Seanad Éireann - Volume 127 - 12 December, 1990
European Court of Human Rights Judgment: Statements (Resumed).
Mr. Norris Mr. Norris
Mr. Norris: I would like to complete what I had been saying about the age of consent. It is important that we place this whole business into context. The age of consent proposed by the Law Reform Commission of 17 is not at all adventurous, it is acceptable to me, and quite a good idea. In the European context, I would like to indicate what some of the ages of consent are and also to say that Ireland has the unhappy distinction of being one of four jurisdictions in Europe that still retains this kind of law, the other three being Romania, the Soviet Union and the Greek section of Cyprus. France reformed its law with a common age of consent of 15 in 1791 and Catholic Spain in 1822 with a common age of consent of 12. Portugal has a common age of consent of 16 since 1852. The Netherlands, since 1811, has a common age of consent of 16. Switzerland also has a consent age of 16. Italy since 1889 has an age of consent of 14. Malta, since 1973, has an age of consent of 18. East Germany had a common age of consent of 14. Poland, good Catholic Poland, an ideal analogue to the State of Ireland, has an age of consent of 15 since 1932. Greece has an age of consent of 15. Albania has a common age of consent of 18. In Turkey it is 18, in Norway it is 16, in Sweden it is 15 and in Denmark it is 15. That is the kind of context within which this proposed change of the law which the Minister has indicated ought to be seen. Those statistics will be available to the Minister and his advisers. I say that because it is important to know the background.
 I will make another series of points, very briefly, because I know the time is limited. Israel, a country which in biblical times produced the taboo, reformed the law a couple of years ago. England, which is the source of our legislation, reformed the law in 1967 — although unsuccessfully. May I again say to the Minister that he is a good Minister for Justice and he spoke on the rape Bill earlier. I am heartened by what he said about the Law Reform Commission's report. I hope he will follow up the rape Bill and the incitement to hatred legislation which is commented upon extensively in Europe. I travel a lot to European human rights conferences and it has been remarked upon. I have been complimented, as a representative of Ireland, on the vision and foresight that was displayed by the Minister on that occasion.
It is not sufficient to do what lazy Ministers of all Governments have done in the past, and that is to reach for the nearest available British precedent. That would not satisfy the requirements and I am heartened by the indication the Minister has strongly given this evening that he will be looking positively at the Law Reform Commission's recommendations. I would like to encourage him to do that and I hope he will note that I have not been at all negative in what I have said today. I would like to encourage him to implement those recommendations.
With regard to the European Court, I know there was a kind of moral or political obligation on the Government to oppose my case in that they tried to sustain two totally opposed and contradictory notions. One was that the moral fabric of Ireland would disintegrate if they did not keep the criminal law in operation and the other was that they did not use it anyway. They were quite mutually exclusive and they illustrated the absurdity of the position in which people who oppose this kind of reform find themselves.
I would like to draw the attention of the House to the judgment of Mr. Justice McWilliam. I do not have time to read it  into the record but I will just indicate that that judgment was almost a charter of gay rights when it was given. At the end of it there was a little swerve which introduced the question of the democratic and Christian nature of the State. May I say that the Government have known since 1981, after the Dudgeon judgment, that this was likely to be impugned here? It was extraordinary and it was sad for me that the Supreme Court did not find the laws unconstitutional because I am pained by the fact that a law which has been found to violate fundamental human rights can still be in accordance with the Constitution.
I would like to end on a note of optimism because, as I mentioned at the beginning of what I said this evening, my feelings as a gay man were that I was being treated in very much the same way a Roman Catholic would have been treated under the Penal Laws. A great Irish politician, Daniel O'Connell, who fought valiantly and successfully in repealing the Penal Laws against the Roman Catholic religion said — I do not have the exact reference of his speech but I was very moved and taken when I read it some years ago — that human liberty and dignity are not a finite resource and that by giving dignity and freedom to other people you do not diminish your own freedom and your own dignity; in fact, you enhance the concept of dignity and freedom for all citizens. I would like to commend that thought to the Minister because if he moves in that spirit and implements the recommendations of the Law Reform Commission he will have enhanced not only my freedom as a citizen of this country who happens to be homosexual, but will also enhance the freedoms and dignities of all citizens and at last put this matter to sleep.
Professor Conroy Professor Conroy
Professor Conroy: As I said earlier, I would like to welcome the decision of the Leader of the House to give the Seanad the opportunity to make statements in relation to this very important matter which is one of deep emotion and concern and affects very directly a percentage of  our population. Let me say also that I very much welcome the Minister's statement today. He has shown us in the Bill which went through this House only a matter of hours ago how he is a practical and, at the same time, concerned reformer, not easily pushed by fashion into any particular act but willing to give consideration and then, if necessary, to give his full backing to a reform process. I am quite sure he will do the same in relation to the Bill that will be coming before us some time in the new year.
I would like to make a few additional comments. First, in relation to basic human rights, I certainly agree that there has been enormous intolerence, prejudice, ill-treatment and discrimination against people who happen to be homosexuals. It is high time that that was outlawed. It should not be part of our society. There is a basic human right here to people's individuality and that certainly was being totally infringed. That does not mean in any sense that I necessarily agree with any or all of the comments — although I fully agree with some — that Senator Norris has made. I do not believe that one can be entirely happy with the situation that has evolved in other countries.
Senator Norris has rightly drawn attention to the age of consent, for example, in many other countries in Europe. I appreciate his courtesy in making quite an amount of documentation available to me which has been very helpful. In matters of changes in legislation and changes in fashion, one sometimes swings from one extreme to another. It has been perhaps, unfortunate that the delay in introducing very necessary legislation, overdue legislation, in relation to homosexuality should on occasion have been taken advantage of by that particular group and carried, perhaps, to extremes. In the process that aroused further antagonism and further conflict between the heterosexual and the homosexual communities.
I said at the outset that I consider it to be a matter of a basic right. If an individual happens to be a homosexual, so be it; that is the way he or she happens  to be genetically and there should be absolutely no discrimination against that individual. That does not necessarily mean, however, as some homosexuals seem to believe, that the majority of the population should accept that as in some sense the norm. I do not accept it as the norm and I do not think it should in general society be accepted as the norm. When people move on from there to suggestions in relation to children being adopted by homosexual couples and matters of that nature, then the pendulum is being pushed a little too far in the opposite direction.
I am concerned in relation to the appalling epidemic of AIDS. This is, perhaps, the most appalling medical epidemic the world has faced for centuries. As happens with all things that terrify us, people tend to exaggerate in one sense or another. There is no doubt about it whatever that AIDS can be heterosexually transmitted. It can be transmitted by other means. There are unfortunate people here and in many other countries, who have been infected through a blood transfusion. To go from there to suggest that in some sense or other the facts relating to the relatively high incidence in the gay community are not facts, as some documentation and some suggestions make out, is not doing anyone a service in any sense.
There are many other aspects to this. Sex and all its connotations, is one of the basic human driving forces. It is something about which we are all inevitably extremely emotional. I congratulate Senator Norris on presenting his statement in an extremely balanced and unemotional manner. I hope we will continue our discussion in that manner. I am quite sure the legislation the Minister will bring forward will be necessary, appropriate and balanced.
Mr. Neville Mr. Neville
Mr. Neville: I, too, welcome the statement by the Minister and recognise the need and the urgency to introduce this legislation. Ireland is a signatory to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention has, by its terms,  a binding force on the Government of Ireland. As a State, we have been found by the Court of Human Rights to be in contravention of Article 8 of the Convention and it is incumbent on us to correct that. We cannot be a member of a group of countries upholding human rights and be seen to be breaching the terms of membership of that group. We are obliged to obey the rules of our association.
There is, however, concern throughout the State about changes that might be proposed in the law regarding gay sexual activity. The concerns must be addressed and incorporated in any legislation introduced. While defending, and we have a firm duty to defend, the rights of all citizens regardless of their sexual orientation, we have a right to protect minorities. It is our duty to do so. As a European country we are subject to the rules that come from Europe in a broader sense, not just from the EC. We are happy to receive aid from our European partners. In a practical way the Common Agricultural Policy and the Regional and Social Funds have been of enormous benefit to our economy but membership of this club places other obligations on us. In regard to some, such as the one under present discussion, we tend to stand back. We should not do this. We should thoroughly examine the implications of the proposal for society. Our obligation is to protect human rights of all our citizens and we should formulate — I welcome the Minister's commitment to do so — legislation to fully cater for all our people's concerns.
I welcome the Minister's commitment to introduce the legislation. We await the details and look forward to them. In doing so I ask the Minister to ensure that the concerns of all interested parties, the promoters of the legislation, those who have concerns about the legislation and, above all, the views of the general public which will be expressed through the Oireachtas, are taken into consideration.
I welcome the recommendation of the Law Reform Commission that sections 61 and 62 of the Offences Against the  Persons Act, 1861 and section 11 of the Criminal Law (Amendment) Act, 1885 should be repealed and that there should be the same protection of the young against both homosexual and heterosexual exploitation. We welcome the recommendation that child sexual abuse should be an offence and replace the present offence of indecent assault. That should apply equally in the case of homosexual activity. Again, we look forward with anticipation to the proposals from the Minister being put through the House.
Miss Keogh Miss Keogh
Miss Keogh: I want to warmly welcome the Government's decision to finally act on the judgment of the European Court of Human Rights on the decriminalisation of homosexuality. In doing so I congratulate the Minister for Justice on another example of the open, liberal and invigorating attitude he has so far shown on a number of issues under his Justice portfolio. The record of the Oireachtas on the issue of homosexuality reflects very poorly on our ability as a legislature. The relevant Acts dealing with the matter date as far back as 1861 and 1885. Sixteen years ago the Department of Justice commented that the matter was under review. Two years ago this country, as we know, was held by the European Court of Human Rights to be in breach but, unfortunately, it is only now that we are taking action. On many occasions the Oireachtas has been exposed as incapable of dealing with emerging and changing issues. On this question we have been exposed for an unwillingness to tackle a difficult and thorny problem.
The same attitude has been reflected on other issues. This week we had the appalling tragedy of a young traveller woman dying in a muddy grave from hypothermia on the outskirts of our capital city. Day in, day out, Members of this House file past the huddled body of a homeless woman who lives out her life in a cardboard box in Molesworth Street, almost as a perpetual reminder to this House of our responsibilities and of our failures. The common thread in all these,  and the countless other social problems facing this country, is the reservations we have as legislators to deal with them. The moral must be that problems ignored are not problems solved.
In view of the new worries and fears which have been unfairly raised about homosexuals in the light of AIDS, it is particularly important that we should be debating the whole issue and addressing ourselves to removing any discriminatory obstacles we possibly can. Taking action to decriminalise homosexuality, as we are obliged to do, is the obvious place to start. The debate which this will necessitate, however, provides us with an opportunity not just to bring ourselves into line with the European Court ruling but into line with the rest of Europe. It has been stated that along with Ireland only Romania and Cyprus still treat homosexuality as a crime.
This debate provides us with an opportunity to examine the whole question of homosexuality, our attitudes to it and steps which we can take to reduce the discrimination which exists at present. To this end the work of the Oireachtas has been enormously helped by the work of the Law Reform Commission. The work of the Commission must set the agenda for future discussions on the issue. Our aim should not just be simply to decriminalise homosexual activity but to ensure that the remainder of our laws echo and reflect that attitude. In the Minister's statement he referred to the recommendations of the Commission on section 61 and 62 of the Offences Against the Person Act. I was very glad to see that inclusion because part of this whole debate can be a focus on the wrong issues; therefore, something that focuses on the minimum legal age of 17 for heterosexual acts would also focus on the minimum legal age for homosexual acts. Including issues like that is very helpful.
We are not simply addressing the legitimate problems of one section of our community, we are indicating our sincerity in rooting out discrimination and maltreatment for the various sections of our community who suffer under the status quo, travellers, the homeless, the  poor, the underprivileged, the aged and — even still — women. We have a responsibility to all those sections of our community to ensure that our laws treat all equally and fairly and provide equal opportunity. That task, of necessity, will be on going and I welcome the start we are making tonight.
Mr. Harte Mr. Harte
Mr. Harte: I agree with the other Senators in their commendations of the Minister in dealing with human right matters. For me it does not stop there. I do not think this is the beginning and end of it. I welcome the Taoiseach's statement at the annual Presidential dinner of Fianna Fáil that Fianna Fáil will be sensitive to the changing needs of the people in our modern society. In his speech the Taoiseach indicated that arising out of the judgment of the European Court of Human Rights in 1988 legislation to decriminalise homosexuality would be brought forward. The Minister's short speech today has confirmed that. To bring it a step further, I would like to quote from a report in the issue of The Irish Times of 7 December 1990:
In that regard he, the Taoiseach, remarked our approach to legislation affecting human rights and personal freedoms is, as far as possible, to find a wide degree of consensus and to proceed with reforms which have a reasonable basis of public support and with which the community at large are sympathetic.
Arising out of this I want to put a question seeking clarification rather than being dogmatic or offering a very strong point of view. Is the Taoiseach suggesting to us that before he brings forward legislation arising out of the decision of the European Court of Human Rights he will seek a wide degree of consensus and will then give effect to that court's judgment only if he, and the Government, are satisfied there is a reasonable basis of public support for it, that the community at large are sympathetic towards it? That is my reading of the article. I hope my concern is not justified. As I say, I am putting a  question rather than making a dogmatic statement.
A clearer expression of the nature of the legislation to decriminalise homosexuality would have been very helpful. As I understand it, there is no appeal against this decision and, therefore, there is not really any problem. We expect that effect will be given to the judgment as laid down, but we are not quite definite about that. If we do not give effect to it as laid down our self-respect in the community will take a body blow. I do not for one minute doubt the Minister but what of the Government's attitude when legislation is brought forward? We are only talking about bringing it forward. We used the machinery to win our case in Europe against Britain on inhuman degrading treatment of prisoners in 1970. We have used it on other matters as well. It is sad to think that in the Dáil the Minister said that after 14 months the court's decision was still being examined, that the examination was incomplete.
In his speech the Taoiseach, on the issue of marital breakdown, confirmed that it was the Government's intention to carry out a comprehensive review of current developments and to publish a White Paper following that review. What has marital breakdown got to do with decriminalising homosexuality? The answer is that it has nothing to do with it. Taking the Taoiseach's statement on his Government's intention or attitude towards human rights and personal freedoms, one has to give thought to what happens when a White Paper is introduced. A white Paper, as I understand it, is in the final analysis, the clearly stated position of the Government, as distinct from a Green Paper which when produced is open to all special interest groups and other groups to comment on. I do not doubt that any White Paper the Government will produce will be the subject of consultations with interested parties. In my view the Green Paper approach is more open and guarantees a wider consensus, if that is what we are after. If a White Paper is to be issued on  other aspects of human rights, such as homosexuality, the most democratic way forward is to use the wider consultative opportunities which a Green Paper offers first. That would allow for a wider consensus.
On the overall question of human rights this, and all Governments of the future will have to learn the art of establishing confidence between the various groups because, in my view, that is akin to the highest art of statemanship. In this case the confidence has not been there. Fear, distrust and antagonism can only be eliminated by establishing confidence. We see this clearly on a regular basis in our domestic relations. Yet, we lose sight of it so often elsewhere. Our mentality is to postpone action on matters of human rights and this shows an indifference to the well-being of others. It is difficult to deal with a mentality that shows such indifference. In this day and age there is no excuse for a lack of sympathy towards others. There is the handicap of distance which must be overcome by enlightened policies. I was pleased to hear the Minister's speech today, which indicates that we are moving in the right direction. Many people are of the opinion that we must move towards the 21st Century at a faster pace. Let us not view this as a sort of disguised truce in the absence of any clear-cut agreement between the Government and this social group. These people are not in no man's land; a decision has been made on their behalf which, we hope will be carried out to the letter of the law. To try to keep them in no man's land until a White Paper on this and related matters is published could lead to conflict.
Attitude and spirit are all important in the field of human relations. If it is done correctly and based on the right principles it will succeed. We have been telling workers for years how important it is to accept change and that if they do not accept it nothing will be solved. The workers agree and find themselves knocked out of work and struggling, at an early age, for re-employment. We want everyone else to change but many of us — not necessarily the politicians or the  Government — are reluctant to meet those changes, or have not the courage to stand up and say exactly how we feel on a particular social issue.
I would be the first to agree with the view that there is no private right, law or custom so absolute or inflexible that it cannot be cast aside if it can be clearly shown that it constitutes a threat to personal health or impedes the wellbeing of the community. In this case we are not dealing with selfish individuals and it cannot be shown that their customs and practices in personal relationships menace personal health, or indeed that they stand in the way of community wellbeing.
I do not accept Professor Conroy's views. I think there is a lot of ignorance with regard to homosexuals. Evidence is emerging now in some of the African countries that possibly almost half their population problems are of a heterosexual nature. That would suggest that they are not a threat to health. On the question of whether, in social or industrial relations, the claims of industry and humanity are opposed, I would suggest that the claims of industry must give way to the claims of humanity. Many of our people will avoid the issue. This is unavoidable.
These are issues which have to be faced up to. What happens because of this attitude or mentality is that there is an indifference, or a neglect, which leads to trouble and causes irritation. Any long, continued oppression aggravates discontent and causes people to bide their time and seek revenge. Perhaps the gay community has not sought revenge but rather sought justice. The reason they did not seek revenge is because they are a very responsible body. With regard to the whole question of AIDS they have shown their responsibility and they have to be given great credit for that. There was no question of revenge there. If we are not careful in other areas we will encounter instances of revenge. However, I have faith in what the Minister has said. These people are prepared to go that road despite difficulties they may have amongst some of their  members and their organisation. I am a little disappointed that from the outset we did not recognise the germ of a grievance and act on it. It has been there for a very long time, since Victorian times.
I remember gardaí going on television in the early stages of the drug problem here and saying there was no problem. What they meant was, it was not a big problem. Problems grow if nothing is done about them. What happened was that we neglected investigation when the problem first arose. If we had investigated it earlier we might have found that adjustments would not have been so difficult to carry out. We aggravated the situation and finished up with a 16-year process in the European Court which has had to do our work for us.
What happens is that we postpone things and instead of having to make small adjustments, find ourselves in the situation where major corrections must be made in many things. That is not the way it should be. The Government know by now that any unaddressed wrong becomes a very virulent germ. Certainly I appreciate the Minister's attitude now, he recognises that. If we can get everyone else to recognise it we will be on the right road. Through our expressed or implied sanction, injustice will continue until the necessary legislation is passed by both Houses. I ask the Minister not to delay too much on this.
Mr. Lydon Mr. Lydon
Mr. Lydon: I see it, there are two issues here — one is the judgment of the European Court and the second is the issue of what exactly is a right and what is not a right. I do not believe that any judgment of the European Court of Human Rights in Strasbourg should overrule the Irish constitution as interpreted by the Irish Supreme Court. If a judgment of the European court conflicts with the provisions of the Irish Constitution or if there is a wide degree of public consensus against the judgment, it is the Government's duty to seek derogation from that convention. I do not believe that there is a very large consensus for the decriminalisation of homosexual acts. There was an IMS poll in the  Sunday Independent in February of this year which showed that the majority of the people were opposed to decriminalising homosexual acts. In his judgment in the Norris case, Chief Justice O'Higgins in the 1983 Supreme Court case said:
It indicates, however, that homosexual activity and its encouragement may not be consistent with respect in regard for marriage as an institution. I would not think it unreasonable to conclude that an open and general increase in homosexual activity in any society must have serious consequences of a harmful nature as far as marriage is concerned.
He summarises his conclusion on this aspect as follows: “Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution.” We know the Constitution obliges the State to guard the institution of marriage on which the family is founded with special care to protect them and to protect the family in its constitution and authority.
The decriminalisation of homosexual practices would lead to an immediately higher profile of homosexuality. It would not lead to positive discrimination in favour of homosexual persons as happened in Canada. It would make it more difficult in some cases for places to cope; for example, university colleges might consequently be required to recognise and fund societies which promote homosexuality. Schools might be required to promote homosexuality as a legitimate alternative lifestyle in their sex education programmes. Publications would be more bold in their promotion of alternative lifestyles to the detriment of the whole society. Ultimately, a higher profile for homosexuality can only serve to confuse many young people on the question of sexual identity and self-control.
If we do decriminalise homosexual activity it could have serious consequences of a harmful nature. However, I wonder what would happen if someone took a case to the European Court of Human Rights and it was decided we  should abide by what the Dutch Parliament decided the other day when, in order to reduce the incidence of sexual abuse, they decided to reduce to the age of 12 the age of consent between adults and young people. Suppose there was another case taken where the children might be younger? Is there anywhere the Supreme Court in this country and our Constitution can protect us against the invasions of a European court which can impose on us a moral standard which is not held or is in keeping with the moral standards of most people?
There is the question of this right. Article 2 of the Convention on Human Rights states:
There should be no interference by a public authority that the exercise of the right except it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedom of others.
That is being used now to promote this right but I would say it argues against it on the question of morals. It was old Mick Kitt who once said: “No amount of laws can make legal what is morally wrong.” I believe that what is claimed as a right is morally wrong. I do not believe that homosexual acts between males, or between females, are natural acts. The rational consideration of the natural functioning of the human organs would not lead one to conclude that homosexual activity is a fulfilment of any of these functions. Consequently, homosexual behaviour is a poor foundation on which to claim rights.
We must ask ourselves what acts we are going to legalise here? Is it for what happens between homosexuals? I would like somebody to tell me. Are we going to legalise holding hands, which nobody would object to, gentle kissing, caressing? Are we going to legalise mutual masturbation or fellatio? Are we going to legalise the insertion of a penis  into somebody's anus which is buggery or sodomy in my book and I believe to be an act against nature? I have the utmost compassion for people who accept this as their orientation and way of life. It is a big burden to place on them, to expect for one moment that they should be celibate, and I do not believe they are or ever will be, but I believe that by, in any way, promoting something which we believe to be inherently wrong we are one more step towards a society which loses all moral standards. For that reason I would ask the Minister to go carefully on this one. I know he has probably made up his own mind but nevertheless I have received many representations on this issue and I believe it is my duty as a representative to voice these issues.
I welcome the Minister because I know he is a very caring Minister. He has shown this in other legislation he has brought forward even today in this House, and he has shown it in other issues as well. I appeal to him on behalf of the people who may not be here but who do have concerns to think carefully before introducing legislation which may have a deleterious effect on the moral fibre of the nation.
Professor Murphy Professor Murphy
Professor Murphy: I welcome the Minister's statement and I congratulate Senator David Norris on his very fine opening statement. Behind many attitudes to this matter is fear, puritanical fear, a fear of the guilty dissociation of sex from pleasure, biological fear which has been expressed by Senator Lydon that if one encourages or connive at homosexual activity then one is challenging the fundamental institution of marriage and of the procreation of the species to which homosexual activity would seem to be biologically contradictory. Fear also of ourselves, fear of our own psyches, fear that none of us is completely heterosexual. In my own case I certainly can vouch almost overwhelmingly heterosexuality. Nonetheless, one has to concede the case of those who say that there is no such animal as the totally heterosexual animal, that wittingly or unwittingly, there is a touch  of bisexuality in all of us, however, it finds expression however it is repressed.
That fear is behind the traditional attitudes, in Ireland at any rate, to homosexuals. Senator Norris will forgive me if I do not use the word “gay”. I simply will not accept the misappropriation of the word “gay” for that particular sexual orientation, not least because it deprives the English language of a unique adjective which cannot really be replaced. Besides I can no longer sing “A Bachelor Gay” without some misunderstanding. I must insist, if rather pedantically, that it is not homo sexual but homosexual because the short homo is Greek meaning “the same as” and not the Latin homo meaning “man”.
Whatever about our fear we now have to come to terms with what is happening. It is Senator Norris, primarily, who has brought this matter to a head and the Minister and the Government have recognised they have to deal with this now and have to deal with the European Court judgment. I do not think it is on anymore to derogate from the European judgment, to say we are different from the French, Germans, Spaniards and all of our European partners whom we so much admire and wish to emulate in other respects but on this one, no, we are special. We are, as Frederick Ingles says, “the insula sancta the holy island which must, on no account, be contaminated by outside influences”. It is not on anymore. I thought we would have learned that in the course of the Presidential election.
It seems that in one sense the Minister's task is fairly easy. The law must be decriminalised. I find it very hard to evade the conclusions of the Gay and Lesbian Equality Network in their letter to Senators which I received this morning when they say that: “Not only must the criminalisation of homosexuality be removed but there must be anti-discrimination laws as well.” These Houses had the generosity to go some way in that direction, and the Minister indeed, when the Prohibition of Incitement to Hatred Act, related perhaps, included a clause about homosexuals.
The age of consent is similarily  unavoidable. Seventeen is the recommendation of the Law Reform Commission. This age should not be lightly cast aside without some very radical reason which is not apparent to me, particularly considering that out of our European Community partners, of the other eleven, eight have a lower age of consent than we have; two have a slightly higher number than the one recommended in the Law Reform Commission, namely 18, and only, Great Britain, has a higher age of 21. It is the case of the Gay and Lesbian Society that this has been a disastrous operation — this age of consent.
I find that all these conclusions are pretty well inescapable but where do we go from there? Not only should the law be decriminalised but it is a worthy principle, in my view, and here I would differ philosophically from Senator Lydon, that the State should not interfere in sexual activity between consenting adults. I do not see how you can go against that principle and that is what the law does as it stands. If Senator Lydon is advocating retention of the law, it seems to me that is a basic denial of human rights. No court in the world, never mind Europe, would support him in that regard.
I think it is good that the State should stop interfering in that area, and indeed in all other sexual areas. That is a stand I have taken very consistently but where do we go beyond that? That is my problem. That may not be the Minister's direct problem but it is certainly the problem of society in confronting this question. Do we, for example, having removed criminalisation, having guaranteed anti-discrimination, say that homosexuality is an alternative lifestyle, an alternative sexual culture, that it is as natural as heterosexuality. Do we go that far? I think Irish society would be very reluctant to go that far, if only because of the still preponderant influence of the Roman Catholic Church in its teachings which has proved quite adamant on this matter, that practising homosexuals are living in sin, as it were. I am not for a moment challenging the teaching of the  Church because it is for practising members of that Church to deal with that matter. I do not think it is a matter of people who are dissociated from the Church to criticise the rules of the club. Besides there is a certain consistency, I must say, about the old institution which secures my grudging admiration. I am simply stating it as a fact that the influence of the Catholic Church in its attitude to homosexuality is going to determine the attitude of Irish society when it comes to consider the consequences and the limits of this legislation.
If society is unwilling to consider homosexuality as an alternative culture, an alternative lifestyle — every bit as good as heterosexuality — then I think it will be even more reluctant to consider apparently more bizarre manifestations of homosexuality in other countries where legal restrictions have been removed, where homosexual couples go through a form of marriage, a marriage ceremony, where homosexual couples apply for the adoption of children. It is all in this area beyond the actual matter of legislation that there is going to be very controversial debate in this country.
I would differ from Senator Lydon, however, in his suggestion that the higher profile you give homosexuality, the more it encourages them to blatantly “cock a snook” at society. That attitude has its own underlying assumptions but I simply want to instance the case of University College, Cork. About two years ago, a meeting of the Governing Body at the suggestion of our very progressive President, recognised the Gay and Lesbian Society which had been looking for recognition for a long time. There were those who were wringing their hands and saying this is the end of civilisation as we know it in the quadrangle in UCC, students on signing on will be harassed to change their sexual orientation and so on, and I may say nothing happened whatsoever. Not another word has been heard from the Gay and Lesbian Society. To my knowledge, heterosexuality is as popular as ever it was in UCC. I think that is a model to be considered in this matter.
I welcome the opening of what is a  national debate. I commend the Minister for bringing in the statement. I commend the Law Reform Commission in this and other areas. In that latter area which I spoke about — the area beyond the law, whether we accept homosexuality as an alternative culture and so on — I have my own views on that which I will make known in time, as it were. I am not at all sure that the answer to those questions is yes. Nonetheless, I must, praise Senator Norris for getting the debate this far. He may have forgotten that in 1977 he and his colleagues sought a meeting with me in Cork. I remember it well in Moore's Hotel — I think I had just been elected to the Seanad — I considered myself very daring indeed for agreeing to meet them in the bar of Moore's Hotel. I really thought I was most progressive to do that. I said that perhaps they had a case but they could not possibly agree or hope that we would permit them to go around kissing each other in public or holding hands, that they could not possibly expect us to be that tolerant. Maybe that was a measure of my priggishness at the time but, even though I express it facetiously, that is one of the questions we will have to face. Having decriminalised homosexuality, will we permit this expression in public? Will we be able to take that in our stride, so to speak?
Whatever happens, I think Senator Norris is to be congratulated and his name will be always linked with this particular progress. He is not a man whose activities always command universal respect. Last week, for example, he disgracefully hogged the whole publicity of the Seanad proceedings and on other occasions he can be very annoying but when you consider the flood of hatred he particularly has been exposed to you will understand what I mean. Just before I came to this debate, I happened to be at his desk and I became aware of the hate mail he has pinned up on the wall — I must say it takes a lot of courage and humour to do that — and it really would upset anyone. To have survived that for many years — also to have had the courage and humour — and he shows great humour about his own sexuality and  that is something all of us would want to show about sexuality in general — he certainly deserves the thanks of this country. He does grace this House and I welcome this move as a milestone in our march towards proper human rights.
Mrs. Jackman Mrs. Jackman
Mrs. Jackman: I welcome the Taoiseach's statement of last week that legislation would be introduced to reform the law relating to the decriminalisation of homosexual activity, very much obviously in line with the European Court of Human Rights judgment of last October. It is two years since the European Court of Human Rights ruled that antiquated Victorian Acts, 1861 and 1885 were a breach of human rights. As I said it was a Victorian Parliament in Britain that made those laws. They were never discussed by the Houses of the Oireachtas and were repealed in the United Kingdom in 1967 with the Sexual Offences Act. That has not been widely accepted in Britain and has led to quite a lot of controversy and I hope we will not follow that 1967 Act in relation to our legislation. It is interesting that Scotland followed in 1980 and Northern Ireland in 1982 so we were not before our time in following through.
I was very glad for the second time today to hear the Minister, Deputy Burke, in his statement to us stating that he intends having the proposals with us as early as possible in order to change the law. He said it was not his intention to delay the Bill but he wished to be frank with the House. That is the most important statement of the day, the frankness with which we can come in here and discuss issues that would have been taboo some years back. It is interesting that it is the day on which the Criminal Law (Rape) (Amendment) Bill passed through that he is here twice on the one day in what I consider would be a liberal stance that he has shown on these issues.
Going back and looking at the history of facts and figures we have got already from Senator Norris — so I will not go through them in great detail — in a survey that was done of 30 countries both in  eastern and western Europe, excluding the little states of Andorra, Lichstenstein, Monaco, San Marino and the Vatican, it is interesting that out of a population of 820 million people there are 50 to 60 million predominantly or exclusively lesbian or gay. That statistic cannot be just thrown out of the window. It is a sizeable group. The homosexual population could not be classified as being minority when you are talking in terms of 50 to 60 million. Obviously, going through history, at different stages almost every European country has at some time decreed a total ban on homosexuality, applied in most cases to sex between men.
Senator Norris gave us the dates — France, 18th century; Belgium/ Luxembourg, 18th century; the Netherlands, 19th century and Spain, a Catholic country, 19th century — when they had already decriminalised homosexual relations. The four countries that have still a total ban on male homosexual acts are the Greek area of Cyprus, Ireland, Romania and the Soviet Union. So it is about time for us to address the situation.
Obviously, we will be following very closely the recommendations from the Law Reform Commission. It has been suggested that the present minimum legal age of 17 for such heterosexual acts would also be the minimum legal age for homosexual acts. Again, the Minister in his address to us here quoted and referred to that minimum age which, I think, should be both for homosexual acts and heterosexual acts. The Law Reform Commission's final report will be of great interest to all of us. I did not get a chance to read it, but I am very interested obviously in following through the recommendations that will come from the Law Reform Commission. We have seen advances. Being in the Seanad just one year, I saw today, for instance, the Criminal Law (Rape) (Amendment) Bill going through. That defines sexual offences in a gender neutral way and proposes the repeal of section 61 of the Offences Against the Person Act, 1861,  in respect of indecent assaults. That was one advance coming forward this year. Again, as was mentioned by-other Senators, the Prohibition of Incitement to Hatred Bill Act, 1989, includes sexual orientation among its protected statuses. We saw that through in 1989. Again, the Law Reform Commission in 1989 supported the principle that homosexual conduct and heterosexual conduct should be put on an equal legal footing.
These slow advances obviously are to be welcomed, but I have a few points just in relation to what we are really talking about in regard to discrimination. When we are talking about human rights for homosexuals we are talking about human rights for homosexuals as Irish citizens who are entitled to equality with their heterosexual peers in treatment, in protection and in respect. I think nobody could disagree with that statement. What disturbs me — and I think Senator Murphy raised this point very eloquently — is the element of fear. No matter what literature you read you come across negative images in relation to homosexuals, you find insulting caricatures, you find abusive language, you find guilt and confusion among young homosexuals and young lesbians; and, as a nation, if we expect human rights that is one area where surely in the 1990s we can discuss openly and in a frank way a situation which is extremely discourteous, to say the least of it. We have a poor history here as regards minority groups. Women can be discriminated against; travellers, coloured people in our community are not tolerated; ethnic groups are not tolerated very well. These are matters we have to address if we see ourselves as Christian. But we can be exceptionally unChristian in relation to minority groups.
Again, in relation to Senator Murphy's reference to the situation in UCC, it is interesting to point out that for many years now the Lesbian Support Group has been an affiliated group of the Council for the Status of Women and it does not attract any negative publicity one way or another because it is an accepted state of affairs and events. That  council has a cross-section of affiliated groups from all corners of Ireland, urban and rural, old and young women. There is no question at all of any confusion, guilt, shame, disrespect or discrimination against that support group.
I consider it is very important that there would be a forum for such a group within the Council for the Status of Women if we are going to achieve anything in this country. I do not consider this any big deal in relation to this issue. If we have an open, frank debate, if we follow very carefully the recommendations from the Law Reform Commission and if the Minister, Deputy Burke, is as open to recommendations for discussion from the floor as he has been in relation to the Rape Bill that we had before us today, I can see that we will go forward and we will address very quickly the human rights issue as was stated for us within the European situation.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: I sometimes wonder at the amount of time I have spent on debates in this House on issues that are connected with sexuality. We have had a long debate, which I recall went on until about 4 a.m., on the issue of a limited liberalisation of the laws governing the sale of contraceptives. I am not trying to get involved at all in a political argument with the Minister about this specific issue, but we have been talking a long time about the decriminalisation of homosexual acts involving men.
There are a few things that should be said about human sexuality. If I can quote a Member of the other House whom I would not normally be expected to be quoting, Deputy Brendan McGahon in an unforgettable phrase he said about sex that “if God invented anything nicer he kept it for himself”. One of the things that should be said about human sexuality is that it is actually very nice, very good, very self-affirming and very life-affirming. It is a whole lot of very good things. It is not something dangerous to be allowed within carefully defined constraints for fear we would all go berserk if we were not carefully kept on a short leash.
 Many of those, of course, who would control our lives have long ago realised that sexuality is a very positive thing. If you want to become slightly poetical about sexuality, one of the fears I always suspected that many of our spiritual leaders have is that an act of healthy sexuality led to a very close integration between the physical and the spiritual in terms of the complex of experiences that go with happy sexuality. They feared, in my view, a loss of control by them over people who were that much at one with themselves in terms of their sexuality and, indeed, of their spirituality. There is no contradiction. It is one of the great, sad things about many of the great religions of the world that apparently they have always found it necessary to keep themselves a long distance from any sort of act of sexuality. I find that quite extraordinary and quite wrong.
Sex — in a phrase that nearly cost me my seat in the Seanad on one occasion — is actually good fun. We should not spend years and endless ages analysing it as if it was something terrible and dangerous that we are just about allowed to do once we are old enough not to be able to do it any more. Sexuality is, in fact, about people escaping into freedom and into joy and ever more intimate relationships between themselves. In our society we have been burdened by moralists who seem to believe that they have a particular obligation to go through the most intricate gynaecological analysis of what constitutes various forms of morally improper behaviour. Catholic manuals on moral theology are particularly intriguing in this regard, not in terms of the principles of proper sexual morality, which in my view are quite simply atriculated in terms of equality of relationships of a non-exploitative nature between consenting individuals. That is a good definition of a positive, vigorous and very demanding sexual morality — that nobody should be involved in a sexual relationship with anybody which is not based on the assumption of equality, which is not based on free consent and which does not involve any physical or,  indeed, psychological exploitation of the other person.
I believe that of itself describes an extraordinarily demanding and very principled sexual morality. It does not necessitate gynaecological analysis of degrees of penetration or indeed the extraordinarily ridiculous one about the Catholic moralist in Maynooth in the present day who got himself into the contorted position of talking about somebody using a condom during ejaculation but leaving a pinprick in it so as not to prevent the possibility of conception. I defy ordinary practical people to believe that that is actually serious philosophically, spiritually based moral theology, but we have serious moralists making speeches like that or making statements like that on the national airways. I do not think we should take people like that seriously. As adult human beings we should form our own values, our own views, about what is proper and what is wrong in the whole area of human sexuality and about the standards of behaviour.
I think that our moralists were always aware of the insecurity of the ground they trod on because of the speed with which they have always rushed in to demand the support of the State in this area and not just on the question of homosexuality. You must remember that adultery has been illegal in many countries at many stages of their history. Usually, of course, it is the woman who is penalised where the adultery has occurred. It is rarely that there are very servere penalties against men for adultery. The tradition of the fallen woman is long established in most western societies. I have never heard of an equivalent expression for a fallen man — apparently they never existed.
The interaction between attempts by society to regulate sexuality and various operations of control of people would be worthy of development as well, but not tonight because of time. Oral sex was and perhaps still is illegal in some states of the United States. I am always intrigued  as to how they enforce this kind of legislation, but it was actually illegal, and other various forms of non-traditional sexual expression, to use that phrase. I am not too sure that anybody can make a distinction between what is natural and what is unnatural in the area of human sexuality. As far as I know, since the idea was invented, people have been doing it in a variety of ways and a variety of situations which defy any categorisation of natural and unnatural. Therefore, I am not prepared to accept that sort of language.
Then, of course, we have the whole area of homosexual acts between men. I heard Senator Norris describe the history of that particular matter. I am fascinated by the fact that no similar legislation apparently was ever introduced about women. But I do know that one of the reasons was that women were so severely restricted and so severely tied down by a whole host of other legislation that perhaps the necessity for legislation like this was never perceived to be a reality. I know that at one stage — and perhaps it still exists — the official definition of a brothel was any house in which more than two women who are not married live together. That was as good an expression of the perception of female sexuality, that if they were living on their own without a man they must be up to something.
It all goes back to perceptions of morality, perceptions of sexuality and, indeed, in many cases, perceptions of women. I would address this as much to myself as to other Members of this House. One of the great contributions that Senator Norris has made to Irish politics and to Irish life is that his deliberate, active campaign has forced us all to confront the reality of homosexuality and to confront the reality of all the prejudices and all the fears that we have. Many people say that the deepest fears that most men have are not about homosexuality but about the possibility that they are homosexual themselves. I do not know about that, but what is quite true is that it is only when one is presented with situations one realises the depths of one's own prejudices and one's own resistence.
 I remember the first time I saw two gay men kissing in a very non-sexual fashion to say good night, in the way that lots of men would happily kiss lots of women to say good night to them, in a reasonably expressive but not too passionate a fashion. I remember having, metaphorically, to take a step backwards when it happened — I do believe Senator Norris was one of the people in question — but it did come as a considerable shock to me, I must say. Of course, the truth is that in many other cultures, in many other societies, two men kissing would be a symbol of nothing other than the normal expression of affection, any more than two men holding hands would be regarded as anything more than a normal part of normal activity. But we have created a culture where things that are taken as perfectly normal and having nothing to do with sexuality are seen in this country and in our kind of slightly cold blooded western society as being a sort of manifestation of something else.
We really have to get down and confront all those prejudices; and I think the more one confronts all those prejudices the more one realises that the legislation about homosexual activity ought to be identical with the legislation about other forms of activity. It has to do — and this is why I am quite happy with the age of consent of around 17 — with allowing our young people the freedom and space to come to terms with their own sexuality without external pressures on them, without any sort of forcible development, where they are forced to believe that it is necessary to be sexually active at a young age in order to prove some sort of independence or freedom. Therefore I think our legislative process ought to be about enabling people to develop sexually in a society which does not have either an unhealthy obsession with denying sex or, indeed, an unhealthy obsession with sex, but allowing people to grow up in a society of freedom and tolerance. That means allowing people to discover their own sexuality without, may I say, one  particular area — the increasing commercialisation of sexuality — which is neither healthy nor good for anybody because it is a major force which deprives people of the space and freedom to discover their own sexuality, without external pressure, at their own pace and in their own time. I think, therefore, that the report of the Law Reform Commission, as I understand it, is a proper basis for legislation and I hope that the Minister will see fit to implement it as it is there and without any concessions to some of the fears in our society.
There are a few more comments I wish to make. One is that it would be wrong to interpret the Supreme Court's decision on Senator Norris' case as being an implication that there is anything in the Constitution which would make legislation to legalise homosexual acts unconstitutional. What the Supreme Court said was that there was nothing in the Constitution which said that legislation of itself was inherently unconstitutional, which is not to say that amending legislation to remove this would have any problems with the Constitution. There is no guaranteed right in the Constitution, according to the Supreme Court, to have this legislation quashed. There is no suggestion that the Constitution would be a problem to the change in the legislation. Clearly, that was not the intention of their lordships at the time and I think that should be put on the record. I do think, however, that as well as confronting our own fears we will have to confront society. That is why it is necessary to have anti-discrimination legislation in regard to various groups in our society who have been victims of prejudice.
The largest group, perhaps, were women — and we have begun to deal with legislation to prevent discrimination against women — but there are other minorities in our society, like the gay community and indeed the travelling  community, who would benefit enormously from anti-discrimination legislation. It might not be legislation that could be enforced in a very specific way, but again it would be a statement of our intent and it would be a deterrent to some of the more blatant, vigorous and offensive forms of prejudice against various minority groups.
In regard, to displays of prejudice, I had the unfortunate experience of hearing a Garda superintendent say at a meeting I attended that most offences against children were carried out by homosexuals, which was a regrettable lack of perception on his part, and, may I say, a departure from the fairly tolerant position of our Garda, which, incidentally, has always been a good deal less prejudiced than that of their counterparts North of the Border. The RUC had an unfortunate record of being quite hostile to people and of using legislation similar to our own in a quite unfair way against homosexuals. I am very glad to say that our Garda have shown no such inclination. I think there was a slight problem after a recent spectacular murder case in which members of the gay community were given an excessively rough time; but I think by and large the Garda decided years ago that this legislation does not really apply in most cases.
I heard what Senator Lydon had to say and I would not agree with one word of it. I am not sure that we are right in this House to force people like Senator Lydon to vote one way or the other on the basis of a party whip. On an issue like this as in other issues — I am not even sure that that would necessarily mean that the reforms that I want would go through — I am not sure that we should force people who have views like Senator Lydon to vote in a particular direction because the party whip says so. I think there is room on issues like this for people to have the freedom to vote as they choose to vote. I believe the majority of the Members of both Houses of the Oireachtas will  support reforming legislation of this kind without a party whip, which may cause people considerable difficulties with their own consciences. There is not a word of what he said that I would agree with, but I believe that if I am to subscribe to a pluralist vision of Ireland the pluralism includes those people who dissent from me on the right as well as those who dissent from me on the left. Therefore, I would suggest to the Government party, and to all the parties, that perhaps this is an appropriate issue on which, as the Leader of Fine Gael has said already, we should think about a free vote, where people are not bound by party whips but are free to express what they believe to be right or to be wrong on a particular issue.
Dr. Upton Dr. Upton
Dr. Upton: I welcome the intention of the Minister to change the law so as to take into account the European Court's judgment in relation to the topic that we are discussing this evening. In many ways the day must be the Minister's day. The Minister must be a rather puzzled Minister coming into the Seanad and finding that he is being welcomed and praised and so on after the reception he got when he was here for his Broadcasting Bill earlier this year.
Minister for Justice (Mr. Burke) Raphael P. Burke
Minister for Justice (Mr. Burke): You cannot have it every way.
Dr. Upton Dr. Upton
Dr. Upton: Clearly it is the topic that the Minister has chosen. The Minister is obviously very good at sexual legislation. There can be no doubt at all about it. The European Court delivered its judgment in October 1988 and, as I understand it, that judgment was signalled for quite some time before it was actually given. In many ways it is a pity that we did not get round to taking the steps which the Minister has now clearly indicated he is going to take to eliminate this discrimination in the law against the homosexual community.
I believe that most fair and openminded people in this country now would  accept that there is a general consensus in support of the outlawing of discrimination against gay men and lesbian women. That is very much the position of our party. It has been the position of our party for quite some time. It is embodied very clearly in an Equal Status Bill which we published earlier on this year. If I can read into the record the appropriate part of it, it refers to: “Sex, marital or parental status, sexual orientation, religion, age, handicap, race, colour, nationality or national or ethnic groups including membership of the travelling community” — any discrimination against those groups would be outlawed under that Bill, which I would hope at some stage would be enacted into law.
Clearly, our party are very much in favour of outlawing discrimination against people on the basis of their sexual orientation. That also, I have to say, has been the position of the Congress of Trade Unions for quite some time. In the early 1980s the Irish Congress of Trade Unions published a very clear and specific policy paper on this issue, where the Congress gave guidelines to the negotiators to encourage them to ensure that no discrimination was tolerated against people on the basis of their sexual orientation.
In the past, as Senator Norris very ably indicated earlier this afternoon, there has been very great discrimination against homosexuals in society. That discrimination has been very ugly in the case of some people who openly declared their homosexuality and were known to be homosexuals. It created great problems and worries for their families. It also created great problems for those people who were homosexuals but were afraid to admit it. They lived in fear of their secrets being found out and that they would be subsequently exposed to blackmail and to discrimination. It is very good to see that that is now about to be outlawed. The outlawing of this will help to remove some of the prejudices to which homosexuals are still exposed in this society.
I do not believe that the introduction  of the anti-discrimination laws will fully remove those prejudices. It will help to remove them, and with the passage of time they will indeed fade away. I would see it as a useful step, but I do not think that some of these prejudices — unfortunately, they are very deeply ingrained in some people — will be, as it were, removed at one stroke. It is a step, however, and it is a very important step.
It is very important that homosexuals should be allowed to live a life free from discrimination and free from any fear of blackmail. This legislation will certainly help to do that. It will help to give homosexuals equal status and allow them to develop without any fear of discrimination. It will allow them to pursue their economic independence. It will allow them to be able to participate fully in the social, cultural and political life of the community in conditions of freedom, dignity and equality.
The whole homosexual community, both gay men and lesbian women, owe a tremendous debt to Senator Norris who, over the years, has in a tremendously courageous manner — there can be no doubt about that — stated their case, made their case repeatedly in this forum and indeed in many of the media available to him.
For all those reasons I welcome the European Court's judgment. I welcome the intention of the Minister to enact the principles of that judgment into Irish law and I welcome the fact that we are now about to move to undo this appalling Act — the Offences Against the Person Act, 1861 — which, as somebody said earlier, was in effect a blackmailer's charter. I welcome the fact that that is now about to be removed from the Statute Book. I encourage the Minister to move to introduce the appropriate legislation as rapidly as he can.
Mr. Ross Mr. Ross
Mr. Ross: I would like to echo the words of Senator Upton. It is ironic that the last time I saw the Minister in this Chamber I was leaving involuntarily as a  result of the Broadcasting Bill, which I opposed. This time I welcome the Minister wearing his other hat. It is appropriate that those of us on this side of the House who have watched his progress in Justice should say that he has been an extremely good and progressive Minister for Justice. This is one of a series of liberal Bills which have to a certain extent surprised me and surprised others on this side of the House. I think of the Criminal Law (Rape) Bill today, the Abolition of Hanging Bill and the incitement to hatred amendments which he brought to this House. The Minister is to be greatly credited for showing this courage, because we realise the political difficulties involved in introducing a Bill of this sort or of the others I mentioned, in this House or in any other house. It is very easy for us on this side of the House to propose legislation of the sort the Minister is bringing in because we do not have to take the responsibility or the political flak; and we have peculiar constituencies which respond much more readily to this sort of legislation than those of the Minister. I welcome the legislation and I sincerely thank the Minister for bringing it forward and for having the courage to do so.
The second person I should say a few words about is Senator Norris. It obviously has been a very long and on some occasions a very lonely furrow which he has had to plough. Indeed I have benefited from the fact that Senator Norris has been ploughing this furrow, because he is a colleague of mine in the same constituency. It was very difficult for him for many years standing on the platform of gay rights — not exclusively but it was the platform with which he was identified exclusively in the media — to win an election. Senator Norris continued to stand unapologetically on that particular record; he did not withdraw it or hide it, and he got elected on it. It is greatly to his credit that he succeeded in getting to this House in spite of the many  prejudices held against him. I am afraid I benefited indirectly from those prejudices. He may have benefited from the prejudices against me, but those prejudices were probably legitimate and the ones against him were unfair.
I was very fortunate in that Senator Norris some years ago opened my eyes to the gay community in that he took me to the Hirschfeld Centre for lunch. Apart from the menu, which was quite horrific and far too expensive, the Hirschfeld Centre was an eye opener in that when I went in I did not know quite what to expect. I admit I was wary. It was something which I was going to write about. I wanted to write about it but I expected something very strange and something very different. The thing that struck me about it more than anything else I suppose was that the Hirschfeld Centre was rather depressingly normal. It was full of normal people doing normal things, just looking after themselves and entertaining themselves in a normal way that anybody in a club of any normal sort might do. That is not meant to be a plug for the lottery funds which Senator Norris is looking for to rebuild the Hirschfeld Centre. It was an experience. It strikes you how normal what is going on and that these people are not different or are not something out of this world, which we are encouraged to believe by the sort of prejudices with which we have been brought up.
The heterosexual community, if we have to divide people this way, owe the homosexual community a fair amount. There are many myths about the AIDS virus and Senator Conroy touched on that matter. One of the myths is that the homosexual community are the sole spreaders of the AIDS virus and that was very useful for those who were anti-gay. It was initially true that the homosexual community spread it more rapidly but it is spreading rapidly through the heterosexual community. The heterosexual community owe a debt to the homosexual community in that the gay community,  especially in Ireland, took the initiative on the AIDS problem which the Government, and this is not meant to be in any way a political point, were slow to take, maybe through ignorance, prejudice or simply not realising how bad the problem was or how bad it was likely to be. The gay community tackled this problem responsibly and, presumably, protected many in that community and many heterosexuals from the AIDS virus. That is something we should bear in mind when we are pointing out the differences between the two communities.
Many people ask: what is the point of taking this law off the Statute Book — the gay community are not, in effect, prosecuted and therefore they are not discriminated against? That may be true but so long as that law remains on the Statute Book, and says that these people are criminals, it encourages gangs of prejudiced people to preach the gospel of hate and to say things which are encouraged and legitimised by the law. The law says they are right. That is a very sound and tangible reason why the statute must be changed.
I encourage the Minister, when he comes to draft the legislation to take on board the advice and recommendations of the Law Reform Commission. I encourage him to go the whole hog, despite obvious difficulties he will have, and put heterosexuals and homosexuals on a completely equal basis before the law so that there simply will be no difference in what they can do and cannot do. We should not be able to get up and say they can do this or that. There should not be a cause, nor should there be any prejudice. The issue would simply disappear. The Minister has power to do this by literally abolishing any distinction in what both communities can do legally.
I ask the Minister, when he is introducing this legislation, to bear in mind that it would be very welcome and it would be appropriate if it were initiated in the Seanad.
Mr. O'Toole Mr. O'Toole
 Mr. O'Toole: There is very little left to add to the debate. I welcome the fact that the Minister has come in to explain the situation. There was a sense of frustration building up on our benches in that we did not have a clear line on the view of the Government. I thank the Minister for making the position quite clear to us today. I also welcome the fact that he has signalled that he is prepared to bring in this progressive legislation. It will mark his Ministry for posterity. I compliment him on that.
Earlier tonight we discussed the matter of a pluralist society, the need to accommodate differences and the need to be aware that a democracy will always be tested. The yardstick of democracy is the way in which it treats its minorities. I enjoyed the discussion on minorities and normality. I listened earlier to Senator Conroy saying that homosexuality would never be the norm. I was going to interrupt and say if it was not the norm, might it be a norm? How would it be if it happened that by some quirk of nature, or by the forces of demography, 51 per cent of the population happened to be homosexual at any one time, or 51 per cent of the population in any given area happened to be homosexual at any one time? What would be the norm then? Normality is just simply a statistic and it is nothing more. It has nothing to do with democracy. Majority rules but majority must rule keeping in mind the rights and the sensitivities of the minority at all times.
Article 40 of the Constitution states that all citizens shall, as human persons, be held equal before the law. This is really the issue that is being discussed this evening. That is what it comes down to at the end of the day. Article 40 further states that the State guarantees in its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of the citizens. That is what we are about here tonight, even though I am quite sure it was not written with that in mind.
I would welcome the early introduction  of this legislation. It has long been the policy of the trade union movement that such legislation should be put in place. We have hammered this Minister from these benches for the last number of months about this matter but there were other Ministers before him. Somebody will have to take the decision on it and it now looks as if it will be the present Minister.
When I first came into this House in 1987 I had met Senator Norris on a number of occasions but I did not know him very well. I knew him as somebody who defended gay rights. I have quite a number of friends who defend gay rights in a public way who are not themselves gay. I must have been the only person in Ireland who did not know that Senator Norris was gay. I asked him: “Would you mind telling me, David are you gay?” He was shocked that I did not know and had to ask him. I have quite a number of gay friends but he is the only one who has ever told me that he is gay.
Mr. Norris Mr. Norris
Mr. Norris: I have retired.
Mr. O'Toole Mr. O'Toole
Mr. O'Toole: It is not easy to come out and publicly declare one's sexual orientation in the case of a gay person. It has not been easy on him. Despite the fact that he puts a very aggressive and brave face on it, I have seen him under pressure because society has put undue and unfair pressure on homosexuals. I want, as a gesture of solidarity to my colleague, to say that we welcome what is proposed and we hope the recommendations will be fully implemented. We also hope that it will be done quickly and we look forward to dealing with the legislation at that time.
Acting Chairman (Mr. Naughten) Acting Chairman (Mr. Naughten)
Acting Chairman (Mr. Naughten): When is it proposed to sit again?
Mr. McKenna Mr. McKenna
Mr. McKenna: At 10.30 a.m. tomorrow.
Seanad Éireann 127 European Court of Human Rights Judgment: Statements (Resumed).