Seán Fleming (Laois, Fianna Fail) | Oireachtas source

This legislation will lead the way to a referendum after approximately two weeks. People will have different views on the matter to be decided by the people but I believe the function of the national Parliament is to let the people have their say. I urge people who are not happy with that approach to reconsider their position and accept the decision of the people when they make their decision. We should not do anything to frustrate the decision.

Others have done it but I wish to set out precisely what we are talking about as regards this referendum. The phrase "repeal the eighth" is very strongly embedded in the public mind but this referendum is not about repealing the eighth - it is about repealing the eighth amendment and substituting new wording for it. There is no proposal to delete the eighth simpliciterand I ask all commentators to bear this in mind. People are now talking about "repeal and replace" as the approach as it is not a question of delete versus retain. That may have been the view of the Oireachtas committee but it is not the view of the Government in terms of what it has brought forward here.

Article 40.3.3° reads, "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." It is proposed to substitute the words, "provision may be made by law for the regulation of termination of pregnancy."

This all arises from the referendum we had in 1983 which put the eighth amendment into the Constitution. There have been various other referendums on the right to information and to travel and there has been legislation in the form of the Protection of Life During Pregnancy Act 2013, which flowed directly from the eighth amendment. People were concerned when the eighth amendment was passed that the situation would not be clear and the Supreme Court would end up making decisions, which it did and which resulted in the Oireachtas passing the legislation to which I referred. The Minister may correct me on this but I believe that, over the two years since the legislation was enacted, approximately 50 pregnancies have been terminated where the life of the mother was in danger. In seven of those cases, suicidal tendencies were one of the reasons given. The Protection of Life During Pregnancy Act 2013 deals with the provision in regard to the eighth amendment where the life of the mother is deemed to be at risk, either for physical or mental reasons. If the referendum is defeated I assume that the status quoremains in the Constitution and the Protection of Life During Pregnancy Act 2013 remains on the Statute Book.

Somebody felt it was a good idea to have a consultation on the matter so we had a Citizens' Assembly of 100 people, randomly selected from the voters' register. The assembly sat for a considerable period of time but I was very confused at the end of it and did not know what it had decided. Some 48% of members wanted provision for termination at 12 weeks, 44% wanted termination at up to 22 weeks and 8% of those attending wanted no time limit at all, but to delete the eighth amendment and replace it with a wording devised by the Government.

It was then agreed to bring the matter back to the Joint Committee on the Eighth Amendment of the Constitution. I will not go into how the committee did its work and some people have different views on it but it did its work and I take the report it published as the report of the committee. After detailed consideration and lots of meetings, the committee decided to use the phrase "delete simpliciter", which meant a straight deletion of Article 40.3.3°, and it agreed with a provision to have a termination at up to 12 weeks without justification. I accept that the phrase "on demand" is probably not correct because women carrying a child in a difficult situation do not go around demanding abortions. They do not have to justify their decision up to 12 weeks and it is not right to say that they "demand" abortion as it is often the last option they have, based on their own circumstances.

The Joint Committee on the Eighth Amendment of the Constitution did not accept the view of the Citizens' Assembly, which wanted to delete and replace, and it had different views on the number of weeks, with 12 or 13 different votes taking place on the options. Some appear a bit contradictory and the outcome was that the committee came up with a different proposal, namely, to delete simpliciter. Then the Government looked at it and came up with the words "delete and substitute", before producing its policy paper on the termination of pregnancy. The Government has not accepted the views of the Joint Committee on the Eighth Amendment of the Constitution but came up with a different wording and a policy paper rather than proposed legislation at that time. The Government may agree with the committee on the 12-week limit but the principal recommendation of the committee was to delete simpliciter, while the Government came up with a different option, probably following the advice of the Attorney General. The assembly came to one view and the Oireachtas committee did not accept its views. The committee produced a report but the Government did not accept its views. No group agreed with the group that worked on this previously. That is not helpful and it shows that the issue is more confused than people might appreciate.

The legislation has been drafted now and I have waited for it before speaking on the subject. I have a problem with the words "provision may be made by law for the regulation of termination of pregnancy." There are different stages of a person's life and some people have a long life while others have a short life. We have to respect the rights of all children at all stages of their life and that includes the unborn child.

People have spoken about the road they have travelled on the issue in recent times. I have been in the House for a number of years and I had been here for about a year when we had a referendum on the Twenty-first amendment to the Constitution on 7 June 2001. That removed the provision from the Constitution for capital punishment, that is, the execution of a person for the killing of a garda, one of the most serious crimes in our Constitution. It was a very difficult time but, out of compassion and respect for human life and regardless of whether they thought a person was the worst convicted criminal in the State, the people of Ireland believed such a person's life was sacred and that he or she should not be executed.

The legislation provided for life imprisonment. This Parliament put forward a referendum a number of years ago relating to people proven guilty of a capital offence in Ireland and we said that life was sacred no matter how dastardly the act of the person convicted of murder was and that we should not take life. The people of Ireland decided in that referendum that life should not be taken in the name of the people and that provision was removed from the Constitution. Now it is said that we have travelled a road and people are saying that perhaps we should insert what they call a positive provision in the Constitution to provide for the termination of pregnancy - the termination of the life of an unborn child. I think we have gone full circle and I would ask people to think about the full circle we have travelled in this Parliament. I know that one of the last times people were asked about the sanctity of human life, even that of a person found guilty of a capital offence, they respected the sanctity of human life, difficult as that is. Some people would say that not respecting the sanctity of human life is moving forward but I do not think everyone would agree with that point of view.

I know the Oireachtas Joint Committee on the Eighth Amendment of the Constitution said that dealing with cases of rape, incest and fatal foetal abnormalities was too complex. It said it was very complex and that one cannot prove a rape took place. I think the debate in the committee took the wrong emphasis. In respect of cases involving rape, nobody should have suggested or even talked about having to report something to the Garda. We know how long a court case can take. People must name the person who they believed raped them. For people to even have that discussion was all wrong. If the woman felt that intercourse was non-consensual, that should be enough. She should not have to go to the Garda and commence criminal proceedings. There was and is a way of dealing with those issues through legislation, notwithstanding the fact that the committee felt that it was too complex. I think it would have been possible and is still within the ability of this Oireachtas to legislate for those issues if it chose to do so but that is not the option before us. The option before us is deleting the eighth amendment and substituting a provision for the termination of pregnancy.

This leads on to what has been proposed if the referendum is passed. The Minister has issued a policy paper on that issue that is available for people to read but it is no more than a policy paper. There is no guarantee the Minister will provide for this when it comes to drafting the legislation. Many important issues are dealt with in that policy paper but there are issues about which some people will take a different view. The Minister does deal with policy but this referendum might have a better chance of passing if the Government had been more specific, taken more time and let the people know what sort of legislation they would get if they passed the constitutional amendment. Instead it has said what it is thinking about, that it needs to have a discussion about it and that it needs to get further legal and medical advice and the agreement of the Oireachtas. It is a long way from what we know will be the outcome of the legislation and this lack of certainty opens the door to an enormous extent and people should be concerned about that.

Essentially, one of my disagreements with putting in that particular provision is that it allows Deputies to decide the matter. I want the people to think about this. As I said, very important issues are dealt with in the Constitution and I would consider the issue of life and death to be a matter for the people to decide rather than Deputies. I am concerned that Deputies want to take too much power for themselves. Any time during recent years where the people have been asked in referenda to give Deputies more power, they have said "No" and they have said "No" for good reason. One of the reasons is that there are 158 of us here. Most of us come in with a particular point of view. We have a particular bias on most issues either for or against, although some are probably neutral and their views change over a period of time. We are not a neutral assembly. We would not be much of an assembly if we did not have views so I do not think the Oireachtas is a neutral forum in which to pass legislation on this matter. I believe it would be better if the people had the final say.

People say that we should not insert a provision on a complex issue into the Constitution. Nobody is suggesting we do that. Nobody believes that would be a sensible idea. However, when it comes to a big European treaty, we have a referendum to allow the people to give the Oireachtas the authority to adopt the treaty. Similarly, those European treaties are not written into our Constitution but a section is put in allowing the Oireachtas to ratify the particular treaty. Similarly, legislation could be drafted where the specifics are in the legislation and we could then have a referendum to give the Oireachtas the power to ratify that legislation. This is one of the ways we should have gone about this.

The Houses of the Oireachtas Library and Research Service has produced a very impartial analysis of recent referenda setting out why some were carried while others were not. The people said "No" to the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill, which was a proposal by the last Government to give Deputies more power to carry out investigations. They did not want to give Deputies more power. I am quoting the reason given by the Houses of the Oireachtas Library and Research Service. It said there was a feeling that the people were not sufficiently well informed. More critically, it went on to say that many people rejected the proposal as it would give politicians too much power. If the people of Ireland felt that they did not trust the Oireachtas to carry out investigations into matters of public interest, I think the public may well come to the same conclusion and not trust the Oireachtas to pass legislation on a matter of life and death. The Oireachtas Library and Research Service gave another example when it said that Government supporters were generally in favour of a Government proposal while those not in support of a Government were not in favour of a Government proposal so it became a bit politically partisan.

The last Government, which included most members of this Government, brought forward another referendum in 2013 to abolish the Seanad. Here was a proposal to give Deputies more power. It was a case of, "Let's abolish the Seanad and let's concentrate power in here and if there's a few of us running the Government and we run the Dáil, sure the few of us will decide what's good for people and sure we'll get rid of the Seanad and we'll have less public scrutiny and accountability." The principal reason given why the people rejected that referendum proposal was that they did not trust the Government and not a lot has changed since then.

The document produced by the Oireachtas Library and Research Service says that the second reason people gave for not accepting that proposal was because of the perception that the proposal was a power grab by politicians. Here we are again. We have a referendum on a life or death matter but we want to grab the power to decide it instead of letting the people decide the issue. If there is to be legislation dealing with termination of pregnancy, I would have no problem with publishing that legislation and ask the people whether or not the Oireachtas should have the power to ratify it. I am not saying I would support it but the people would know precisely what they were voting on. What we are being asked to deal with here is too vague. It gives the power to Deputies and I do not believe matters of life and death should be solely in the hands of Deputies. It would be far better if it were left to the people. People say we cannot have a divisive debate but I think it has been a very civilised debate and I think it will continue to be a civilised debate. If somebody comes forward with legislation on a particular issue in years to come, I see nothing wrong with putting the question of whether the Oireachtas should ratify it to the people. That is a better way of going about it. With the divorce referendum, specific proposals relating to the divorce legislation were included so people knew precisely what they were dealing with on that occasion.

To summarise my position, I believe in the right of the people to have a vote on this issue. What the people decide should be the final word on the matter. I would not agree with preventing the people from having a say on this matter. There has been a lot of criticism of the eighth amendment but the new provision that is proposed to be substituted for it is causing bigger problems.

It is a power grab by Deputies to allow them to pass legislation in the Oireachtas. It is a case of "Give us the power to pass the legislation". We are asking the people to give politicians a blank cheque on life-or-death matters. Those serious matters of human life should be decided by the electorate, not by a small group of Deputies in this House.

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