of Irish women having abortions outside the country] in a serious way. The policy agreement between the three parties states that, in tandem with the enactment of the information legislation, the Government will put in place research, education and counselling with the objective of minimising the circumstances in which such high numbers of women seek to have abortions. This objective has two obvious components: first, to reduce the incidence of unwanted pregnancies and, second, to reduce the extent to which unwanted pregnancies end in abortion.

I unambiguously support that, but I fail to see how the provisions in section 3 could possibly concur with that. When would it ever be required, or even wanted or desirable, that information on English abortion clinics should ever be given "orally at a meeting to which the public have access whether upon payment or free of charge"? Act information is defined as information likely to be required by a woman, not by the public.

Having reread the section I concluded that this section has no purpose in this Bill. It does not concur with the Minister's expressed wish, to carry out research and provide education, support, counselling and advice before giving this kind of information on a one to one basis. If I seek and obtain the information I need to secure the termination of my pregnancy at a public meeting, how am I then counselled, who will undertake the research and what educational component is included?

I have deeply held views as to how this issue should be tackled and this is the worst possible way a woman with a crisis pregnancy should receive this information, which was not the Minister's stated intention. If I have read the section wrongly, I will be pleased and delighted, but I am seriously concerned and I would urge the Minister to consider withdrawing this section or that part of the section after the word "public".

Mr. Finneran

On a point of clarification, I understood from the Order of Business that the question of having a sos would be left to the House. I suggest that we should have a sos from 1 p.m to 2 p.m.

Mr. Manning

I suggest that we finish this section and sos for an hour rather than break the continuity of the argument, but I am in the hands of the House on the matter.

An Leas-Chathaoirleach

Is that agreed? Agreed.

Mr. Howard

I understand what is meant by this section, but nonetheless it would be useful if the Minister could clarify or confirm some aspects of it. The section states that it shall not be lawful to publish or procure the publication of Act information orally at a meeting. I am concerned with what constitutes a meeting. The word "meeting" can encompass a number of situations. For example, if a pregnant woman is seeking information and is accompanied by relatives or friends, how large or small would the gathering have to be for it to constitute a meeting?

Section 3 (2) says that "It shall not be lawful to sell or offer or distribute for sale or invite offers to buy, or distribute free of charge, anything in which Act information is published in contravention of subsection (1),". What are we talking about here?

Mr. O'Kennedy

Senator McGennis and I do not start from the same point on this issue, but I was greatly impressed by her concern and presentation. Section 3 (1) (a) says that it shall not be lawful to publish or procure the publication of Act information. Another way of framing that would be to say that it shall be lawful to publish or procure the publication of Act information orally at public meetings, in a book, newspaper, magazine, in a film or recording, by means of radio or television or by any other public means if the information relates to services provided in a particular place where it is lawful.

Effectively, this provision says that it is lawful at a public meeting for which there is an admission fee to convey information in respect of practices that are unlawful in this State but are lawful in other states. I have grave reservations about that. It is one thing to have that kind of relationship between parent and daughter and doctor and patient, but here we are talking about a public meeting. I find it almost offensive to our concern. Under this section, one can publish Act information in a book, newspaper, journal or magazine subject, of course, to the conditions in the second part of the Bill, that it would not contravene what is meant by information, as distinct from referral — which is fair enough — and one can show information in a film or a recording or by means of radio or television or by any other means to the public.

Our role is to sharply define the provisions we want to be lawful. The courts will interpret what we have passed from what comes before them when this Bill becomes an Act. They will not look to see what the Minister said in the Seanad and his intentions, as stated on Second Stage. That is not their function. They will not care about the Minister's opinions. What we are now telling the courts is that at public meetings, in films, recordings, radio, television or by any other means, it will be lawful to convey information of this type. I am greatly concerned about that.

Senator McGennis is right. This section should not be in the Bill. People generally talked about information that would be conveyed on a one to one basis so that a prospective mother would get that information, counselling and advice. Giving this information in a public place is not in accordance with the public policy that the people adopted either during or before the referendum.

Dr. Henry

I am looking for reassurance from the Minister because much of this section is very restrictive. Could women's health books again be banned, for example if the name and address of a Marie Stopes' Clinic or the British Pregnancy Advisory Service Clinic was in it? Very few books on women's health are published here; there is only one of which I know. Access to information on women's health — I know this is a priority for the Minister — is important. I would like to be assured that this does not mean that books will be taken off library shelves because we dislike one page, and British newspapers and journals will not be banned.

Mr. Doyle

This section deals with information to be made available to the public as distinct from advice given to an individual in relation to specific circumstances. That information will mainly be contained in magazine, books and newspapers.

Mr. O'Kennedy

And public meetings.

Mr. Doyle

Indeed, it is already contained in newspapers. As I said yesterday, information is provided in the amendment itself.

I asked the Minister to make money available. A sum of £200,000 will not go far if we are to provide for all our needs. It is important that organisations which provide counselling services are given an equal opportunity to advertise in magazines and books, perhaps on the same page as other information, so that a woman with a crisis pregnancy who looks for information will also see a counselling service and may choose that.

Mr. Finneran

Section 3 lists instances where information may be displaced or given. Other machines can also provide information, for example, a fax machine or a computer — the greatest form of communication in the world today. Why include radio and television but not the computer? As regards meetings to which the public has access. I would be concerned about a health board meeting where these matters would be debated. The public has access to such meetings, except those in committee. Senator McGennis and Senator O'Kennedy said that public meetings might be called for a particular purpose. Section 2 (a) (ii) states: "at a meeting to which the public have access whether upon payment or free of charge". Will the Minister explain why it is necessary to include such a provision in the Bill?

As said Senator Doyle said and as I said on Second Stage, we seem to be concerned with information which would help someone seeking an abortion outside the State but we also have a duty and a responsibility to provide information about the alternatives. If we are serious about reducing the number having abortions, we must emphasise the alternatives through counselling or otherwise. More alternative information should be made available than on abortion.

Ms Kelly

Will the Minister clarify section 3(2) which states: "It shall not be lawful to sell or offer or distribute for sale or invite offers to buy, or distribute free of charge, anything in which Act information is published in contravention of subsection (1)."? Does that cover borrowing books from libraries or renting videos? To rent is not to sell, nor is it to distribute free of charge. Is borrowing books or renting videos covered and should they be?

Mr. Dardis

My concerns are the same as those expressed by Senator Henry. This section brings us into an area which relates to freedom of expression and information, censorship and so on. I am concerned about the practicality of the legislation. It is conceivable to envisage that an article in a British daily newspaper distributed in the State could contravene this section. Will those newspapers be withdrawn? Several years ago The Guardian newspaper was withdrawn from Easons because it was threatened with an injunction which would now be a criminal offence. Does the Minister envisage a situation where people who object to certain elements in a highly respectable newspapers might seek to have others prosecuted in the courts? The same question arises in relation to television. How does one stop Channel 4 broadcasting a programme?

A secondary consideration relates to definitions and whether information is truthful and objective. Objectivity tends to become very subjective depending on who is determining what is objective. I realise that, at the end of the day, the courts will determine what is or is not objective but there will be difficulties in this area. As I said on Second Stage, a lot of litigation will arise from this Bill. While I have no objections to the provisions in section 4 about billboards, etc., when it comes to literature, newspapers and television, we are getting into a dangerous area. What will we do in practice?

Mr. Maloney

Telephone books in Northern Ireland carry names and addresses of Northern Ireland pregnancy service agencies. It is easy for people to telephone these agencies and to get a letter from them or advice on referral. Northern Ireland telephone books can be easily obtained along the Border. Will the Minister clarify the situation in this regard? Does the Bill provide for such a situation?

Mr. Noonan

(Limerick East): I thank Senators for asking important questions to clarify the situation. The Bill does not provide the right to information — the constitutional amendment in 1992 does. The Bill restricts the manner in which that information is provided and it is always worth going back to that position. Before the amendment was passed general information, debates, data, etc., about abortion in the 1980s were legal. What was specifically prohibited and found to be illegal by the Supreme Court was the provision of names, addresses and telephone numbers. Since the 1992 amendment the provision of names, addresses and telephone numbers of abortion clinics in the United Kingdom and elsewhere is legal under constitutional law but there is no Statute law to back that up.

The amendment also said that the Oireachtas should bring in statute law to restrict the manner in which the information would be provided. The Government of the day, the Fianna Fáil-Progressive Democrat Government, drew up the heads of this Bill at that time. It decided that the information, which would be a constitutional right if the amendment were passed, would be restricted in a number of ways. One can see that thought process if one begins with section 4 and works back to section 3 and on to section 5.

Section 4 effectively prohibits unsolicited information. If one is driving down the Naas Road and sees a billboard with names, addresses and telephone numbers in the UK, that is unsolicited information and is prohibited. If an enthusiastic Senator in search of a Dáil seat decided to distribute leaflets to the whole neighbourhood——

Mrs. McGennis

In search of a Dáil seat?

Mr. Noonan

(Limerick East):——that is unsolicited and would be banned under the Act. Any information provided in an unsolicited way is illegal and prohibited. That is the first restriction provided on the constitutional right to information and it is in section 4.

The opposite of unsolicited is solicited but it is not as easily understood when one comes to the examples. Section 3 is, in effect, saying solicited information will be legal. In other words, if one goes into Easons and buys a particular magazine because one knows there will be an advertisement for an abortion clinic in England, it is legal to do so. That is different from the billboard example because the bill-board's information hits one as one is driving along, but one makes a choice to buy the magazine. That is the reason for the change.

The same would be true of a newspaper. Whether the newspaper was published in the UK and distributed here or published in Abbey Street and distributed here makes no difference. The names, addresses and telephone numbers will be available in the newspaper, not because this Bill allows it but because the constitutional amendment allowed it and we are putting the legal framework on how the restrictions will operate.

One has then to think of how information could be communicated. Clearly it can be communicated in magazines, newspapers, periodicals, radio, television, computer networks, plays, films, videos and public meetings. One may ask if information at a public meeting is solicited or unsolicited. If a person decides to go to a public meeting and does not like what is going on he can leave. The situation is different where the leaflet is being shoved in the letterbox or there is a billboard in the DART station. The public meeting falls into the realm of unsolicited information.

Senator Finneran put his finger on the matter; a health board might be an appropriate place for a full discussion on abortion. In the course of that discussion somebody who is totally against abortion might say they had a constituent who had been in an abortion clinic in Manchester or Sheffield, for example. If the provision with regard to public meetings was in section 4 rather than section 3, as soon as the councillor said that at the health board meeting he would fall foul of the legislation.

The main thrust and the objectives of the Bill, as Senator McGennis mentioned, insofar as we have objectives to do anything about reducing the number of people going for abortions, is dealt with under section 5. Section 5 is the only place where the public policy I am advocating is seen in a real way. That is where, on a one to one basis under certain conditions, information can be given in a counselling environment and that is why people have been talking about section 5 almost exclusively. There is a constitutional right to names, addresses and telephone numbers which will appear in women's magazines or in a newspaper if it decides to take the advertisement.

The issue of radio and television has also led to some controversy. There are no circumstances in which advertisements for abortion clinics in England will be broadcast on radio and television in this country. There is a broadcasting code which at the moment outlaws, for example, advertisements for contraceptive devices. One does not see on television or hear on radio advertisements for contraceptives because the broadcasting code has ruled them out.

Mr. O'Kennedy

They are promoted on television.

Mr. Noonan

(Limerick East): They are not advertised.

Mr. O'Kennedy

The Government promotes them.

Mrs. McGennis

They are not advertised.

Mr. O'Kennedy

"Be responsible — use a condom."

An Leas-Chathaoirleach

The Minister, without interruption, please.

Mr. O'Kennedy

That is an extraordinary statement. They are promoted by the Government.

Mr. Noonan

(Limerick East): It is difficult to deal with people who will not listen.

Mr. O'Kennedy

I am listening.

Mr. Noonan

(Limerick East): We will have to have some other explanation for the problem. There are no explicit advertisements on television advertising contraceptive devices. There are no advertisements on television, for example——

Mr. O'Kennedy

That is incorrect.

An Leas-Chathaoirleach

The Minister without interruption.

Mr. Noonan

(Limerick East): There are no advertisements on television for pregnancy testing kits. That is again explicitly ruled out in the broadcasting code. My colleague, the Minister for Arts, Culture and the Gaeltacht, is putting the broadcasting code on a statutory basis so that there will not be such advertisements on television or radio. One might then ask why not put the provision into section 4 and prohibit it completely because it is inappropriate that one should turn on Marian Finucane's show and hear advertisements for pregnancy testing in the United Kingdom.

The reasons it is in section 3 rather than section 4 are two-fold. First, there is an element of choice whereby one listens to one radio station rather than another and, to that extent, a choice is being made. It is not unsolicited information, although it is not as clear a choice as buying a morning newspaper. The other reason, which will be in ease of the argument made by Senator Henry and Senator Dardis, is that if section 4 dealt with radio and television, the following circumstances could arise. I have mentioned Marian Finucane. Suppose she is interviewing somebody by telephone, a young woman who has had a pregnancy terminated in Sheffield, for example. To follow Senator O'Kennedy's line, suppose Marian Finucane asks her about it and the woman is unhappy about the decision she made, and says it has ruined her life, if she were to mention the place she had the termination she would be breaking the law.

This is where considerations of free speech and fears of free expression arise. It is not possible to put some of the provisions of section 3 into section 4 and prohibit them completely as one would prohibit billboards or the free distribution of magazines. If we do that we are getting into the area where free expression in ordinary debate on television or radio shows is affected and the transcript of the show will be sent to the Director of Public Prosecutions asking him to prosecute under section 4.

The law must be practicable; it must be capable of enforcement. There is no point enshrining provisions in law that contravene free speech in ludicrous ways. There is no point trying to chase somebody in circumstances such as those and making it a crime when it is free expression in the context of a particular debate. What would be prohibited under the broadcasting code would be the actual advertising of specific contraceptive devices and so on. That is the framework and context we are in and that is what the Bill is about.

Senator Finneran asked about providing under law for the information on the alternatives. That is provided for under law already. Nobody is suggesting that somebody attached to Cura could not advise a woman not to have an abortion or advise her about adoption or fostering. All we are making legal provision for is something which was unconstitutional and illegal before 1992. It is now constitutional and we are putting a legal framework on what is now a constitutional right. That does not mean we have to reinvent the wheel and make provisions at the same time for activities which were always legal. In other words advocating to a woman that she should not have an abortion was always legal and all the advice and information given by agencies such as Cura, Cherish or Life will remain legal.

The bias of the Bill is in favour of that because while it will be illegal to advocate or promote abortion and make arrangements or appointments with an abortion agent if one is counselling a pregnant woman, the contrary is not true at all; the doctor or advisor can make the appointment with Cura, give the name and address of that organisation, make arrangements for the woman to go there and give all the information.

Counselling can direct away from but not towards the option of abortion. The information, if it is about abortion, has to be given objectively and truthfully but cannot advocate or promote. That is where the line is drawn within the Bill. I hope that is of help to Senators.

Mr. Doyle

I asked about extra funding to allow them to advertise.

Mr. Noonan

(Limerick East): There is an initial commitment of £200,000; I envisage the money would be provided by way of a block grant. I will not ask that it is spent on advertisements for Life, Cura or Cherish, or that it is spent on counselling or administration. I will allow the voluntary agency the discretion to spend the money as it sees fit.

Mrs. McGennis

I accept the Minister's point about unsolicited information and information requested. I still do not see how that could ever be the position in section 3 (1) (a) (i), under which it is not lawful to publish Act information "orally at a meeting to which the public have access whether upon payment or free of charge".

The Minister dealt with Senator O'Kennedy's example where a woman might go on Ms Marian Finucane's programme saying she had an abortion in a certain clinic, that it was horrific and she would not recommend it to anyone. However, such a woman might say she had been raped, had suffered scars and later had an abortion in a clinic in Sheffield, which was the best thing she ever did and would recommend that anyone who suffers a rape should use this facility. Is that person open to prosecution under section 3 (1), because she advocated or promoted abortion in a specific situation?

I accept that as the Minister says, he must achieve what he can within the law and provide that someone who does not want to be confronted with this type of information will not find it given on the street or have it thrust into one's hands. I have no problem with information being provided in books, newspapers, etc. but I do not see how any public forum is the correct place to provide information.

Another example is a woman at a pre-marriage course who decides to tell everyone at that public meeting that she has had an abortion but it is not what the church would claim it to be, it was not the end of her life and she had not suffered; and she tells the other women on the course that if they had an unwanted pregnancy they should consider that option. Is the converse of the Minister's argument — about unsolicited information and trying to allow freedom of speech — that an advocate of this procedure is likely to be arrested and charged because he or she is in breach of section 3 (2), which does not allow one to speak about or advocate this procedure as a solution?

Mr. O'Kennedy

Although I accept the validity of the Minister's point, the Bill makes no distinction between solicited and unsolicited information. If he is relying on that distinction he should write it into the Bill. I agree with Senator McGennis that a public forum is not the appropriate place to convey the kind of information the Minister feels will be protected by this Bill. I cannot see that it would be or should be.

Ms Kelly

Will the Minister address my point about renting from libraries?

Mr. Noonan

(Limerick East): The legal definition of “selling” would include renting, because one is charging a sum for the video; but one of my officials is checking that with the Office of the Attorney General and if there is a legal difficulty I will come back to it on Report Stage.

Senator O'Kennedy says no distinction is made between solicited and unsolicited information but if he looks at the two sections he will see the media through which the information is transmitted in section 3 is solicited in nature and in section 4 it is unsolicited; so while there is no attempt to give definitions they are put into two different categories.

Mr. O'Kennedy

That is not so.

Mr. Noonan

(Limerick East): On Senator McGennis's question, the legislation has enforcement provisions backed up by fines although not by jail sentences. The penalties include a maximum fine of £1,500. The decision to prosecute is vested not in the Garda Síochána but in the DPP.

Mr. O'Kennedy

That is the case in almost every criminal procedure.

Mr. Noonan

(Limerick East): Yes, I am pointing out that it is vested in the DPP. I am also saying that as in any criminal legislation, there are penalties.

As to someone crossing or not crossing the line in a radio or television programme, the editors of programmes must be constantly vigilant that various laws are not being broken in the programmes they broadcast. If in the course of a radio programme a woman wants to give the name and address of an abortion clinic in the UK, that information is covered in section 3 so that would not be an offence under the Act. If however she went on to advocate and promote, that would be an offence. The editors of the programme would probably be upset and in future would be cautious so this would not happen.

Mrs. McGennis

Most of the programmes to which the Minister refers are live.

Mr. Noonan

(Limerick East): Most of them are live but those of us who have been on such programmes know the 'phone calls are monitored. It is not totally spontaneous in that the calls do not go straight on the air, they are checked first.

It is nothing new for broadcasters to have to comply with the law. Such restrictions apply in relation to libel. If someone on Ms Marian Finucane's programme says he met Deputy Noonan recently and he is the greatest fool he ever met, goes on to describe his foolishness in graphic terms and is clearly in breach of the libel laws, those who transmit the programme have a problem. The circumstances which will arise here are not uncharted territory for people in radio and television.

As to public meetings, the difficulty one has is that the section must be all-embracing and there is a constitutional right to information. If I did not mention public meetings, information given at them would not be restricted under the Bill. Consequently if a person organised public meetings to advocate or promote abortion I would not be able to restrict him or her.

I had to cover it in the Act. Then, had I put in section 4, someone like the person at the health board mentioned by Senator Finneran who for good and valid reasons gave Act information in a speech would commit a criminal offence. The only place I can put it is section 3 but I fully agree it would be ludicrous for someone to impart information in that way and claim it is a type of counselling which would help the abortion problem in Ireland. What I want to cover is information given inadvertently.

Sections 3 and 4 apply to the public; however there is a different trigger in section 5. Section 5 applies particularly to pregnant women and what triggers the restrictions in section 5 is a woman indicating, or someone indicating on her behalf, that she is pregnant. This is not the trigger with regard to sections 3 and 4 which are in respect of members of the public and where their constitutional right is vindicated and restricted.

Section 5 specifically addresses the needs of the pregnant woman. It is in that context that, once she, or somebody on her behalf, provides the information that she is pregnant, the section is triggered and the family doctor can only counsel her in a non-directive way. He must give her all the options, go through them in detail and give her time. It is only as a last resort that he can give her names and addresses. For example, she may say "I have discussed this with my husband. This is our fifth child and I am having an abortion. All I am looking for are names and addresses". He may then give her names and addresses, but he may not make an appointment or other arrangements for her, because that is where one crosses the line between information and referral.

Question put and agreed to.

Sitting suspended at 1.45 p.m. and resumed at 2.30 p.m.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mr. Finneran

Does the Minister consider that the provisions of Section 4 are adequate to meet what he calls unsolicited information? Modern technology has changed the scene regarding the availability of information, and some people would say that it is out of control. What is the situation regarding information that comes via satellite channels into our living rooms? Is there any provision for that or is it something over which we have very little control? Would the Minister concede that he may not be able to control unsolicited information under this Act?

Mr. Noonan

(Limerick East): I can certainly prohibit it. The section as well as making it unlawful to display a notice makes it unlawful

to distribute without solicitation by the recipients of a book, newspaper, journal, magazine, leaflet or pamphlet, or any other document, or a film or a recording (whether of sound or images or both) containing Act information.

That would include all television, video and computer networking, but enforcement is a different thing, of course. If someone has a satellite dish at the gable end of the house and Act information is coming in on a foreign television station, there is very little one can do about it.

Mr. Finneran

In the event that the television receiver was in a public place such as a lounge bar or another area where the public congregates, and such unsolicited information was being beamed in through that receiver, what would the situation be regarding enforcement? Would the Minister be in a position under the Act to have the proprietor, landlord or person in charge of that public place prosecuted?

Mr. Noonan

(Limerick East):It would not be for a Minister to decide these things. It would be for the DPP and he would have to examine all the circumstances.

Mr. Finneran

I appreciate that the DPP must evaluate practically all cases because they are passed on to him by the Garda Síochána, but surely the Minister is in a position to advise the House on circumstances where unsolicited information is beamed through a receiver from some channel over which the Minister has no control. I can understand that there would not be a problem if it came into a private house, but can the Minister advise the House of what steps would be taken if it was beamed through a television in a public place? Is it his advice that no steps can be taken?

Mr. Noonan

(Limerick East): A programme on television would not come under section 4, but under section 3. In that respect it would be regarded as solicited information because the person in control of the television set, or indeed a variety of his customers, would have the right to choose to change the channel. It would not be caught by the prohibitions of section 4 in those circumstances. If it was producing Act information it would be legal under section 3, but if it was advocating or promoting abortion it would be illegal. However, the provisions of this Act would not be envisaged as prohibiting it but there are general prohibitions on advocating and promoting abortion under the Censorship Acts which would be a more appropriate vehicle for a prosecuting authority trying to stop this kind of activity. The provisions under this Bill would be weaker than those under the Censorship of Publications Act. It would not arise at all in terms of domestically generated programmes because they would be caught by the broadcasting code.

Mr. Finneran

I appreciate that.

Question put and agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Mr. Finneran

When the Minister was replying on section 3 he mentioned section 5 on a number of occasions and obviously there is a connection. I can understand the reason why he referred extensively to section 5 which concerns Act information. We seem to be returning regularly to the questions of counselling and how information will be set out in booklets. Is the Minister satisfied that the provisions of this section are adequate to deal with all the information that is expected to be made available, and that which is prohibited?

Mr. Noonan

(Limerick East): Yes.

Question put and agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mr. Finneran

My party was very worried about this in the initial discussions on the Bill because abortion and the provision of abortion services is big business around the world and some, if not most, people are in it only for the money. This section prohibits a financial link between people who are providing a service on the information side here and those providing the abortion service abroad.

Senator O'Kennedy mentioned the legal connection. How can this be properly policed? Will it be policed only where a case is brought to our attention or are we dependent to some extent on people giving information acting as watchdogs in the public interest? Is that what the Minister expects or could that be the only way that this would be fully implemented because I am not so sure it would be possible for people to know what links are there? It is a very loose area and I do not see that it can be implemented very easily, if at all. This could be going on right under our noses and it would take a very thorough investigation to establish any link in some cases. I am not sure that this section of the Bill will have the desired result and I would like to hear what the Minister has to say.

Dr. Henry

Sections like this sometimes make me think I am on "Yes, Minister" because it is very long and quite complicated. I am worried about how close a relationship between organisations is allowed here. If a family planning clinic here is part of a world-wide organisation, family planning clinics in the same organisation abroad may be involved in abortion clinics, let us say in England. If both clinics are in the same organisation, could that mean there was a relationship between the two organisations? I would like clarification on that.

Mr. Noonan

(Limerick East): This section is the first of two sections intending to rule out the giving of Act information by anyone who has any direct or indirect financial interest in the woman's choice of abortion in preference to any other option. Section 6 addresses the possibility that Irish agencies or Irish based subsidiaries of foreign agencies would be seen as operating with the intention of generating business for abortion services abroad. Act information cannot be given unless (a) the person giving the information or his employer or principal has no interest, direct or indirect, in any abortion service provider; (b) an abortion service provider has no interest in the agency providing the information and (c) no third party has an interest in both the information agency and an abortion service provider. I know the drafting is quite complex to allow for the three eventualities, but what is prohibited is the financial interest, not a relationship.

On Senator Finneran's point, it may or may not be easy to enforce the law in this respect or to prosecute and impose penalties, but in that it is no different from other areas of law. At present it seems to me that sometimes a prosecution will be carried out as a result of a complaint but other times it might come to public notice that somebody was running an extensive business which involved, for example, charter flights to England for abortion services from a subsidiary here. Then prosecutions could take place arising from public awareness of the activities of the business. I know that if there are hole-in-the-corner financial arrangements for activity on a very small scale it will be very difficult to identify and those involved might not be prosecuted, but the intention is that they would be prosecuted because this activity is declared illegal.

Question put and agreed to.

NEW SECTIONS.

Mr. Finneran

I move amendment No. 3:

In page 6, before section 7, to insert the following new section:

"7.—(1) The Minister shall require any person to whom section 5 applies to keep statistical records concerning individual women to whom Act information is provided.

(2) The records required to be kept pursuant to paragraph (1) shall be prepared so as to preserve the identity and privacy of individual women and shall be made available on request to the Minister in such manner as he shall require.

(3) The Minister shall undertake research on the records provided under this section and prepare guidelines for the implementation by health boards, of a scheme of education in relation to matters which will lead to a reduction in the number of women seeking, or availing of services, for the termination of pregnancy.

(4) The functions conferred on the Minister by this section shall be performed by him from within the existing resources available to him and the functions conferred on a health board by this section shall be performed by it from within the existing resources available to it.

(5) In this section ‘the Minister' means the Minister for Health."

This new section involves the insertion of a provision to cover education and research. I have another amendment to cover counselling.

The Minister yesterday attempted to implement the spirit of the amendment which is nice but it is not the same. It has a lot in common with the amendment proposed here and the one proposed in the other House. In his speech to the Seanad he attempted to at least in spirit give support to what was intended in that amendment but to return to my point, he is not really in charge when it comes to the implementation of the back up to this Act.

It is proven in the way that both Senator Dardis's amendment and mine are excluded on financial grounds that it involves the health boards, yet the health boards usually can only be issued with guidelines. The Minister is very much the back stage player once the Bill passes through both Houses, if it is signed by the President. I put forward this amendment to eliminate that and to make sure that the Minister and the Houses of the Oireachtas keep control.

The amendment supports what the Minister is saying but there is a need to have a back up in law and an opportunity for the Minister and his Department to research and educate and, hopefully, to base further counselling and the implementation of the Act by his Department on the results. I moved the amendment on the basis that it has a lot to offer in practical terms. The number of people who go to England is a dark area; the only people we know for definite go there are those who give an Irish address. The real figure may be much higher than that.

Many people may discuss this matter with their GPs and receive counselling. We do not have information on this. My amendment seeks to give the opportunity to the Minister to obtain proper statistics and information on which to base his intent with regard to counselling. Without this the Minister will not have the full facts under the law as it stands and under the Bill as proposed. The Bill should be amended so that on his request the Minister will be provided with records of people to whom Act information is provided.

With regard to what the Minister is attempting to do in this area, he is asking us to take him in good faith. I do not doubt him but Ministers come and go and this may not be high on the priority list of a future Minister. People may feel that it is enough just to legislate but if the Minister is to provide for properly funded counselling services, he must have information available to him.

I do not see guidelines for a scheme of education being implemented at health board level. Unless the Minister inserts specific provisions rather than guidelines to ensure that certain things are done, they will not be done. I know of hundreds of instances in which the eight health boards gave eight different opinions on guidelines from the Department of Health on matters it wanted implemented. I cannot see the eight health boards acting in unison on this matter. There will be a geographical approach and different interpretations.

Mr. Doyle

The Eastern Health Board will be on the right side.

Mr. Finneran

I am very conscious that the Eastern Health Board has control over only a small percentage of the health services provided in this region. It should be called the health board for part of the eastern region. However, all the health boards will not act as the Minister hopes they will. When speaking on another section he said he would fund voluntary organisations rather than measures to be taken by health boards and that he would not use section 65 of the Health Act initially. In some ways this is a cop out. Why depend on voluntary agencies although bodies such as Cura, Life and Cherish are doing an excellent job? Is there not a responsibility to provide in the legislation for the Minister for Health to do the necessary things in the areas of research and education? This would give him the necessary back up, support and information to put in place a proper counselling service. Without this we will hand the task over to people who will be genuinely interested in it, will want to achieve things and to accommodate the Minister's view but they will not feel obliged to do so. They will say they are operating only under guidelines, that they do not have the funds for this task and do not have legal responsibility to any great extent. If this was provided for in the Bill it would be a different story and people at health board level would be compelled to implement the law.

Mrs. McGennis

I support the amendment, one of the most important to be proposed so far. During the debate the case was made again and again for the need to get at the root cause of the high number of abortions which women have in England. On Second Stage the Minister referred to the need for research. He said that the Government will put in place research, education and counselling with the objective of minimising the circumstances in which such high numbers of women seek to have abortions. This does not form part of the legislation and I asked him to reassure me that whatever is necessary to achieve this objective would be done.

This is the central thrust of the Bill for me, although there are other important aspects to it. Unless we look at why this is happening, we are simply facilitating something which will continue and this is not the Minister's objective. The Department's health strategy has been based on preventative medicine. We must make sure this Bill not only addresses our obligations under the amendment to the Constitution of 1992, which I accept it does, but does more than this if it is to be as important as the Minister intends it to be. I am referring to the counselling aspect of it. The educational component can only be included if we do research to find out why women have so many abortions. It is necessary to enshrine this in law.

The Civil Legal Aid Board was not put on a statutory basis. Although it improved as time went by, in the initial period it failed miserably to meet the needs of the civil legal aid service we had been directed to provide by the European Court of Human Rights. Unless we enshrine specific provisions in the Bill a future Minister may not monitor how this legislation is operated. Other priorities will arise and there will constantly be pressure on the Department for resources to deal with them and with various crises.

There will always be a fear that things like this will be put off for a year or two. In that case unfortunately we would probably have to be honest and say that those who criticised the Bill as simply offering an opportunity to secure a termination of pregnancy and nothing else might be proved right. I do not want that to happen and I do not think the Minister wants it to happen either.

This legislation should not pass as simply a facilitator for women who wish to secure abortions outside the State. It has much more to offer. There are very positive elements in this legislation but, unfortunately, those elements are not actually enshrined in law. If the Minister is to show good faith, particularly in relation to this amendment, he should enshrine it in the Bill and it should become law.

We, on this side of the House, have accepted his assurances that the provisions in relation to counselling and finance will be covered by regulation. If the Minister is to silence some of the Bill's opponents and show the bona fides of this Bill, he should accept this amendment. I ask him to consider this seriously.

Mr. Noonan

(Limerick East): I have given three commitments arising from the legislation. The first is on counselling which I gave this morning. The second is to introduce, through the health boards, a wider family planning service, and I repeat that commitment now. I have also given a commitment to research and education.

The commitment to research relates to one single piece of research conducted by a reputable agency, either the ESRI or one of the universities. I will be asking them to establish the extent of the problem and, if they can, identify why so many women find themselves with, what they deem to be, unwanted pregnancies and second, why so many unwanted pregnancies go for abortions in the United Kingdom. If one is to achieve this, it is necessary to go further than the proposed amendment.

At present, very few of the women who go to the United Kingdom for abortions have had any counselling. The research will have to try to identify all those who are not going to any particular agency. Getting access to the information in the hands of the agencies is only a small part of the problem and, quite frankly, it would not be very helpful to the research I envisage. I do not know how a professional agency will conduct its research but it will certainly need access to information in the United Kingdom where it has collated the statistics. It would need access to information from the agencies and GPs. It may also have to conduct some surveys and poll targeted groups to ascertain the incidence of the problem and attitudes.

Accepting the amendment would not advance the case in any way. However, after I have received the results of the research and the recommendations flowing from it, I will examine whether it would be useful to require agencies to provide statistics along the lines of the amendment. I hope to have the results of the research later this year. As I said this morning, I will be introducing a health Bill later in the year to deal with a variety of outstanding items and I have no objection to this issue being raised again in that context. At the moment it would not help me in any way in carrying out the research I have announced.

I can see certain other difficulties with the amendment. We are trying to encourage women to go for counselling by stressing the confidentiality of counselling. If people were to see enshrined in law a provision that the records of everybody who attended counselling would be provided to a State agency, the Department of Health or the Minister for Health, it might inhibit them from going for counselling. I ask those who proposed the amendment to accept the commitment I have given to a serious piece of research. In the context of a health Bill later in the year we may be able to revisit this issue and see if there is merit in addressing it in that context.

Mr. Finneran

The Minister has responded in a somewhat positive way and I appreciate the point he made. I would not want to insert a provision in legislation which would stop people going for counselling. While he did not say so directly, he hinted that if people thought their records or information regarding their attendance at counselling were to be made available to his Department or to State agencies, it might be an inhibiting factor. I certainly would not want that to happen. I assure the Minister that it is not my intention to do that.

We are very much in the dark as to why so many people go to Great Britain to have their pregnancies terminated. If we are to address the matter and if the counselling agencies and those who will take up the cudgel on behalf of the Department are to reduce those numbers, they will need information. They will need to investigate and have information and research on the area made available to them.

From now on people will be more open. If they are going, they will at least get information. Hopefully they will go to through the proper channels and visit their GP. It is possible that, over the years, many people have discussed the situation with their GPs; we are not to know that. We do not know with whom they discussed the matter and we have to be realistic. We are not living in the middle of a wood where we do not know what is going on around us. A significant percentage of the 4,000 people who went to the UK for abortions in 1993 had discussions with somebody, maybe their GP and it is possible that all who made contact with somebody on this side, discussed the matter with their GP before they went.

It is important to get to the root of why people go. There was a time when people left the country to have their children. Yesterday, Senator Byrne mentioned one of the main reasons they did this. There was a stigma attached and there was pressure in the locality and, to some extent, the church, coupled with public opposition to illegitimate children, drove young girls out of the country. Is the situation to continue?

I know it is not the Minister's intention nor is it my intention to have an amendment which, while intended to assist in the compilation of information for research and eventually counselling, would actually cause people not to go to counselling and skip the system here because they are afraid their records will be made available. That is not my intention. I take in good faith what the Minister has said regarding his intention for the future.

The Minister mentioned the ESRI and GPs. My amendment specifically states that a person's privacy as regards names and addresses should be preserved. General practitioners play a major role because few people will decide to terminate their pregnancy without discussing it with their doctor. People may have done this in the past but few will do it in the future. The debate in the two Houses will encourage people to discuss their problems with their GPs. It is good to debate matters in public, although we may have different views. A public debate is important to tell people what is available.

Someone must provide a service if so required by law. When times are good, those in authority — Ministers or members of health boards — are inclined to implement guidelines. When times are bad, guidelines are left on the bottom shelf and we commit our finances to the things we must do. However, I am reassured by what the Minister has said.

Mr. Maloney

Senator Finneran covered a lot of ground in his amendments. However, the basic problem is lack of sex education. Each time it is mentioned a group of fundamentalists say they are completely against it. We always seem to ignore the fact that 6,000 to 7,000 Irish women go to England each year for abortions. Little is being done to help them, although the health boards provide help at present.

I worked in a psychiatric hospital for many years and I am aware of the post-abortion services which are available. It is a disgrace that people must hide in a psychiatric hospital and that this service is not provided on a general basis. The service is not advertised, but hospital counsellors are prepared to help. One reads on numerous occasions about women who have committed suicide. If one looks at their backgrounds, one may discover that they had an abortion which they were not able to handle. Certain help is available but the health boards must get their act together. I commend the Minister on the courageous provisions in this Bill.

The Northern Ireland system is more helpful. Its institutions are separate from the health boards and they are supported by the National Health Service. They provide help for people with alcohol, drug and emotional problems. I know of people from my own county who had their post-abortion trauma dealt with there.

A number of years ago I organised in Letterkenny, County Donegal, a seminar on sexual abuse. This highlighted the fact that people in the health services did not know what others were doing. The gardaí, social workers and people from the general and psychiatric services attended and they talked about how to deal with situations which might arise. The health boards must get their act together. The Minister's approach and the forthcoming health Bill should help to alleviate this situation for many women.

Amendment, by leave, withdrawn.

Acting Chairman (Mr. R. Kiely)

Amendment No. 4 is out of order as it involves a potential charge on the Revenue.

Amendment No. 4 not moved.

SECTION 7.

Question proposed: "That section 7 stand part of the Bill."

Mr. Finneran

I would appreciate it if the Chair would allow me some latitude on amendment No. 4.

Acting Chairman

It is ruled out of order, but you may speak on section 7.

Mr. Finneran

The amendment I tabled is similar to an amendment tabled by Senator Honan and Senator Dardis. I received a letter from the Cathaoirleach this morning stating that it was ruled out of order.

I attempted to amend this legislation in the area of education, research and counselling, which will be important in the day to day operation of this legislation. The Bill will either be good or bad. If the section on counselling is implemented at the end of this year, the Bill may prove to be successful. The Minister must support this provision to achieve the desired result. However, it will not be implemented unless it is funded and the health boards, in particular, implement the Minister's wishes. I am not questioning the Minister. He is genuine about implementing a fair and comprehensive counselling service but his suggestion that he may have to move outside the health boards indicates that he does not believe the eight health boards will carry out his wishes.

Either this Minister or someone else must come to terms with section 7 as regards counselling. If counselling is not provided, the debate over the past few days will not have been worthwhile. We want fewer people opting to leave this country to terminate their pregnancies than taking an alternative option which might be available to them here. Some alternative options have become less popular and counselling is important in this regard. As regards the implementation of this section, I hope the Minister keeps his eye on the ball over the coming months and during his term in office to ensure that the provisions he supports are implemented.

Question put and agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. Doyle

When the Minister spoke about section 3 this morning he called the period of reflection a "cooling off period" and referred to section 8. That is a very important aspect of a crisis pregnancy although, with due respect to the Minister, I do not like the term "cooling off". It is a time for further reflection by the person because the crisis probably grows by the day.

My understanding is that a person can only get information such as names and addresses after she has made her choice; otherwise, whoever supplies the information would be in breach of the law. Is that a correct understanding?

People who have received counselling and made choices, under this section can get their medical records etc. from their doctors. I would like to see them also get the names and addresses of a counselling service independent of a termination clinic. I do not know how that would be incorporated but I would like to see the principle adopted that a person would have another opportunity to be counselled.

I told the House a story yesterday about a very worried lady who went to see her doctor, was told that she would be all right and went to England without any counselling. She said if she had been given the name and address of a counselling service, independent of a termination clinic, she would have taken a different course of action. I do not know how that can be addressed but I feel very strongly that a second counselling is essential. Will the Minister consider that?

Mr. Finneran

This section, is nonsense. If people get a list of clinics from the doctor and the doctor makes a telephone call on their behalf, who is to know that he made that telephone call? No one can find out because under section 9 medical records cannot be interfered with. This section cannot be implemented or policed. I do not see how the Minister, the State, the Garda, the DPP or anybody else can implement this unless a woman tells the Garda that a doctor made an appointment for her with a clinic. I do not see how there could be any prosecutions or how a GP could be stopped or impeded from making an appointment under this section since it is impossible to seize medical records. Because of that a GP is protected under this law if he makes an appointment. Unless the Minister can convince me otherwise, I cannot see, under any circumstances, if a GP wishes to make an appointment for a patient in the privacy of his surgery how the State can prohibit him from so doing or find out that he did it unless he, the agency or the patient makes a statement on it. I do not think any of the three consenting parties in such a situation would do that.

Dr. Henry

Senator Finneran is worried about the policing of this section but I am worried about the policing of doctors. There is anxiety about this among the medical profession already. Of course, we will work within the law, as the Medical Council always advises us to. The Medical Defence Union, which is one of the doctors' insurance organisations, has urged us to be sure to work within the legislation.

Because we want counselling to take place, as speaker after speaker has said, before people leave this country there should not be any interference in the doctor patient relationship which would deter a patient from going to her doctor; indeed, she should be actively encouraged to go to her doctor. I would have liked her to feel that she virtually needed a letter of referral before she could go to a clinic in England. I realise the problems the Minister had in drafting this Bill and I know that could not be provided for.

The Bill allows for all records to be sent, which is absolutely essential. The Minister was not quite accurate in saying that nowadays most doctors just give a patient a letter — in this case their records — and she makes the telephone call. Patients do in many cases, but doctors often make the telephone call for the most vulnerable, least equipped and poorest, the people who unfortunately will be disadvantaged by this Bill.

However, while doctors cannot refer to a specific place they could give only one name; nobody has said a list of names must be given. If the doctor gave only one name it would be clearer for the patient where she should go and would give some vestige of continuity of care, which the medical profession always likes to see happening.

This section will not encourage women to go to doctors. Senator Finneran may be somewhat optimistic in thinking that the habits of almost 30 years will change overnight. It could be five years before we see much of a change. Research shows that at the moment, at best, one in five women receive counselling here before going to England. It will take a long time and improved sex education and so forth to reverse this unhappy trend. However, it can be done and counselling makes a difference. I quoted the figures this morning which show that while there has been a drop of 3,000 in the figures for abortions for residents of England and Wales, our figures are rising.

Mrs. McGennis

I agree with Senator Finneran — although I accept Senator Henry's statement that the GPs will abide by the ruling of the medical council — that it would be almost impossible to implement this section. I wish to expand further on the doctor patient relationship and ask the Minister if he has had meaningful discussions with the medical organisations regarding the nuts and bolts of implementing this scheme of counselling.

I am very lucky in that my GP gives his time before he gives a prescription, which costs him hours and hours of sessions with patients, even outside his surgery time. He approaches his practice in a very conscientious way. Prior to that, I was with another GP who was also inundated with patients. His time was very limited and one was more likely to receive a prescription than to spend 15 or 20 minutes weeping or talking, if that was what one needed to do in order to reduce pressure or tension.

The thrust of this Bill centres on time, particularly in relation to GPs more so than organisations such as Well Woman centres, and most GPs do not have huge resources in terms of time. This will necessitate them spending more than their usual time with patients, taking their temperature, blood pressure and pulse — I am sure Senator Henry could provide more information on what is involved in a normal examination when one visits one's GP. As I discovered when my mother died, it involved spending half or three quarters of an hour with my GP. Rather than giving me tranquillisers, he said: we will talk this thing through and you will keep coming back.

After the legislation has gone through, I worry about people accepting that everything will be fine. It will not be fine if certain GPs approach it in the particular manner that a woman is there for one reason and one reason only; she wants the GP to hand her a list of names and addresses and she wants to get out the door. This is a variation of the "Doctor, doctor, I have a headache and I want a prescription" advertisements, which featured in Senator Maloney's part of the country. If this happens and the extent of counselling is a GP asking a woman if she has thought it through, saying fine and then giving her a list of agencies, then we will have failed miserably.

If full referral had been provided in the Bill there might have been an uproar in the medical organisations and among GPs because at present they just do not have the time to cope with their existing workload never mind writing letters of referral to England, check ups, etc. We talk about retraining judges and so on and the Minister mentioned another situation earlier. GPs need to be told that this legislation places the greater burden on them of making their time available to a woman with a crisis pregnancy, regardless of how long it takes.

Mr. Noonan

(Limerick East): There is no accepted legal definition of abortion referral. Those who made arguments a couple of weeks ago when the Bill was published — that it was or was not abortion referral — were talking in colloquial terms because there is no legal definition of referral. The commitment given in 1992 was that it would be an information Bill, not a referral Bill. We must go back and examine what happened in 1992.

Everybody now agrees, as a result of studying the advice of the current Attorney General and that of his predecessor, Mr. Harry Whelehan, that the additionality of information envisaged in 1992 certainly covered names, addresses and telephone numbers. I then had to draft a section which would, as far as possible, fulfil the commitments given to the people in 1992 by giving the additional information, but only information and not referral. I considered the situation and section 8 is where I drew the line.

The line is drawn, first, from a policy point of view because it was promised to the people, but also from a Government policy viewpoint because we do not want a referral Bill either. I was supported in this by the legal advice. The Bill permits the giving of information; to be precise, it does not prohibit the giving of names, addresses and telephone numbers because this is allowed under the Constitution. The Bill draws the line at the making of appointments and arrangements because to do this would go beyond what the people expected and were promised in 1992.

A woman must be given, and is entitled to, notes or copies of her medical records under the freedom to information, the freedom to travel and even the constitutional right to bodily integrity. Let us consider looking at the way section 8 is drafted. Subsection (1) states that it will be unlawful to make appointments or arrangements; however, section 8(2) states that nothing in that prohibition will prevent a doctor or an agency providing the medical records. I am also advised that there is a constitutional right to names and addresses and to medical records, but there is no constitutional right, under any amendment passed so far, to the making of appointments and arrangements. The policy, the legal advice and the commitment made to the people in 1992 are all enshrined in this section. Whether it works is the next question.

Senator Doyle asked about the position in relation to making a choice, for example, between Cura and Life or a termination in England. There was nothing in law up to 1992 — or up to now — which prevented a doctor giving the name and address of the local adviser in Cura or Life and this situation is maintained. In ordinary layman's terms what happens is that a woman goes to her family doctor and indicates that she is pregnant. She has done a pregnancy test and knows she is pregnant or the doctor examines her and agrees that she is pregnant. She then says she does not want the baby and she wants to talk about it. If the doctor has a conscientious objection to discussing abortion, he can tell her he can discuss anything with her except abortion because he has a conscientious objection to dealing with that area. This is in accordance with the Bill and there is no problem if the doctor does that. However, if the woman says what she really wants to talk about is abortion and the doctor says he cannot do that, under the medical code of ethics she would be entitled to receive counselling advice from a colleague in those circumstances. I want to ensure that this will be available through health boards and the GMS if a woman is covered by that scheme.

If the doctor is happy about counselling her on all the options, he proceeds to do so. If she wants the address of Cura, Life or any other organisation, the doctor gives it. If, ultimately, she wants the addresses of clinics in England, he gives them to her. However, the break occurs after that point. The doctor may not make the appointment or the arrangement. This is consistent with the policy, the commitments, made to the people and the legal advice.

I am also advised that it is consistent with best counselling practice. The point arose this morning that, after counselling, a woman should not be rushed into a decision. The doctor should not say, here is the list, make up your mind and, if you like, I will make the telephone call for you". It is very hard to argue that it is non-directive advice if it becomes so automatic that a woman in crisis sees her doctor and comes out 45 minutes later with an appointment in the UK for the following Wednesday, and her doctor will see her when she comes back on the Friday.

This is the type of situation I am trying to avoid. I appreciate what Senators are saying in terms of a cooling off period, but we are not talking about people going on a picket. We are talking about a fundamental decision about life made by a woman in crisis. A woman needs a period for reflection before she makes that decision.

There were two reasons for the Bill. The first was to comply with the requirements of the Constitution to give the information and to delimit the provision of the information in legislation. The second reason was that doctors wanted to be sure where they stood. I have received reports of doctors who are afraid of agents provocateurs coming in and literally setting them up so that a prosecution could proceed. Doctors have been very worried about that aspect.

Even if I agreed with Senator Finneran, which I do not, the section is still very important. Even if it is not enforced in terms of the criminal law, it is very important because it lays down for GPs what they may and may not do. To take Senator Henry's point, it also shows in a doctor's defence in any type of legal action, the code of ethics and the advice they would receive how they can comply with the law and its delimitation. This is most important from a doctor's point of view. My view is that doctors will abide by the law.

At present, it is fair to say that it is increasingly becoming the practice — I will not put it stronger than that — that patients make their own appointments. They are given the names and addresses and they make the appointments themselves. Some people say that if a woman is not in a certain bracket of society and is not well educated, she might find it difficult to make the appointment. It is not just the telephone call that is difficult; the whole process is difficult. Take the case of a 20 year old single pregnant girl living in but not from Dublin, who does not tell her parents that she is pregnant. First she goes through the anxiety of thinking she may be pregnant, then she has to get it confirmed by a doctor or do a pregnancy test. She may confide in her friends or decide to face the situation alone. To see the family doctor, she has to make an appointment. Even if we allowed the doctor to make the telephone call, that is only one element of help in a long spectrum. She still has to book her plane or boat ticket, go from Liverpool to London by train, find a place to stay overnight, find a clinic and get back home. I do not understand why so much weight is being attached to the idea that she can do all this but cannot make a telephone call; it does not stand up to scrutiny.

As I said earlier, the provisions of the Bill only apply to a person as defined in the definition section. A girl who gets the names and addresses of these clinics from her family doctor and goes back to her flat in Rathmines and Rathgar can talk to her friends; if she is on good terms with her mother, she can talk to her. If she is in a stable relationship, she can talk to the man in her life. Any of these people can make the appointment for her. The prohibition is on the person who does the counselling and gives the advice. It is deliberately designed so that one does not go straight from advice to making the appointment, to the arrangements and then go to England; it should not be a sort of conveyor belt process; I do not want that. That is how it would work in practice.

I sincerely hope there will be no prosecutions of doctors. I would like the respect of the doctor-patient relationship to be maintained at the highest level. I think doctors will comply with the law. On the other hand, if an agency was running a business and was effectively arranging charter flights to London and back, then the law should crack down on them. This section provides the mechanism for that as well.

Senator McGennis asked if there was any meaningful discussions with the medical profession. I was fortunate to have a senior medical person who acted for me in a consultancy capacity when we were putting this legislation together. He took soundings at all levels of the profession and I know that what we have done is in accordance with good medical practice and with the wishes of the majority of the profession.

As I said on Second Stage, I have also written to the Irish College of General Practitioners alerting it to the fact that family doctors will be taking on a greater counselling role under the terms of this Bill. In response to my request it issued a statement at the weekend confirming its recognition of the key role that the family doctor would be playing in this area. It said that it would, as I requested, look at what is now needed first in the education of doctors and then with ongoing in-service training. My officials will be entering into dialogue with that organisation to see what kind of ongoing training will be required to fulfil the needs which we all agree will hopefully make a dent and reduce the number of women going abroad for abortions.

An Cathaoirleach

We have had a long discussion on this section.

Mr. Doyle

The Minister said that a doctor can, in good conscience, talk to his client about abortion. I know that we cannot put this into the Bill, but the Minister might ask the medical profession when giving the medical notes to their client, to give them an independent counselling service at the termination clinic. The client can then get further counselling after making the journey.

Question put and agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mr. Finneran

While sections 8 and 9 are interlinked, can the Minister see any situation where a general practitioner can be prosecuted under this law? From my reading of it the doctor is totally above this law. I cannot see any circumstances under which a doctor can be prosecuted because there is no power or authority given in the law for the removal or confiscation of any medical records. Since the doctor's records cannot be examined, no proof can be brought against him if he is prosecuted. Of course the evidence would depend on his medical records. I think the law is foolish in that way. Senator Henry said that general practitioners have a code. Politicians, barristers, dentists and other professions have a code. However the law is there to prohibit the referral of patients to abortion clinics in the UK.

The Minister did not dispel my doubts on section 8, and I doubt if he can convince me here either. I do not see any circumstances under this law where a doctor can be prosecuted because there is no provision in the law for the seizure of their medical records. What goes on in the doctor's clinic is secret as far as this law is concerned. The doctor talks to his patient, she makes a request of the doctor, he picks up the phone and make an appointment with an English clinic, enters it in the woman's chart, closes it and puts it in the filing cabinet. Nobody can touch it or prove that he ever made the appointment. The law is an ass as far as any prosecution of a GP is concerned. The GP is above this law as regards making appointments. There is no way I can see that he could be prosecuted for referring patients and making appointments for them.

Mr. Noonan

(Limerick East): That is not correct. First, a GP could be prosecuted in a number of circumstances. If, for example, a GP was handing out to his patients literature which advocated or promoted abortion, he would be caught under the provisions of sections 3 and 4, depending on the way it was done. If he was giving it out freely, he would be caught under the provisions of section 4.

On the counselling under section 5, GPs should be very careful to comply with the law. If a GP did not, he could be leaving himself open to civil action. For example, if a pregnant woman went to a GP, he would advise her on all her options and give her the names and addresses of clinics in accordance with section 5 of the Bill. He may then go ahead, in breach of section 8, and make an appointment for her and she goes to England to have an abortion. If she is unhappy subsequently and decides that the GP did not act in accordance with law but rushed her into a decision which she would not have made if she had been give time, he is in clear breach of the law. He is also in clear breach of the law under section 8. If she were to complain, her word and the fact that she had the abortion and he had made the appointment would be very strong evidence. This is a risk doctors would not take lightly. If, for example, in the case of a childless couple, a doctor makes an appointment for the woman to have an abortion and her husband sues him, under civil law he is getting himself into a tricky situation. It is not true that, as soon as the Bill is passed and signed by the President, if it ever goes to court and is declared sound, GPs will ignore it. That is not the case. GPs have requested and received clear guidelines and I believe they will comply with the Bill.

Question put and agreed to.

SECTION 10.

Question proposed: "That section 10 stand part of the Bill."

Mr. O'Kennedy

Section 10 deals with the nature of the offences outlined in the Bill, which are all on summary conviction, and the sanction is only a fine. We are dealing with something which connives and conspires to breach the law in regard to something as fundamental as the right to life. That can hardly be described as something of summary conviction. It goes right to the root of our society and the Minister acknowledged the concern about limiting the scope of it.

I was not here for all the debate because I am not the spokesperson in this area and I must attend to other matters but while I was out of the House, I spoke to a wonderful lady, Mrs. Lee, who will celebrate her 100th birthday tomorrow. She and her generation did so much for Ireland and she prayed that we would try to adhere to the same standards which motivated them in their unselfish commitment. I make that point in passing.

We should not allow this matter to be so minor as to warrant a summary conviction in the District Court and a fine as a maximum penalty. If a judge, or a justice as the case may be, concludes that it warrants somewhat less than the maximum fine or the penalty of imprisonment, that is a matter for that judge. We are saying that our judgment on the nature of this transgression, which would breach our law in respect of the right to life of the unborn, is at most a matter of summary conviction equal to a traffic offence. In fact, for some traffic offences, the penalty of imprisonment applies. Our values are becoming somewhat unbalanced and distorted. Again, I acknowledge it is not the intention of the Minister to do that.

There is even a provision for a second or third offence by a body, agency or an individual. There are people in this city who are busily engaged promoting abortion outside Ireland and see it as their role to do so. Are we to signal to the people that we regard a first, second or third offence as a matter for summary conviction in the District Court with a fine? Are we as legislators to give a signal, which the judges may subsequently interpret within their independent discretion, as to how seriously we view this? In the event that the law which the Minister insists — I do not take issue with him on this — regulates, limits and prescribes is ignored and abused, are we suggesting a fine? I do not hold that view.

Mr. Manning

Senator O'Kennedy did not put down an amendment.

Mr. O'Kennedy

I am not the spokesman in this area. We were told last night that because we finished so late we could not table amendments. I was in the House until 10.30 p.m.; I do not know whether Senator Manning was.

Mr. Manning

Is Senator O'Kennedy saying that I gave him wrong advice last night?

Mr. O'Kennedy

I am not saying that.

An Cathaoirleach

As far as we were concerned, there was no objection to anybody tabling an amendment at 9.40 p.m. yesterday when the vote was called.

Mr. O'Kennedy

I was told it was too late to submit amendments.

An Cathaoirleach

We are dealing with section 10.

Mr. O'Kennedy

I am dealing with section 10. Someone might remind Senator Manning of that because I seem to have touched a sensitive nerve.

Mr. Manning

I am tired of disputes about what we agreed.

Mr. O'Kennedy

We can suggest amendments to the Minister at any time in this House and presumably Senator Manning, who has considerable experience in this House, is well aware of that. The Minister can introduce an amendment at any time if we persuade him to do so. If I am not allowed to do that, then there is an end to democratic discussion. There is a case here for putting forward the alternative sanction of imprisonment or, at least, increasing the penalty on a second, third or subsequent offence as is the pattern in all legislation. I may not be able to persuade the Minister, but he has the power and the right to do so and the procedures of this House do not prevent him from doing so.

Mr. Noonan

(Limerick East): All Senator O'Kennedy's contributions to the debate are based on a false premise — that this is a type of abortion Bill and that we are conspiring to kill babies.

Mr. O'Kennedy

That is an outrageous distortion.

Mr. Noonan

(Limerick East): Senator O'Kennedy wanted those terms included in the definition section.

Mr. O'Kennedy

If the Minister cannot do that, it is sad.

Mr. Noonan

(Limerick East): It is not sad. I appreciate Senator Manning's reaction because Members have been here yesterday and today working to improve the Bill, to get a greater understanding of it and to ensure the questions they asked would help the public to understand it. Then Senator O'Kennedy comes along and argues in a tendentious fashion, as if we were bringing in an abortion Bill. This is an information Bill and I suggest that the sanctions applicable to a breach of an information Bill are appropriate and there should be maximum fines. It would not be correct for anyone to put down an amendment suggesting imprisonment.

This is not the only legislation on the Statute Book. Senator O'Kennedy said he was familiar with the 1861 Act and I am sure he is familiar with the penalties under that Act. The procurement of abortions, carrying out abortions and assisting in carrying out abortions are prohibited under sections 58 and 59 of the 1861 Act. The prohibitions are prison sentences, which are appropriate. This is not an abortion Bill about the procurement or assisting in the procurement of an abortion; it is about information. It restricts the manner in which a constitutional right to information can be exercised. Because these are restrictions on a constitutional right, I suggest it is entirely inappropriate to call for prison sentences in respect of breaches of the sections.

An Cathaoirleach

The Minister has outlined his position.

Mr. O'Kennedy

The Cathaoirleach will know the practice on Committee Stage is to engage in reasonable analysis. It is, as the Minister says, an abortion information Bill. That provision in the law in this Bill can be blatantly breached and one has what is effectively referral, which the Minister sets down as being unlawful under various sections.

I will argue to the issue not the person; I will not make any observations about the Minister's style, although he prefers to engage in the argumentam ad hominem which I do not find appealing when one is dealing with a matter of this nature. The Minister may correct me if I am wrong but if somebody effectively refers a person for an abortion service outside the country under this legislation, as distinct from giving information as defined in this Bill, then this legislation makes that a summary offence subject to a fine.

The Minister made the point that this is an abortion information Bill and it does not make provision for penalties for abortion. I know that. Where it is not information but referral — and presumably that is what the Minister wants to prevent — then it is an unlawful involvement in referral for the termination of the life of an unborn. There is no point in the Minister saying that is information; this legislation makes the distinction between information and referral. Will the Minister explain why he still thinks that a referral of that nature is a matter for summary conviction? It is referral we are talking about. Let him not misrepresent the case I make.

Mr. Noonan

(Limerick East): Maybe the Senator would suggest to the House the length of prison sentence he has in mind.

Mr. O'Kennedy

That is not the role of a Senator. At least the Minister now acknowledges a validity in what I am saying.

Mr. Noonan

(Limerick East): No. I am asking the Senator what he has in mind.

Mr. O'Kennedy

I will make a suggestion. At least he has acknowledged the validity of my case.

Mr. Noonan

(Limerick East): No. I am simply saying that the Senator is making an argument.

Mr. O'Kennedy

I would suggest a maximum of 12 months in prison for a first offence. For second and subsequent offences there is a whole series of legal precedents; make it two years for each subsequent offence, for example. If the Minister checks with the Department of Justice he will get a series of precedents.

Mr. Noonan

(Limerick East): I examined this matter closely; I reflected on it for some time and I looked at penalties which I considered appropriate. I decided to recommend to the Houses of the Oireachtas that a maximum fine would be an appropriate penalty and not a prison sentence.

Mr. O'Kennedy

If the Minister had said that in the first instance——

An Cathaoirleach

He has said it now Senator.

Mr. O'Kennedy

That is not a view I share but instead of getting even that, I got a different, personal response which does nothing to enlighten. The Minister now says he is satisfied having taken advice that it is a matter for summary conviction. I profoundly disagree.

Question put and agreed to.

Sections 11 to 13, inclusive, agreed to.

SECTION 14.

Question proposed: "That section 14 stand part of the Bill."

Mr. Finneran

This is where unsolicited information would also be dealt with under the Indecent Advertisements Act, 1889, and the Censorship of Publications Acts, 1929 to 1967. In what circumstances could the Minister see those Acts applying to breaches of this legislation? Would not the publications that came under those Acts already be excluded? Where does the Minister see this legislation coming into conflict with the other Acts I mentioned?

Mr. Noonan

(Limerick East): The information being provided under this Bill would have been illegal under the Censorship of Publications Acts. The only change in the Censorship of Publications Acts and the Indecent Advertisements Act, 1889, is an amendment in section 14 to ensure that the information being provided here will not be caught by any provision of these Acts, but that the full weight of the remaining sections of the Acts will be maintained.

Section 14 simply excludes information provided under the provisions of this Bill from being caught by the Acts listed. It does no more or no less, and the general prohibition on promoting abortion in the Censorship of Publications Acts is still maintained.

Question put and agreed to.

Section 15 agreed to.

Question proposed: "That the Title be the Title to the Bill."

Mr. Noonan

(Limerick East): The title was invented by Deputy Geoghegan-Quinn; it is her title not mine.

Question put and agreed to.

Bill reported without amendment.

Question proposed: "That the Bill be received for final consideration."

Minister for Health (Mr. Noonan,

Limerick East): Senator Kelly asked this morning whether it was necessary to include the words “to rent” in section 3. I have been advised that it is not necessary to do so, as the words “to publish” would cover the point the Senator raised.

Question put and agreed to.

Question proposed: "That the Bill do now pass."

Mr. Finneran

I thank the Minister for his courtesy and openness in trying to provide us with answers to our questions. I also thank my counterpart on the other side of the House, Senator Doyle, and the Cathaoirleach for their courtesy.

Mr. Dardis

I thank the Minister; he has shown extreme patience and has answered all our questions comprehensively. I am sure at this stage he is sick and tired of Seanad Éireann.

Mr. O'Kennedy

He has been here two full days.

Mr. Dardis

He probably wants to go to Cheltenham now.

An Cathaoirleach

Quite a few of us want to do that.

Mr. Dardis

We hope and pray the Bill has the effect he wishes. As time passes, I hope his confidence in the Bill is justified. I thank him for the way he conducted the debate. When he entered the House this morning he mentioned a court judgment. It is not the practice of the House to comment on the courts and I do not wish to be specific, but I find it extraordinary the sentence was reduced——

An Cathaoirleach

It is certainly not appropriate to discuss it. I am sure we will discuss it at another time but not now.

Mr. Dardis

Without commenting on the particular case, it is extraordinary that a reduction of this nature was made — I will go no further. I thank the Minister for the way he has dealt with our queries.

Mr. Doyle

I concur with the views expressed. I thank the Minister for his presence during Committee Stage. I also thank Senator Finneran and his colleagues for the speedy passage of the Bill.

Mr. Maloney

I thank the Minister for the way he has steered the Bill through the House and I thank you, a Chathaoirligh, for the way contributions have been handled. We are carrying out the wishes of the people as expressed in the 1992 referendum and one hopes this will mean a reduction rather than an increase in the number of abortions.

Minister for Health (Mr. Noonan,

Limerick East): I thank you, a Chathaoirligh, your staff and Members of the Seanad. This was a good and full debate and points were raised today which had not been mentioned previously. Although the Bill went through unamended, for the benefit of the people we represent it is important that all points be teased out so there is a record of what the Bill means which is readily accessible to the public.

Mr. Manning

I join with those who praise the way the Bill was handled. As Mr. Joe Carroll said in The Irish Times today, it was conducted in a cool, rational and calm way. It was not a partisan debate. The important points were teased out and the discussion has been helpful. If I was rather short with Senator O'Kennedy earlier, I should say his suggestion not to complete the Bill last night was good advice. The Bill benefited from the long discussion today. I thank the Minister for the care and attention he has given to the legislation.

Question put and declared carried.

An Cathaoirleach

When is it proposed to sit again?

Mr. Manning

It is proposed to sit again at 2.30 p.m. on Wednesday, 22 March 1995.