Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I thank Deputy Joan Collins for her amendment. First, the woman seeking the abortion is never criminalised. We are following through on the recommendation of the all-party committee that the woman seeking the abortion is never criminalised. There is decriminalisation in that respect.

Perhaps we have different views on this, but if something is legal in certain circumstances it obviously needs to be illegal in other circumstances or else it is effectively legal in all circumstances. This Bill does provide restrictions; its title refers to the "regulation of termination of pregnancy". We can argue and debate, though I think the question was largely settled, that the grounds put forward are the grounds on which it is legal. On other grounds beyond that, it is illegal. If I were to delete the offences section in its entirety, there would be no offences for breaking that law, which I think could actually leave women in vulnerable positions. In the area of illegal abortions, how could we protect women? What about forced abortions or instances of coercion?

I want to say at this stage, because it is very much related to the amendments we are discussing, that I would like to work with colleagues and am already working with the Office of the Attorney General to move the offences section in the Bill. A number of colleagues, including Deputies Joan Collins, Clare Daly, O’Connell and others referred on Second Stage to the fact that the offences section is the first thing to hit people when they pick up the Bill. That is not the policy intention. It is due to a drafting precedent or template; that is where offences sections generally happen to be placed in legislation. While not all Bills or Acts are picked up and read all that often, this might be one that is. This legislation is about providing access to regulated termination of pregnancy services. We are going to see if we can bring forward amendments on Report Stage to locate the offences section in a more appropriate part of the Bill so it is not the first thing a reader sees.

Section 5 sets out the substantive offences under the Health (Regulation of Termination of Pregnancy) Bill 2018 and provides that it shall be an offence for a person by any means whatsoever to intentionally end the life of the foetus otherwise than in accordance with the provisions of the Bill. I remember that I was asked lots of times during the referendum campaign, as I am sure many Deputies were, whether the foetus has any rights. Of course, the reality is that it does. Outside the terms of this Bill, it is still illegal to destroy the foetus. I know words in this area are emotive but I am using the word "foetus" because it is the medically appropriate word. It will still be an offence to end the life of a foetus outside of these terms. It would be inconsistent to say it was an offence yet to have no offence in the Bill.

Officials from my Department and the Office of the Attorney General did consider how to phrase that because a number of people raised the issue and indeed it came up earlier in our debate. However, the key consideration in drafting any legislation must be to ensure that the intent of the law is as clear and unambiguous as possible. In this case, this formulation was put forward after considerable thought and discussion. It is the clearest formulation possible for the offence and I would be very nervous, for the reasons I outlined earlier in terms of legal and medical clarity, about moving away from it.

Under section 5 it is also an offence to prescribe, administer, supply or procure any drugs, instruments, apparatus or other thing which is intended to be used with the intent of ending the life of a foetus or being reckless about whether it might be used for that purpose. I repeat that these provisions do not apply to a pregnant woman who has ended or attempted to end her own pregnancy. This Oireachtas was quite clear in wanting to move beyond the criminalisation of the woman. It is an offence for a person to procure a termination for a pregnant woman outside the provisions of the Bill.

There needs to be a reasonable conversation in this area. If we are at long last providing a way of accessing free, safe and legal medically supervised abortion, we need our law to be encouraging people to use the free, safe, legal and regulated abortion services. When people ask what if a mother or sister does this for her daughter or friend, I would respond that we need everybody to be using the legal, safe, regulated service. If there were no offences in this Bill, we would be saying it was kind of all right to continue to order the pill off the Internet. It was a decisive factor in the campaign and in the committee’s deliberations that the procuring of illegal abortion pills was a cause of concern. It was certainly one of the reasons people gave in many of the conversations I had the length and breadth of the country for deciding to vote for change. We need to be very careful; it would be highly irresponsible for me as Minister for Health to stand over a situation which could result in damage to a woman’s health or even pose a risk to her life and for me to say there was no offence for that. We are not having an offence for the woman but it would be highly unusual for there to be no offence at all. I would not in any other area allow for unregulated medication from unknown sources for another person to proceed unchecked. If a person ordered pain killers on the Internet for a friend who had a pain in their chest, rather than going to the doctor, I would be rightly criticised for not trying to stamp out the illegal use of that medication and not encouraging its safe, regulated use. God forbid, if something went wrong, people would be asking serious questions about the Oireachtas and the Minister of the day in terms of why they did not think they needed to regulate.

I realise that some people want to change the name of the Bill, but its Title currently contains the word regulation. We are regulating; we are saying in certain circumstances that it is legal, and we are also saying that in other circumstances it is not legal. I understand that feelings run very high on this issue because there is a real chilling effect from the eighth amendment, from the Protection of Life During Pregnancy Act, and a sense that doctors and women will be fearful whether this will happen. We want to move beyond that - I do too - but a termination of pregnancy is a medical procedure, it involves medical treatment and it is best carried out by medical practitioners in a safe and regulated medical environment. If I have said it once, I have said a million times, as have many others in this room, that this is about women and their doctors. Therefore the Bill must be about ensuring that the law is directing and supporting the provision of service in that direction. Yes, there are penalties in the Bill, I know that there are concerns about some of the penalties. I am happy to hear the committee's view on that and, indeed, work with the committee on this between now and Report Stage because there is no font of all wisdom on this, nor am I claiming to be it, so I am happy to work with colleagues. However, it is worth pointing out that the specific sentence to be applied is a matter for the court. People tend to refer to the higher end of the spectrum, the phrase "up to" is also in the Bill, but it is essential to ensure that a potential penalty does reflect the seriousness of a crime. We could be talking about serious and violent attacks on women in some situations. I am not deliberately picking the most extreme situation, but we do need to ensure that what is on our Statute Book gets the balance right, that if there is a violent attack on a woman and her autonomy and well-being that that is a suitably high offence.

There are many examples, and in the interests of time I do not intend to go through them all now, of where a maximum penalty is in legislation but is very rarely applied. The maximum penalty in Ireland under section 14 of the Criminal Justice (Thefts and Frauds Offences) Act is life imprisonment for robbery but that does not mean that everybody who robs something ends up in prison for life, far from it. It is about trying to ensure that within our statutes, there is an ability if a woman is violently attacked to impose a hefty sentence. It is in no way about trying to penalise women, in fact it is the opposite, we are not criminalising women. It is about ensuring that when the Oireachtas provides for a service that is free, safe, legally and regulated, that that is the service that we support and encourage and that we collectively try to end the use of services outside of that safe space, namely, the unregulated use of medication. I cannot think of another example as Minister for Health where I would, or the members would ask me to, turn a blind eye or ignore the use of unregulated medication, although I am not saying that is what anyone here is trying to do. I expect there will be a great deal to discuss on this matter between now and Report Stage but again, I am not the font of all wisdom and am happy to work with the committee to ensure that we get this right. I will try to move the offences to a more appropriate section of the Bill, which would be important. It is not as simple as I had thought but it is doable and I want to do it, and, in fact, we will do it. However, while I fully understand what Deputy Joan Collins is doing in proposing the deletion of the offence altogether and the motives behind that, there would be an unintended consequence that would leave some women vulnerable.