Dáil Éireann - Volume 450 - 09 March, 1995

Regulation of Information (Services Outside State for Termination of Pregnancies) Bill, 1995: Committee Stage (Resumed).

SECTION 3.

Debate resumed on amendment No. 4:

In page 4, subsection (1) (a), to delete lines 25 and 26.

—(Deputy Geoghegan-Quinn.)

Ms O'Donnell: Before the break we were discussing my proposal to delete section 3 on the grounds that the section outlines the conditions governing the giving of Act information at meetings or in publications. I expressed concern that the section as it stands severely restricts freedom of expression. Article 19 of the Declaration of Human Rights, to which the State is a party, states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The European Convention on Human [992] Rights (1950), to which Ireland is also a signatory, provides guarantees in Article 10 of the right to freedom of expression—

this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority, and regardless of frontiers.

I believe in those declarations. Freedom of expression and the right to hold opinions and diverse views on any issue is very important in a democracy. Sections 3 and 4 deal with restrictions on freedom of expression. Section 4 prohibits the giving of abortion information on billboards and via mailshots. That is perhaps the only section I wholeheartedly endorse. I do not agree, and I believe the public in general would not agree, to the use of billboards to advocate abortion. Section 3 prohibits the publication of any form of Act information.

An Leas-Cheann Comhairle: It is somewhat premature to deal with the section.

Ms O'Donnell: I was simply referring to section 4 in passing.

An Leas-Cheann Comhairle: The Deputy may deal with the section when we come to it. We are now dealing with amendment No. 4 and a group of amendments taken therewith.

Ms O'Donnell: My amendment seeks to delete the section entirely. Section 3 prohibits the publication of any form of Act information unless it is truthful and objective and does not advocate or promote abortion. It is an offence to sell or offer for sale any form of publication which contains the prohibited information. This means that foreign newspapers containing the prohibited information could be banned and newsagents that stock them could be committing a criminal offence. Literary agents and sales people from foreign publishing houses who come here to sell to Irish [993] book sellers books containing the prohibited information could be committing a criminal offence. Issues of medical journals such as the Lancet, women's magazines and so on — the list is endless — may be banned.

The Minister indicated that the criminal sanctions will not be enforced, that this will be a decision for the office of the DPP. I accept the DPP is an independent officer.

Minister for Health (Mr. Noonan, Limerick East): I did not say they will not be enforced. I said I will not be responsible for enforcing them.

Ms O'Donnell: I correct my statement. Of course this should be a matter for the DPP as an independent officer. Criminal sanctions will engender self-censorship and defensive behaviour — that is what I am referring to in terms of restrictions to freedom of expression. Some time ago Easons refused to import an issue of The Guardian which contained information of the sort prohibited in this Bill. It is noteworthy that it did so even though at that time the only remedy against it was an injunction, not criminal sanction.

If the Bill is passed, as is likely, the practice of defensive self-censorship will increase. Any foreign newspaper or magazine that carries a feature on abortion and includes names and addresses is liable not to be imported because newsagents and other distributors will not want to run the risk of being prosecuted or injuncted. The position will be similar in the case of a television debate on Channel 4 or BBC on which both sides of the argument on abortion, the pro-choice and the pro-life, are discussed. In a free society both sides of the argument should be freely debated. If in the course of advocating a pro-choice view a person on a BBC debating panel give “Act” information, refers to a clinic or address in England and advocates the promotion of abortion in certain circumstances, or even along the lines of the pro-choice group, that [994] would constitute an offence under this Bill if it is broadcast or reproduced in a newpaper here.

This section is deeply flawed. When the Minister responded on section 12 of the Censorship Act as it applies to section 3 I did not understand his argument. Did he mean that section 3 is an enabling section rather than a prohibitive section? It is deeply regressive and repressive of expression. Espousing a liberal viewpoint and endorsing the right to freedom of expression on this side of the House appears today to be quite a lonely job. I feel like I am speaking from an empty grandstand when I am expressing these views. I got no indication from the Minister of any recognition of these rights of expression. I would like the Minister to respond to the arguments I made.

Mr. O'Dea: The Minister is prohibiting this information from being published on billboards and from being distributed in an unsolicited way through mail-shots, etc. Presumably, one of the reasons for that is that there is no point in the unnecessary proliferation of this information. Yet, at the same time the Minister is allowing people to organise public meetings at which the information will be available free of charge. It seems to me that there is a distinction between a situation where a person goes to a supermarket or shop and exercises a choice to purchase a magazine in which they know that information is contained, and where somebody goes to a meeting where they know there is going to be a charge, and, on the other hand, going to a meeting where they know the information is going to be available free of charge.

The Minister is as aware as I am that if a public meeting is advertised for a hall in Limerick, when this legislation becomes law, in such a way that there will be a £5 charge for admission, then the people who go to that meeting will be exercising a choice, they want the information. I take the Minister's point in that regard. However, if the meeting is advertised and admission is free, the [995] Minister knows that there will be many people who will not be able to resist the temptation to get something for nothing. They may not immediately require the information but they may go to the meeting on the basis that while they may not need the information then they might need it sometime in the future.

I find it hard to resist the logic of some of what Deputy O'Donnell said on newspaper advertising and TV programmes. Deputy O'Donnell was correct in saying that the implementation of this will be impossible. The Minister's only response was to throw his hands in the air and say it is a matter for the DPP and the Garda but we have to bear in mind that the Garda and the DPP do not operate in a vacuum. Their job is to enforce the laws which we pass. If we pass laws which are unenforceable it seems to me to be, at the very least, disingenuous of the Minister who is promoting those laws to throw his hands in the air and say that it is a matter for the DPP. It is like a hypothetical situation of a Minister for Justice announcing in the House that he or she is introducing legislation to make it a criminal offence for anybody in the country not to be, let us say, asleep by midnight and when the Opposition point out that that is unenforceable the Minister would say that enforcement was a matter for the DPP and the Garda, and leave it to them.

That is a dishonest and disingenuous approach. We promoted legislation here, which was supported by all sides, allowing people the right to travel, not because we thought it was good or desirable that people should go abroad to avail of the termination option, but because it was simply impractical to stop them. The courts recognised, and it was implicit in the various judgments, that at some time somebody could have been injuncted even subsequent to the Supreme Court decision in the X case. Everybody recognised, sensibly, that it was impracticable to police the airports and ports to stop people leaving the country.

[996] On the one hand we were changing the law because it was impracticable to implement it and now we are passing laws which will be unenforceable. Our only answer — we should have a better one — is to pass laws even though we know they will be impossible to implement and leave them to the people who are charged with implementing them. I must confess that I find that approach quite difficult to understand.

Mr. Noonan (Limerick East): I would find that approach very difficult to understand as well if anybody was proposing it. The position is that when the amendment was put to the people in 1992 all general information about abortion was legal. There was no problem with having debates about abortion or people arguing their case up, down, over and back. We heard enough of that argument throughout the 1980s and there was never a suggestion that either side of the argument could not conduct full freedom of speech in accordance with any charter of rights produced. In 1992 an extension to that was voted by the people. In other words, there was additionality. The Censorship of Publications Acts would prohibit, in my view, some of the additionality and we are looking at what is being provided in this legislation under statute law.

I would draw Deputies' attention to the first sentence of section 3 which refers to “Act information”. It does not refer to information so there is no prohibition on information. All information was free up to that. “Act information” is very narrowly defined and what we are really talking about in this section is how “Act information”, where there is an element of choice being exercised by the person who gets it, shall be available to members of the public. Names, addresses and phone numbers of a hospital or clinic in England which would carry out a termination of pregnancy, are available in advertisements in a newspaper whether it comes from outside the jurisdiction or locally. That is additional, under statute law, to what the position was.

[997] Section 3 (1) (a) (II) states:

the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of, the termination of pregnancy.

I think that is reasonable if it is presented just as information, not as advocacy or promotion. More important, any provision in law which omitted that would not be vindicating the right of the unborn under Article 40.3.3º of the Constitution, because general legal provisions which would allow the advocacy or promotion of abortion in the jurisdiction would certainly not be vindicating the right of the unborn and would be running counter to that. That is why that provision has been included.

Ms O'Donnell: What about the debate on Channel Four, for example?

Mr. Noonan (Limerick East): Channel Four does not commence in this jurisdiction.

Ms O'Donnell: It is broadcast here.

Mr. Noonan (Limerick East): The person sitting at home in his or her livingroom who does not like what is on Channel Four can change channels. That is why I am saying it is solicited information. We cannot pass a Bill that will prohibit what is transmitted on Channel Four. On the other hand, if we are talking about RTE, I am not putting radio and television broadcasting into section 4, I am putting it into section 3 and, in reality, that will be caught by the broadcasting code which is voluntary at the moment. For example, under their code RTE or the local stations will not broadcast advertisements about clinical testing for pregnancy or the availability of particular types of contraceptives. I presume that they will regulate the way in which the information can be provided under their own code also. The Minister for Arts, Culture and the Gaeltacht is working at present to put the code on a statutory basis and I would [998] presume that that will extend to RTE carrying advertisements about clinics in the United Kingdom. I will be advocating that course but I am not prepared to put the provisions relating to broadcasting, whether it is sound or vision, into section 4 because if I do it will have the exact affect which Deputy O'Donnell suggested. For example, a woman being interviewed by Marian Finucane in a radio discussion may say she had an abortion, which she would be entitled to do, and all of a sudden, may inadvertently or deliberately say she had an abortion in such a place in Sheffield. If this provision were in section 4, she would have committed an illegal act and as the Deputy rightly points out, that measure would be impossible to enforce because when words are transmitted over the airwaves they cannot be called back. By putting it in section 3, the broadcasting code will restrict the deliberate advertising of such information in the same way it restricts the deliberate advertising of clinical pregnancy testing and the sale of contraceptive devices. At the same time because of section 3, it will not preclude the giving of Act information in discussion. It dovetails with the censorship Acts. There is a general prohibition in the censorship Acts in providing the type of information that will be legal under this Bill when enacted. Under this Bill we will be providing additional information which is illegal at present under the censorship Acts. The censorship Acts will have to be amended so that the information is legal and the section amending them is doing so in so far as is necessary to make this information legal.

Quite clearly there is a fudge between the divisions. For example, if one is listening to local radio and Act information comes over the airwaves, in one way it is solicited but one has the choice of changing channels or switching it off. That is not quite the same as a billboard that one has to pass every day on the way to work. Similarly if the advertisement is in The Irish Times and one does not like it one can choose to buy the Irish Independent or the Irish Press. It is [999] easy to see that that is a solicited information but it is not clear-cut in terms of definition in the broadcasting area. It would not be right to say that this was unsolicited information. It would create major difficulties to take Deputy Geoghegan-Quinn's amendments on board because Act information would come out in the context of a broadcast which would be illegal under section 4. This could not be sustained. The Deputy is right in saying that a Minister who would state it was up to the DPP to enforce it would be in a ludicrous position.

To reply to Deputy O'Dea's point, if you wander into a public meeting in a hotel, you have exercised a choice although it is not the same as buying a magazine. Whether one pays at the door is irrelevant. You maintain that choice if you stay inside while the Act information is being provided or you can exercise the choice to get up and walk out. No one is compelling you to stay. It is much better to have this position in section 3 because if it was in section 4 it would be a very strong intrusion on civil rights.

Information is being provided in three ways: one to one, and most Second Stage speeches concentrated on this. People voted in the referendum of 1992 for additionality, that is names and addresses, telephone numbers and perhaps fax numbers of clinics, principally in the United Kingdom. They can be advertised here in the same way as in the United Kingdom, provided the services are legal, truthful, objective and do not advocate abortion. Instead of censorship it is legislation which enables, for the first time, this information to be provided under Statutes and the necessary amendments are being made to the censorship Acts to bring this about.

Mr. M. McDowell: There was no personal animus in what I said this morning but I have a strong and passionate animus in relation to the Bill almost from cover to cover, with the exception of section 4.

[1000] It seems the Minister is arguing that section 3 does not introduce a new concept into law. He said before lunch — and he rocked me back on my heels when he told me that I should go off and check my sources, which I did — that it was an offence in any event to advocate abortion. when I looked at the censorship Acts, in particular the 1946 Act, I discovered it was not an offence to write a book that advocates abortion. The Censorship of Publications Board can prohibit a book written by me advocating abortion and in those circumstances when it is prohibited if somebody brings it into the country or sells it that becomes an offence. It is not, as I understand it, an offence for me to stand up at a public meeting and say: “I favour abortion” — which I do not in the sense I am using it but if a pro-choice person were to stand up at a public meeting, it is not an offence for that person to adovcate abortion in Ireland. Nor is it an offence for that person in the course of a speech advocating abortion to mention en passant — or frequently — what is termed Act information. Therefore, I have come to the conclusion that this is the first occasion on which it will become an offence to advocate abortion orally at a public meeting and in the same speech to convey any Act information. That is my understanding of section 3 and I do not regard it, as the Minister seems to do, as an enabling section to make something which was otherwise a crime not a crime. I believe the opposite applies, that it is not an offence to make a general speech in favour of abortion.

Looking at the 1861 Act in that context, it might be an offence to aid and abet, to counsel or procure a particular act of abortion but it would not be an offence under the 1861 Act to state that you generally favour abortion in certain circumstances and in that context to impart Act information. If somebody held the view that all rape victims should have a right to abortion, that person could stand up at a public meeting and say so. That would not be an [1001] offence under any statute I know of. If that person in the course of the speech were to recite the names of ten abortion clinics in London where the service in question could be availed of, it would not, as the law stands, be an offence because it would not amount to an incitement to a particular person to have an abortion. To advocate something in general does not amount to incitement to a particular offence.

We are dealing with freedom of expression. People are entitled to have different views on the question of abortion and to make speeches at public meetings on it. I do not see any reason for convicting them of a criminal offence because, in the course of a speech advocating abortion to a group, perhaps none of whom is pregnant or is ever likely to want an abortion, they imparted Act information.

My second point relates to newspapers and periodicals. If there is an article in “Cosmopolitan” advocating abortion, under the Censorship of Publications Act, 1946 that periodical can be referred to the board who can decide whether to ban the magazine for six months or a year. However, it is not obliged to do so. The same applies to a newspaper. It is not necessary to criminalise someone in Ireland who sells “Cosmopolitan” which contains an article advocating abortion and also contains Act information nor is it necessary to do so in order to vindicate the right to life of the unborn.

Most Irish mothers-to-be are capable of deciding whether to proceed with their pregnancies. That they can pick up a copy of “Cosmopolitan” in their newsagents containing an article advocating abortion and telling them where to go for one, would not affect the vast majority of them. It comes down to a question of proportionality. Do we want want to criminalise an article which might affect one individual who happend to be undecided or do we want to say this is something which in all practicality we cannot do anything about? If “Cosmopolitan” runs such articles Irish [1002] people may read them. The simple commonsense approach to the issue is to say there will be Act information available and it will sometimes be accompanied, particularly in foreign publications, by material which might be seen as advocating abortion but, as a matter of practicality, we cannot criminalise its importation into Ireland.

That is a reasonable point and deserves consideration. If “Time Out” or some of these trendy magazines in England run a series on the issue do we want to criminalise the sale of these in Ireland? We do not. If one of the more exotic channels on ITN decides to interview someone who advocates abortion, for example, the director of the Marie Stopes Clinic or whoever and she gives details of the service offered, it is not the end of the world as far as the Irish are concerned. The unborn Irish are not put in danger by the fact that such material is available either in “Cosmopolitian” or on Channel 4.

Easons, a distributor in Ireland of English newspapers, withdrew The Guardian one day because of material it contained. It was afraid of being injuncted. I ask the Minister to distinguish between what is theoretical and practical. He will not save the life of one unborn child by criminalising the importation of magazines or television broadcasts.

If he believes television broadcasts are covered by a voluntary code of conduct, what is the point of having a provision in section 3 making it unlawful to publish “Act information” unless it is truthful, objective and not accompanied by any advocacy of abortion? What television station will that cover if not RTE? It will cover BBC or some other channel which is not bound by his voluntary code of conduct. I cannot see how it will have any practical effect.

Mr. L. Fitzgerald: We do not wish to be involved in censorship or injuncting people who sell magazines, once the general laws which are in operation are complied with. Deputy Geoghegan-Quinn addressed the deletion of the two [1003] lines partly in the context of the concern to have professionals available at public meetings where “Act information” is given. What is the Minister's response to that? The Minister stated that information should be truthful and objective in section 3. What does he means by “objective” and what are the criteria for determining the objectivity of a presentation?

Mr. Hilliard: A section in the Bill states that the medical person or agency must counsel the mother-to-be on why she should not have an abortion before they can give her the names and addresses of abortion clinics in England.

The Minister said a person can turn off the television or walk past an advertisement. There is no element of counselling in an advertisement. An innocent mother-to-be walking down the street wondering what she will or will not do about her predicament may read an advertisement on the side of the road and accept what it says as the proper advice. She may go ahead and have an abortion. There are laws governing advertising. Take cigarettes, for example. They must carry a Government health warning otherwise the advertisements break the law. There is no such curtailment on abortion advertisements.

Mr. Noonan (Limerick East): Sections 3 and 4 deal with “Act information” being provided to everyone who buys a newspaper or whatever. Section 5 is triggered when the information is sought by a pregnant woman. They are totally different situations. Deputy Hilliard asked if there was a section which compelled people to counsel in a particular direction. Under section 5, if a woman indicates to her doctor that she is pregnant and the topic of abortion is introduced he can opt out completely or he can decide to advise her on all the options. If she indicates she is pregnant to an organisation such as CURA there can be directive counselling if it is directed away from the [1004] option of abortion. Whoever the adviser is, he cannot advise towards the option of abortion but can give names and addresses. I have been criticised about this. Every newspaper one picks up states one can be directive one way but not the other way. The reason for that is the competing right to life. To allow advice to be directive towards abortion would, in many circumstances, unless it was a case along the lines argued by Deputy McDowell this morning, not vindicate the right to life of the unborn child. It is extremely difficult and a question of balancing conflicting rights.

It is argued that there is a hierarchy of rights. The right to life, for example, is higher up the ladder than the right to free speech but we cannot put the right to life of an unborn child and the right to life of the mother on a scale of rights because they both have a right to life. Article 40.3.3º did not attempt to adjudicate between them. It states “the right to life of the unborn and, with due regard to the equal right to life of the mother”. It puts them on the same level. The X case decided that in circumstances where there was a real and substantial risk to the life of the mother, the mother's right to life was superior to the right to life of the unborn child, so that the mother could have a termination in this jurisdiction. Apart from the light thrown on this issue by the X case, the difficulty is that we are not sure how a real and substantial risk to the life of the mother would be adjudicated on in any particular pregnancy. That was the fine line walked by the people who drafted the Bill in accordance with the policy outlined by the Government.

I am not making a political point, but I say to Deputy Michael McDowell that his colleagues, Deputy Molloy and Deputy O'Malley, in particular, who served on the sub-committee, faced the same difficulties because these sections are based on the heads which were agreed and forwarded by the Cabinet sub-committee, which consisted of Deputy O'Malley, Dr. John O'Connell and Mr. Pádraig Flynn. They arranged [1005] this framework so that there would be one-to-one information and unsolicited and solicited information. Later sections of the Bill were found necessary and those heads did not go to Government. The bulk of the framework of the Bill was based on those heads. There is no attempt to restrict freedom of speech, but there is a problem in how Act information arising from the 1992 amendment is regulated. The then Government in its wisdom said it would be regulated in this way; there would be solicited and unsolicited information and person-to-person information. Commitments were given in the Dáil to do it this way.

One could argue that radio and television should be left out completely. If I left radio and television out of section 3 completely, someone would argue that it should be inserted in section 4 or that it might be caught by the provisions of section 4. I am putting it in section 3 in the knowledge that it will be covered by the broadcasting code, but conscious of the fact that there will be general discussions on abortion on radio and television where Act information would be given either inadvertently or advertently. I do not want to prohibit such discussion and I do not want the rúille búille which would start if someone said there was a major transgression of section 4 on Marian Finucane's show. I do not want such hassle and that is why I am doing it this way. I am walking a fine line and I will not accept these amendments because these provisions are better where they are.

Mrs. Geoghegan-Quinn: As the Minister clearly outlined why they should be left where they are, I will withdraw the amendments.

Amendment, by leave, withdrawn.

Amendment Nos. 5 and 6 not moved.

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

Miss Flaherty: I have spent time trying to consider the conditions covering [1006] the lawfulness of publishing and procuring the publication of Act information. This is a complex area. The Minister has indicated his desire not to over-restrict but to insert radio and television in section 3 rather than section 4. When commenting on earlier amendments, the Minister indicated he was trying to deal with the additional information allowed as a result of the 1992 amendment. He said that general information was allowed before 1992.

People do not want books withdrawn from libraries or pages taken out of magazines. Is the Minister confident that this section will not create those situations again? The people made a clear decision in 1992 that they did not want to go into libraries and find they could not read certain books. We do not want to rule out more papers, magazines and television programmes. Everyone would agree that these areas, which are covered in section 4, are inappropriate. Can the Minister reassure me that this will not become a picking ground for the pro-life groups who have shown their assiduity and interest in pursuing individuals, publications and groups? Will the Minister ensure that we will not open these doors again and call into question publications and television programmes as sources of information in a way he does not anticipate, instead of dealing with this issue in a way which responds to the constitutional obligations arising from the 1992 amendment and the decision of the people?

Question put and declared carried.

SECTION 4.

Amendment No. 7 not moved.

Mrs. Geoghegan-Quinn: I move amendment No. 8:

In page 5, between lines 26 and 27, to insert the following subsection:

“(2) It shall not be lawful for any person to distribute any document to which this section applies.”.

[1007] Perhaps the Minister can assist me in this matter. In section 4 the Minister is outlawing the notice “displayed in or at a place to which the public have access” whether through paying a fee or free of charge. He is saying, too, that free leaflets, magazines and pamphlets we get through our doors or which are given to us on the street are illegal. However he is not addressing the person who might deliver the items he is now making illegal.

In another issue he and I were involved with in previous incarnations, not only was the material illegal but the person who distributed that material was breaking the law. Perhaps the Minister could explain whether the amendment I am putting forward is necessary; if it is will he accept it. If his advice is it is not necessary, perhaps he would share that advice with us.

Mr. Noonan (Limerick East): The section as drafted makes it unlawful for a person to publish documents. I am advised the word “publish” in its legal sense would include the distribution of documents. To include a prohibition on distribution as well as publication would therefore not be necessary.

However, because section 3 uses the word “distribute” there is an inconsistency in the terminology of the two sections. I accept Deputy Geoghegan-Quinn's point and will bring forward an amendment on Report Stage which will explicitly include distribution as well as publication in this section also, so the issue will be put beyond doubt.

Amendment, by leave, withdrawn.

Section 4 agreed to.

SECTION 5.

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

Mr. M. McDowell: I do not want to rehash our discussion this morning and I accept the Minister's stated intention [1008] to consult the Attorney General again as to whether the facts and the law arising from the X case are adequately reflected in this Bill. I am trenchantly of the view that is not so and that this Bill, in so far as it attempts to ignore the finding of the Supreme Court in the X case, is unconstitutional. I am not worried about section 5 (b) but I am concerned with section 5 (a), which reads:

Where a person to whom section 5 applies is requested, by or on behalf of an individual woman who indicates or on whose behalf it is indicated that she is or may be pregnant, to give information, advice or counselling in relation to her particular circumstances having regard to the fact that it is indicated by or on her behalf that she is or may be pregnant——

(a) it shall not be lawful for the person or the employer or principal of the person to advocate or promote the termination of pregnancy to the woman or to any person on her behalf,

That brings us to the same question I raised this morning. If a woman goes to a doctor in circumstances where she is entitled lawfully to have an abortion, section 5 (a) directly prohibits a doctor from advising her to avail of her constitutional rights to have an abortion in those limited circumstances. Without raking over the coals of this morning, I reiterate as strongly as I can, my utter conviction that any Bill which attempts to prohibit a doctor from advocating to a patient in those circumstances that she should do what she is lawfully entitled to do to preserve her own life is manifestly unconstitutional.

Mr. Noonan (Limerick East): If the position were as Deputy McDowell puts it his view would be correct but that is not the case. We cannot take the matter further than we did this morning except to say that in putting together the Bill and assessing its constitutionality, the [1009] Attorney General retained eminent senior counsel.

Arising from commitments this morning I have made arrangements through my civil servants that copies of the “blacks” of this morning's debate be sent to that senior counsel. I understand he is in possession of them now and will examine them. I have asked for a briefing note which I can communicate to the House tomorrow morning. I understand his view is still the same but I will at least be in a position to give it.

I have asked him to reconsider the position this afternoon in light of this morning's debate and everything said then, especially the contributions of Deputies McDowell and Shatter. If Deputy McDowell accepts that, I see no point reciting general arguments when the point being put forward is quite precise.

Mr. M. McDowell: I appreciate what the Minister has said and I ask that the “blacks” of my contribution on this section also be shown to the senior counsel. My contribution was succinct, short and dealt with section 5 (a), which encapsulates the whole issue in the simplest and least emotive terms and is the kernel of the matter. I hope the eminent senior counsel sees this contribution also and I would be surprised if he believes it is lawful to prohibit any medical practitioner from advising a patient who seeks his advice to do what she is lawfully entitled to do to save her life.

Mr. Noonan (Limerick East): Eminent senior counsel is not saying that; he is just saying the provisions of the Bill do not require a medical practitioner to do that.

Mr. M. McDowell: I want to be clear about this. In the Minister's understanding, when a medical practitioner is consulted by a woman who believes and who he believes falls within the rubric of the X case, is it lawful for him to give her solid advice to the effect that she [1010] ought to have an abortion, if she asks his opinon on the subject?

Mr. Noonan (Limerick East): I think I have been quite forthcoming on this matter. I have communicated to the House that the advice I am receiving is that the Bill is constitutional. I will give further information to the House in the morning as soon as the precise questions raised by Deputy McDowell are answered and I am put in possession of the information he has requested.

Question put and declared carried.

SECTION 6.

An Ceann Comhairle: Amendments No. 9 and No. 14 are related and may be discussed together. Is that agreed? Agreed.

Mr. Noonan (Limerick East): I move amendment No. 9:

In page 6, lines 12 and 13, to delete “section 5 (1)” and substitute “section 5”.

This is a technical amendment to rectify a misprint.

Amendment agreed to.

Mr. Noonan (Limerick East): I move amendment No. 10:

In page 6, paragraph (a), lines 15 to 17, to delete “has an interest, direct or indirect, in any body which provides outside the State for the termination of pregnancies” and substitute “provides services outside the State for the termination of pregnancies or has an interest, direct or indirect, in any body which provides such services”.

The overall purpose of section 6 is to preclude financial links between the person or agency giving Act information and any person or agency providing an abortion service. Further consideration of the draft by the Office of the [1011] Attorney General led to the conclusion that this amendment is necessary to ensure the section deals with a situation where an agency providing abortion service might itself be involved in giving, Act information in Ireland.

Amendment put and declared carried.

Question proposed: “That section 6, as amended, stand part of the Bill.”

Ms O'Donnell: I oppose this section and I will argue that section 6 contains provisions which are in direct conflict with EU law. It provides, in effect, that no person or body who has any interest, direct or indirect, in any body which provides abortion services abroad may give abortion information to a woman.

In the case of SPUC v. Grogan the European Court of Justice ruled on the validity of the injunction having regard to the provisions of the Treaty of Rome. The High Court in Ireland had referred the question under Article 177 of the Treaty. The question asked in the reference was whether legal abortion constituted a service within Article 60 of the Treaty and whether it was lawful for the State to prohibit the distribution of information in relation to persons providing the service of abortion in other member states. The court held that legal abortion constituted a service but that since the students in question had no economic links with the abortion clinics in England and the clinics were not involved in the distribution of information the Irish prohibition on abortion information was not unlawful. That case is directly relevant to this section because the section files in the face of the decision of the European Court of Justice.

The logical corollary of the finding of the European Court of Justice in the Grogan case is that if the clinics had such an involvement or if such an economic link existed with the distributors of the information the injunctions would not have been lawful. This section [1012] specifically targets an economic link or a financial or other interest between the information provider and the service provider and makes that unlawful. It files in the face of the European Court decision in the Grogan case. It is also specifically aimed at the Irish Family Planning Association, the Well Woman Clinic and Open Door. It appears to be almost vindictive in that it targets those organisations which are providing the service at present. Even if the injunction is lifted when the Well Woman and Open Door case comes to court, this section will slam the lid down again. If this section passes we are on an inevitable journey back to the European Court of Justice.

Section 7 of the Bill is also probably contrary to EU law but we have no objection to it since it would be repugnant if abortion referral were to become a business.

An Ceann Comhairle: The Deputy might wait until we come to section 7.

Ms O'Donnell: Yes. It relates to the argument I am making. At present the Irish Family Planning Association is a charity. It has a link with the British Pregnancy Advisory Service. That link has existed since 1992. The association has been referring Irish women for assessment to the British Pregnancy Advisory Service for the past two years. This section is targeted at a charitable organisation which has been providing comprehensive family planning services and non-directive comprehensive counselling services for Irish women, the former services for the last 20 years and the latter services for the last two years.

The section is particularly vindictive. I tried to see how an organisation such as the Irish Family Planning Association could be excluded from its provisions. I considered accepting section 6 if it excluded a charitable organisation. However, the terms of section 6 refer not only to an economic link but to any interest, indirect or otherwise. I could not, therefore, put down an amendment to this section without colluding in the [1013] flaw that is part and parcel of the section. I came to the conclusion that the only way I could address my objections to the section and to the fact that it flies in the face of European Union law in relation to the free movement of services between members states was to propose the deletion of the section.

Mrs. Geoghegan-Quinn: Taking Deputy O'Donnell's argument into account, could the Minister give us the Attorney General's advice on this section? It would be important and would clarify Deputy O'Donnell's argument. I support her in asking for that clarification even though I am aware that she will vote against the section. Perhaps the Attorney General's advice would clarify whether she has to vote against the section. There is a view that this section might conflict with European Union treaties relating to the freedom of establishment and the freedom to provide services, particularly Article 58 and, perhaps, Articles 52 and 59. It would be helpful if we could have the Attorney General's advice. It would be nonsense to include this section in the Bill in the absolute knowledge that it will be found to be in contravention of the Treaty.

Mr. Noonan (Limerick East): I will give the Attorney General's advice as I have it. The main purpose of the Bill is to impose conditions on the freedom to obtain or make available in the State information relating to abortion services lawfully available in other states, which freedom is provided for by the 1992 constitutional amendment. There is a common agreement that that is the position. The amendment gives the State the right to impose such conditions because that is included in the text of the amendment. The Bill also provides for restrictions in section 8 in the making of abortion appointments and the making of arrangements from this country.

In the case C159/90 SPUC v. Grogan on 4 October 1991 the European Court [1014] of Justice ruled that a medical termination of pregnancy performed in accordance with the law of the state in which it is carried out constitutes a service within the meaning of the EC treaty provisions on freedom to provide services in the Community. In accordance with other European Court decisions this means, on the face of it, that women in one member state are entitled to go to another member state and have an abortion in that member state, that she is entitled to obtain in her own country such information as she requires for this purpose and that the Government and Legislature of her own country may not lawfully prevent her from doing this. However, the European Court of Justice has laid down in various judgements over the years that member states retain under the EC treaty a right to impose appropriate restrictions on freedom to provide and avail of services where this is justified in the public interest.

In order to benefit from this exception the national legislation in question must be designed to protect the public interest in a manner which would be recognised as legitimate by European Community law, must be appropriate for this purpose and must be unduly or unnecessarily restrictive. Even though Article 40.3.3 of the Constitution in its original form has been amended by the 1992 referenda in so far as it concerns travel and information, it is considered that the legitimacy in European Union law of the pro-life ethic of the Irish Constitution will still be recognised by the European Court and that restrictions on giving of abortion information of the kind contained in the Bill and restrictions on abortion appointments and making of arrangements, etc. for which the Bill provides would be accepted by the European Court as legitimate and reasonable.

This derives support not only from the opinion of the Advocate General in the Grogan case in which the position of Article 40.3.3º in its original form in relation to EU law was fully analysed, but also from Protocol No. 17 to the Maastricht Treaty as interpreted by the [1015] subsequent Solemn Declaration adopted by the member states.

It goes on to say that if this was challenged, the opening position might be that under Articles 59 and 60 of the Treaty of Rome it might not be seen as a service in the accepted sense because the EU in the first instance is a common market. If there was not a protectionist effect on commercial interests then the idea of a service might not come under the provisions of Articles 59 and 60. I am not over stressing that but mentioning it as another nugget of information. The position in ordinary terms is that, on the face of it, the termination of a pregnancy is a commercial service within EU law and a citizen in one member state is entitled to avail of a service in another member state. Consequently, a woman is entitled to avail of a termination of pregnancy in the UK, if that is the net point.

However, these rights can be restricted in the interests of public policy. If it is the public policy of the Republic of Ireland that the right to life of the unborn would be protected under Article 40.3.3º — although that would be somewhat restricted by the amendments made in 1992 — that statement of public policy, in the context of the pro-life ethic of the Irish Constitution, would be a defence which would be accepted by the European courts. There would be no compulsion on the Government to not implement or strike down these provisions. This is reinforced by Protocal No. 17 to the Maastricht Treaty as subsequently interpreted by the Solemn Declaration adopted by the member states.

That is the case for, and I am quite aware that it is possible to state a case against, but that is what lawyers are for.

Mrs. Geoghegan-Quinn: That is why they are wealthy and we are not.

Mr. Noonan (Limerick East): I think everybody is agreed that there are various parts of this Bill, as in any other Bill, which could be challenged either at [1016] home or abroad. However, that is the run of the Advocate General's advice, as requested.

Mr. M. McDowell: Arising out of that, it is noteworthy that Protocol No. 17 to the Maastricht Treaty provides that “Nothing in the Treaty on European Union or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3º of the Constitution of Ireland”. The Solemn Declaration, to which the Minister referred, states in part that:

The high contracting parties give the following legal interpretation: that it was and is their intention that the Protocol shall not limit freedom either to travel between member states or, in accordance with conditions which may be laid down in conformity with Community law by Irish legislation, to obtain or make available in Ireland information relating to services lawfully available in member states.

The crux issue is whether it is in conformity with Community law to prohibit any body engaged in the provision of termination facilities outside the State to be in any way involved in the counselling process within the State. It is hard at this stage to imagine which principles of EU law would have to be conformed with in that case.

It strikes me that if the students in the Grogan case were denied relief by the European Court of Justice precisely because they had no financial connection with the clinic whose services they were advertising, it seems that, at any rate, there is some kind of prima facie implication that if there were such a link the Grogan case might have been decided differently. If that is the case, there is an obvious danger that the European Court of Justice will become involved in this.

I agree with the Minister that one could put money on either side of the [1017] argument. However, it is relevant to note that whatever principle of law we establish to delimit freedom of information must be consonant with EU law. The only principle which we have laid down in sections 6 and 7 is that the bodies in question must have no direct or indirect connection with a body which is perfectly lawful in the UK, for example.

It seems, on the face of it, that there is a strong argument to be made that the principles of EU law would not differentiate between bodies which provide services outside the State for the termination of pregnancies and bodies which might do so inside the State where the termination was lawful. The European Court of Justice would frown on a distinction which solely centred around the location of the body's activities and which failed to make a similar prohibition on a body in Ireland offering a legal termination service in Ireland to a woman who was entitled under the Constitution to have her pregnancy terminated for the reasons set out in the X case.

I note what the Minister said but there is a strong argument that the present wording of sections 6 and 7 is discriminatory in a way which is prohibited by EU law because it is based entirely on the domicile, as it were, of the service and nothing else.

Mr. Noonan (Limerick East): Deputy O'Donnell mentioned that this might be aimed at the Irish Family Planning Association or the Well Woman Centre but that is not so. The Deputy recognised that it would not be appropriate if a business should be generated here in abortion referral. The sole purpose of this and the subsequent sections is to ensure that there is not a business between an advice agency in Ireland and a termination centre in England where monetary benefit would derive from the number of referrals to the clinic. That is the net——

Mr. M. McDowell: Nobody is suggesting that.

[1018] Ms O'Donnell: I agree with that but the IFPA does not make money, it is a charitable organisation.

Mr. Noonan (Limerick East): I know, but if it has no monetary link then it is not a service under the terms of the Grogan case, so it is caught again.

An Ceann Comhairle: Is the question agreed?

Ms O'Donnell: No.

Question put and declared carried.

NEW SECTIONS.

Mrs. Geoghegan-Quinn: I move amendment No. 11:

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

7.—Nothing in this Act shall be construed as obliging any person to take part in the provision of any service or the giving of any information, or the sale or importation into the State or display of any article, which entails the supply of Act information.”.

In moving this amendment, I am conscious that the Minister said the opt out clause, or the scope for conscientious objection, has already been implicitly included in the Bill. However, I have received considerable representations from members of the medical profession who are concerned that in the Health (Amendment) (Family Planning) Act, 1979 we were prepared explicitly to provide a conscientious objection clause in a section of the legislation. It needs to be explicitly stated in this Bill. The Minister said at the conclusion of Second Stage that he would look favourably on such an amendment. I hope he is prepared to accept this amendment.

Dr. O'Hanlon: I support my colleague, Deputy Geoghegan-Quinn, in [1019] requesting the Minister to insert a conscience or opt out clause in the Bill. As the Deputy said, there is concern among professionals, particularly medical professionals. Recently, in an article in The Irish Times, Mr. Kieran Conway reported on a new book, Irish Medical Law. One of the points he made was that in the continuing absence of legislation, should a doctor decline a termination in circumstances analogous to the X case, he could well be liable for any ill effects arising during the pregnancy.

This would be a matter of concern to all doctors and, in my capacity as a doctor, I am concerned that there is not a conscience clause in the Bill. I accept the Minister told the House that there was no need for such a clause, but that is not sufficient. If a doctor were to refuse to advise a woman or provide names and addresses, he could find himself in difficulty. If an action were taken against the doctor, no one knows what exact result would emerge.

Last week, I cited a letter from a young lady GP. She has just returned from working in England and is working in this country. She referred to the fact that there is an opt out clause in the British abortion Act and that her position was always respected. She stated in the letter that she hoped this would be incorporated into Irish law, so that GPs would not be coerced into information referral. This morning, I received a letter from a consultant obstetrician. Obviously, this type of consultant would be involved in the main under the terms of the Bill. In the first paragraph he states:

I am concerned that should the proposed legislation re: abortion information be passed, that members of the medical profession would be coerced to act against their conscience in the long term and even in the short term.

It is obvious there is a widespread view among a large section of the medical profession that there should be a section in the Bill which would allow them to [1020] opt out if they have a conscientious objection. I also point out to the Minister the position of other professionals involved in counselling who might have a conscientious objection. Staff working with a doctor, for example, a secretary or a nurse in a GP's surgery, might not want to give out the names and addresses of abortion clinics in Britain if a doctor had these on a printed list. They might have a conscientious objection to handling that type of information. This is legitimate because there are people in the country who are conscientious objectors. We must respect their views. As a doctor, I have a conscientious objection to giving a woman any advice which would assist her in having an abortion. I have that problem and I admit it.

My colleague, Deputy Geoghegan-Quinn, referred to the fact that a conscience clause was inserted in the 1979 Act. This Act dealt with family planning, which we all support, and section 11 recognises conscientious objections by anybody who would be involved in the provision of such a service. People have the right in law to opt out and this is explicitly stated in the Act. It is even more important that this is explicitly stated in this legislation.

Section 4 of the British abortion Act of 1967 is explicit in providing for conscientious objections. Section 4 states:

Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection.

It goes on to state that in the event of any legal proceeding the burden of proof of conscientious objection shall rest on the person claiming to rely on it. If somebody has a conscientious objection, this should be provided for explicitly in the Bill. The Minister stated that in his view there was nothing in the Bill which would oblige a professional to participate in implementing the Bill in any way. However, it is necessary to [1021] insert a conscience clause, which would not change the Bill in any way. This would satisfy professionals, who have a problem and a conscientious objection. It would satisfy them if it were explicit in the Bill that they would not be liable to litigation proceedings if they refused to provide information or names and addresses of abortion clinics to any person who might request them.

Ms O'Donnell: I am interested in the comments made about the amendment and the reasons for it. There may be a necessity to state positively in the Bill that no doctor should be forced to become involved in non-directive counselling against his or her conscience, although nowhere in the Bill is any doctor required to become so involved.

However, as the previous speaker mentioned, a case could arise in an employment situation, for example, where a young doctor is employed by a big practice. It may be usual in that practice to provide such non-directive counselling and the young doctor may feel in conscience that he does not want to become involved in that type of counselling or advice. As a result of a refusal to become involved, on the grounds of conscience, such a doctor may be demoted or dismissed.

There may be a case to provide protection for such a doctor because he would perhaps be unfairly dimissed if, by virtue of his conscience, he decided he could not become involved in such a service. The Bill does not force anybody in this regard but there is a case to be made. It would not harm the Bill to provide a positive statement on the right to conscientiously object.

Another possibility arises in that a girl or a woman might go to a surgery and request counselling or seek the advice of a doctor. If the doctor had a conscientious objection to this service, he or she might say: “I do not deal with that type of work. I am in conscience saying that I cannot give that advice or even discuss this whole area of abortion”. If that woman, in despair, committed suicide as a result of being rejected by the doctor's [1022] surgery, the doctor might seek protection from any liability under the Bill for personal injury or death arising from his refusal to give such abortion information counselling. For that reason, to safeguard those doctors who have a concern and in conscience feel that they should not be obliged and should have some specific protection enshrined in this Bill, there is a case to be made for the insertion of such an amendment.

Mr. O'Dea: I support Deputy Geoghegan-Quinn's amendment. I also support what both the Deputy and Deputy O'Hanlon have said. The Minister has said that this is already implicit in the legislation. I take it from that that he agrees with it, otherwise he would have changed the legislation so that it was no longer implicit. If that is the case, it would be safer to spell it out explicitly. As Deputy O'Hanlon and Deputy Geoghegan-Quinn said, it is already contained in the 1979 Act dealing with family planning.

Some doctors have made representations to me stating their concern about the question of civil liability if they refuse to give the requisite counselling and the woman's health or life is affected. That is not an academic point but a genuine concern. There are a number of genuine people who are seriously worried about the lack of an explicit conscience clause in this legislation. Deputy O'Donnell has rightly raised the case of the consequences for the employment of somebody who objects to this in conscience and is employed in a practice where it is usually carried out.

No damage would be done to the Bill if this amendment was accepted. The Minister says that it is already implicit in the Bill, which means that he agrees with it. Since this is the case, it would be better, safer and more reassuring to those who have genuine concerns in this area to spell it out explicity.

Mr. D. Ahern: I support this amendment and I concur with the points made by Deputy Geoghegan-Quinn and Deputy O'Hanlon. I also agree with the [1023] last case Deputy O'Donnell cited. It could easily happen that if a girl, in desperation, went to a doctor and that doctor felt he was not able because of his objection in this area to discuss this subject, it would be extremely detrimental for that doctor if anything unfortunate was to happen to that girl. Some protection should be given to them. While I accept the Minister's statement that it is implicit in the legislation, it would be far better to make it explicit so that at least those people who have a conscientious objection would know that they are protected under this legislation in regard to any unfortunate situations that might occur as a result of their objections to the implementation of this legislation.

I exhort the Minister to take this amendment on board. I know the Minister has, in various statements before in this House, indicated that he would not be adverse to this type of amendment. I urge him to look positively at it.

Mr. M. McDowell: I agree with all that I have heard up to now. It struck me that there was nothing in the Bill which could possibly be pointed to as conferring an obligation on somebody to impart Act information to another person in defiance of that person's own wishes. After listening to Deputy O'Donnell's points on the possibility of a doctor being employed by another doctor and being told that “That is the routine in this practice. You must do it and if you do not do it in my practice, you can pack your bags now and go”, it suddenly occurred to me that by making this lawful, it might be argued that it was lawful for the owner of a medical practice to direct his subordinate doctors to furnish Act information and that it would be a breach of their contract with him to disobey his instructions in this matter.

It also goes wider than that. What about people who do not print material of this kind? Is anybody obliged to take material from other people? Is a newspaper obliged to take an advertisement [1024] for which it is precontracted? Can it say no when it sees the actual substance of the advertisement? Are print workers obliged to print cards for this kind of material against their conscience?

It might be better to adopt the phraseology that Deputy O'Hanlon was using and establish that no person is under any duty, in any circumstances or walk of life, to provide or participate on the provision of Act information against their lawful conscience. It could possibly cover a wider range than doctors; it could well include people like receptionists, print workers, newspaper providers, newsagents or others. If we make exceptions for medical practitioners, which, as Deputy O'Donnell's example show, is not a fanciful exception, perhaps this protection should generally apply across the community. Since we know from this debate that there are people with deep feelings on this issue, no Irish citizen should be under any duty to participate, either contractually or otherwise, in the dissemination of Act information to any other person.

Mrs. Geoghegan-Quinn: I would not like it to be taken, from what Deputy McDowell said, that we were in any way trying to confine that opt out clause to medical people. We are leaving this provision as wide as possible to include anybody who might have a conscientious objection to taking part in the provision of any such information.

Mr. M. McDowell: It does not have to be a provision in the Act, it might be a direction from an employer to “Do this, hand out this card etc.”. The Act may not create any obligation — the Minister will probably say this — but one might well have somebody conducting a business, a practice, a printing concern or journal who would direct their employees to put such information into a publication. The Act may not require the person to do it, but the employer's instruction may. The Minister should think positively along the lines of Deputy Geoghegan-Quinn's provision saying that somebody is never obliged, as a matter of contract or other [1025] law, to participate in the provision of Act information.

Mr. D. Ahern: From what Deputy McDowell said, it also strikes me that if there was an advertisement being aired by RTE or any of the radio stations as a result of this Act, some people within those organisations might have an objection to it. It could even cause difficulties in an organisation like RTE. I accept the Minister's statement that the section is not only restricted to doctors, but we have to be conscious — the Minister may have something to say on it when replying — in regard to the extension of this provision, not only to doctors, counsellors and those involved in printing but also to the publication of information of this sort on television or radio which could cause difficulties for those working there.

The Minister referred to advertising and the code of practice RTE has as regards the material it can put on air. There could be difficulties within an organisation as big as RTE and some of the national radio stations in regard to the publication under this Act.

Mr. Noonan (Limerick East): This is not the only law that will be on the Statute Book; we cannot do everything in it. If it is widened too far and goes outside the scope of persons under the Act, we may be opening up a whole new front. What would happen if a printer and his employees, for example, were intimidated by one of the extremist organisation to exercise a conscience clause under the Act? This is a new issue brought up by Deputy McDowell which has widened this. I will think about it overnight and take advice.

On the issue raised by Deputy Geoghegan-Quinn's amendment, as everybody who contributed said, there is no compellability in the Bill to give Act information. It stands to reason that if a doctor has a conscientious objection to giving Act information he could not be compelled to do so. This is [1026] more evident in the case of organisations like CURA or LIFE. It would be ludicrous to compel counsellors, for example, in CURA to give Act information, names and addresses of abortion clinics in the UK, when the nature of its activities is the exact opposite. Everybody agrees with that. This has become an issue because of the discussion and I see merit in providing an explicit provision so the Bill will be more easily understood and people will not be burdened with the notion that they might have an obligation which in conscience they cannot fulfil.

I reject the suggestion that a conscience clause should be enshrined to enable doctors to opt out of their constitutional obligations to give medical records or notes of medical records to women going abroad. That is a constitutional entitlement of a patient. In this case, it would run from the travel amendment, the information amendment and the unenumerated right to bodily integrity. There are no circumstances in which I would entertain that type of opt clause as it would not be constitutional.

The form of words proposed by Deputy Geoghegan-Quinn were used in the 1979 Health (Family Planning) Act. I am disposed towards the principle of the amendment. I will either come back tomorrow on Report Stage with the same form of words as those proposed by Deputy Geoghegan-Quinn or an alternative form of words which achieve the same end on the advice of the parliamentary draftsman and the Attorney General's office.

Ms O'Donnell: In the example put forward by me where a woman in desperation went to a doctor who in conscience found he could not involve himself in non directive counselling or any counselling on abortion and she then committed suicide or damaged herself, we seemed to be concerned about the doctor, but it would be a tragedy for the woman if that happened because of the refusal of the doctor to treat her. When the Minister is looking at this perhaps [1027] he might consider placing an onus on a doctor who has a conscientious objection to giving counselling so that he will have a corollary duty to refer the woman to another doctor rather than saying he will not give information because of the conscience clause. As a doctor he has a duty to see that she is directed to another doctor who may not have a conscientious objection. That should be noted otherwise the assumption might be that we are more worried about the doctor than the distraught woman.

Dr. O'Hanlon: I agree with the Minister that a patient has a right to medical records. As I said on Second Stage, I have no problem with the provision of medical records for a patient. It would be wrong and unfair to oblige a doctor with a conscientious objection to refer the patient to another doctor as the conscientious objection is to assisting a person in any way to procure an abortion. If a person has a conscientious objection, it must be respected and he is right not to participate in any way. A doctor in a practice who would not assist a person, but would send her to doctor A or B for assistance would probably been seen as hypocritical. One must have the right not to participate in something which in conscience one believes one should not do.

Mr. Noonan (Limerick East): I would draw the attention of the House and, in particular Deputy O'Hanlon, to the Guide to Ethical Conduct 1994 produced by the Medical Council which deals with this issue. In paragraph 45.03 it categorically states that if a doctor has a conscientious objection to a given line of treatment, he or she must refer the patient to an appropriate colleague. It also states that treatment must never be refused on the ground of moral disapproval of the patients behaviour.

Ms O'Donnell: That is reassuring.

Mr. Noonan (Limerick East): We should leave it to doctors to control [1028] their own ethical behaviour by way of the code of conduct.

Mrs. Geoghegan-Quinn: On the basis of the Minister's commitment to look at this and use this form of words or another, I withdraw the amendment.

Dr. O'Hanlon: I agree with the point raised by the Minister that there is an obligation on a doctor to refer a patient to another doctor where treatment is necessary but where he has a conscientious objection to giving it. Where a doctor does not believe referral to a doctor who would assist in procuring an abortion is necessary, he should not be obliged to make that referral.

Amendment, by leave, withdrawn.

Mrs. Geoghegan-Quinn: I move amendment No. 12:

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

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

(b) The records referred to in paragraph (a) shall include

(i) the numbers,

(ii) the ages, and

(iii) the social circumstances,

of, and the option selected by, persons to whom such records relate and such other information as the Minister may require.

(c) The records required to be kept pursuant to paragraph (a) shall not include the name or address of any individual woman to which they relate and shall be otherwise prepared and maintained so as to preserve the identity and privacy of individual women.

(2) Records prepared and maintained pursuant to subsection (1) shall [1029] be made available on request to the Minister in such manner as he shall require.

(3) The Minister shall, having regard to the records made available to him pursuant to this section and having undertaken such research as he considers necessary in view of the information contained therein, investigate the circumstances surrounding the termination of pregnancies and the effects thereof.

(4) Subject to subsection (3), the Minister shall 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 numbers of women seeking, or availing of, services for the termination of pregnancy.

(5) 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.

(6) In this section “the Minister” means the Minister for Health.

Will my amendment No. 13 meet the same fate as Deputy O'Donnell's amendment No. 3?

An Leas-Cheann Comhairle: Amendment No. 13 is deemed out of order as it involves a potential charge on the Revenue.

Mrs. Geoghegan-Quinn: I will not argue with you, but I fail to see how either Deputy O'Donnell's amendment or mine places an extra charge on the Exchequer. Amendment No. 12 appears long and complicated because it is trying to achieve what Members on both sides of the House, those pro and anti the Bill, said on research, education, comprehensive family planning services and counselling. No statutory effect is given to them in the Bill.

[1030] I appreciate that the Minister favours doing this and he seemed to indicate on Second Stage that he would include this in future legislation. Like other Members, I am concerned about the number of women who find it necessary to go abroad to have abortions. We do not have exact numbers or data on this and we do little research at Government or Departmental level in this regard.

I spoke to pro choice organisations which have limited data available which they have no difficulty in providing to the Minister and his Department should he request it. They are willing to co-operate in any research or education which the Minister might propose. Like us all, they believe it necessary to educate men and women at an early age through the stay safe programme in schools, a sex education programme and at a later stage the provision of a comprehensive family planning service. These are vitally important if, as we all wish, the number of Irish women going abroad for terminations is to to be reduced.

In framing this amendment I have been careful to stay away from the invasion of privacy of individual women. It is important not to turn away even the small number of women who go to various agencies or to members of the medical profession for counselling We must encourage more and more because, as the Minister said in answer to a parliamentary question tabled by Deputy O'Donnell, only a tiny minority of the 4,000 women who went abroad last year for terminations had any counselling beforehand.

We know from the agencies that those who have counselling often opt to continue the pregnancy and keep the baby or give the baby up for adoption. We want to encourage that. We want to make all of the information available and ensure that it is easily accessible to all the women.

At the same time, we want to ensure that the data which can be collected and made available to the Department leads the Department and the Minister to conduct research into the reasons [1031] women opt for termination. In turn, the results of that research would, I hope, help the Minister in putting together guidelines for each of the health boards on comprehensive family planning services.

As Deputy O'Hanlon said, we are all in favour of comprehensive family planning services. However, because the provision of these services is not mandatory and are provided through the health boards they are different in virtually each health board area. One can get good comprehensive services which are easily accessible in urban areas but one cannot get the same access or the same comprehensive service in many rural areas.

In a reply to a parliamentary question last week the Minister indicated that many of the women who went abroad for terminations of pregnancies came from rural Ireland. There is a message in that for all of us. I feel strongly — I hope the Minister would agree — that it is only by the Department of Health and the Minister laying down specific guidelines on what is meant by comprehensive family planning services, with, of course, an input from the health boards, that we will get the comprehensive family planning service we all would like.

I hope State-sponsored and supported comprehensive counselling services will go hand in hand with a comprehensive family planning service. On Second Stage I said that many people have enough convictions but not enough data; that we are in the classic position of, “do not bother me with the facts because I have already made up my mind”. We need, above all, to know the facts on this issue. We are all agreed, whether we are pro-choice or pro-life, whether we want to give women directive or non-directive counselling, that what we want to see is a reduction in the number of women going abroad for terminations.

With regard to research I wish to make some specific points that may be helpful to the Minister and his officials.

[1032] There is a high prevalence of emotional trauma following abortion and in any research prior to the introduction of a State supported counselling service it is important to seek information on emotional trauma. Several aspects of the emotional complications women suffer post abortion have been identified by research experts. The most immediate reaction is one of grief. Most women describe distress for a few weeks similar to the normal grieving process after any loss.

Sitting suspended at 6.15 p.m. and resumed at 7 p.m.

Mrs. Geoghegan-Quinn: I had been talking about the research that needs to be undertaken into the emotional trauma suffered by women following abortion. I talked about the various aspects of the emotional complications, the most immediate reaction being one of grief, that most women manifest short-lived distress for a few weeks similar to the normal grieving process after any loss. All of us can identify with that emotion, all of us having suffered grief of one type or another because of the loss of a loved one, but anger is particularly prominent within this group, usually directed at the person who referred them for the abortion or who performed the operation.

The second aspect of the problem lies in coming to terms with the specific aspects of the pregnancy loss. These are uncommonly reported because, unfortunately, many women are afraid or are encouraged to ignore those feelings. Questions are raised by them in relation to all aspects such as what the baby might have looked like had they carried it to full term. I am told they often avoid passing baby shops, watching programmes on television related to babies and so on. I suppose those kinds of feelings tend to intensify at what would have been the normal time for delivery.

That brings me to the third and most serious aspect of post-abortion trauma. [1033] Follow-up studies are difficult to conduct on this group of women. As the Minister has said and as the various organisations involved have told us, up to 50 per cent of these women do not return for follow-up appointments. Therefore, the figures are the minimum rather than the maximum but approximately 10 per cent of women develop depressive disorders in the three months following an abortion — that is the minimum figure — very similar to the prevalence of post-natal depression which requires treatment, sometimes hospitalisation and which in some cases. may persist. In others the illness is precipitated by a subsequent pregnancy: indeed a prior abortion is one of the risk factors for depression in pregnancy.

All of us here would agree that women should have the information available to them in relation to all of these complications. A further reason for research into the psychological complications of abortion being made available is that Irish women, indeed many women, are vulnerable to serious psychiatric complications post-abortion. We do not have any of that type of information, data or research which would be helpful to the Minister or his Department in arranging for the provision of the information, on the comprehensive family planning services or in helping to formulate policy for the Minister's colleague in the Department of Education, either for inclusion in the stay safe programme or in its continuation into a comprehensive sex education programme in schools. I am aware that many people are very opposed to those programmes whereas I am strongly in favour of them. Perhaps, like the Minister, that comes from having been a former teacher, when we all discover during the course of that career, when we discuss aspects of sex education, very few children get the kind of basic information one would expect in their own homes. Sometimes I think parents have genuine difficulty in relating this kind of information to their children. Therefore, the school must act as a type of support system in providing [1034] this type of educational programme but, in order to do so, we must undertake research, investigate the background and have factual information in order to formulate the programmes.

When responding I hope the Minister will be able to indicate support for the proposition I am making in this amendment. Obviously I would be very anxious that it be incorporated either in the form, as drafted, or in a more concise form since we have now discovered that the Minister only can propose amendments that would place a cost on the Exchequer. If there is a more succinct way of expressing what we want — I imagine Deputy O'Donnell would agree with me — that is, incorporating research into education and the provision of the counselling, which has been ruled out of order, into this Bill, I would be in favour of doing it that way. If the Minister can put forward a very strong argument to justify why he cannot incorporate it in this Bill, explaining why, in some way, it may not be appropriate, I will have to listen to that argument very carefully but, as of now, I am very anxious that he accept my amendment.

Ms O'Donnell: I support this amendment. I contend that research in this area would constitute a key tool to enable policy-making be properly grounded. For example, it would be very useful had we adequate research carried out into the profile of Irish women, so many of whom travel to England for pregnancy termination, thus enabling us to target resources and policy making are particular groups. I believe that some of the studies referred to on Second Stage demonstrate that a little over half of the women involved are under 24 years of age. If would be useful if we could target specific age groups in our policy-making in regard to counselling services and post-termination counselling.

This amendment affords us an opportunity of looking at the women behind the statistics, the very high figures we have discussed. For example, within the [1035] ten years since the 1983 constitutional amendment was passed an average of 5,000 women per annum, giving a total for that period of 50,000, have had abortions, representing a large sector who may be listening to this debate or reading about it in the newspapers. It is very important that that sector and the issues seen from their perspective be addressed here in a very compassionate manner. Unfortunately, the debate has polarised and the old absolutes have been resurrected. Its important that their perspective and tragedy is addressed in this House and this amendment affords us that opportunity.

The Irish Family Planning Association carried out research on this subject and Catherine Conlon, who has an MA in women's studies, in her thesis profiled a sample of 231 women who attended the IFPA centre in Synge Street in the first 12 months of its pregnancy counselling service from October 1992. She profiled their background, their decision on whether to have an abortion, their acceptance of post-abortion medical care and their elective use of post-abortion counselling. I understand that is unique and valuable research. It related to the wellbeing of women following an abortion or, as Deputy Geoghegan-Quinn stated, their condition of “not being very well”, as is often the case.

Of the 231 women who sought pregnancy counselling, 193 chose abortion. The research provides an interesting breakdown of information under various headings including which part of the country they came from, their age profile and occupations. Of the 231 women six were at school, 31 at college, one was on a FÁS scheme, 18 were alone mothers and 41 were housewives. Those abortion figures reveal that it is not always the classic profile of a single young woman who has an abortion, the reality is that we must accept that many married women choose to have an abortion. The detailed analysis and breakdown of this category of 231 women is useful. The research also refers to the [1036] costs involved which vary from £100 to £500 and that is a factor we must address.

One of the key findings of that survey was the degree of isolation experienced by those women who travelled to Britain for an abortion. A total of 69, or 30 per cent of those surveyed, had not told anybody of their pregnancy and of that number 19 stated they had definitely decided not to tell anybody. The experience of those 69 women can only have been one of intense loneliness and isolation. Such information which could flow from research would be useful to Members and to the Minister and officials in his Department when targeting resources and trying to reduce the number of women who decide to make that terrible choice. Many women do not express regret following an abortion, but I am sure all women who have one have a sense of regret. Some recover more easily than others because of their personalities.

Of the women surveyed, 75, or 38 per cent returned to the IFPA for counselling. That figure emphasises that where pregnant women are exposed to a sympathetic environment at the start of their pregnancy and offered continuity of care they will opt to return to where they were counselled for medical and psychological aftercare. For that reason I warmly welcome this amendment and I encourage the Minister to respond to it generously.

As the Minister ruled out the suggestion by Deputy Geoghegan-Quinn and I that counselling, contraception and general family planning services should be provided on a statutory basis on the basis that that would place a charge on the Exchequer, I hope the Minister will address this issue. In his Second Stage speech the Minister indicated that he had allocated £200,000 to improve such services and I hope even more will be forthcoming. I am sure no party in this House would object to an amendment to the Finance Bill along those lines. I support the amendment and congratulate Deputy Geoghegan-Quinn for tabling it.

[1037] Mr. Noonan (Limerick East): I thank Deputies Geoghegan-Quinn and O'Donnell for debating these issues. The debates on this amendment might be more productive in reducing the number of abortions than the debate heretofore. On Second Stage I gave a number of commitments. One was to provide for significant research to ascertain why so many Irish women travel abroad to have a termination of pregnancy and also to discover why so many Irish women have unwanted pregnancies in the first instance.

As we move from an authoritarian type society, aspects of which we have seen during the course of this debate, some people are left with a vacuum in their lives. If people are used to authority and being instructed on what to do, they do not know what to do when that authority is no longer there. The only way to fill the vacuum is to ensure that through our education system and society people become fully autonomous individuals, in control of their personal lives and make the necessary decisions to ensure that is the case.

As the authority with which this generation and former generations were familiar wanes, it is not appropriate that it be replaced by a total fecklessness where people do not take responsibility for their lives. That is particularly true in respect of family planning. Through a combination of carelessness and alcohol, both on the part of women and men, unwanted children are often conceived.

This amendment raises a wider issue to which I will refer later. In other west European societies people appear to be more in control of their destinies, prepared to take responsibility for their lives and are not always looking to third parties, such as the law, the Church, guards and teachers, to make decisions for them. That is missing in our society. In that respect I have given a commitment to provide for research in this area. Perhaps the ERSI, the health promotion section of the Department or a university with the necessary resources would carry out research to ascertain [1038] why so many Irish women have crisis pregnancies in the first instance and why so many of them end in an abortion. Such research could ascertain what procedures or facilities can be put in place which would result in the number of crisis pregnancies being reduced? Obviously a researcher would need access to information from agencies both in the United Kingdom and Irish organisations, such as LIFE, CURA, Cherish, Irish Family Planning, Medical Services, the Well Woman Centre which I hope would be given freely and openly. I can give an assurance that no confidential information will be revealed.

I am committed, like Deputy Geoghegan-Quinn and Deputy O'Donnell, to a full family planning service here. It is possible to argue that as the contraceptive pill is the only contraceptive available on the GMS, there is a serious lack in facilities available. I take Deputy Geoghegan-Quinn's point that the availability of family planning is uneven throughout the health boards, not only in isolated and remote area but even in large centres of population, depending on the ethos of local health board managers. I would like to remedy this.

My objective is to have an all inclusive family planning service suitable to the needs of women available throughout the country in a manner which would be standardised either by directive or regulation from the Minister for Health so that the same level of accessibility and range of services is available to women in every part of the country. I am not making this commitment in the way they are sometimes made in politics to a sound principle by someone who does nothing about it. I hope to make progress in this area shortly. I will not force my own views on individual health boards in the first instance, I will issue guidelines and allow time for consultation. Following a couple of month's consultation when health board members have had an opportunity to comment on my proposals I will issue guidelines which will make it mandatory [1039] on health boards to provide the type of family planning service we require.

On the issue of counselling I am committed to a sum, in the first instance, of £200,000 this year as against £70,000 being spent through the health boards. I am open to advice from Deputies on how best it should be spent. I do not need to amend the Finance Bill, or the allocation for health boards. I have retained some discretionary spending for the remainder of the year and I will be able to allocate money for this purpose. The commitment to £200,000 is the first allocation.

On the wider issue of counselling, I do not know the views of Deputies on standards, whether a code of counselling should be drawn up, whether there should be a single approach to training counsellors or whether it should be approached from a number of different agencies' positions where there would be various methods and practices rather than a standardised practice across the country. I am subject to advice on that.

I am in full agreement with the line of argument pursued by Deputies Geoghegan-Quinn and O'Donnell in respect of research on family planning and counselling. My only difficulty is that I do not consider the Bill an appropriate vehicle in which to include an amendment to cover the items suggested. Maybe counselling should be put on a statutory basis. If so, a general health Bill would be the place for it. I will be introducing a general health Bill in the autumn and under its general sections I will consider whether it would be appropriate to put counselling on a statutory basis. It may not, I have not decided the principle yet. If it is appropriate, it may be possible to do so by way of statutory regulation rather than by primary legislation. I give a commitment to have the matter examined. I know the Deputy will return to the matter by way of parliamentary question, debate on the Health Estimate or wherever the opportunity arises.

[1040] I will have research carried out but I need some weeks in which to tease out the position with whatever agency will be involved. I do not want to be tied by Statute to terms of reference. I take the spirit of what has been offered here as a good guideline and I do not have a difficulty with it.

We already have family planning Acts. It will be possible for me to extend the scope of family planning under the GMS by ministerial directive rather than enshrine it in primary legislation by way of amendment here. I can meet the policy objectives of Deputy Geoghegan-Quinn in practically all respects but I cannot enshrine it here by way of amendment. If that satisfies the Deputy we can return to these issues again and I shall keep her fully informed of progress.

Mrs. Geoghegan-Quinn: I thank Deputy O'Donnell for her strong support for the amendment. I also thank the Minister whose response has been helpful. Naturally I am disappointed it is not possible to accept it either in part or in total in this legislation but I accept the Minister's bona fides when he says he already has a commitment to research. One or more of the three ways in which he said it could be collated through the health promotion unit, the ESRI or one of the universities would be acceptable. It is important that it is started and completed as quickly as possible. As Deputy O'Donnell rightly said we need that research to provide the background for policy in the Minister's Department.

I am pleased at the Minister's commitment to an all inclusive family planning service and I am pleased he is prepared to make the guidelines to health boards mandatory. That is very important. The point I made initially, which was followed through by Deputy O'Donnell and reinforced by the Minister, is that we have a patchy service which is subject to the whims of members of parties who are members of health boards or of administrative staff in health boards. That is not the way it [1041] should be because, at the end of the day, women do not get the service. I am pleased the Minister can issue those guidelines either by directive or by regulation under the family planning Acts. It is right to allow health boards time to comment and make suggestions. I would not like the Minister to say he would issue the guidelines and that in six months' time they could come back to him. I would like it confined to a specific period, two months would be acceptable.

In regard to counselling, I am pleased the Minister said the £200,000 is a first allocation. It is important to establish the standards of counselling available in different agencies and how, through his Department, there might be a single approach, whether it should be standardised and, if so, in what way. While we are talking about counselling for women in crisis pregnancies and post-abortion counselling it might be a good idea to extend it to include counselling in the addiction areas as the service is patchy and does not have specific standards attached. There are good agencies and excellent counsellors at work in the whole addiction area as in the crisis pregnancy, post-abortion and family planning areas but it is not an all inclusive service, obviously because they are constrained by a lack of funding. During my Second Stage contribution I said counselling should be fully State supported if possible and available on a widespread basis.

In relation to counselling — perhaps this could be done in conjunction with the Minister for Education — I would like the Minister to look at the various medical faculties of our universities who now have included, as part of the curriculum, education in communications because it is an important area in our lives. There is scope to include counselling as part of the curriculum for medical students. In the same way as inservice training is provided for teachers through the Department of Education, we should provide training in counselling for general practitioners. Counselling is an expert skill which most [1042] people do not have naturally — one has to be trained in it. I hope the Minister will take this point on board when looking at the issue of counselling.

I accept the Minister's assurance that he is committed to doing what the amendment asks him to do. However, I am disappointed that this legislation is not the proper vehicle under which to do this. The Minister has said that he will introduce a general health Bill some time this year. If Deputy O'Donnell and I had our way, it would be introduced before the summer recess. On the basis of the Minister's commitment that he will include in the health legislation the aspects to which I have referred. I will withdraw my amendment.

Amendment, by leave, withdrawn.

Amendment No. 13 not moved.

Mr. Noonan (Limerick East): I move amendment No. 14:

In page 6, subsection (2), line 39, to delete “section 5 (1)” and substitute “that section”.

Amendment agreed to.

Section 7, as amended, agreed to.

Sections 8 and 9 agreed to.

SECTION 10.

An Ceann Comhairle: Amendment No. 15. Amendment No. 16 is related and I suggest, therefore, that we discuss amendments Nos. 15 and 16 together.

Ms O'Donnell: I move amendment No. 15:

In page 8, subsection (1), line 10, to delete “3, 4, 5, 6, 7, 8 or 9” and substitute “4”.

These amendments are designed to limit the criminal sanctions imposed under the Bill I have serious concerns about the impact of the legislation in that it [1043] will impose criminal sanctions on certain people, thereby affecting their rights. The legislation could be said to approach the issue of information from the negative rather than the positive end of the spectrum. It contains a series of prohibitions backed up with the threat of criminal sanction. For example, doctors, counsellors, booksellers and ordinary men and women may be pursued through the criminal courts for committing one of a number of offences. It is this criminal aspect of the legislation about which I am concerned. During the debate on an earlier amendment we referred to the ways in which the Bill could be made positive. As it is currently drafted, there is very little that is positive in the Bill. The Minister has given commitments to introduce positive provisions in regard to the giving of information

As evidenced in the 1992 referendum, the majority of people have adopted a commonsense approach to the provision of information on abortion services. While they do not want to see advertisements on billboards extolling the virtues of abortion clinics or to receive unsolicited mailshots on these clinics, they have no major objection to people being given Act information at meetings, in newspaper advertisements or on television programmes. After all, the vast majority of these people will not be pregnant women. Most people do not support the criminal tone of the Bill and I, therefore, propose that the only prohibition which should be backed by a criminal sanction is the one in section 4 which prohibits advertising on billboards and mailshots. The other prohibitions can stand but they need not be backed by penal sanctions. This is a commonsense approach to this issue. If I had drafted the Bill I would have approached this issue from the positive rather than the negative end of the spectrum.

I can anticipate the Minister's response — one cannot expect to have a prohibition without a criminal sanction. However, there is a precedent for this in [1044] section 6 of the Prosecution of Offences Act, 1974, which provides that it is unlawful for persons to communicate with certain officers of State, including the DPP, for the purposes of attempting to influence them in the discharge of their duties. My amendment would remove the criminal tone from the Bill. As the late Mr. Justice McCarthy said in the X case: “Legislation may be both negative and positive, negative in prohibiting absolutely or at a given time or without meeting stingent tests and positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort and to plan for the pregnant woman, the pregnant girl, and her family”. This view was endorsed by the Minister for Social Welfare, Deputy Proinsias De Rossa, during the debate on the Eighth Amendment of the Constitution Bill, 1992, when he said: “The mind-set which sets the question of information solely on the basis of how it can be restricted rather than how it can be provided is starting from the wrong end of the spectrum”. That is the basis of my amendment and, although I can anticipate it, I look forward to hearing the Minister's reply.

Mr. Noonan (Limerick East): I appreciate Deputy O'Donnell's absolute commitment to the wellbeing of women and, therefore, I will not simply say one cannot have law without penalties. I intend to be more reflective.

I read the late Mr. Justice McCarthy's judgments in the X case on a number of occasions and was very impressed by them. I am fully in accord with the principle that in vindicating the right to life of the unborn the State should do so positively as well as by way of prohibition. The debate under Deputy Geoghegan-Quinn's amendment on a commitment to research, full family planning and counselling is a step in the direction suggested by the late Mr. Justice McCarthy.

[1045] It is true that one cannot have law without prohibitions. Deputy O'Donnell gave as an example a case involving communications with the DPP. The functions of the DPP were exercised by the Attorney General prior to the establishment of the office of the DPP under separate statute. The Attorney General, Declan Costello, set up the independent office under the Cosgrave Government in the 1970s. One of the great controversial issues of the time surrounded Deputies making representations in respect of prosecutions to the new office of the DPP. The Irish solution to the problem was to make it illegal to do so, but sanction was not provided for fear Deputies would run foul of the law. There is a famous anecdote in our party about the late and well respected Deputy John L. Sullivan who received a letter from Declan Costello stating that it was improper to make representations on behalf of a constituent and pointing out that it could involve the penalty of a jail sentence. At a meeting of the party, the late Deputy Sullivan stated he had been jailed by the British, the Black and Tans and by the Irish Government, but he would not be jailed by a Government he supported by his vote in the House. I accept that is not relevant in this case.

Throughout the debate, Deputies — and I include myself in this — referred to the right to information and the right to travel, but the amendment does not refer to them as rights, they are freedoms. There is a right to life of the unborn and an equal right to life of the mother, but the Constitution refers to a freedom to travel and to obtain information and Deputies should note that. I do not propose to define where a right stops and a freedom starts or vice versa, but a right and a freedom are two different matters. The State has an absolute obligation to vindicate the rights of a citizen under the Constitution, but it does not have a responsibility to vindicate a freedom. A citizen should be enabled to exercise a freedom. As well as conflicting constitutional rights there [1046] may be an element of conflict between a freedom and a right.

Ms O'Donnell: What a tangled web we are in.

Mr. Noonan (Limerick East): There will be no sanction on a person who receives information, only on those who give information. If the Bill did not provide for sanctions and a person referred a woman with a crisis pregnancy to a clinic in the United Kingdom, made the travel arrangements and supplied money for the trip, in enabling the freedom of information and travel to be exercised, would we be by statute vindicating the right to life of the unborn? It is not as simple as merely inserting advisory or admonitory sections in the Bill without providing for sanctions because it comes down to the question of the competing right to life of the unborn child and the equal right to life of the mother, both of which must be vindicated. It is extremely difficult to do that. We are all aware of the decision in the X case where the Supreme Court ruled that the right to life of the mother was superior to that of the unborn. In a pregnancy where there is not a real or substantial risk to the life of the mother and a person makes arrangements for that woman to travel to England to have an abortion, including paying the travel costs and so on, the State is no longer vindicating the right to life of the child. That cannot be condoned in law.

I accept what Deputy O'Donnell stated in regard to women with crisis pregnancies having enough problems without the rigour of the criminal law being imposed on those who try to help them in accordance with their rights. That is why section 10 is phrased in the manner it is. Deputies will be aware that the court does not normally impose maximum penalties, courts have discretion in terms of penalties. Prosecution for an offence under this section can be brought only with the consent of the [1047] Director of Public Prosecutions. It is not a question of the local garda sergeant or superintendent deciding to prosecute a counsellor in an advice clinic whom he or she believes has offended. Neither is it a question of a local garda sergeant deciding to prosecute a local GP whom he or she believes has offended. Prosecution can be made only with the consent of the Director of Public Prosecutions. It was a question of striking a balance and coming up with this solution, which is a reasonable one.

Ms O'Donnell: I note that offences under this section carry a maximum fine not exceeding £1,500. Surely this indicates there is an element of duplicity or hypocrisy in the Bill. If we are really intent on vindicating the rights of the unborn and believe it is a terrible crime to refer a woman to a clinic abroad for an abortion, surely the offence should carry a more hefty penalty. In saying that, I am not encouraging an increase in the penalties, but the level of penalty characterises the complexities of the issue. I appreciate the difficulties the Minister has had in trying to steer the course, in not being too penal but yet trying to vindicate the rights of the unborn enshrined in Article 40.3.3º of the Constitution.

I note that prosecution for an offence can be made only with the consent of the Director of Public Prosecutions, who holds an independent office. There is always a danger that the DPP of the day could be very interested in bringing prosecutions. There is always a subjective difficulty and human factor in delegating responsibility to bring charges to one independent officeholder. One DPP might be happy not to bring to bear on information providers or a doctor who makes a referral the full force of the criminal law, but another might be well disposed to do so.

I will not press my amendments to a vote. I tabled them merely to enable me [1048] express my concern that, apart from billboards and unsolicited leaflets, the panel and criminal sanctions introduced in the Bill are inappropriate. I thank the Minister for his response. It was reflective and generous to the spirit of my amendments, but I note he has his own mind on this issue.

Mr. Noonan (Limerick East): I again thank the Deputy for her remarks. I have stated why I will not drop penalties under these sections. I want to make clear that there is no duplicity in this. The alternative, if one wanted to be more onerous, would be to impose a prison sentence and not increase the maximum fine, because the court has discretion anyway as to the fine it imposes. If we make the fine £2,000 or £3,000 it is not really more onerous and it would be out of line with comparable law. As a matter of policy neither I nor the Government is prepared to have the sanction of a prison sentence underpinning this. It is not duplicity but a policy position.

In regard to the question of the Director of Public Prosecutions, it is not that a DPP would be softer or harder in his approach than a Garda Superintendent. However, there is only one DPP but several Garda Superintendents. The point is not to have a more or less onerous approach but to standardise it so that everybody can be treated equally by an individual office holder.

Question: “That the words proposed to be deleted stand” put and declared carried.

Amendment declared lost.

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

Mrs. Geoghegan-Quinn: Deputy O'Donnell made a valid point about how different Directors of Public Prosecutions might look at this area. This is [1049] something I found extremely frustrating. The Minister and Deputy O'Donnell will have heard of the frustrations of Garda Superintendents and individual gardaí who, having done all the ground work and sent the file to the DPP, find that a different decision from the one they expected is made. This is particularly so in cases of sexual abuse where the Garda Síochána feel they have a watertight case but the DPP decides that there is not enough evidence to prosecute. The victim concerned, the parents and family of that individual and the Garda are frustrated and, because of the independence of the office of the DPP, there is no way the DPP can explain why he came to a particular conclusion. I welcome the proposal in the Programme for Government to provide for office holders such as the DPP, the Attorney General and the Garda Commissioner to appear two or three times a year before a body such as the Committee on Legislation and Security to report, but not necessarily about specific decisions. This proposal was discussed between the Leader of my party and the Leader of the Labour Party in November and December in the context of the reformation to the Fianna Fáil-Labour Government. I welcome its inclusion in this Government's programme. Such a procedure would allow for such individuals to be questioned by the Members of the House about their general policy on the implementation of law where, up to now, Ministers have consistently carried the can on their behalf. Because of what Deputy O'Donnell said, I felt I should raise this and compliment the Minister and his Government on acting in this area.

Ms O'Donnell: Yesterday I raised with the Taoiseach the issue of the lack of a facility to review decisions by the Director of Public Prosecutions not to go ahead with a prosecution following the forwarding of a file by the Garda to [1050] him. The Taoiseach persisted in maintaining the traditional stance that because of the independence of the Office of the DPP it is not possible to facilitate accountability on the part of the DPP to this House or anybody. I suggested, and the suggestion was accepted by the Taoiseach, that where a prosecution does not proceed the victim of a serious crime, who is often devastated when a prosecution is not proceeded with, should be notified in writing of that fact. It should not be necessary to state the reasons because that might prejudice the accused person or witnesses. That organ of the criminal justice system, the office of the DPP, should not be so independent as not to be accountable. There should be some method of redress for the victims of serious crime when for some reason, despite the fact that nine people might have made separate affidavits to bring charges against a person for, say, sexual abuse over many years, the prosecution is not taken. Those people are entitled to an answer from the State as to why it is not championing their cause and answering their calls for justice. Because this section introduces a role for the DPP under this Act it gives us an opportunity to yet again put on the record the need for accountability on the part of the DPP in general policy areas.

Question put and agreed to.

Section 11 agreed to.

SECTION 12

Ms O'Donnell: I move amendment No. 16:

In page 8, subsection (1), line 30 to delete “3 or”.

Question: “That the words proposed to be deleted stand” put and declared carried.

Amendment declared lost.

[1051] Question proposed: “That section 12 stand part of the Bill.”

Ms O'Donnell: This section relates to the forfeiture provisions which are wide-ranging and consequent on sanctions and other powers such as forfeiture or seizure of documents or possessions, excluding medical records, which might be in the surgery of a doctor and which, with a view to collecting evidence, the State is empowered to seize. Similar sections are contained in the Misuse of Drugs Act and the Larceny Acts which deal with the recovery of stolen goods. In light of my earlier comments that I am worried about the tone of the Bill as it introduces the concept of criminality, I register my disapproval at the inclusion of such provisions.

Where the Garda or other officials of the State raid a doctor's surgery with a view to collecting evidence the Bill anticipates that the doctor may take a court action to recover his property. This is an indication of just how draconian these measures are, having regard to the compassionate service doctors provide.

This raises the spectre where one strays too far in providing non-directive counselling, of a doctor's surgery or clinic being entered, by force if necessary, to collect evidence. This is anathema to me and many others. I do not think anyone envisages this happening and I hope it does not. By providing for these powers in legislation backed up by sanctions, under which the State will have the power to raid and seize the property of a doctor, we are painting a very sorry picture.

Mr. Noonan (Limerick East): It follows that if one imposes prohibitions in law one must have sanctions and provisions which enable the authorities to collect evidence to sustain a prosecution. While it may seem onerous, it is normal to include such a provision in law. A similar provision is contained in [1052] many Acts. I hope everyone will comply with the terms of the Bill and these powers will not be invoked. They are limited in scope.

On the question of non-directive counselling, there is no question of one straying too far in one direction. Where is the evidence in the relationship between a doctor and a woman to suggest that one has? I cannot envisage a prosecution being grounded on that example but I could easily envisage the grounds on which a prosecution could be based where, for example, leaflets and pamphlets which openly advocate and promote the termination of pregnancy are available in a particular premises.

Question put and agreed to.

SECTION 13.

Mr. Noonan (Limerick East): I move amendment No. 17:

In page 9, line 11, after “relates” to insert “and the information and the method and manner of its publication are in compliance with this Act”.

There is a danger that if we do not include a section such as this, Act information would fall foul of the censorship Acts and there would be a conflict between this Bill which permits Act information and the censorship Acts which prohibit the advocacy and promotion of abortion. The purpose of this amendment is to ensure that the intention of the section is carried through. In that sense it is a technical amendment. I appreciate that the section is already complex but I am advised that the amendment is necessary to ensure that the objective I have stated is achieved. While the section is lengthy because of the number of other Acts involved, the objective is straightforward.

I do not want a situation to arise where the giving of Act information in a manner which meets the requirements [1053] of this Bill could still fall foul of the censorship Acts. As amended, the section will be restricted to the case of a publication containing Act information which does not infringe the provisions of the Bill. It will then be a defence to a prosecution under any of the Acts listed if the publication in question contained Act information in accordance with provisions of the Bill. In other words, we are allowing information to be given which was previously prohibited under censorship Acts. I am amending the censorship Acts only to the extent necessary to make the provision of this information legal. I am advised that this amendment is necessary to achieve this end.

Amendment agreed to.

Section 13, as amended, agreed to.

SECTION 14.

Mrs. Geoghegan-Quinn: I move amendment No. 18:

In page 9, line 13, before “State” to insert “the”.

This section contains the short title of the Bill. I submit that the definite article should appear before the word “State”. It appears in the long title.

Mr. Noonan (Limerick East): I do not have the same fluency in Irish as the Deputy who is absolutely correct. I accept the amendment.

Amendment agreed to.

Section 14, as amended, agreed to.

Title agreed to.

Bill reported with amendments.

An Leas-Cheann Comhairle: Report Stage will be taken tomorrow in accordance with the Order of the House of 7 March.