Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I thank Deputy Bríd Smith and her AAA-PBP colleagues and Deputies Catherine Martin and Eamon Ryan of the Green Party for publishing the Bill that is before the House. I thank all the Deputies who have spoken on this issue for their contributions to the debate. This is the third occasion in my ten months as Minister for Health that I have addressed this House on the issue of abortion. I hope my own feelings on this matter are clear. My views on the road we need to travel have been put clearly on the record of the House. My generation has not had its say on this important issue in a constitutional referendum.

It is clear that public opinion on this issue is not as cut and dried as some people would have us believe. That is why the work of the Citizens' Assembly is so valuable. Those of us who followed the assembly's proceedings at the weekend could see that its work is now at an advanced stage. While I do not wish to pre-empt the outcome of the assembly's work, I wish to reiterate my clear belief that we need a referendum on the eighth amendment to enable those of us who have not yet had our voices heard to be heard. The key to the success of any referendum is to try to create a majority viewpoint for constitutional change.

I am proud of the record of my party on this issue. When we were in government with the Labour Party, we tackled generations of neglect following the X case by introducing the Protection of Life During Pregnancy Act 2013. Was it enough? Did it go far enough? I have already said I think we need to look at the eighth amendment through a constitutional referendum. Did it go as far as this House could legally go at that time? It absolutely did. That was the very clear advice available to the Government at that time.

While the Bill we are discussing this evening is well-meaning, I do not believe it is the way forward. I have received clear advice from the Attorney General that Article 40.3.3° of the Constitution imposes a positive obligation on the State "by its laws" to respect, defend and vindicate "the right to life of the unborn... with due regard to the equal right to life of the mother". This means that the termination of pregnancy is prohibited by law except where there is a real and substantive risk to the life of mother. This prohibition is set out in section 22 of the Protection of Life During Pregnancy Act 2013, which restates the existing prohibition on abortion in modern terms.

If the State is to fulfil its obligations under Article 40.3.3°, this prohibition must be backed up by an effective sanction that reflects the seriousness of the offence and provides the trial judge with sentencing options that can be tailored to the particular circumstances of cases which, as we all know, can vary widely. This provision was carefully considered at policy level during the drafting of the 2013 Act with a view to providing a calibrated, proportionate and constitutionally robust provision. As those of us who were Members of the Dáil or the Seanad at the time will recall, this issue was debated at great length. The Government of the day sought the advice of the Attorney General and that advice was scrutinised at great length.

I hope nobody in this House would wish to see any sort of punitive punishment imposed on a woman in a crisis pregnancy or a difficult pregnancy. In 2013, this House sought to deal with the legal framework we were trying to put in place in a manner that was respectful of the constitutional reality. I believe the constitutional reality needs to change. I believe there needs to be a referendum to make that happen. I hope the Citizens' Assembly brings us to that point. As I have said, the provisions of the 2013 Act were carefully drafted at a policy level.

The Private Members' Bill before us seeks to reduce to €1 the existing penalty for the intentional destruction of unborn human life. This penalty is so low that it would represent a failure to respect, defend and vindicate the right to life of the unborn, as the State is currently obliged to do under Bunreacht na hÉireann. It would also remove any discretion at all from a trial judge, who would not be permitted to pass a sentence reflecting the gravity of the offence in a particular case. The circumstances in which the life of the unborn is lost can vary significantly across a number of cases. For instance, a judge would be unable to impose an effective penalty in a case in which an abortifacient is administered to a pregnant woman without her knowledge or consent.

I respectfully suggest this legislation would have many inadvertent and unintended consequences - I accept that they are unintended - on a woman, on a woman's well-being and on the defence of a woman from certain crimes that may be committed against her and her baby. The clear advice of the Attorney General, which I am sharing with the House, is that this Bill fails to discharge the State's obligations under Article 40.3.3° of the Constitution and would, if passed, be likely to be subject to immediate successful legal challenge. It is clear to me as a member of the Government and as Minister for Health that we cannot accept this amendment to the 2013 Act.

As we all know, Article 40.3.3° is under active consideration by the Citizens' Assembly. This House has already taken steps, through the passage of a motion and through consideration at the Business Committee, to assess what it will do when it receives the report of the Citizens' Assembly in order to enact change, if that is the direction the assembly brings us in. It is for this reason and the reasons outlined earlier that I cannot support a Second Reading of this Bill. I ask the House to allow the Citizens' Assembly, which was established by resolution of this House and Seanad Éireann, to conclude its deliberations on the eighth amendment as quickly as possible prior to further consideration of potential legislative and constitutional change, including the various elements of the Protection of Life During Pregnancy Act 2013.

As people know, this is due to report to the Oireachtas during the first half of this year. As we are now into the third month of the year, that will happen within three months.

It is for that reason the Government tables its reasoned amendment. It is important to note the difference between a reasoned amendment and opposition to a Bill. The reasoned amendment declines to give the Bill a reading on Second Stage for all the various reasons I have outlined, as opposed to disagreeing with the overall principle of what the proposers of this Bill are trying to achieve. When we pass laws in this House we must be cognisant of the Constitution, regardless of whether one likes it. We must be aware of the legal obligations it places on the State and the Government and if we want to change that reality, we need a referendum. I hope we will have a referendum and that the Citizens' Assembly will bring us to that point.

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