Mr. Muiris O'Connor:

I thank the committee for inviting us. I am an 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 welcome the opportunity to address the issues raised by An Garda Síochána about general scheme of the health (termination of pregnancy services (safe access zones)) Bill 2022.

I would like to begin by expressing our appreciation to An Garda Síochána for its considered contribution to the drafting process. There is no doubt that this proposed legislation is complex, seeking, as it does, to balance a range of competing rights. The Minister is committed to developing a constitutionally robust and operationally feasible Bill capable of ensuring that termination of pregnancy services can be accessed and provided safely and privately without unwarranted interference or influence.

In its submission to this committee, An Garda Síochána raised a number of operational issues in respect of the general scheme, and with the forbearance of the committee, I intend to outline the Department’s position on these this morning. Fortunately, a number of these matters had already been identified and addressed by the Office of the Parliamentary Counsel, OPC. For ease of reference my presentation will follow the sequence of the summary table set out in the Garda submission. The first issue raised was the difficulties around the use of curtilage in the demarcation of the zones. This had previously been considered by the Office of the Attorney General as part of the drafting process and it was agreed that curtilage would no longer be used in the definition of safe access zones. The parameters of the zones would now be calculated as being 100 m from the entrance of the healthcare facility to a public road or street. It is hoped this will bring increased clarity to the delineation of the zones. The definition of "public place" had also been revised through the drafting process to mean any place to which the public have access, whether as of right or by permission and whether subject to or free of charge. From a policy perspective it is also intended to include private property in certain instances,and this is the subject of ongoing engagement with counsel.

It was a core tenet of Government policy to mainstream termination of pregnancy within existing healthcare services. This was done both to embed the provision of termination of pregnancy into primary, community and acute services, and to ensure that services could be provided to those needing them in relative anonymity. It would run contrary to this policy to highlight or expose individual providers. Consequently, it was considered necessary to extend the ambit of this proposed legislation to all providers that are eligible to provide the service, not just those that currently do so. It is also hoped that this would encourage additional practitioners to provide the service, and increase availability and access.

In the context of head 4, recklessness has been included as an alternative mens reato intention for prohibited conduct in safe access zones. The current draft also facilitates a greater alignment of Garda powers with prohibited conduct. The operation of the warning, along with its unlimited temporal and geographic effect, is one of the matters currently under consideration by advisory counsel and an opinion is awaited. The draft will be revised in accordance with the advice received. As outlined earlier, the Department would be reluctant to specifically identify individual providers, and would prefer to allow them to continue to operate in a manner that protects the privacy and confidentiality of the doctor-patient relationship. Unfortunately, the suggestion of creating a register would run counter to this policy intention.

On the issue of a global warning, the Department’s legal advice is that it is a significant departure from the previous concept set down in the general scheme which was intended to be an interaction between two individuals, to enhance legal certainty around the zones. Moreover, as the warning is intended to be an ingredient of the offence, counsel is of the view that a global warning could cause practical difficulties in relation to the proofs in a prosecution. However, this does not mean that gardaí, when tasked with policing, cannot use a global warning as a means of engagement and for the purposes of endeavouring to disperse a group of potential offenders. It is merely that a warning issued in such a way is unlikely to be capable of constituting an ingredient of criminal offending.

In respect of the comments relating to head 5, I confirm that it is our intention to allow what may otherwise be prohibited conduct, within 100 m of the Houses of the Oireachtas.

On head 6, following the advice of the OPC, it was agreed that the harassment of health service providers would be addressed by means of existing law, that is, section 10 of the Non-Fatal Offences Against the Person Act 1997. The use of section 10 would also provide the Garda with the necessary suite of powers to investigate and prosecute such offences, which addresses some of the Garda comments on head 8.

The majority of Garda powers are now included under one head. The Department will engage with the OPC with a view to consolidating further, if possible. There is ongoing discussion with the OPC on providing the Garda with the additional powers of search and arrest requested under head 7. Provided this is legally feasible, there are no policy objections.

We have sought the views of the Director of Public Prosecutions, DPP, in respect of including the requirement for a direction in the legislation, and will be guided by same. Again, there are no set policy objections to the inclusion of such a requirement.

I thank the committee for its patience and attention this morning. I and my colleagues are happy to take questions and inputs from committee members on the legislation.