Oireachtas Joint and Select Committees
Wednesday, 19 October 2022
Joint Oireachtas Committee on Health
General Scheme of the Health (Termination of Pregnancy Services (Safe Access Zones)) Bill 2022: Discussion
Seán Crowe (Dublin South West, Sinn Fein)
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The purpose of today's meeting is for the joint committee to discuss the general scheme of the health (termination of pregnancy services (safe access zones)) Bill 2022. The general scheme has been referred to the committee for pre-legislative scrutiny, and the committee is required to report on it by 14 November. To enable the committee to consider this matter, I am pleased to welcome Mr. Muiris O’Connor, assistant secretary, research and development and health analytics division; Ms Bronwyn Conway, bioethics unit; and Ms Caitriona Mason, bioethics unit, Department of Health.
All those in the committee room are asked to exercise personal responsibility to protect themselves and others from the risk of contracting Covid-19. All witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if any of their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.
Members are also reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against persons outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit a member to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask members partaking via Microsoft Teams that, prior to making their contributions, they confirm that they are on the grounds of the Leinster House campus.
I invite Mr. O'Connor to make his opening remarks.
Mr. Muiris O'Connor:
I thank the committee for inviting us here today. I welcome the opportunity to present the Bill to the committee. I am assistant secretary in the Department of Health. I am joined by my colleagues, Ms Caitriona Mason and Ms Bronwyn Conway, from the bioethics unit in the Department. I would like to outline the rationale behind the introduction of the Bill, before briefly addressing some of its main provisions. As members will be aware, the purpose of this Bill is to ensure safe access to termination of pregnancy services.
Since 2019, when the termination of pregnancy service commenced within participating maternity units and general practices across Ireland, there have been periodic reports of demonstrations and anti-abortion group gatherings outside facilities providing termination of pregnancy services. We are mindful of the distress, anxiety and damage to the health and well-being of those subjected to such protests, which risk, in some instances, deterring women from accessing the medical care they need. This is particularly true considering such demonstrations often disproportionately affect the most marginalised and vulnerable sections of our society. In light of these incidents and cognisant of their impact on service users and providers, the Minister for Health is committed to delivering on the programme for Government, which promises to "establish exclusion zones around medical facilities". In furtherance of this objective, the aim of this general scheme and its underlying policy is to protect the right of a woman to access a healthcare service safely, with privacy and dignity, and without facing unsolicited attempts to influence her decision. It will also protect service providers and their staff in the course of their duties and responsibilities.
We can all agree that it is in the public interest to ensure that healthcare services, including termination of pregnancy services, can be accessed safely and privately by those who need them, and this is what this general scheme proposes to deliver. Primarily, this is achieved through the creation of safe access zones. The proposals aim to establish a 100 m safe access zone around all healthcare facilities that can provide termination of pregnancy services, not just those that currently do, including, for example, all hospitals and GP practices. This is to ensure that the legislation will not highlight the specific service sites where termination of pregnancy services are currently provided and will allow them to continue in relative anonymity. Within those zones, conduct which is intended to, or may reasonably have the effect of, influencing the decision of a person in relation to availing of, or providing, services related to termination of pregnancy will be prohibited. Head 4 sets out a comprehensive, though non-exhaustive, list of such behaviours. The goal here is to ensure that conduct aimed at impeding access or influencing the decisions of service users or providers within these zones is addressed to the greatest extent possible to allow the legislation to deliver on its objectives. In addition to these provisions, further protection is afforded by head 6. This head aims to prevent, repeated behaviours amounting to intimidation or harassment, including campaigns aimed towards healthcare providers, irrespective of where they are committed. The purpose here is to mitigate against the impact, that could arise from such conduct, on a service provider’s choice to offer termination of pregnancy services. It is also to ensure that the potential provision of termination of pregnancy services is maximised to the greatest extent, and to avoid disproportionate impacts on access to and provision of services geographically.
However, in advancing these proposals, it is recognised that protecting the rights of service users and service providers must be balanced against protecting the rights of those engaged in legitimate protest. In balancing the various rights involved, the general scheme restricts specified conduct, but also aims to limit the scope of such restrictions to that which is strictly necessary.
To this end, head 5 sets out specific exemptions that may apply in the context of prohibited conduct within safe access zones and the corresponding offences. In doing so, this head also further acknowledges and promotes, on a proportionate basis, the balancing of various human and constitutional rights. Critically, this head further makes clear that the Bill will not impede, impact on, prohibit or criminalise anything done by healthcare and other staff of the healthcare provider in the normal functions of the healthcare service.
The proposed legislation preserves the right to protest against abortion and speak out in favour or against it, apart from in the limited areas to be covered by safe access zones. Additionally, to ensure an appropriate balance between countervailing rights, the Department has engaged with the Director of Public Prosecutions, the Irish Human Rights and Equality Commission, the Data Protection Commission and the Irish Council for Civil Liberties seeking any observations they may have on the proposals.
In regard to enforcement, it is essential An Garda Síochána be provided with relevant powers to manage and respond appropriately to offences under this general scheme, and these are mainly set out in head 7. Overall, in keeping with the principle of proportionality, the general scheme provides for a graduated approach to enforcement to ensure that any restriction on rights is minimised.
Finally, head 8 sets out the penalties arising from offences under the scheme, which have been provided for on an escalating basis, where harsher penalties may apply at the discretion of the court for repeat offences.
The development of a dedicated, stand-alone safe access zones legislation will comprehensively address, and mitigate insofar as possible, the potential for a person's access to a termination of pregnancy to be impacted or influenced at the point of access. It will provide additional assurance to healthcare providers that they will be afforded protections should their services become the target of specified conduct that could interfere with their service provision and staff. In putting these protections in place, the legislation will deliver on a programme for Government commitment. The Minister is anxious to see the Bill drafted as quickly as possible in order that it can be introduced to the Oireachtas, and the Department will continue to work closely with the Office of the Attorney General, the Department of Justice, the HSE and An Garda Síochána in drafting the final Bill, recognising all the complexities involved.
I thank committee members for their patience and attention. My colleagues and I are happy to take questions from them on the legislation.
Seán Crowe (Dublin South West, Sinn Fein)
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I thank Mr. O'Connor. He and his colleagues are all welcome to the meeting. I reiterate that the committee is required to report on this matter by 14 November, which creates great challenges for the committee. We have asked for submissions as part of this process. Many have come in and we are still expecting some more. It will be a severe challenge for the committee and we will meet later in private session to discuss that.
I call Deputy Durkan. Will he confirm he is on the precincts of Leinster House?
Bernard Durkan (Kildare North, Fine Gael)
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Yes. I welcome our guests and thank them for their contribution to the legislation. I am in two minds as to its effectiveness. We have to go back to the original provisions of the legislation, the constitutional provisions and the legislation as published. It was intended to address the issue whereby a service was available to women who wished to seek that service, at their discretion, under the assumption they could do so without appearing to be the target of anybody who feels they may be breaking the law.
I am not a supporter of abortion for abortion's sake and I do not think most people are, but what is at issue is whether women can access whatever services may require, or men either, for that matter, in all the public hospitals that are listed as providing the service, without being identified. I foresee a problem in that the legislation, in trying to help, may find itself to be counterproductive. By virtue of the exclusion zones, the identification of all such hospitals, centres, GPs and so on is going to be obvious to the protestor, and that is going to cause unnecessary pressure. I do not know how effective the exclusion zones will be, how they will be managed and whether they will be respected. In the US, they have not been successful; there have been constant pressures and attacks by groups of different mindsets. As a result, women have been frightened by what has been put before them in the sense of protests, and that is understandable. I accept what this legislation is trying to do, but I am not sure it will do what was intended.
I am not certain it is a good idea to identify areas where given services, such as terminations, are available because that merely does a favour for those who want to protest, and protesting may not be the only thing they want to do. It could have serious consequences for the people the legislation is trying to protect. My views on the subject are well known. I am not certain, again judging by the experience in the US, which I have studied, that it is a good idea to identify the locations. It is difficult to protect the people who need to use such services for whatever reason. I am concerned we will find it is not possible to protect people, in which case the legislation will be seen to be weak and the protestors will achieve victory, for how long I do not know. Whatever about the ready identification of hospitals and health centres where services under the legislation are available, I do not know how the enforcement of the 100 m ban can be applied, especially throughout the country and at different times. Instead, I would emphasise the need to ensure that services, as envisaged under the legislation and supported by the referendum, are readily available to those who have a need to avail of them as and when required.
Various reasons have been put forward as to why there should be changes. Some of the changes proposed might be for the better and others might not. I was a member of the original committee that examined the issue and I voted for the changes, simply to improve and protect the services available to those who might need to avail of them and to remove any stigma or identification of their situation in order that they could confidentially avail of the services as and when they required.
I will vote for the legislation. I am merely pointing out what I see as potential difficulties and I would like a response to them.
Mr. Muiris O'Connor:
Many of the considerations the Deputy raised are very live in our work on the legislation. We are well aware that patients attending any health service and their family members are often at a vulnerable point in their lives and it is vital to afford safety, privacy and dignity to everyone in accessing all health services.
We are aware of the point the Deputy raised about the danger of the legislation being counterproductive. We do not propose in the legislation to afford the protection of the Bill only to those providing termination of pregnancy services. The protections will be provided to all health facilities that can provide such services, meaning all GPs and other medical practitioners in maternity hospitals.
The safe access zones legislation is intended to apply to all those services and thereby not draw particular attraction to GP practices that are currently providing termination of pregnancy services.
We are conscious the legislation introducing termination of pregnancy services is new and with Covid and so forth, the services are in their early stages. We are determined to support their roll-out as envisaged as part of integrated care. The comparisons with America do no hold up fully because of an important policy decision taken by these Houses to incorporate the services within primary care and secondary care. That in itself offers some protection. No one can know the purpose of anyone's reason to access a health service so there is some privacy afforded there and we will not make the mistake of zoning in on those services that are currently providing termination of pregnancy services because we want the numbers providing these services to continue to grow as the service rolls out. I thank the Deputy. We are very alive to the concerns he raises.
Bernard Durkan (Kildare North, Fine Gael)
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How are we endeavouring to encourage the availability of the service to women who may need to avail of it at short notice? For instance, you cannot take three or four weeks to make up your mind and there are a number of people who by virtue of conscience do not offer the service. The services that are proposed, legislated for and were the subject of a referendum are very strongly recommended to be made available with anonymity and regular and easy availability so the citizen, who in this case is a woman, may have access to them without being afraid of being identified or pilloried. That applies to any service that might be sought in a hospital, health centre or wherever else. There must be a fair amount of anonymity such that if a service becomes a target, or those who want to protest identify particular locations, then the failure to adhere to the constitutional approval and the legislative provisions is in question. Any impedance, anything that frightens the person seeking a service, for instance, if a person has any illness or ailment-----
Seán Crowe (Dublin South West, Sinn Fein)
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The Deputy is out of time.
Bernard Durkan (Kildare North, Fine Gael)
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I will finish with this. In such circumstances, the person has a right to seek assistance quickly and privately and does not have to tell anybody what his or her intention is. It is a private matter and we must respect that.
Mr. Muiris O'Connor:
The Deputy has pretty much summarised the motivation for the safe access Bill. It is to ensure the privacy and safety of service users and service providers are protected. As for accessing services in a timely manner, a key part of that is ensuring availability of these services on a widespread basis as a core part of primary care and secondary care, as appropriate.
Issues relating to the termination of pregnancy Act are currently subject to intensive external review by Marie O'Shea. She will be looking at all those issues, including the geographical dispersal or current services, the views of service users and providers, the providers' experience of delivering the service in the early phase and any guidance on the extent to which the services are operating consistent with the intentions of, as the Deputy said, the will of the people and the will of these Houses as expressed in the Act.
Bernard Durkan (Kildare North, Fine Gael)
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I thank the Chairman.
David Cullinane (Waterford, Sinn Fein)
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I welcome the officials. I support this legislation as it makes its way through the Oireachtas. If members can be helpful in speeding up that process, we should be, but we must do our job of pre-legislative scrutiny also, as I am sure the witnesses understand.
We received eight submissions and based on my reading of them, they all broadly welcome the heads of the Bill. That is good. The HSE submission is interesting. It supports the Bill in principle but refers to some practical challenges, one of which is the area of enforcement. However, we have not received a submission, as far as I can see, from An Garda Síochána. Has one been sought and, if so, is it going to come our way? As was noted, there is a time constraint on our work.
Seán Crowe (Dublin South West, Sinn Fein)
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We have sought a submission from An Garda Síochána and we hope it will arrive shortly.
David Cullinane (Waterford, Sinn Fein)
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It would have been better to have had it for this meeting. We will meet in private session later but given that a number of organisations have raised practical concerns about enforcement, it would have been better to have the Garda submission. When we receive it we will have to give it its due attention. In the list of submissions, the one received from the Pro-Life Campaign is currently unavailable because it is with the Office of Parliamentary Legal Advisers, OPLA, for clearance. I assume there are legal issues with it. Was there a concern that the submission was defamatory? Is that why it was sent to the OPLA?
Seán Crowe (Dublin South West, Sinn Fein)
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I am told there are issues of concern. I have not seen the letter. I am told there are issues of concern with the letter and it was run by the OPLA, as is normal practice if there are concerns.
David Cullinane (Waterford, Sinn Fein)
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There obviously were concerns. If it was sent to the OPLA, there are concerns that it is potentially defamatory. It is important-----
Seán Crowe (Dublin South West, Sinn Fein)
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That is the normal practice if there are any concerns.
David Cullinane (Waterford, Sinn Fein)
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I understand that but the submission has not been released and if it has not been released, there is a problem. My point is we want to hear from all sides but when any organisation makes a submission it must not be defamatory as otherwise we cannot do our job. I wanted to make that point.
I move to the HSE submission. I have a number of points to make because the context is important here and some people will ask why we need this legislation. The HSE submission makes the reasons very clear because it refers to weekly, and sometimes monthly, anti-abortion protests outside maternity hospitals, mainly in Dublin, and also outside GP surgeries. It refers to the display of religious imagery and messages, graphic images of foetuses and, in some instances, physical and verbal aggression. No woman or person should be subject to any type of intimidation or physical or verbal aggression from anybody when entering a healthcare premises. The fact that this is happening on a weekly or monthly basis is unacceptable. The HSE submission also states some GPs are willing to provide the service but are concerned about potentially attracting protests. Again, that is a reason we need this legislation. It also refers to the potential for significant psychological impact on women. I think we can all agree that if women are subject to harassment and intimidation, it will have a psychological impact on them. The submission sets out very clearly why we need this legislation, as do the submissions from other organisations.
I have a number of questions on heads 4 and 6. Head 4 refers to "prohibited conduct". It seems to be the lesser of the charges. Persons convicted - it is a summary conviction - of an offence under what would be prohibited conduct in head 4 are liable to a class E fine for a first offence, a class D fine for a second offence and a class C fine for a third offence. What is "prohibited conduct" in the context of this head? Will the witnesses summarise that for the committee?
Mr. Muiris O'Connor:
As for the Garda involvement and input, I am not sure what submissions have come as a result of your call-out but I assure the committee we have worked very closely with An Garda Síochána, counterparts in the Department of Justice and the Director of Public Prosecutions in developing the legislation. We have benefited greatly from their input and they continue to be available to us.
David Cullinane (Waterford, Sinn Fein)
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I do not doubt that at all. The point I was making is that we have our job to do, which is to hear from all of those stakeholders. Given that the HSE and others have raised concerns about enforcement, it is important for us in our work to hear directly from An Garda Síochána. I do not doubt it worked very closely with the Department.
Mr. Muiris O'Connor:
On the Deputy's second point, we were aware of the HSE submission and it corresponds to what its representatives relayed to us as regards the situation on the ground. We absolutely appreciate the distress and anxiety involved. There is evidence from other jurisdictions where such protest happen on the distress that is felt beyond the incident itself. It can be a very uncomfortable experience for women trying to access services.
Head 4 relates to the prohibited conduct. In striking the right balance of proportionality, we are not excluding protest from these zones. The identification and definition of prohibited conduct is set out in head 4. It is the subject of ongoing meticulous further development by the Department in consultation with and with the support of the Office of the Attorney General. It sets out the types of interference we wish to make illegal within the safe access zones. Interfering or attempting to interfere by any means with a service provider or any person-----
David Cullinane (Waterford, Sinn Fein)
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Can I interject because this head refers to "communicating in such a way as to deter or dissuade" an individual or a healthcare provider from providing termination and the same in communicating with a person who wishes to avail of termination of pregnancy services. Does that include displaying religious imagery and messages and graphic images of fetuses as was outlined in the HSE submission we got?
David Cullinane (Waterford, Sinn Fein)
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Okay, so it is included in head 4.
David Cullinane (Waterford, Sinn Fein)
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In relation to head 4(3)(g, which refers to intimidation or harassment, it seems there is a difference between head 4 and head 6 when it comes to harassment. Is it a graduated approach where there is a lower threshold of harassment under head 4 and then what seems to be more persistent harassment under head 6? Is that the difference?
David Cullinane (Waterford, Sinn Fein)
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Okay. That could be communicating by telephone or by email; persistent harassment.
David Cullinane (Waterford, Sinn Fein)
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When we talk about intimidation under head 4, it is at the actual healthcare setting.
David Cullinane (Waterford, Sinn Fein)
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I can see the HSE and others have raised some concerns about enforcement. It terms of the Department's conversations with An Garda Síochána, there were media reports that the Garda Commissioner might have concerns about the ability to enforce this legislation. I am not sure if that is correct and I do not want to do him any disservice. Mr. O'Connor stated the Department had a constructive engagement with the Garda, which is good. Are there concerns or what type of concerns were expressed by An Garda Síochána?
Mr. Muiris O'Connor:
The types of input from the Garda were concerned with the implementability of the legislation and issues such as whether people could reasonably be presumed to understand the new legislation when it comes in to place or to know they are breaking the law. There is complexity around the term "curtilage", the perimeter of a facility and around it and operationally, whether someone could know he or she was 100 m from it.
David Cullinane (Waterford, Sinn Fein)
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Is the Garda comforted by the provisions of heads 4 and 6, because they include many definitions of what is and what is not allowed or what is prohibited? Are the Garda representatives given comfort by what they have seen from heads 4 and 6 that they would have the ability to enforce this measure?
Mr. Muiris O'Connor:
Yes. We continue to work with the Garda but what is presented to the committee in the current draft benefits greatly from its input. In terms of operational terms, the Garda felt the facility to clarify to people that they are breaking the law, that they are in a safe access zone and that what they are doing is illegal, in the sense of a warning, was a further assurance around proportionality, as was the assurance during an interaction that on being informed of his or her action being illegal, such a person was then operating intentionally. The offence then is subsequent to that Garda warning. That is how we have benefited from interaction with An Garda Síochána and the Office of the Attorney General is helping to set out the definitions.
David Cullinane (Waterford, Sinn Fein)
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I will make one point before I conclude. I want to see the submission from An Garda Síochána, which would be important in the context of our work but to reiterate the point I started with, it is unacceptable that people are intimidated in any way by going to any healthcare setting. Given what we have heard from the HSE and our own anecdotal evidence of intimidation, harassment, and abuse, this Bill is necessary and I will be fully supporting it.
Róisín Shortall (Dublin North West, Social Democrats)
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I welcome all the guests this morning and thank them for their presentation. I will start by stating I fully support this legislation and certainly most members of the committee will do all they can to ensure its speedy passage when published. There is no doubt that the current frequency of protests outside healthcare facilities is extremely disturbing and upsetting for people availing of services. It is worth repeating that everyone in this country has a right to access all legal health services free from intimidation and harassment and that has to be the starting point. The other aspect of this of course is that these protests have a very chilling effect on the provision of services, both in terms of GP and hospital services. We have to remind ourselves that we still are at a very early stage in terms of the provision of abortion services on a countrywide basis in that currently, only 413 GPs have a contract for the provision of terminations. We are still at a point where only 11 of the 19 maternity hospitals provide termination services. There is a very long way to go and there is no doubt, particularly in rural areas, that the threat of protest does not encourage people - GPs or hospitals - to provide services. That is why this legislation is absolutely necessary and we need to have it in place very quickly.
I will raise a number of issues with Mr. O'Connor about the heads of the legislation. First is an issue that came up in feedback the organisation Together for Safety came across, namely, the need to ensure that industrial action is protected at hospitals and at GP surgeries. To what extent has this been provided for and how does the Department intend to ensure this legislation does not cut across the right to industrial action, which is obviously a very basic right?
Mr. Muiris O'Connor:
I thank the Deputy. She has summarised the reason for the legislation superbly well and we also are highly conscious, with the service being in its infancy, of the chilling effect. The actual protests cause harm and distress but we think fear of protests is constraining the roll-out.
We are conscious of the incompleteness of the roll-out of services but encouraged by the trajectories. Eleven of the 19 maternity hospitals are currently providing this service and we think there will be two or three more within a year or so. Likewise, the 413 GPs mentioned are only one eighth of the total number of GPs in the country. Again, the review by Marie O'Shea will look at geographical dispersion but, without breaching confidentiality, just to reassure us and see what we can do to support the services.
On industrial action, the Department took a view that protests by staff and the trade union or other related industrial action is not within the scope of prohibited conduct under the proposed legislation. We feel that it is unlikely that such activities would fall within the scope of head 4(2) as such activity is not intended or could not reasonably have the effect of influencing a person's decision to access termination of pregnancy, to interfere with a person's access or the provision of a termination of pregnancy service. I can very clear state that it is absolutely not the policy intent to prohibit industrial action within the safe access zones. We are continuing to engage with the Office of the Attorney General.
Róisín Shortall (Dublin North West, Social Democrats)
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I appreciate that. Is it the intention to have an explicit clause in that section to ensure that industrial action is protected?
Ms Caitriona Mason:
It is not our policy intention to exclude industrial action. The current advice we have is that it would not be captured by the prohibited conduct under head 4. We continue to engage with the Office of the Attorney General and if an express exemption is needed then it will be put in.
Róisín Shortall (Dublin North West, Social Democrats)
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It strikes me that for the avoidance of doubt there should be an explicit clause.
On the powers of the Garda, I agree with the points made about the importance of us engaging with the Garda because that is the critical thing. There is no point in having legislation on the books unless it is clearly enforceable from a practical perspective. One of the concerns to arise is that under the proposed legislation, in order for an offence to be committed under head 4(7), a person must have been previously issued with a warning pursuant to head 4(5). It is very hard to get one's head around how that would work in practical terms so please talk us through that. What about record keeping? Are you saying that in order for Garda to prosecute somebody then he or she must have had a previous warning? How is it recorded that a person would have had a previous warning so that he or she could then be prosecuted?
Ms Caitriona Mason:
Currently, in the general scheme, the Garda has the discretionary power to record the warning. There have been a number of comments on this matter and we continue to work with the Office of the Attorney General as to whether that should be "may record" or "shall record". We are working through that aspect with the Office of the Attorney General as we speak. The rationale behind the warning is that this is a delicate balance of constitutional rights.
Róisín Shortall (Dublin North West, Social Democrats)
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Sure.
Ms Caitriona Mason:
Safe access zones are not going to be set out. They are not going to be cordoned off in the street so we are trying to avoid criminalising the mentally innocent. By that I mean, if a person was not aware of a safe access zone then we would give him or her the opportunity to leave.
Róisín Shortall (Dublin North West, Social Democrats)
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Again, I find it hard to visualise how that would work. If somebody is protesting within the zone and a garda is called on to deal with that matter then how does the garda know whether the protester has had a previous warning?
Ms Caitriona Mason:
They would. At present it is a discretionary power to record it. Gardaí would, in the main, probably take the person's name and address and record the warning and would know if that person comes back if the service provider continues to see that person outside protesting. These are details that are still being worked through. They are very much a work in progress with the Office of the Attorney General.
Róisín Shortall (Dublin North West, Social Democrats)
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I have a concern about this aspect. We need to separately engage with the Garda on this matter.
What is the thinking behind the extent of the safe access zone? A distance of 100 m is at the lower end of practice generally. What is the thinking on the optimal area?
Mr. Muiris O'Connor:
It was about proportionality and recognising the constitutional right to freedom of expression, freedom to protest and then finding a zone that protected access and egress from healthcare facilities. An area of 100 m came into play reasonably early. It is a distance that people have a reasonable specific sense of and we had to do some boundary. Discussions with the Attorney General on the refinement of the legislation has raised problems around the term "curtilage", which I had not heard before this piece of work. Again, that is not commonly understood and makes it difficult for the garda's interaction with an individual. We are moving to something much more specific now. It will be 100 m from entrance or egress points for healthcare facilities, which is a distance that is a bit more operational.
Róisín Shortall (Dublin North West, Social Democrats)
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Was research on the distance done on practice elsewhere?
Róisín Shortall (Dublin North West, Social Democrats)
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Finally, on timescale, we are keen to co-operate and ensure that there is no delay to scrutiny. As the Chair has said, it will be a tall order to complete pre-legislative scrutiny by 14 November. We will do our best in that regard and we will discuss this later. Once pre-legislative scrutiny has been completed, what is the expected turnaround time for the production and publication of the Bill?
Róisín Shortall (Dublin North West, Social Democrats)
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Will the new legislation be published early in the new year?
Róisín Shortall (Dublin North West, Social Democrats)
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Has the Government given a commitment to expedite or prioritise the legislation?
Neasa Hourigan (Dublin Central, Green Party)
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Chair, I confirm that I am in my office in Leinster House because I have a sick child on my couch.
I thank the delegation for being here. I thank the Department's staff for working so hard on this legislation, progressing it and engaging with the Seanad Bill that came through. It is worthwhile saying at this stage that this is incredibly complex legislation and the Department must strike the right balance. As much as I want this legislation to be enacted urgently, and we must seek to have this done by Christmas, I am very aware that we must be quite delicate with the legislation and make sure that we do this work correctly.
I want to discuss the reality of enforcement and, funnily enough, I want to talk about the word "curtilage". Any architect in the State will know the word well as it is very well set out in our conservation legislation. I have a concern around how we might treat the grounds and decide where 100 m begins, and how the service provider engages on the issue. Many of our older health service buildings are on land that looks almost institutional so they have gates and a carpark. So if we set this at the entrance then 100 m will still allow people to be directly outside a hospital, for example. That is the nature of our estates and healthcare buildings in this country. It might be worth looking at the definition of curtilage in other legislation but certainly it is meaningful in terms of planning and other issues.
I would like to talk a little bit about that.
I would also like the witnesses to talk about the responsibility of the healthcare provider in deciding where the 100 m is, even with the curtilage or the front door. Are healthcare providers or GPs expected to draw a line on the ground, as when we were queueing for a shot during Covid, or will the Garda take on that role? Within that, I also have a concern around some of the requirements if service providers continue to see people outside. I am wary of anything that relies on a service provider to report because, ultimately, the service provider staff might have their own opinions about these issues. A lot of responsibility would be put on the service provider. Perhaps we could start with all of these issues around the implementation part of this.
I am glad that the HSE is talking with An Garda Síochána. At the beginning, groups like Together for Safety have been engaged in this conversation. There has been a statement from the Garda that we do not need this legislation and I am interested to see whether maybe it cannot be enforced, which is an issue. I wonder where that change happened. I am asking all of the questions at once and hopefully the witnesses can answer them.
I also want to know about inclusive language within the text. I would like to see a recognition of pregnant people rather than just women. This affects families and people of every group.
The Department has outlined this a little bit but I would like to know about the definition of "intimidation, harassment and aggression". There is a gender issue here. I believe it came up in conversations with the Garda regarding what people define for themselves as intimidation. Often it is not engagement in any way. One does not have to reach out to somebody or offer them a leaflet to intimidate them. One can intimidate another person just by being a presence. I would like quite a broad interpretation of that. Under head 6, is there engagement about persistent harassment on social media for service providers, many of whom are on social media? I am sorry that I have thrown some tough questions at the officials.
Mr. Muiris O'Connor:
I thank the Deputy for her questions. She is correct about where we are at on the detail of enforcement, the reality of enforcement, the perimeters of the zone, and the merits of the term "curtilage" in this instance. She is also correct about the old facilities with the gate and the drive in and so forth. On the issue of finding a specific point of entry or exit, it is the entry and exit onto the public space. Our latest thinking in the old-school gated premises is that it is the gate. The interface with the public space is the access point.
Neasa Hourigan (Dublin Central, Green Party)
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Okay. That makes sense.
Mr. Muiris O'Connor:
The zone would be 100 m from that interface with the public space. On the Garda involvement, from early on we got great support from the Department of Justice and from An Garda Síochána. Their input was practical and helpful in exactly the kinds of areas the Deputy has spoken about for the curtilage and the extent to which we can rely on people to understand that. Gardaí warning and informing people that they are breaching the law and that they are in a zone will also be important.
Neasa Hourigan (Dublin Central, Green Party)
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I will just come back on that. I am not a legal expert and I am better on buildings than I am on the law, but as far as I know having no knowledge of the law is not a defence for breaking the law. I am keen that there would be a required noting of the warnings. That would be helpful. There is a significant grey area around that when someone is interfacing with gardaí.
Mr. Muiris O'Connor:
Yes. Deputy Shortall's feedback was valuable with the suggestion of a centralised log of recordings so that multiple instances in different locations or attempts to be evasive in relation to it would be found.
The issue of gender-neutral language is a complex area. It was always the intention that a biologically female individual who identifies as a male would enjoy the same rights as a woman for the purposes of the 2018 Act. This would also be our intention around safe access zones. There is complexity around deviating from language in other legislation around this. We are also looking at this.
We are conscious of the issues around harassment, the advice to go abroad, and the interpretation of harassment, but it must be balanced against proportionality and implementability. As the Deputy will see in head 6, we are reminded that harassment is forbidden in all circumstances to protect providers from the kind of intimidation that could happen quite regularly and that could happen well outside the physical space of the 100 m zone. The Deputy will be well aware of the various mechanisms on social media that can be used to harass and intimidate service providers. We will be as broad as we can about that harassment, which comes under head 6. We must be quite refined with the zone and the definition, and we are doing a lot of work to get specific on the prohibitive actions within the zones. I thank the Deputy.
Neasa Hourigan (Dublin Central, Green Party)
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I cannot see the clock, so perhaps the Chair will tell me if I am out of time. If I do have time, I have one other question.
Seán Crowe (Dublin South West, Sinn Fein)
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The Deputy has one and a half minutes.
Neasa Hourigan (Dublin Central, Green Party)
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The heads of the Bill state that there is an escalation of penalties. I would like to get a sense of these. If a person is warned, what happens next and what is the higher end of possible penalties?
Ms Caitriona Mason:
Penalties are the subject of ongoing engagement with the Office of the Attorney General at this point. There is an escalation scheme in the heads of the Bill. The warning is an element of the offence itself. A person must have been warned to have committed an offence. Then there is the discretionary power. In line with a graduated approach to policing, there is a discretionary power for gardaí to issue a direction, then it goes into people being arrested, and there are penalties for first offence, second offence and third offence. These are set out in the heads of the Bill. I reiterate that this is the subject of ongoing engagement with the Office of the Attorney General.
Neasa Hourigan (Dublin Central, Green Party)
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The Department is in the middle of engagement and I am aware that this is a live issue. I am not asking the Department to commit itself to anything but are there comparable offences in the context of the escalation of penalties? For example, is it comparable to creating an antisocial incident or to unrest during a protest more generally?
Neasa Hourigan (Dublin Central, Green Party)
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Yes.
Neasa Hourigan (Dublin Central, Green Party)
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I thank the witnesses.
Colm Burke (Cork North Central, Fine Gael)
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I thank our guests for the presentations this morning. I want to address the safe access zones and the legal definition. Would the Department not agree that there could be a scenario in prosecutions where ten different judges could each come to a different conclusion? Is the Department satisfied that the legal definition is adequately set out so that decisive action can be taken against a person who is making it awkward for people who are attending a particular clinic and who is infringing on people's right to attend the service?
Ms Caitriona Mason:
Yes. We are continuing to work with the Office of the Attorney General to fine-tune the definition of safe access zones to mitigate against the type of scenario Deputy Burke outlined. Legal certainty is a constitutional requirement and we will be taking that into account in developing and fine-tuning the definition.
Colm Burke (Cork North Central, Fine Gael)
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Will the legislation cover, for example, a scenario whereby someone decides to park a vehicle with all sorts of messages on it but the person responsible is not present in the vehicle?
Colm Burke (Cork North Central, Fine Gael)
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Is the Department satisfied that the legislation would cover that scenario even if the person is not there?
Ms Caitriona Mason:
It will not be possible to display or distribute "any text, or images intended to, or which could reasonably be considered likely to, influence a person's decision to access termination of pregnancy services". If it does not specify where one has to be displaying them from; a person who is displaying them from a motorised vehicle is still displaying them.
Colm Burke (Cork North Central, Fine Gael)
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One of the groups that made a submission stated that due to its broad scope and the extent to which it infringes the freedom of expression and the freedom of assembly, in its view the Bill is a violation of Bunreacht na hÉireann and the European Convention on Human Rights, which both provide clear protections for those rights. The view of the group is that the Bill will most likely not withstand a challenge from the Irish courts or before the European Court of Human Rights.
David Cullinane (Waterford, Sinn Fein)
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Is that a submission Deputy Burke received?
Colm Burke (Cork North Central, Fine Gael)
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Yes, it is one I received. I am not sure whether it came in to the committee. This is what people are saying. I am asking if the witnesses are satisfied that all the t's are crossed and the i's are dotted in terms of dealing with this? I am concerned in particular about someone saying that it will be challenged before the Irish courts.
Ms Caitriona Mason:
There is a right of access to the courts. We cannot stop people going before the courts. Our work is to ensure that this legislation is sufficiently robust to withstand constitutional challenge. We are aware that there are complexities here and we are aware we are dealing with countervailing constitutional rights. We are working with the Office of the Attorney General to ensure that these rights are respected and infringed only to the degree that is necessary to deliver on the objectives of the Bill.
Colm Burke (Cork North Central, Fine Gael)
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I fully support the Bill, because it is extremely important that people are not in any way intimidated or confronted when they are attending any service, no matter what it is. I am fully in support of the Bill and I want to make sure that we are not exposed to any challenge on it. That is the reason I raise this matter.
Colm Burke (Cork North Central, Fine Gael)
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The other issue that I want to raise relates to the homes of medical practitioners and staff working in medical facilities. Are we satisfied that we have done enough? If we bring forward legislation which clearly prevents anyone from protesting or in any way intimidating anyone attending such a facility, the next available option is to go to the homes of medical practitioners but also staff such as nurses or administrators. Are we satisfied that we have sufficient protection for them if we bring forward this legislation?
Mr. Muiris O'Connor:
That is very much the intention of head 6, which extends well beyond the safe access zone and is intended to cover the harassment and intimidation of medical and healthcare staff whether it is at their homes or anywhere else in connection with the termination of pregnancy services. We will continue to work with the Attorney General and An Garda Síochána to get the wording of that right. That is our intention and we are confident of our ability to deliver on that aspect.
Colm Burke (Cork North Central, Fine Gael)
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On this issue, the Irish Medical Organisation made a submission to us in which it referred to the Non-Fatal Offences against the Person Act. It defines harassment in the context of causing alarm, distress or harm. The IMO stated that the current Bill does not incorporate that definition and it is a bit concerned and seeks that the matter would be examined.
Colm Burke (Cork North Central, Fine Gael)
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So the concerns raised by the IMO may be taken on board in dealing with this piece of legislation as well.
Colm Burke (Cork North Central, Fine Gael)
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I suppose the reason the IMO is concerned is that over a seven-year period there were more than 733 recorded assaults on medical practitioners, which is approximately 100 a year. That is extremely serious and it does not take into account the number of nursing staff and care assistants who have been assaulted in hospital services. The IMO is making sure that it is not just what is in the Bill, but that causing alarm, distress or harm would also be included.
Colm Burke (Cork North Central, Fine Gael)
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Is Ms Mason satisfied that we will have enough safeguards and protections in place to prevent the intimidation of staff and to make sure that they are safe in doing their job and going to and coming home from work?
Colm Burke (Cork North Central, Fine Gael)
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I have covered all of the issues that I wanted to raise. In terms of the timescale of the Bill, do the witnesses think we can get it through by December? What timescale does the Department envisage?
Mr. Muiris O'Connor:
We will continue to refine the Bill in parallel with pre-legislative scrutiny so that when that is concluded we are not waiting to make changes. We will take account of the feedback coming through today from the committee. We are working very intensively. We are meeting on a weekly basis with colleagues in the Attorney General's office on drafting and refining the Bill. The Bill is on the autumn schedule of the legislative programme. The Minister's intention is that the full Bill will be available-----
Colm Burke (Cork North Central, Fine Gael)
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Let us say that we will come back very shortly with our report. What kind of time period will there be before the Department comes to a conclusion on what should be included or excluded? What kind of timeframe is the Department talking about?
Colm Burke (Cork North Central, Fine Gael)
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I thank the witnesses.
Seán Crowe (Dublin South West, Sinn Fein)
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Deputy Bríd Smith is very welcome.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
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I am not a member of this committee, but I am stepping in for Deputy Gino Kenny. Thank you for letting me in, Chairman. I want to pick up on the last point first. In January, it will be four years since the legislation to allow women to procure abortion in Ireland was enacted. Straight away, when it was passed in 2019, there were pickets and protests outside GP surgeries and doctors' clinics.
The legislation was passed in the spirit of many promises that were given, some of which are still being enacted such as the provision of free contraception and looking at free sex education in schools so that as a whole package, the need for intervention in crisis pregnancy will be undermined but crisis pregnancy will also be able to be dealt with.
Four years is a long time to have something that was shadowed in the legislation, that is, the provision of safe access zones, not even being close to being passed yet. This has been said by many Deputies and Senators but the question of urgency cannot be overemphasised. This will not be passed before January 2023. I am quite sure of that from hearing what the witnesses have said, which means that four years on, we do not have safe access zones. That is very worrying. To repeat what has been said, this has a chill effect on the provision of services. We have seen this particularly in parts of the west and north-west of Ireland. We hear accounts of GPs pulling out of delivering the service or being on the list of those willing to deliver because of threats of intimidation and fear. There was an account of a GP in the west of Ireland whose home was actually threatened. This GP lived near work and was providing the services. Threats were made all the time to this person and their family when going to and coming from school and carrying out normal day-to-day things like shopping. It is really important that a strong signal is sent out that there is an urgency about the legislation. There is a proposal of some kind of public awareness campaign about the legislation. Perhaps Mr. O'Connor could talk a little bit about that. I would emphasise that issue of urgency and trying to get a time from the Department as to when we will see this through.
There is the question of the right of confidentiality for women who will be seen by protestors going in and out. Many of them would be in abusive relationships, for example, so they need to keep their own affairs private. This is all the time under threat when we do not have these safe access zones. The question of this providing a chill effect to the provision of services is not just something that happens in Ireland. The World Health Organization recognises this and has done research on it. I want to really emphasise that.
One thing I want to ask, which others have also asked about, is the question of industrial relations activity. Mr. O'Connor can go back over the argument again that it is not perceived to be under that particular heading where industrial relations activity is prohibited. Sometimes, however, industrial relations activity is unofficial and would, therefore, be perceived by an employer as being illegal. We need to be careful about this. It would still be industrial relations activity albeit unofficial and seen as illegal, which may then fall foul of this legislation. Therefore, we should go back to having the specific clause that excludes any kind of strike or protest activity by cleaners, doctors, nurses or health workers of any sort inside an abortion care setting. We will be proposing that and we will try to amend the legislation accordingly. I would love to see it coming from the Department, however.
I am kind of baffled as to why the Department did not go along with the Bill that was going through the Seanad. We would have had this much earlier had we co-operated with the Bill going through the Seanad and looked at maybe amending, changing or adding to it rather than taking this length of time.
I am concerned, as are others, about the definition of "curtilage" and whether a car park or playground nearby or whatever is included in the definition. I am also concerned about how protests will be controlled. It is true that protests of this nature do not have to be in your face or all over people shouting and roaring at them. It can be carrying an abusive or disgraceful symbol or whatever, as frequently happened outside the gates of the Dáil during the course of the debate around the eighth amendment. We need to get much more clarity on what we are talking about here. I have one or two more questions but I will come back to Dr. O'Connor on those.
Mr. Muiris O'Connor:
I thank the Deputy very much. I can assure the committee of the urgency with which the Minister for Health, Deputy Donnolly, regards this. He has prioritised it in the autumn schedule. The Deputy is right; it was something initially intended and envisaged to be encompassed within the 2018 legislation. It ran into complexity and there was an imperative to progress that Bill with a view to establishing the services. The chill effect is something about which we are deeply conscious. It is a delicate time in the roll-out of new services, in a sense, and the Deputy referred to issues about the geographical distribution of services. The particular chill effect that can occur in maybe a rural setting is something about which we are very conscious. It is part of the intention of the Bill to create a safe environment in which services can be delivered.
The Deputy is so right about people's privacy and dignity. It can be a very difficult and vulnerable time in people's lives when they need to access medical services. It is so vitally important for their dignity that their privacy and safety is protected in accessing those services.
We are so immersed in the drafting that we have not thought yet about a public awareness campaign but it is actually a very important thing that we will do. We will engage now with colleagues who can help us in that regard. We have some excellent colleagues in the women's health division in our press and communications section so we will take that on board. I thank the Deputy.
On confidentiality, one of the excellent policy decisions made by the Dáil in 2018 was the incorporation of these services as part of an integrated set of primary care, GP and hospital services. We do not have the American-style abortion clinic, as such, as a real focal point. The purpose of any visit by any private individual to a health facility cannot be known. There is confidentiality. As the Deputy said, however, absolutely, we do not want people accessing those legally provided health services feeling any discomfort or distress arising from protests in the vicinity of the services.
Our policy intent is clear on industrial relations activity. We absolutely do not seek to undermine industrial relations activity. I take the Deputy's point that it is not always official and can be spontaneous and unofficial. We will absolutely work to ensure that all types of industrial relations activity by any workers are not encompassed or undermined in any part of the country. We are looking at whether that might be a specific clause or exemption, which might be necessary, or else the prohibited behaviours within the zone will be refined to a place where they can clearly not be presumed to encompass industrial activity. I hear that the Deputy's advice is to get specific on an exemption in relation to it, however.
We can absolutely see such similarity with the Private Members' Bill in many ways. We are deeply grateful to Senator Gavan and all the Senators and Deputies who contributed to that. Members will see it is evident that our current scheme builds on their work in the area in many respects. However, it is acknowledged that legislating the area is complex and challenging from the perspective of balancing competing constitutional rights. All the work we are doing now is work that is always necessary with any legislative vehicle. That Private Members' Bill helped us greatly and we have built on it in the work we are doing now.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
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To conclude, I am glad that has been acknowledged but I am concerned about the repeated expression of the words "complex" and "difficult" in the discussion of and approach to this legislation. We are not reinventing the wheel. Many countries have safe access zones.
The World Health Organization, WHO, has done research on this subject. It is not like we are taking something brand new and we must be terribly careful about it because it is so complex. It is not that complex. Once we get the co-operation of all the players involved, especially An Garda Síochána, it should not be a complex matter. We already have, for example, laws like the Criminal Justice (Public Order) Act 1994, where gardaí can go up to people and tell them to stop what they are doing, not to stand somewhere and to move on. If the people concerned do not do so, they can then be arrested under the auspices of that Act. It cannot be so complex that it has taken us so long to do this. I will finish with that comment, and by repeating, as others have done, that there is an urgency for this legislation to come through. It sends out such a bad signal and it is having a chilling effect on what is already a fragile service, especially in parts of rural Ireland.
Frances Black (Independent)
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I welcome all the witnesses. I thank them for the work they are doing on this legislation, which I fully support.
Seán Crowe (Dublin South West, Sinn Fein)
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Before the Senator continues, can she confirm she is on the precincts of Leinster House?
Frances Black (Independent)
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Yes, I am here in Leinster House.
Seán Crowe (Dublin South West, Sinn Fein)
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I thank the Senator.
Frances Black (Independent)
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Many of the questions I was going to ask have been covered. I just want to echo what others have said about the urgency of progressing this legislation, especially as expressed in many of the submissions received. I refer to the frequency of anti-abortion protests in Ireland and the major negative effects this has had on pregnant people. I might have missed parts of this morning's meeting, and I apologise if I did, because I was in and out. I wish to talk a little about policing. I ask the witnesses to elaborate on how they envisage that. Forgive me if I this issue has been raised already.
I agree completely with Deputy Bríd Smith concerning the public awareness campaign. This is vital. I was happy to hear the Department will take this on board. Studies have shown that anti-abortion protests outside clinics have major and long-lasting negative effects on women's well-being and can deter them from accessing medical care. It is important, therefore, that all stakeholders know what to expect if this legislation is to work effectively. I am also aware that the Irish Council for Civil Liberties, ICCL, has suggested a nationwide awareness programme to inform stakeholders. I was happy to hear the Department is to take this suggestion on board.
As I said, many of the other questions I was going to ask have been posed already. I would like to hear a little more about policing because I may have missed that. I also again encourage the Department to work on the public awareness issue.
Frances Black (Independent)
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No. I would just like the witnesses to elaborate on how the Department envisages the safe access zones will work and how they will be policed.
Ms Caitriona Mason:
We have engaged with An Garda Síochána on this issue and we continue to do so. In one respect, the general scheme represents broad brush strokes and we are working through the details with colleagues in the Department of Justice, who work in the public order area, and with An Garda Síochána. Within the general scheme, we have a graduated approach to policing, which has been borrowed from the Covid-19 experience. This goes back to the central point of balancing conflicting or countervailing constitutional rights. The general scheme contains powers to enable An Garda Síochána to respond and to issue a warning. There are also powers of arrest and prosecution. As I said, this is a work in progress. We are continuing to engage with the Garda and the Office of the Attorney General regarding many of these issues.
Frances Black (Independent)
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I thank the witnesses.
Seán Crowe (Dublin South West, Sinn Fein)
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Before we have another round of questions, I have some queries. Regarding medical staff having immunity, I understand there is blanket immunity for medical professionals. Is that correct?
Seán Crowe (Dublin South West, Sinn Fein)
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I am trying to tease out the legislation in this regard. My understanding is that there is blanket immunity for medical professionals inside the safe zones-----
Seán Crowe (Dublin South West, Sinn Fein)
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If that is the case, could that in itself be exploited in that medical personnel working in a hospital zone could be involved in some sort of protest within the confines of a hospital? Does the legislation address that?
Ms Caitriona Mason:
We are aware of this issue and working on it. This point arose. The Chair is looking at exemption No. 3 under head 5. The intention here from a policy perspective is that this would exempt the imparting of clinical or medical advice and not ideological advice. If there is a medical reason someone cannot have a termination, then that would not be excluded. It is clinical and medical information and advice that we are attempting to exclude in that instance.
Seán Crowe (Dublin South West, Sinn Fein)
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I am conscious that people have been confronted going into general practices and hospital settings. My concern is that the individuals involved in a confrontation might be from a medical profession. It is fine if this type of situation has been examined and is covered under the legislation.
Seán Crowe (Dublin South West, Sinn Fein)
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The conduct pillar was also mentioned. It is important to stress again that this involves not just women accessing services but also their partners, friends and family. The legislation needs to cover that too.
On Garda powers, the question around using "shall" or "may" was outlined and the Department is still deciding on this point. There is a big gap in this regard. My concern in respect of reporting is that gardaí work different shifts. One garda might be working on Wednesday and then a different garda could be on duty on Thursday. Continuity is an issue if this is going to happen. I am not sure how to legislate for that, but I assume, regarding the issue of using "shall" or "may", that if the role of the Garda is to take this information, that will strengthen this element. That is the discussion the Department is still having.
Seán Crowe (Dublin South West, Sinn Fein)
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Mention was also made of other jurisdictions. Legislation was passed in England and Wales a short time ago. Has legislation from other jurisdictions been examined? A simple "Yes" or "No" will do.
Seán Crowe (Dublin South West, Sinn Fein)
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Okay.
Seán Crowe (Dublin South West, Sinn Fein)
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I am conscious of people's civil rights. Does this legislation cover people being photographed going in and out of hospitals?
Seán Crowe (Dublin South West, Sinn Fein)
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It has been said that people could be innocently taking photographs of a hospital zone. The idea that people would be photographed and identified going in and out as they access services, whether those services are accessed or not, would leave it wide open for people to say who was going in. We have seen examples of people, from within a marriage, or partners or whatever, in abusive relationships and the dangers in this regard. I am just trying to tease out what is in the legislation for people listening at home.
Seán Crowe (Dublin South West, Sinn Fein)
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I have one other question. Through its discussions with the organisation, has the Department become aware of many complaints being made to An Garda Síochána in relation to people accessing services?
Mr. Muiris O'Connor:
I am not aware of that. We have more of a direct feed as regards those challenges from the health service providers themselves, through the HSE. They will also have shared their assessments with this committee.
Seán Crowe (Dublin South West, Sinn Fein)
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Lastly, I am conscious that we have mentioned the speedy passage of the actual legislation, but that does not mean that we, as a committee, will not do our job as legislators to scrutinise the proposed legislation. Again, if people at home want to send in submissions within the timescales, we will take on board their concerns or questions on this legislation. I will go back to the members. Deputy Cullinane is next.
David Cullinane (Waterford, Sinn Fein)
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I want to come back in on a number of issues. I agree with Deputy Bríd Smith when she says that we should not overly complicate this and that there is existing legislation on public order offences that are quite similar. However, at the same time, we should accept that it is complex. There was a lot of discussion between the Department of Justice and the Attorney General. How I would see it is that any legislation is obviously subject to legal challenge. I think we can safely bet that there are organisations which will challenge this legislation in the courts. For that purpose, I think it is really important that all the i's are dotted and all the t's are crossed, and that it is robust. That is really important. We do not want a situation where it is challenged in court and a judge decides that it is unconstitutional. The more that we can be explicit and clear in terms of what the Bill does, and should do, the better. Ensuring the balance of rights in it and that it is primarily motivated towards helping people and women is the right approach. I accept that.
On the different submissions we have received, three issues have come up in over half of the submissions, which I think this committee should support. The first one that has been raised is to recommend the clause to exclude from the ambit of the Bill anything done in the course of industrial action, within the meaning of the Industrial Relations Act 1990. While I acknowledge that Mr. O'Connor has dealt with that, it is something we should do. The second is to place an obligation on members of An Garda Síochána to maintain a record of warnings, and the language used in the Bill should be "shall" and not "may". That is important from an enforcement perspective. When we see the submission from An Garda Síochána, we will see what it says but I think that is really important. I have some experience of this in local areas where there has been antisocial behaviour in communities. It can be quite difficult for local authorities to prosecute in such cases. The only way they have been able to do it is through proper recordkeeping, whereby a process is put in place where complaints are made and then registered. Where there are records of persistent complaints, the judge can look at the overall picture, as opposed to one individual case. That is important, and we should look at the same sort of process there. That is a second recommendation that is consistent across many of the submissions we have received. The third concerns inclusive language, which I think we would all agree on. Mr. O'Connor has outlined practical issues in relation to it but I think we need to come back to it. If those three areas could be accommodated within the Bill, it would go a long way towards helping us in our work.
I want to come back to the issue of enforcement and An Garda Síochána. If I were to make a recommendation, and I will, in terms of how we proceed in our work, I think we need to hear directly from An Garda Síochána. I think we should hold a hearing and invite representatives of the Garda in. We will have a private session later, in which we will discuss our next steps. For me, that seems to be the most logical approach because at the end of the day, there is broad consensus, as far as I can see, from all of the submissions in relation to the purpose of the Bill and its intent. I outlined some of the recommendations that have been made to strengthen it. The one area where we need to get it right is in enforcement, for all the reasons I outlined earlier as well. I think it is important that we hear directly from An Garda Síochána, and not simply receive a submission.
Looking at head 7, and the powers of An Garda Síochána, just so that people are clear on exactly what is being proposed, it states "A person who, without lawful authority or reasonable excuse, fails to comply with a direction under subsection (1) shall be guilty of an offence." It goes on to state "A member of the Garda Síochána may arrest without warrant a person whom the member has reasonable cause for believing is committing or has committed an offence under the Act." It also states that if it is felt that a person who is approached by An Garda Síochána is in contravention of the Act, if it becomes an Act, that person will be obliged to state his or her name and address. If the person does not, that is an offence. It seems to me to be quite clear what the powers are. It then depends on whether An Garda Síochána believes it can actually enforce the powers, which, from the Department's communications, seems to be the case. However, I believe it is important for us to talk it through.
There are issues in relation to the confiscation of electronic devices and other equipment or material. There are many explicit areas here where it makes clear what an offence is, which I am pleased about. However, the more explicit we can be, and the less subjective, the better. I have a concern about us trying to broaden out some of the terms, such as "harassment". I get why people would advocate for it but my concern is that if we are too broad, it would be problematic if there was a legal challenge. I am deeply conscious of that. We know that there are people who do not want this Bill to progress. They have their right to do that and are entitled to their own opinions; I am not taking that away from them. However, as someone who wants the Bill to pass, I want it to be legally sound.
That was not really a question as such, it was more to make the point that this has been a useful session. I believe we can help and support the Department in progressing this legislation as quickly as possible. However, I do not think we can do our work and conclude pre-legislative scrutiny until we hear directly from An Garda Síochána. That is my sense of it.
Seán Crowe (Dublin South West, Sinn Fein)
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That will be a decision that is made after the meeting. Does Mr. O'Connor wish to respond?
Mr. Muiris O'Connor:
I thank the Deputy. He has offered a very good summary of the key takeaways for us from this session. They correspond exactly with the messages we are taking away. As the Deputy said, it is absolutely reasonable to anticipate some legal challenge to legislation such as this. It is recognised that protecting the rights of service users must be balanced against protecting the rights of those engaged in legitimate protest. Article 46(1) of the Constitution protects legitimate protest, as does Article 10 of the European Convention on Human Rights on freedom of expression, and Article 11 on freedom of assembly and association. We are very conscious of those rights but we are conscious that those rights are not absolute. We are committed to providing for the safety, privacy and dignity of service users in respect of termination of pregnancy services, and of staff on a more general basis.
David Cullinane (Waterford, Sinn Fein)
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I wish to make a point on that. It is really important that both the Irish Council for Civil Liberties and the Irish Human Rights and Equality Commission have supported the general scheme of the Bill. They appreciate and accept that that balance has been struck. Obviously, we do not get the import of what the Attorney General says. The advice of the Attorney General is for the Government. Is Mr. O'Connor satisfied that the legal advice that has been given to the Department, either from the Office of the Attorney General or from the Department's own legal section, would withstand any legal challenge?
Mr. Muiris O'Connor:
The Deputy hit the nail on the head. It is about balancing the instinct to broadly prohibit harassment against the operation and implementability of it. I think that as we refine the Bill we will be increasingly specific as regards the conduct that is prohibited within the zones. We will not be going broader. We will be quite specific. We will be working with An Garda Síochána to be reassured that they are specifics that will help the Garda in the implementation.
David Cullinane (Waterford, Sinn Fein)
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Is that legal advice that the Department received?
David Cullinane (Waterford, Sinn Fein)
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In terms of the earlier discussions, was the legal advice to be as explicit as possible?
David Cullinane (Waterford, Sinn Fein)
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I thank Mr. O'Connor.
Bernard Durkan (Kildare North, Fine Gael)
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I want to continue on the theme raised by Deputy Cullinane on the competing entitlements of the right to protest, as opposed to the right to access what is available and provided for in the Constitution separately. Two questions arise. When the procedures to date are legal-proofed and the review is advanced, will its legalities be finally checked again, just to be sure to sure? My information is that the particular procedure followed in the referendum carries with it more than the usual strength and cannot be challenged, except if there is constitutional approval by way of referendum. Is this true or false?
Bernard Durkan (Kildare North, Fine Gael)
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Mr. O'Connor should not have missed it but however I will repeat it. With regard to the constitutionality of the existing legislation, as opposed to a competing challenge arising from the right to protest, which is the superior right?
Bernard Durkan (Kildare North, Fine Gael)
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No, I do not think it is. The primary aim of the legislation was to provide a particular service. It was very laboriously pursued in the Oireachtas by the special committee. It was an emotive issue and understandably so. There are those who want to advance, improve and liberalise it and those who want to trim it back. The information I have is that the present legislation cannot be challenged in court or if it was challenged, it would not succeed. Were changes to take place to accommodate all of the opinions, that might constitute a change in the legislation, which would enable a constitutional challenge. Is this right or wrong? Has the Department checked this?
Bernard Durkan (Kildare North, Fine Gael)
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Can we hold this for a second?
Bernard Durkan (Kildare North, Fine Gael)
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The next question then is, if we change the legislation in any fundamental way, do we weaken its constitutionality?
Bernard Durkan (Kildare North, Fine Gael)
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Say again?
Bernard Durkan (Kildare North, Fine Gael)
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Yes.
Bernard Durkan (Kildare North, Fine Gael)
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Has that been legally proofed?
Bernard Durkan (Kildare North, Fine Gael)
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I accept all of that. I accept it is a separate item of legislation but it is tagging onto the previous legislation.
Bernard Durkan (Kildare North, Fine Gael)
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It is improving. Is it amending?
Bernard Durkan (Kildare North, Fine Gael)
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How do you know?
Bernard Durkan (Kildare North, Fine Gael)
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Yes, but my question arises from those who suggest that amending legislation would not carry the same imprimaturas did the original legislation. With the original legislation, the proposals were published prior to the referendum. Because of this, the people voted on the basis of the information made available. They were told this is what the proposal meant and what it would mean in legislation. They approved it by almost two thirds to one third, which was remarkable. To ensure we do not go backwards, can we be absolutely certain that this amending legislation, this separate legislation, carries with it the same reflexes and defences against challenge as did the original legislation?
Bernard Durkan (Kildare North, Fine Gael)
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Or vice versa.
Bernard Durkan (Kildare North, Fine Gael)
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My question remains. In the event of there being a conflict-----
Bernard Durkan (Kildare North, Fine Gael)
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-----between the right to protest-----
Bernard Durkan (Kildare North, Fine Gael)
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With regard to the right to protest versus the rights as envisaged under the legislation, existing or proposed, whose rights will prevail?
Mr. Muiris O'Connor:
It is a balance of rights that will be achieved, respectful of the constitutional right to protest, freedom of expression and freedom of association and assembly. They are not absolute rights. They are very strong rights that we absolutely respect and seek to promote, other than in the circumstances where they undermine the safety, privacy and dignity with which people can access healthcare services in Ireland. We are very mindful of these rights. The constitutionality of what we deliver in the safe access Bill will be dependent on how well we strike that balance. We will be very specific. We do not want to prevent or undermine any of the other rights. We will be quite specific about the behaviours that are prohibited. They will be focused on the objectives of the legislation. Any behaviours interfering with or causing distress or anxiety to service users will be forbidden. Any harassment of service providers will be forbidden. We absolutely respect the right of all individuals to have their own views and express those views, to protest and to assemble. What we want is very specific, which is to provide a zone of safety around healthcare facilities.
Neasa Hourigan (Dublin Central, Green Party)
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I have several quick questions to follow up. I suspect I know the answers to them but it is useful to ask them for clarity. I would like the witnesses to say a word about interaction with representative groups of GPs and nursing and not only regarding the creation of the Bill. We have spoken about public information. I assume it would be very important to roll the professional groups into the public information, in order that they themselves know what their rights are. I am particularly interested in GPs in this regard. I have spoken to several GPs who are very interested in the Bill.
My next question is about one of the submissions we received. The HSE submission queried whether particular groups would have the ability to notify care providers that they will protest and thereby get permission.
I think I know what Ms Mason is going to say here, but I ask this for the removal of doubt. Is there is any expectation or plan to put a kind of permission framework in place whereby permission could be sought and given?
Ms Caitriona Mason:
Again, this is an issue that is being discussed in the course of developing this legislation. There is current nothing in public order there and there is the constitutional right to protest. Therefore, there may be legal difficulties around a suggestion like that, but there is nothing there at present.
Neasa Hourigan (Dublin Central, Green Party)
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I do not want to go into it too heavily, but we have had discussions at this committee before around the ownership and running of particular healthcare facilities. Therefore, putting the decision-making around the process in the hands of the facilities themselves would not be fair on them or on the public.
Mr. Muiris O'Connor:
In the work that we have done, we have not found any facility whereby there is anything approximating to a requirement to notify of a protest. There is a courtesy afforded to An Garda Síochána at times of major protests, such as in the classic Parnell Square to the Dáil route. However, that is a courtesy and there is no obligation in law or in protocol to notify of protests. We looked at that as a mechanism through which we could relay, for example, the intended route across a number of safe access zones, so there is not that infrastructure in place.
On GPs and nursing, we are working most directly with the HSE counterparts in the national women and infants health programme. We rely in many ways on their regular and routine engagements. However, we will take on board the points that have been raised here about public information and targeted awareness campaigns for GPs and nurses. It is helpful advice.
Seán Crowe (Dublin South West, Sinn Fein)
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That concludes the submission. Is there anything else the witnesses want to expand on, such as for people at home who want to access the heads of the Bill? They might outline how they can access those.
Seán Crowe (Dublin South West, Sinn Fein)
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That is okay. This was a useful engagement this morning. We will meet in private at 12.30 p.m. to look at this whole area to see how we will access the various submissions. We are still open to receiving submissions if people want to write into the committee and give their views on the issue itself. We are conscious that we want to hear all sides in this debate. As I said earlier, while we as a committee are in favour of the speedy passage of this Bill, we want to give it full scrutiny.
I thank all witnesses and members for their attendance here this morning.