Private Members' Business. - Criminal Law (Sexual Offences) Bill, 1993: Second Stage.

Wednesday, 23 June 1993

Dáil Éireann Debate
Vol. 432 No. 7

First Page Previous Page Page of 106 Next Page Last Page

Minister for Justice (Mrs. Geoghegan-Quinn): Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  I move, “That the Bill be now read a Second Time.”

The primary purpose of this Bill, which forms part of a comprehensive programme of reform of the criminal law which I have under way at present, is to decriminalise sexual activity between consenting mature males. The Bill also contains a series of measures designed to protect the vulnerable; and to review and update the law on prostitution and related offences with particular emphasis on sanctions in relation to the clients of prostitutes and those who organise prostitution.

While it is the case that the main sections of the Bill arise against a background of the European Court decision in the Norris case, it would be a pity to use that judgment as the sole pretext for the action we are now taking so as to avoid facing up to the issues themselves. What we are concerned with fundamentally in this Bill is a necessary development of human rights. We are seeking to end that form of discrimination which says that those whose nature is to express themselves sexually in their personal relationships, as consenting adults, in a way which others disapprove of or feel uneasy about, must suffer the sanctions of the criminal law. We are saying in 1993, over 130 years since that section of criminal law was enacted, that it is time we brought this form of human rights limitation to an end. We are recognising that we are in an era in which values are being examined and [1972] questioned and that it is no more than our duty as legislators to show that we appreciate what is happening by dismantling a law which reflects the values of another time.

That process of change is not easy and, understandably, many people worry that the traditional values which they hold so dear, and many of which are fundamentally sound, are under siege from emerging modern realities. But, of course, it is not a matter of laying siege to all the old certainties, nor is it a matter of jettisoning sound values simply to run with a current tide of demand, which may or may not be a majority demand. It is, rather, a matter of closely looking at values and asking ourselves whether it is necessary, or right, that they be propped up for the comfort of the majority by applying discriminatory and unnecessary laws to a minority, any minority.

As a people we have proved our ability to adopt a balanced and mature approach in dealing with complex social issues. In this context I am particularly pleased to note that, by and large, the public debate which has taken place in relation to the area covered by the Bill has been marked by a lack of stridency and by a respect for the sincerity of the views held by others.

Because some of the issues raised by this Bill are ones on which many people have deeply and sincerely held opposing views, it is perhaps inevitable that in the public debate the reality of what the Bill actually proposes to do can sometimes be lost sight of in the context of wider issues which tend to be raised. For this reason it is important to emphasise that the House is not being asked to take a view as to whether sexual behaviour of the kind dealt with in the main sections of the Bill should be regarded as morally or socially acceptable. Instead, what is simply at issue is whether it is right in this day and age that the full force and sanctions of the criminal law should be available in relation to such forms of sexual behaviour.

Majority values do not require that kind of support and I believe this is something that each of us knows instinctively. [1973] We know in ourselves also that values which are truly worthwhile in themselves are strengthened — not weakened — when we remove forms of apparent support which ignore the rights of others. In other areas of public concern and debate in this country we have come to appreciate the need to recognise, respect and value difference. This House needs no reminding of the tragedy which ensues when difference is deprived the right of expression and suppressed.

Returning specifically to the theme of the Bill, does anybody believe that if the laws from the last century which we are now seeking to repeal did not in fact exist, we would now be seriously suggesting that they would be enacted? How can we reconcile criminal sanctions in this area with the fact that there is a whole range of other private, consenting behaviour between adults which may be regarded by many as wrong but in which the criminal law has no part to play?

Some parents, in particular, may be uncomfortable about what is being proposed and I fully understand what gives rise to that discomfort. That is why it is so important that we understand precisely what is being proposed. It is the removal of discrimination in the case of consenting adults in respect of their sexuality, not the removal of protection in the case of children and other vulnerable members of society. In fact, the Bill seeks to protect the vulnerable where protection did not exist heretofore.

I know too that there are parents who will know what it means in practice to have a child whose very nature it is to be homosexual. Very few of them would, I believe, be likely to regard it as helpful if in later life one of their own children was an active homosexual, liable to imprisonment — under the present law up to life imprisonment — for giving expression to his sexual orientation.

I do not believe that it is any answer to say that in practice these laws are rarely if ever implemented and we would be best to leave well enough alone. Such an approach would be dishonest, could bring the law generally into disrepute and, it seems to me, would be grossly [1974] and gratuitously offensive to those who happen to be homosexual. Genuine tolerance is not achieved by the turning of a blind eye. The social acceptability of homosexuality is not something which by our laws we can decree; the hurt which homosexuals feel at their treatment as outcasts by some members of the community is not something which we can dispel by the use of some legislative magic wand. What we can do under the terms of this Bill is leave those of homosexual orientation free to come to terms with their lives and express themselves in personal relationships without the fear of being branded and being punished as criminals.

There is also, of course, the concern expressed by those who feel that removal of the criminal sanction in effect may be seen as a form of encouragement to engage in homosexual activity, that removal will in practice have this result and that this, in turn, will lead to the spread of disease. There is nothing to support the proposition that removal of the criminal sanction in the case of consenting adults — I repeat that what we are talking about are consenting adults — will lead to an increase in promiscuity. Nor is there any evidence that it inevitably follows that removal of the criminal sanctions will foster the spread of disease.

I have no doubt that the disease issue, specifically the question of AIDS, will be raised in the course of the debate on the Bill. For now, I will confine myself to two comments. First of all, the right course in dealing with the possible spread of disease through sexual intercourse is to encourage safe sexual practices, not criminalise one form of sexual activity. Secondly, there is no doubt that disease can be, and is, spread by unsafe heterosexual activity but nobody seriously suggests that the right course, therefore, is to criminalise heterosexuality. I am not being dismissive of the AIDS issue — the subject is far too serious for a dismissive approach — what I am saying is that the solution is not a ban on homosexual activity.

I hope that in stating the case in these terms I will have been able to go some [1975] way towards allaying the concerns of those who feel uneasy about what is being proposed. Our social fabric is not going to be eroded as a result of these measures. People will remain entitled to retain their moral beliefs in relation to homosexual behaviour and to seek to convince others of the correctness of those beliefs. All that will change is that the criminal law will have no part in attempting to enforce those beliefs.

There is, of course, the wider European dimension which I have already mentioned. Every Deputy will be aware that in October 1988 the European Court of Human Rights found in an application to it from Senator David Norris that our laws on homosexuality were in breach of the European Convention on Human Rights. The Court found that the impugned legislation interfered with Senator Norris's right to respect for his private life under Article 8.1 of the European Convention. The argument has been put forward that Ireland should seek a derogation from our obligations under the convention in respect of the Norris judgment. In answer to that I would refer not only to the terms of the judgment itself but also to the terms of the European Convention on Human Rights which Ireland ratified in 1953 — we were, in fact, one of the first signatories.

Article 53 of the convention provides that: “the High Contracting Parties undertake to abide by the decisions of the Court in any case to which they are parties”. Under Article 54 of the Convention judgments of the Court are transmitted to the Committee of Ministers of the Council of Europe which supervises their execution. It is for the party concerned, and in the case under discussion the party is the Government of Ireland, to give effect to the judgment and, should it fail to do so, it would be for the Committee of Ministers to decide what action should be taken. The Committee does not have power to force states into compliance but it would, if the need arose, have strong persuasive authority backed, in the last resort, by the power of suspension from the Council of Europe. We [1976] in this country have always played a very full and active role in the Council and I am sure most Deputies will agree that it would be wrong if we now put our continued membership of the Council in jeopardy.

The terms of the decision of the court put the possibility of a derogation from our obligations under the Convention out of the question. The Court found that the reasons put forward as justifying the interference in respect of Senator Norris's private life were not sufficient to satisfy the requirements of paragraph (2) of Article 8 of the Convention. That is the paragraph that deals with such matters as the interests of national security, public safety or the economic wellbeing of the country, prevention of disorder or crime, protection of health or morals or the protection of the rights and freedoms of others.

Proceeding now to the details of the legislation, the first question, having made the decision to introduce legislation, was what should be the age of consent? Different possibilities were considered but in the end the Government could find no compelling reason for a different age of consent applying to homosexual acts and to heterosexual acts. Accordingly, the age of consent for homosexual acts will be 17 years. This common age of consent is quite high by European standards but I am satisfied that, both for heterosexual acts and homosexual acts, it is right for Ireland.

Section 11 of the Criminal Law (Amendment) Act, 1885, was one of the sections found to be in breach of Article 8 of the Convention on Human Rights. It proscribes acts of gross indecency between men, either in public or in private. Section 4 of the Bill will replace section 11 of the 1885 Act. In future, it will be an offence for a male to commit an act of gross indecency with another male under 17 years of age. There is not, and never has been, an equivalent offence for females and I do not intend to introduce one. Gross indecency is a term that is well understood by the courts and by the prosecuting authorities. For that reason I am [1977] retaining the concept of gross indecency in the law. If the offence of gross indecency was abolished, boys between 15 and 17 years of age would have no protection against the commission of homosexual acts involving them. The indecent or sexual assault provisions of the law would offer protection only to boys in that age group where an actual assault took place, whereas gross indecency does not require an assault to have taken place. Boys and girls under 15 years of age will continue to have the protection of the 1935 Act provisions whereby the consent of such a young person is not a defence to a charge of sexual assault.

The Bill also protects mentally impaired persons against certain sexual offences. I have taken the opportunity afforded by this Bill to repeal section 4 of the Criminal Law (Amendment) Act, 1935. That is the section that protects women who are described in it as “imbeciles, idiots and feeble minded” from being unlawfully carnally known. I would regard these words as insulting and unacceptable and they have no place in legislation in this country at the end of the 20th century. Therefore, section 5 protects mentally impaired persons against both heterosexual and homosexual intercourse and mentally impaired males against gross indecency by a male.

The penalties for offences under section 5 are the same for both offences. The penalty in section 4 of the 1935 Act is a maximum of two years imprisonment, although this is increased to a maximum of five years by section 254 of the Mental Treatment Act, 1945, where the perpetrator has the care or charge of the victim. I regard that penalty of two years as too low and accordingly, I have taken the opportunity to substantially increase the penalty for having sexual intercourse or attempting to have sexual intercourse with a mentally impaired person.

Mental impairment is sometimes, particularly in a case of mild mental impairment, a difficult concept to quantify in the context of offences being committed against such persons. A very [1978] mildly mentally handicapped person may be able to give consent to sexual intercourse and I do not wish in this Bill to do anything that might be seen as unduly restrictive in relation to such persons. The definition of “mentally impaired” contains within it the objective concept of whether a person is capable of living an independent life. Also, as at present, the accused will have a defence; in section 5 (3) the accused will have the opportunity to show that at the time of the alleged commission of an offence he did not know and had no reason to suspect that the person in respect of whom he is charged was mentally impaired. In addition, proceedings against a person charged with an offence against a mentally impaired person shall not be taken except by or with the consent of the Director of Public Prosecutions. This will ensure consistency in prosecuting policy and will obviate inappropriate prosecutions being taken. The proposals in relation to the mentally impaired are generally in line with the recommendations of the Law Reform Commission in their report on sexual offences against the mentally handicapped.

Finally, on the aspects of the Bill I have been speaking about I would like to make the point that the proposals on homosexual offences are broadly in line with the recommendations of the Law Reform Commission in their report on child sexual abuse. The Second Commission on the Status of Women also recommended legislation to decriminalise homosexual acts between consenting adults.

I have also taken the opportunity in the Bill to revise and update the law in relation to prostitution and related offences. Section 6 creates a new offence of soliciting or importuning for purposes of the commission of a sexual offence. The offences comprehended by the section are those under section 3, 4 or 5 of this Bill and sections 1 or 2 of the Criminal Law (Amendment) Act 1935. This section will replace section 1 (1) of the Vagrancy Act, 1898, under which it was an offence for a male person in any [1979] public place to persistently solicit or importune for immoral purposes.

Section 6 will protect young persons and mentally impaired persons from being solicited or importuned for sexual purposes, whether heterosexual or homosexual, and whether the person soliciting or importuning is a male or female. It does not matter whether the soliciting or importuning takes place in a public place or not as the type of offence that could be committed could well be committed in a private residence. We are all aware that some child sexual abuse is committed by neighbours or friends of the parents of children who are abused and quite often the potential abuser will solicit or importune the child in his own home or even in the child's home.

In dealing with prostitution in this Bill I am concerned only with updating and strengthening certain aspects of the present laws. It was not my intention to review in any comprehensive manner all the offences relating to prostitution. As the basis for what I propose to do in this Bill in relation to prostitution I have considered the relevant chapters of the Law Reform Commission's Report on Vagrancy and Related Offences which was published in 1985 and which recommended the repeal of a number of 19th century provisions as well as some provisions enacted in 1912 and in 1935. Sections 7 and 8 of the Bill replace the repealed provisions. Section 7 simply makes it an offence to solicit or importune another person in a street or public place for the purposes of prostitution.

I have decided not to make loitering for the purposes of prostitution an offence. Although it is an offence at present, in practice it is ignored because of the judgment of the Supreme Court in 1981 in King v. AG and DPP. I would regard the approach in section 8 as the proper approach. Under section 8 even though the person has not been seen to solicit or importune another person for the purposes of prostitution, if a garda suspects that the person is loitering for that purpose he or she can direct the person to immediately leave the street or public [1980] place. An offence will only be committed if the person without reasonable cause fails to comply with the direction by a garda under section 8 (1).

For the first time, a person who solicits or importunes from a motor vehicle for the purposes of prostitution will be committing an offence. The loitering provisions also extend to loitering in a motor vehicle. Thus, the garda will now be able to deal with kerb-crawlers. These new offences cover solicitation or importuning of either a male or a female person by a male or female person for the purposes of prostitution, whether it is male prostitution or female prostitution and are in line with a recommendation of the Second Commission on the Status of Women. They are generally in line also with the recommendations of the Law Reform Commission in the vagrancy report.

Section 9 and 10 which deal with exploitation of prostitutes are also based on recommendations of the Law Reform Commission in their report on vagrancy and related matters. Section 9 covers the situation where active “management” of prostitution is engaged in. It also gets over any difficulties there might be about showing that money received by a person controlling a prostitute or organising prostitution constituted “earnings of prostitutes” in cases where the pimp did not receive payment from the prostitute herself but from the client, for example.

Section 10, living on the earnings of prostitution, is aimed at the person who lives parasitically on a prostitute's earnings but without actively managing or controlling her activities. However, so that children or other dependent relatives of a prostitute could not be considered to be living on the earnings of prostitution the revised offence contained in section 10 can be committed only where the person living on the earnings of prostitution also aids and abets that prostitution.

Most of the legislation which it is proposed to repeal in this Bill is, by any standards, ancient. One glance at the Schedule of repeals will reveal references to Acts of 1842, 1847, 1861 and so on. Of [1981] course, just because legislation is old is not in itself a valid reason for repealing it. However, where it is outdated, or inoperable, or simply unacceptable because of the language used, being language of another age, we have a valid reason for repealing.

While inevitably much of the public attention which has been given to this Bill has concentrated on the issue of homosexuality, the other provisions which I have outlined — particularly in relation to the protection of the vulnerable and the emphasis on sanctions against clients of prostitutes and those who organise prostitution — will also be seen as worthwhile and substantial changes to our law. Overall the Bill is a balanced, measured and enlightened approach to the sensitive and difficult issues with which it deals. It is right that we should take the opportunity, now, of rolling back over 130 years of legislative prohibition which is discriminatory, which reflects an inadequate understanding of the human condition and which we should, rightly, see as an impediment, not a prop, to the maintenance and development of sound social values and norms. I am pleased, therefore, to commend the Bill to the House.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  I propose to share my time with Deputy McGrath. The Minister's speech and the contents of the Bill cannot be reconciled. The Minister has made a very liberal sounding speech and there are certainly some liberal provisions in the Bill but why are draconian measures included in the Bill? The Minister is using draconian measures as a smokescreen to hide what needs to be addressed while putting at risk male and female prostitutes. The measures are included in a cosmetic exercise to satisfy some of her own backbenchers. This legislation is not the place for them. I wonder if there is any place for the extended penalties the Minister is introducing here. Those issues should be considered separately in detail by the House in other legislation.

While private morality among consenting adults is not a matter which [1982] should require legislation, the Legislature had a duty to encourage responsible behaviour particularly where lives can be ruined and diseases can be spread. In the explanatory memorandum, this Bill purports to have as its primary purpose the objective of decriminalising buggery between adults. The Bill proposes to do this by repealing the existing law prohibiting buggery between persons and proposing new provisions prohibiting that conduct with mentally impaired persons and with persons under the age of 17 years.

The 1960s saw a vigorous intellectual debate in Britain, sometimes known as the Hart/Devlan controversy, about the proper scope of criminal law and the extent to which it is the function of criminal law to seek to enforce morality. This had an obvious particular relevance to sexual matters and gave rise to a commission of inquiry known as the Woofington Commission which investigated a number of sexual offences, including prostitution and homosexuality. The consequence of this was that in 1967 the British Parliament on a free vote passed the Sexual Offences Act which decriminalised homosexual acts of a consensual nature committed in private between adults — over 21 years. The legislation was introduced by the Home Secretary, Mr. Roy Jenkins, and formed part of his civilised society campaign. It was quite restrictive in that the definition of “in private” excluded a situation where anyone else was present and also specifically was defined to exclude public toilets. Also excluded from the provisions of the Act were members of the armed forces.

The fact that the law has not changed in Ireland, North or South, has given rise to a degree of agitation. This resulted in a Northern Ireland gay activist bringing a case before the European Court of Human Rights. In the case of Dudgeon v. the United Kingdom, the European Court of Human Rights declared United Kingdom law to be inconsistent with Article 8 of the European Convention on Human Rights, similar legislation to that applied in Northern Ireland.

[1983] No doubt encouraged by the success of Mr. Dudgeon in Europe, Senator David Norris, then a Trinity College English Lecturer, launched a challenge to the constitutionality of the 1861 Act, as amended. The Supreme Court, by a three to two majority, rejected contentions on behalf of Senator Norris that to render criminal homosexual acts between men which were not similarly treated if committed by women amounted to invidious discrimination, that the plaintiff's right to privacy had been subjected to unwarranted interference not justified by public good and that prohibition on homosexual acts inhibited his right to the freedom of expression in an association enjoyed by heterosexuals. It is of some interest to note that one prominent judge, who delivered a vigorous judgment as part of the majority rejecting the challenge to the constitutionality of the legislation, has been quoted as stating, extra judicially, that he would favour reform of the law.

Inevitably, Senator Norris appealed to Europe and, almost inevitably, succeeded. It is Europe that is making us address this question here this evening; it is not the Department of Justice, the Government or this House. We are being compelled to address this question. That is regrettable in itself. We should make our laws as we see fit and not have to be dragged into making these laws by external bodies.

Following on the success of the Norris case the State had no choice but to amend its legislation or witness its continued membership of the Council of Europe being called into question. In general, two alternative approaches to reforming legislation have been canvassed. These are, first, what might be loosely termed a minimalist approach which would be essentially to enact the British legislation, or legislation broadly based thereon and, second, a more fundamental approach which would seem to approximate the legal treatment of homosexual and heterosexual acts.

The recommendations of the Law Reform Commission are to be found at paragraph 429 of their report on Child [1984] Sexual Abuse, at page 48. There they recommend firmly that sections 61 and 62 of the Offences Against the Person Act, 1861, and section 11 of the Criminal Law (Amendment) Act, 1885, rendering acts of buggery and gross indecency between male persons, criminal, be repealed and that there should be the same protection against homosexual and heterosexual exploitation of the young.

The effect of this recommendation in the past would have been that 17 would have been a common age of consent for both homosexual and heterosexual activity. It should be of interest to note that for the future the Law Reform Commission has recommended that heterosexual intercourse on the part of persons between the ages of 15 and 17 should not be an offence except where the male is more than five years older than the female or is a person of authority. In the event of this recommendation being accepted, the Law Reform Commission has not recommended a similar reduction in age in respect of homosexual offences.

Fine Gael will support those sections of the Bill dealing with this area but will table an amendment on Committee Stage to increase the age from 17 years, as proposed in the Bill, to 18 years. It is the view of my party that 18 years, being the age of majority, is the appropriate age that should apply in this case. My party is conscious that teenage years can be tender ones and is anxious to strike the correct balance between removing unnecessary criminal tabbos and protecting vulnerable people under the law. There is a case for making the age of heterosexual and homosexual offences equal, but on balance my party feels that a case has been made already by the Law Reform Commission for differenting in certain circumstances. My party feels that such differentation would be justified in this case.

In this regard it is not my wish to reflect in any way on the sexuality of anybody, homosexual or heterosexual. It is about time that this legislaltion was brought up to date. But it is the opinion of the Fine Gael Party, having considered [1985] the matter, that 18 should be the appropriate age in relation to this particular offence.

In relation to the remainder of the Bill, we would say it is disingenuous to include in this Bill reactionary legislation dressed up as liberal legislation. For example, there is no attempt made to protect prostitutes in any real way. Sections 7 and 8 of the Bill prohibit males or females from soliciting or importuning, with severe penalties — an increase from £2 to a maximum of £1,000 or three months imprisonment, or both. By any standard that is draconian. Indeed, the provisions of the Bill do nothing to assist prostitutes, male or female, or to discourage them from their activities. I contend that this level of fine may well give rise to blackmail and extortion in the case of people who would be frightened not to pay their blackmailer for fear that they might end up on one or two occasions before the courts, being meted out huge fines they simply could not pay. Indeed, the reason many of these men and women are on the streets in the first place is that they do not have a sufficient income; they are there for economic reasons. To impose penalties of this magnitude on people in this category seems to me to be draconian and leaves them open to blackmail and extortion because they would be fearful of being caught or so to speak, ratted on. Therefore, I would suggest that that penalty be reduced to £500 and, on indictment on first offence, there should be no question of imprisonment.

It is my belief that the manner in which the Bill approaches this overall question of prostitutes, male or female, pushes the problem further underground, leading to the further spread of disease and rendering prostitutes more vulnerable than they are already. It could lead to our prisons being filled with sexual offenders instead of violent criminals, the people who should be imprisoned. In addition, it opens up the possibility of financial corruption, blackmail and extortion of prostitutes, who might prefer to pay cash to others for fear of being reported and being made liable to a £1,000 fine. It takes no account of the primary need to [1986] protect all of those involved against life-threatening disease. We ban the brothels; we fine the prostitute; I believe we should do something to endeavour to protect prostitutes from the spread of disease.

For example, under section 11 of the Bill would it be unthinkable to make it a further offence, carrying the same penalties — even though one would be breaking the law in keeping a brothel — not to display health warnings in such premises? Would it be possible to do that? I do not believe it would. We are already making provision for prostitutes to be prosecuted and a further prosecution to take place where their earnings have been “immorally earned”; and if passed on to a person living off them, that person can be further prosecuted. There is no provision in the Bill to be proactive in protecting the health of those involved, in particular prostitutes. Nor does it take account of the fact, as some reports suggest, that up to 75 per cent of prostitutes are people who suffered sexual abuse at some time in their childhood. For that reason I believe these are reactionary measures which should be the subject of detailed consideration by this House in proper committee.

I want to make one further point. I believe there is a need for a proactive role to be undertaken by this House, the Government and Government agencies — for example, health boards — to engage in a campaign promoting responsible attitudes to sexual behaviour, whether it be homosexual or heterosexual. I am not singling out any particular group. For those who are young and vulnerable the fact that we pass legislation here allowing for contraception, allowing the sale of condoms from vending machines, may be necessary and even welcome, particularly in the case of homosexuals who have suffered enough. We do not adopt a proactive approach to try to convince people that they should behave in a responsible manner, that is, that they should not pass on disease, particularly life threatening diseases, or have unwanted pregnancies. In the Eastern Health Board they use the term “casual father” where a man has made [1987] two or three women pregnant at the same time and has not accepted responsibility, not to mention the diseases that may have been passed on. While it may be necessary to pass this liberal legislation our role and responsibility do not end there. If we are truly committed to taking steps to promote responsible sexual behaviour we should adopt a pro-active approach and not be afraid to take the campaign to the people.

Fine Gael will not oppose the Bill on Second Stage but will introduce amendments on Committee Stage to take account of the reservations expressed.

In her speech, in referring to section 4 of the 1935 Act, the Minister said:

I regard that penalty of two years as too low and accordingly I have taken the opportunity to substantially increase the penalty for having sexual intercourse or attempting to have sexual intercourse with a mentally impaired person.

I welcome that provision but do not know if it has come too late to be applied in the case of whoever was responsible for carrying out the attack in Grafton Street earlier today. I never heard of anything more sickening or frightening. I hope it will apply but, if not, it will apply in other cases.

Mr. McGrath: Information on Paul McGrath  Zoom on Paul McGrath  I thank my colleague, Deputy Mitchell, for sharing his time with me. The Bill aims to decriminalise sexual activity between consenting males over the age of 17 years and repeals the relevant sections of the Offences Against the Person Act, 1861.

The incidence of homosexuality is estimated to be in the region of 1 per cent of the population. It was previously thought that the figure was much higher but recent studies confirm this lower figure, which means that homosexuals are a marginal group in society. There is some difference of opinion in relation to sexual orientation, whether homosexuals are the product of their environment or born with this condition which may manifest itself at some stage in their adult life. [1988] Experts differ on this point and there will probably never be a definitive answer one way or the other.

Homosexuality is also seen as a relatively modern phenomenon as references to it in history are scarce or non-existent. However, there are references to it in literature in recent centuries. Of course, one's sexual orientation is not morally wrong; it is not one's fault that one is attracted to somebody of the same sex. Homosexuals should not be looked down on or victimised and it is wrong to encourage or condone attacks on gay people.

How adults behave in the privacy of their own homes is their own business and I have sympathy for homosexuals who are now deemed to be committing crimes by homosexual acts. Such activities are criminalised under the Offences Against the Person Act, 1861. However, we must realise that, to my knowledge, there have not been prosecutions against any such persons for at least 40 years. Therefore, even though the law exists, in effect it has not been used in latter years and homosexuals can rest assured that their activities will not bring them before the courts.

If this Bill is passed, I am concerned about the possible effect on Irish society. Will we now see exhibitions in public by homosexuals holding hands, kissing, cuddling, etc? Is homosexual behaviour to be put on a par with heterosexual behaviour? We should reflect on the fact that the majority of people do not favour such a move. What effect will this have on our children who may be influenced by it? How does it fit in with the perception of the family which holds pride of place in our Constitution? Will we be faced with requests that homosexuals should be allowed to marry and perhaps adopt children? This has already happened in other countries where such requests have been made. Will Ireland follow the lead of Denmark and similar societies in Europe and experience the breakdown of society that has occurred in some of these countries?

This Bill has designated the age of 17 [1989] years as the age of consent for homosexual activity. The Minister said:

It is the removal of discrimination in the case of consenting adults in respect of their sexuality, not the removal of protection in the case of children and other vulnerable members of society. In fact the Bill seeks to protect the vulnerable where protection did not exist heretofore.

I strongly question the designated age. A person of 17 years is not an adult. It is worth noting that the legal age for homosexual behaviour in Britain is 21 years. The Bill implies that the age of adulthood in Ireland is 17 years. I strongly disagree with this.

Young people of this age are probably still attending secondary school. Typically, they are preparing for the leaving certificate or may have left school and doing an apprenticeship course. It is generally agreed that girls at this age are more mature than their male counterparts and many of us who have teenage children would vouch for this.

Young lads at this age are still in their formative years where peer group pressure is important. This Bill will allow these vulnerable young men to enter into homosexual relationships. They will be very vulnerable to homosexual adults who might even be their teachers. Sadly, this Bill condones and legalises such a situation. Yet, in Ireland young people cannot vote until they reach 18 years. It is also worth noting that our young people cannot marry under the age of 21 without the written consent of both parents.

The exploitation of young people is sometimes a factor in homosexual behaviour. Recently a Columban priest, Father Shay Cullen, who is at present ministering in the Philippines, was lucky to escape with his life when he exposed the exploitation of young people in that country by organised gay tours from developed countries. It is also interesting to note that recently some gay people in Britain claimed that attacks on their members have increased since the laws were changed there.

Even though the gay community [1990] account for just 1 per cent of the population, about 30 per cent are AIDS victims. International surveys also indicate that gays have a much shorter life expectancy than their heterosexual counterparts, while a survey in the United States found that gay people are probably 87 times more likely to be murdered and 25 times more likely to commit suicide than their heterosexual counterparts.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  With your permission, I wish to share my time with Deputies Harney and Cullen.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Is that satisfactory? Agreed.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Bill, in so far as it finally delivers on Ireland's duty to comply with its obligations under the European Convention on Human Rights, is welcome but the circumstances in which it has been introduced in the House reflect considerable discredit and shame, especially on the Fianna Fáil Party.

In 1988 when the Strasbourg Court handed down its decision, at the behest of Senator Norris — I would like to salute his courage in standing up for his rights as an individual; something which has not been done so far in the debate — the Fianna Fáil Party was in office. In 1989, it formed a coalition with the Progressive Democrats and, as part of their Programme for Government, the two parties agreed to implement laws to deal with the situation created by the Norris judgment in Strasbourg. Unfortunately, the Fianna Fáil Party reneged on that commitment. Even in 1991 when the commitment was again renewed on paper the Taoiseach told the public that reform of the law in relation to homosexuality was at the bottom of his list of priorities. That was shameful double talk on his part. For the purpose of getting into office his party agreed to do one thing but for the purpose of trying to maintain support among a certain element of the population it was unwilling to deliver honourably on the deal it had made.

What has changed in the meantime? Fianna Fáil has gone into coalition with [1991] the Labour Party, which, it must be conceded, has more leverage on it. Finally, it has admitted that the commitment it made to this party in 1989 will be delivered on. It is clear from the Minister's speech that this commitment would never have been delivered on if it had not been for the decision of the European Court of Human Rights. Ireland was great for going to that court during the early seventies and pointing out that Irish citizens were being tortured and invoking international standards of human behaviour in our interests when it suited us. It is also clear that the Fianna Fáil Party in particular sought to abandon the moral duty imposed by the 1988 decision when it suited it electorally and politically.

The 1983 decision of the Supreme Court in the Norris case was unfortunate. However, times have changed and we have moved on a bit since then. In so far as it purports to take away the stigma attached to homosexuals in our law, I very much welcome this Bill on behalf of the Progressive Democrats. This Bill proposes to change our criminal law. I note in particular the remarks made by some members of the Hierarchy about the criminal law and its function. It was suggested that laws in some sense should reflect models of behaviour. Are the people who put forward that view of the criminal law really aware of the facts? I have probably practised criminal law more than any other Member of the House. During my 19 years as a practising barrister I have never come across an occasion on which someone was prosecuted for gross indecency and I have seen cases of buggery charged in the courts on infrequent occasions only. The stigma of criminality prevented many people from playing an active role in this community, prevented people from being appointed to the bench, prevented people from pursuing a life in politics and prevented people from playing a role in both professional organisations and their communities. That stigma of criminality existed as a potential blackmailer's charter on those individuals. It was deeply hypocritical of the Irish State to effectively [1992] suspend the prosecution of homosexual offences while at the same time leave the crime on our Statute Book. It was deeply hypocritical of this State to leave on our Statute Book laws which we had neither the will nor intention to apply, as they stigmatised a section of our community whom we no longer believed deserved such a stigma.

The Hierarchy is entitled to make moral judgments and give moral teaching to its flock. Does the Hierarchy really believe that it is appropriate, or ever was appropriate, to put a man in jail because he had consented to engage in a sexual act with another man in private? Did it believe that that should have been the law? Did anyone believe that two men who behaved in that way and who were somehow discovered by a third party should spend time in Mountjoy Prison? Does any member of the Hierarchy think that that was a Christian or proper thing to do in such cases? Was there any moral justification in our society for handing down such sentences? If there was no justification for this, the sooner that offence is cleared off the Statute Book the better.

There are other areas where the criminal law is discordant with practice. One has only to look at the law on bigamy where, unfortunately, because of the discordancy between the civil and canon laws, marriages carried out in good faith by Catholic priests under canon law are under our civil criminal law bigamist marriages. This leaves these priests open to criminal sanctions. If a priest who in good faith carried out a marriage ceremony which was technically bigamous was threatened with prison, I have no doubt that we would not have to wait long for a message from the hierarchy asking for the criminal law to be brought into line with reality. We cannot have different standards in different areas. If we do not propose to punish homosexual males for acts in which they engage in private, then it should not be an offence on our Statute Book. If we do not propose to send them to prison we should not have the power to send them to prison on our Statute Book.

[1993] The explanatory memorandum states that the primary purpose of the Bill is to decriminalise buggery between adult persons. That is an outrageous proposition. That is not what the people of Ireland asked for, and it is not the primary purpose of the Bill. The primary purpose of the Bill is not connected with the crime of buggery; it is connected with the homosexual orientation of certain people. With the greatest of respect, buggery is a minor incident in that. The issue is whether people with a male homosexual orientation are committing crimes when they engage in sexual activities. This Bill is welcome in so far as it finally puts an end to that stigma. However, I am afraid that that is where my praise for this Bill must end.

A number of the provisions in the Bill are entirely draconian. I draw the attention of the House to section 6, which states:

A person who solicits or importunes another person for the purposes of the commission of an act which would constitute an offence under section 3, 4 or 5 of this Act or section 1 or 2 of the Criminal Law (Amendment) Act, 1935, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

The Minister rightly pointed out that this does not require the importuning or soliciting to be done in a public place. I want to give an example of what this means. I give this example for the House's consideration. A schoolmaster in a boarding school who is accused by a boy under his care of importuning him to commit an act which would amount to gross indecency would not even be entitled to a jury trial under this section; he would be brought before a district justice. This provision makes this a summary offence for which he can be sent to prison for 12 months. I should like to know which Members of the House believe that is a fair way to treat people. It is an outrageous proposal.

I do not wish to dwell at length on the question of prostitution as my colleagues [1994] have some points to make on this issue. However, section 7 proposes to send to prison for three months people who either ask for the services of a prostitute or agree to deliver the services of a prostitute in a public place. Does the Minister not know that there is no room in our jails at present? Today I heard about a person who has been charged with a very serious offence and who was recently let out of prison having served one year of a three year sentence for an equally serious offence. Does the Minister not know that jailing prostitutes and their clients is a draconian and totally outrageous penalty to apply to individuals? Why should a man who, for whatever reason, asks for the services of a prostitute on the street be sent to jail for three months? I should like the Minister to explain that to me. Why should a prostitute, who is at the lowest end of the pecking order in society, be jailed for three months for agreeing to give her services to this man? What is fair about that? Why should these people be sent to prison? Surely a different solution is required? It is outrageous to suggest that these people should be jailed in these circumstances.

The Minister said that people consorting with prostitutes would be treated differently under this law. However, section 10 (2) provides that:

In any proceedings for an offence under subsection (1) [which is living in whole or in part on the earnings of a prostitute and aiding and abetting prostitution] it shall be presumed unless the contrary is shown, that a person who lives with or is habitually in the company of a prostitute was at the time of the alleged offence living on the earnings of that prostitute from prostitution and was aiding and abetting such prostitution.

Does this mean a prostitute is not allowed to have a boyfriend any more because there is a presumption in law that he lives on her earnings and aids and abets the commission by her of offences? Where did the Minister get this law? Where did she get such a draconian suggestion? I suggest that it was tacked on to the end [1995] of the Bill in order to make it acceptable to some moral majority that should be in the back benches behind the Minister but is not. The only view one can draw is that a concession was made to liberalism on the one hand— it was reluctantly dragged out of Fianna Fáil by circumstances, by political pressure, by the Council of Europe and the Court in Strasbourg. In order to keep everybody happy the Minister had to put in something that would show that the old values still apply and she picked out a weak sector, prostitutes and their clients and threatens to send them to jail. This is a shameful suggestion and should not be countenanced any further.

Let me reiterate that prostitution, of itself is not illegal, only importuning a prostitute's services in public is illegal. If the Minister is really serious about clamping down on brothels will she address a deficiency in the Bill in regard to this? I read in today's edition of In Dublin, which I purchased today, on pages 86 to 89——

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Will the Deputy please give the reference?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  In Dublin volume 18, No. 13: June 23-July 6. There are three pages of advertisements for what are clearly brothels and nobody but a fool would mistake them for anything else. They are quite elaborate, no address is given just a contact point, through a mobile telephone. If the Minister is really serious about stamping out brothels, perhaps the first thing she should do is tell the management of that magazine — which I believe is not totally strange to her political party — to stop printing advertisements for brothels and I suggest she fine them when they take in what must be very large sums of money for assisting the running of brothels. It is about time we faced up to reality. That magazine has been printed in that format for a very long time, those advertisements have been appearing, although with less sophistication, and have been printed in that format for a long time and [1996] nothing has really happened except on a few occasions there have been a few show trials with video evidence of particular premises in the city. The time has come to level with ourselves. If the Minister wants the vice squad to go around the squares and streets of inner city Dublin and close down massage parlours, by all means let her tell us, but if she does not intend to do that stop codding us by tacking on to a liberal Bill this draconian, totally unwarranted measure that is over the top in order to satisfy the phantoms who should be occupying the empty benches behind her.

Miss Harney: Information on Mary Harney  Zoom on Mary Harney  This Bill is about human rights, but in that regard it is schizophrenic. It adopts a very positive and liberal approach to homosexuality. I support the provisions in this Bill in relation to homosexuality. It is about freedom, tolerating difference and respecting the rights of other consenting adults — I think 17 is the appropriate age for young people to fulfil their sexual orientation and not to be declared criminal in the process. As Daniel O'Connell once said: “By extending freedoms to others you enhance and not diminish your own”. Deputy McGrath, in particular, spoke about homosexuals being murdered and attacked and the high incidence of suicide in this group. That is probably the case and results from the indifference, intolerance and prejudice with which they have to live. I believe it would be inappropriate to change the age of consent from 17 to 18 for this reason: I do not think young men should have to begin their adult life as criminals. We should have gender-neutral legislation and the age of consent that applies to heterosexuals should apply to homosexuals. I see no grounds — as the law reform commission did not — for changing the age of consent. I believe that in matters to do with private morality the law does not affect how people behave. We have no legislation for divorce, we did not have legislation in relation to contraception and so on, yet we have a huge problem of marital breakdown which is higher than the incidence [1997] in some countries where they have divorce legislation.

Homosexuality has been a criminal offence under the law of this country and that has not prevented us from having tens of thousands of homosexuals in our society. What this law does is facilitate behaviour: it respects behaviour and protects the common good and allows consenting adults in the freedom of their own home to exercise choice in pursuing their sexuality. It would be wrong if we were in any sense to seek to alter the age of consent and I am disappointed that an effort will be made to do that. Young homosexual men have a great many things to come to terms with as the majority in our society are heterosexual and for them it is often difficult to come to terms with the fact that they are different. To try to make that more difficult would be wrong. As Deputy McDowell said, I will concentrate on the other provisions of the Bill because he dealt very well with the matters relating to homosexuality.

I pay tribute to this Minister because unlike her predecessors, who in some instances agreed to change the law, she has been uncompromising and has not dithered in relation to homosexuality. She has also been very clear about her own personal views — I heard her give a radio interview some weeks ago which I thought was remarkably courageous and brave. That is the way it should be. That is appropriate for a Minister in a reforming Department.

If the law is liberal, progressive and realistic in relation to homosexuality it is draconian in the extreme in relation to prostitution. Prostitutes are perhaps the most vulnerable and marginalised group in our society. This afternoon I read a report by J. Finucane of the lives of girls on the streets of Dublin. It makes frightening reading. It summarises the lives of a number of prostitutes in Dublin and one sees that they all come from difficult homes where physical or sexual violence was often the norm — in some cases they were abandoned. They are poor, they have a low standard of education and low self-esteem. Instead of this group being criminalised and sent to jail they need a [1998] caring approach if we are to prevent them from continuing with their lives of prostitution. They need the help of the social services and not the heavy arm of the law. There certainly is no need to send them to jail. As Deputy McDowell rightly said, we do not have room at present in our prisons for the real criminals in our society: those who are beating and robbing others and terrorising tourists and the ordinary people on the streets in this city. We do not have enough prison space for them, and if they are sent to jail they are out after a few days. What we propose to do in this Bill is to send unfortunate vulnerable people, the prostitutes, to fill our prison spaces. That is a wholly inappropriate response to a huge social problem.

I know what I am saying will not be popular but I believe it is right. I am delighted that politics generally has improved so much in the past four to five years that a least we can speak freely about issues like homosexuality, contraception, divorce and so on. I have seen a great maturing in the attitudes of politicians of all parties on these issues and it has been difficult for many to come to terms with the reality of life in Ireland today. However, in relation to the provisions in this Bill on prostitution, I see an effort to sweep the problem under the carpet, to pretend it does not exist and let it go into the seedy underworld where there is no protection for a prostitute when she is beaten or physically attacked. She will not have recourse to the law because she is a criminal and she will not be able to go and report her story to the Garda Síochána.

We will not be able to implement the very fine provisions of the recent Bill to provide condoms. The spread of AIDS and sexually transmitted diseases is a major problem in our society. We have to make sure that those who engage in casual sex, of whatever kind, take precautions. We will not be able to gear any health programmes towards prostitutes or their clients if we continue to drive them into the seedy underground. The law is not capable of solving the problem. On the contrary, what we need is an [1999] integrated approach from the Departments of Health, Education, Social Welfare and Justice. I notice that some of the prostitutes asked how they would get out of prostitution. They need shelter, welfare, education and to be shown an alternative way. This Bill does not do that.

We need to distinguish between the prostitute and those who organise prostitution — those know as pimps — who make huge sums of money out of exploiting the most vulnerable and marginal group in our society. Deputy Michael McDowell referred to the In Dublin magazine, the current edition of which has 21 advertisements advertising brothels and various facilities in this city. It is obviously a major problem. The people running these 21 establishments are obviously making a handsome living out of exploiting a group of unfortunate and desperate women. No woman who engages in prostitution can feel happy about what she does; it is a sordid, horrible, degrading pursuit. No woman who engages in such activity could hold her head high. What she needs is help and encouragement and not a life going before the courts, going on to jail and back onto the streets again.

I feel very strongly about this issue even though many people consider that criminalising something gets rid of it. I do not accept that approach. It certainly has not worked with any of the other social issues we have tried to deal with. If we decided to decriminalise poverty it would not mean there would be no more poor or if we criminalised slavery that we would get rid of the slave. It does not make sense, it does not get to the root cause of the problem and does not deal with the social issue before us.

I regret very much that this is such a short debate because many Deputies have different views from those expressed by me in relation to both these issues. It is a pity we have not allowed sufficient time for debate on Second Stage or tomorrow when we propose to deal with Committee and Final Stages in an hour and a half. The real debate will [2000] take place outside this House and will continue to make this House irrelevant.

In relation to comments made by the Catholic Bishops, I do not believe that the law in any sense influences how people behave in matters to do with private morality. It is a much larger question and has to do with their value system, their education, their upbringing and so on. It is interesting to note, for example, that virtually all the women engaged in prostitution in Dublin come from poor working class families with low standards of education and so on. The Churches have a role, through their spirituality and their particular Church, to build on the value system of their congregation. I do not believe their role is to tell politicians what to do or to frighten people into thinking that if something is legislated for or is decriminalised that there will be a massive outbreak and that suddenly the whole value system in our society will change completely.

Irish people live in many parts of the world where many of these issues have been legislated for many years ago. Irish people who live abroad do not behave differently from those who live here. In the diocese of Armagh, which straddles the Border, some of these matters have been legal on one side of the Border for a considerable period of time and a different approach is adopted on the other side of the Border. I do not believe Catholics in one part of the diocese are any less Caholic than those in the other part of the diocese.

We have to realise that throughout society — whether in the Church, politics or whatever profession — homosexaul behaviour is not limited to a particular group, class or profession. It would be narrow-minded to take that view. Rather than make it more difficult for those whose professions may have suffered, whose chances of promotion and family life may have suffered, we should all put ourselves in the position of a sister, a parent or colleague of a homosexual person and ask whether we would want them to be declared criminals and put in jail. Either we want to have laws that operate and are effective or we want the [2001] law to recognise reality. For many years the law in relation to these matters has not been put into effect. On the contrary, we have turned a blind eye to the law and laws that are not enforced are not respected. I hope this debate, short and all as it is, will be a further maturing of the legislative process. Hopefully it will allow us to be more tolerant because legislation in itself will not change social attitudes, that is a much longer and more difficult process. It can be done in a number of ways and obviously the legislation plays a part in that it removes prejudice but certainly is not the end of the story.

In the Unfair Dismissals (Amendment) Bill, 1993 and in the incitement to hatred legislation we include a provision in relation to sexual orientation whereby people would not suffer, would not be discriminated against and would not lose their jobs because of their sexual orientation. That is appropriate. If we are honest and fair in relation to these matters we have to follow suit in regard to the law.

I will conclude because I wish to share my time with Deputy Cullen. Prior to the commencement of Committee Stage tomorrow I would ask the Minister to rethink her attitude to the provisions in relation to prostitution. If she continues to pursue the provisions of this Bill I ask that they would not come into effect until such time as we have a proper health, education and welfare programme — the type of approach recommended by the Commission on the Status of Women — and until such time as we provide support services and a way out for those engaged in prostitution. Bringing them before the courts, fining them heavily and sending them to jail is not the solution. On the contrary, that would only further increase the problem and would not act in a human rights way which this legislation seeks in regard to homosexuality.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  I have to inform Deputy Cullen that the time available to him is well nigh exhausted. Shall we agree, with generosity, to allow him two minutes?

[2002]Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  When one has to follow Deputies Michael McDowell and Harney it is difficult to get a word in. It is right and proper that we decriminalise homosexual activity by means of this Bill. I welcome that move by the House. The Bill is long overdue and it is time we dealt with the issue.

I regret that the second half of the Bill deals with the whole question of prostitution. The Minister is right in saying that this question needs to be dealt with. There are many and wide ranging views on the subject but the draconian way in which it has been dealt with is a major backward step and is one she should not have taken. I am confused as to whom the Minister was appeasing to in bringing prostitution into the Bill before the House. It was totally unnecessary and appears to be a means of balancing the liberal and right approach she was taking in dealing with homosexuals. She saw a need to balance the homosexual laws by bringing in draconian laws for dealing with prostitution. As my colleagues have pointed out, this area needs a caring approach. It needs to be looked at in terms of health care and all the other areas that one would expect a civilised society to deal with in the more liberal country in which we now live.

In conclusion, I appeal to the Minister to withdraw the aspects dealing with prostitution and allow for a reasoned and sensible debate. This side of the House would welcome an indication from the Minister that this matter should be dealt with in a debate in which we could examine all the issues involved and come up with a formula that would bring about a more caring approach that is vital in regard to prostitution. In such a debate we could consider the possibility of introducing legislation to deal with the matter.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I wish to share my time with Deputy De Rossa.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Is that agreed? Agreed.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  This Bill is in two parts. [2003] First, it seeks to decriminalise homosexual activities between consenting adults and, second, reforms and extends the law in regard to prostitution and related offences. The provisions for homosexual law reform are simple and straightforward in the legislative sense, one is either for or against the decriminalisation of homosexual acts. That matter is dealt with in three sections of the Bill.

From a legislative point of view, the other provisions are far more complex as they create a range of new offences and greatly increase existing penalties. Those provisions merit much closer scrutiny than they will receive in the time allocated to this Bill. The provision of approximately 50 minutes tomorrow for Committee and remaining Stages is totally inadequate for such important legislation. The Government made a great mistake in opting for a debate on this Bill which allows three and a half or four hours for Second Stage — giving Government backbenchers an opportunity to sound off their opposition to its provisions while having the luxury of not having to vote against it — and only 50 minutes tomorrow to tease out the important detail of the Bill. From our experience in this House in the past, Bills which are rushed through the House without receiving proper consideration, particularly on Committee Stage, are frequently found to be flawed. I am concerned that some of the provisions of this Bill may encounter similar difficulties.

The provisions of the Offences Against the Person Act, 1861, dealing with homosexual activities are a relic of the Victorian era and should have no place in a modern society. The sexual activities of consenting adults in the privacy of their home are a matter for the people concerned and should not be the business of the Dáil, the Garda or anybody else, including the peeping Toms of the self-appointed moral police from whom we hear a great deal nowadays. Whether one approves or disapproves of the particular sexual practices of people is not the issue. Disapproval is not a sufficient [2004] reason for criminalising those whose sexual orientation differs from that of the majority.

It is now almost five years since the European Court of Human Rights found our laws in this area in breach of the European Convention on Human Rights and the delay in living up to our obligations as signatories to that Convention is regrettable. Commitments given by successive Ministers for Justice to amend the law were reneged on and as recently as September last the present Taoiseach contemptuously dismissed the matter stating that it was at the bottom of his list of priorities.

It is significant that this Minister for Justice has shown the courage to confront this issue head on and do what should have been done many years ago. As someone who has had cause to criticise her in other areas, I am pleased to offer her my congratulations on the way in which she faced this issue. This Bill has been introduced relatively early in her term of office. She has refused to be intimidated by the clamour of a number of organisations whose by-word seems to be “intolerance”. She has stood up to the threats of her own backbenchers, including a colleague in her constituency who has shown no shame in politically exploiting any difficulties which the Bill may cause for her. Too often in this House we are tempted to score political points. On this occasion the Minister has shown courage and deserves our support in a wholehearted rather than a grudging manner.

Deputies:  Hear, hear.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  The proposals in this Bill are simple, yet they meet the requirements of the European Commission on Human Rights and the recommendations of the Law Reform Commission. The Minister resisted the temptation to adopt another Irish solution to an Irish problem, the sort of fudge that has been the hallmark of many social reform attempts.

The legislative position of homosexuals here will now be far more acceptable than in the United Kingdom. The [2005] question in regard to the age of consent will always be difficult, but the Minister was correct in deciding that the proper approach was not to differentiate between the homosexual and the heterosexual and to set the age limit at 17, as recommended by the Law Reform Commission.

It is regrettable that Fine Gael propose to introduce an amendment to increase the age limit to 18 years. Indeed, no case was made for that so far in this debate. The enactment of this Bill will mean that the age of consent here will be the highest in Europe. In France, Italy, Denmark, Greece, Poland and Spain the age limit is 15 years and in Portugal, Belgium, the Netherlands and Norway it is 16 years. No case has been made here for increasing the age limit to 18 years. Fine Gael is attempting to pander to opposition to the provisions of this Bill in an effort to score a cheap political point by embarrassing the Government. I am disappointed with Deputies Gay Mitchell, Frances Fitzgerald, Shatter and others whom I thought would have shared my views.

The Bill makes adequate provisions for the protection of young people and I support the concept of tiered penalties with more severe penalties being imposed for offences against the very young. Society has an obligation to protect young people against sexual exploitation by adults, whether homosexual or heterosexual. The passing of this Bill — and I believe it will pass — will be a reflection of our growing maturity as a society. Last month, following almost two months of shadow boxing, the Dáil disposed of the condom issue without undue political pain. We are now introducing significant homosexual law reform with only a minimum of controversy. It is significant and a hopeful pointer for the future that, while the Catholic Bishops have set out their views on the issues, as they are entitled to do, they have not attempted to come the heavy with the legislators. They have stated that homosexuality itself is not sinful and they can scarcely argue that the Oireachtas should make a crime of something which they [2006] do not consider to be sinful. The enactment of this Bill will bring a great sense of relief to members of the gay and lesbian community who will no longer be regarded under our law as criminals.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  It will not bring much relief to other members of the community.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  The passage of this Bill through the House will be a tribute to those members of the gay and lesbian community who have courageously campaigned for reforms in this area over many years and none more so than our fellow Oireachtas Member, Senator Norris.

As I said at the outset, the proposals in regard to homosexual law reform are straightforward. The proposals in regard to prostitution are much more complex and raise important questions. The eight sections dealing with prostitution introduce a new range of offences, give exceptional powers to the Garda and provide for greatly increased penalties which in some cases may be as high as five years in jail.

Prostitution is a phenomenon which has been with us for as long as society has existed. It is not for nothing that it is known as the oldest profession. As far as I am aware, no society, even those with the most draconian laws, has succeeded in eliminating it and I doubt if this Bill will significantly reduce the level of prostitution here. I do not believe that prostitution should be legalised. It is a social evil which allows for the sexual and economic exploitation of women and such exploitation should not be legitimised. Our society would be better off without prostitution. Nevertheless, what we need is a far more comprehensive and sophisticated approach to the problem than we are getting from this Bill and I agree that prison is not the way to deal with it. I am somewhat surprised that if penalties are to be imposed the community service orders mechanism was not availed of as a more appropriate way of deling with it.

Few women set out to be prostitutes. The majority are forced into it by economic [2007] or social circumstances. They face appalling risks, not just from sexually transmitted diseases but also from violence from clients and pimps. From what we know from research, most women would get off the game if they could. There is an element of hypocrisy in regard to society's attitude to the payment of money for sexual services. If a businessman has money to set up a woman in a luxury flat and pay her money each week in return for sexual favours, neither party commits an offence. If, on the other hand, a woman approaches a man in the street and offers him sex in her flat or in the back of a car, both parties are guilty of an offence and under this Bill would be liable to penalties of up to 12 months in prison. There is a number of welcome reforms in the sections dealing with prostitution. At least we are ending the hypocritical situation whereby the woman was the only guilty party. Under this Bill both parties will be equally guilty and liable to the same penalties. The hypocrisy of our approach was highlighted in the courts in Dublin some months ago when a woman was charged with running a brothel. The woman charged was named and the women working in the brothel who gave evidence were named, but the customers who gave evidence were not named.

Steps are being taken in the Bill to deal with kerb crawling, which has been a scourge in some areas and which has caused great annoyance and embarrassment to women and girls who have been propositioned from cars. I particularly welcome the new sections dealing with those who control, direct or organise prostitutes, the pimps who are the real evil force in this business.

Some of the powers for the Garda are quite sweeping. Under section 8, for instance, a garda who has reason to suspect that a person is loitering on a street or public place for soliciting or importuning may direct that person to leave that street or public place. A person who fails to comply will be liable to a fine of up to £1,000 or a term of imprisonment of up to three months. The requirement [2008] is only that the garda has to suspect, which is a very vague and imprecise term. He does not even have to have reasonable grounds for believing. What is of even more concern is that the definition of “street” is so wide as to constitute virtually every place it is possible to be once one goes through one's front door. It is not too difficult to envisage abuses of this section arising.

I can understand what is intended by the section. However, we do know that unfortunately there are occasions when gardaí exceed the powers intended for them in legislation. I would be concerned that a situation might arise where a woman standing on her own waiting for a lift, going about her business, might become involved in an exchange with a garda who suspects that she is importuning or soliciting and tells her to move along. If, for example, a mature woman tells a young garda recently out of Templemore where to go with himself and he decides to prosecute, things could get out of hand. That section needs to be addressed because I do not believe that gardaí are going to approach six foot men with tattoos on their arms and tell them to move along. This is a section that is primarily directed at women. While I appreciate what the section is attempting to get at, I believe that it could lead to abuse in the future. It is precisely the kind of section that needs a bit longer than 50 minutes to tease out in Committee.

The application of the law on prostitution has always focused on the prostitute, who is still, most usually, a woman. It will require more than a change in the law to alter that. I feel that it would be far easier for the Garda to pick up a woman and proceed against her than to pursue the clients or the brothel keepers. I am not sure that we will achieve anything by putting more prostitutes in prison.

I would like the Minister to outline in her reply what social and medical services will be available to prostitutes jailed under this Bill. The health dimensions of prostitution have taken on a new urgency with the spread of AIDS. Will proper [2009] health checks be available, or will it be simply a case of locking them up for a few months, as is the case at present, and then letting them back on the street?

The Bill before us has given rise to a certain amount of controversy and most of that has been orchestrated by groups who have set themselves up as the guardians of morality in our society. A number of issues now need to be addressed in that wider debate. The first relates to why it is that in the debate on this Bill the entire concentration has been on the decriminalisation of homosexuality. I, and I am sure other Members of the House, have received letters and telephone calls warning that the decriminalisation of homosexuality would lead to the corruption of our youth, the spread of disease and the undermining of society. I have not received a single comment, objection or proposal in relation to the provisions in this Bill which deals with prostitution. I have to wonder why it is that the private sexual activity of homosexual adults holds such a fascination for the so-called guardians of our morality while the exploitation of women, which takes place night after night on the streets in this city and other cities, gets barely a mention.

I also believe that there has been a certain amount of distortion of what this Bill is about. It is insinuated that by passing this Bill the Oireachtas is giving free rein to the encouragement of particular forms of sexual activity. The fact is that what the Bill is doing is simply decriminalising it. There has been a great deal of talk about the family. Let us take the case of a family. If a member of a family, even the family of somebody who is active in organisations that describe themselves as pro family, returns to their family and announces to them that they are gay, what are they suggesting? Are they suggsting that that member of the family should be hauled before the courts and perhaps put in jail? We are told that it does not happen in practice, but that is what the law provides. What I understand the legislation is about is simply decriminalising that.

We hear that nobody is brought before [2010] the courts, therefore there is no need to decriminalise it. What does that mean? Are we saying that we have legislation which is inoperable but because it is on the Statute Book we can continue to give the lie publicly and pretend that since homosexual activity is criminalised and no prosecutions take place there are no homosexuals in Ireland? Every child in this country has been familiarised with The Ballad of Reading Gaol and the sorry story, almost 100 years ago, of one of this country's finest literary talents who was jailed for homosexual activity. That story is told to children pursuing leaving certificate courses year in, year out in this country. I do not recall that it has ever been suggested that the authorities 100 years ago were right to jail Oscar Wilde for homosexual activities. I am not aware either that very many school children are made aware that it would still, at least in theory, be possible for the same thing to happen all over again. I believe that this Bill is about repealing the Victorian legislation which put Oscar Wilde in jail.

Reference has been made to the wider debate which has taken place in relation to this issue. It is important that that be addressed. We would be taking a great risk to conclude that this issue is being debated solely in this House. There is a climate of intolerance which is continuously encouraged by some people in our society. For example, last week a poll appeared in The Sunday Press which showed that 50 per cent of the public here were opposed to this legislation and most of us were circulated with an IMS poll conducted for one of the lobby organisations which showed something similar. The point that has to be made about that is that it all depends on the question the pollster asks. In the case of The Sunday Press poll, for example, the question put was whether one personally approved or disapproved of the Government's plan to legalise homosexual acts between people aged 17 or over. One gets one type of answer to a poll that asks that type of question. Quite a different answer would be given if one is asked if one believes that somebody engaging in homosexual activity should be brought before the [2011] courts, charged and, if necessary, put in jail. There may be a distortion in the way that is represented.

I do not believe we can ignore some of the fundamentalist rumblings we are beginning to hear in relation to this and other issues and we have to look at that. The conditions that exist in our society in respect of the level of unemployment, poverty and the size of the housing problem are ripe for a growth in intolerant thinking. It is possible to generate antipathy towards single parents, travellers, homosexuals and any marginalised group in circumstances where there is a shortage of jobs and of houses. When people are poor they may observe the condition in which their neighbours live. It is regrettable that there are people who seem intent on generating that intolerance. This legislation in relation to homosexuality is attempting to create the legislative framework for a tolerant society. However, we will ignore at our peril the fundamentalist rumblings taking place in some quarters of our society and will ignore at our peril the social and economic climate allowing that growth in intolerant thinking. We know from historical experience, and from what is taking place in other countries at this time, where such intolerant thinking can lead. I hope we will be able to deal with that problem before it gets out of hand.

Proinsias De Rossa: Information on Prionsias De Rossa  Zoom on Prionsias De Rossa  I thank Deputy Gilmore for sharing his time. I wish to make a few points in relation to this Bill. I do not want to let this debate pass without putting these point on the record. I have pressed for the decriminalisation of homosexual acts for some considerable time in this House. I agree with what the Minister proposes in relation to that matter in this Bill. As other Deputies have said, I welcome the fact that the Minister has shown the courage to do that. It should not be forgotten that the Labour Party has had a role in regard to this matter. I have been one of its most strident critics since it went into Government, [2012] but it deserves credit for ensuring that this matter is on the agenda, and other Members in the Fianna Fáil Party have ensured it is on the agenda. The Bill demonstrates that we are a maturing democracy. However, we have a considerable distance to go and this Bill is a sign of hope for the future.

It should be borne in mind that Deputies and Senators who abhor the idea of homosexual acts are not being asked to approve of it. They should not feel in any way compromised by either opposing or supporting the Bill. They are here as legislators. They are not here as theologians or as moral guardians. They are here as legislators elected to represent the people of this country. I am an atheist. I have no religious belief, but I have a great deal of respect for those who have strong religious beliefs. I am aware of a number of Senators and Deputies who have strong religious beliefs and they are entitled to their views. They are entitled to argue their position in the public domain. However, I would appeal that they would act as democrats, as public representatives elected to represent all of the people, not just some of the people, not just those who agree with their religious view and oppose legislation which opposes their particular religious view.

As democrats we must ensure that every citizen feels part of our society and does not feel excluded because of their colour, gender, sexuality or because they are poor or have a mental or physical handicap. We have an obligation to ensure that every citizen feels part of our society and is not discriminated against. Democracy cannot simply be defined as the rule of the majority. It must have other facets. A genuine democracy has many other facets, not least of which is tolerance, tolerance of different points of view and tolerance of difference. It must also specifically ensure that we defend the human and civil rights of minorities; otherwise it is not democracy.

It is in that context that this Bill must be viewed. There has been much debate in this House with regard to conscience. I would argue that conscience should be [2013] left outside the door of this House or outside the door of business or trade unions. Conscience is an important part of our society and without it society would be ungovernable. However, one's conscience must be informed by a democratic principle when one is a legislator. In my 11 years in this House I have rarely heard conscience brought forward here except in relation to sexuality and issues relating to sexual matters. There are people who have opposed this Bill on the grounds of conscience and morality, at least one of whom has actively promoted the idea of an amnesty for tax cheats. I am one of those people who regard that as a totally immoral act. We are supposed to grant an amnesty to people who, we are told, have taken £2,000 million out of this country. In the process those people have deprived our children of education, our elderly of care, and the public of hospital care. Wards have closed down in our hospitals and mentally handicapped people have been deprived of services and places to work. Many other areas have been affected by those who, we are told, have taken £2,000 million out of the State and on which tax should have been paid. Yet this House is proposing to give an amnesty to those people. That is immoral. People who would claim to have a conscience must have a broader concept of morality than simply sexual morality. I would argue that case strongly.

I appeal to the Minister to extend the time available for Committee Stage. I appreciate fully the political necessity in the minds of some people to have a shortened debate. But there are aspects which have been raised by Deputy Gilmore and other Deputies in this debate in relation to prostitution which need careful consideration. I do not believe it will be possible to give those issues that careful consideration in the time available. Less than 50 minutes will be provided tomorrow to deal with Committee Stage of the Bill. I am sure some formula can be found to ensure that the time will be provided to allow for a debate which will allow for a full teasing out of the implications of what has been raised here tonight.

[2014] Because a debate takes place outside this House, that does not necessarily make this House irrelevant, provided we also engage in debate and respond to it in the public arena. It is part of the interplay of democratic politics. It is essential that debate on these issues takes place outside this House. I consider that debate has taken place on the issue of homosexuality and the decriminalisation of homosexual acts.

Those of us who welcome this Bill tonight do so on the basis of the progress that is being made. However, I do not believe there is any cause for complacency in regard to issues such as this. We must deal in this House with the questions of divorce, abortion and information on abortion. One of the reasons I make these points tonight is to appeal for those issues to be argued in a democratic debate, not as a debate on sexual morality or personal or private morality but on what are the democratic rights of the citizens of this State.

Minister for Equality and Law Reform (Mr. Taylor): Information on Mervyn Taylor  Zoom on Mervyn Taylor  I wish to share my time with Deputies Power, McDaid and Costello.

Acting Chairman (Miss Coughlan): Information on Mary Coughlan  Zoom on Mary Coughlan  Is that agreed? Agreed.

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  Tonight's debate engages this House in a decision of far reaching importance. In its decision on this Bill, the House faces the challenge of meeting Ireland's international human rights commitments, and of giving effect to the principle of the equality of every citizen, while at the same time recognising, and hopefully answering, the genuinely held difficulties which have been expressed by some people about this important law reform measure.

This Bill, which has been carefully prepared by my colleague, the Minister for Justice, represents a sincere and heartfelt expression by the Government of its commitment to the principle of equality, and to the right of each individual to participate fully in society.

It is appropriate to recall also that of course, this Bill will enable Ireland to [2015] meet its international obligations under the European Convention on Human Rights. Ireland has an excellent record in its participation in international and regional human rights mechanisms. We were founder members of the Council of Europe in 1949, and were one of the first states to sign and ratify the European Convention on Human Rights when it was drawn up the following year.

At the United Nations level Ireland is a party to a number of major conventions, including the international convenants on economic, social and cultural rights, and on civil and political rights, together with the first optional Protocol to that covenant. The House will be aware that the Tánaiste recently announced at the world conference on human rights in Vienna that Ireland would also be acceding to the second optional Protocol.

However, it is important to remain vigilant and active in the defence and promotion of human rights, and to continue to review and improve the position regarding adherence to and implementation of international human rights instruments. At European level, one of the outstanding matters for the past number of years has been the need to give effect to the judgment of the European Court of Human Rights in October 1988 in the case of Norris v. Ireland. This Bill will enable this particular case to be closed in a way which satisfies the right to a private life guaranteed by Article 8 of the European Convention on Human Rights.

It would be appropriate on this occasion to pay tribute briefly to the outstanding courage and dedication of Senator Norris, who was responsible for initiating the litigation which, in a sense, gave rise to this Bill, and for seeing the issue through to its conclusion. It is important that we recognise the sense of passion and justice which enabled him to pursue what was often a very lonely campaign for most of the past 20 years.

However, the most important aspect of this Bill is not that it will satisfy the [2016] judgment of the European Court of Human Rights. The Government could have chosen to produce a narrow, minimalist Bill, to do the bare minimum necessary to fulfil the judgment, as the British Government chose to do when the European Court of Human Rights ruled against them in the Dudgeon case.

Instead, the Government has chosen to give full effect to the principle of the equal right of every citizen, regardless of sexual orientation, to express their sexuality and to pursue loving relationships. With its common age of consent and its refusal to discriminate above that age on grounds of sex or marital status, this Bill is a truly modern, liberating and decisive proposal to reform the law in a spirit of equality.

For those who have genuine difficulties with the principle of the Bill, it is important to recall that what is proposed is the enabling of persons in the gay community to pursue loving relationships. What could be more important, for us as legislators, than to create a climate and a space in which two people who have chosen each other can express and share their love?

For many people, of course, the idea of recognition by the State of gay and lesbian relationships is unorthodox, surprising, even shocking perhaps. Some people will approach these questions from a traditional religious or moral standpoint and it is important to recognise the sensitivities involved and not to cause unnecessary offence to people who hold a different view from that of the Government.

However, a recognition of the wide spectrum of opinions that can exist around these difficult issues of personal and private behaviour must not dilute the overriding responsibility to promote and protect the dignity and freedom of the individual. As my colleague, the Minister for Justice, Deputy Geoghegan-Quinn, said in a different but related context in this House on 26 March 1993:

Our legal provisions must never simply seek to mop up what goes wrong; they must seek to empower and [2017] enable. Law should control criminal activity. It should never be used to constrain potential or put a limit to human happiness.

For too long, since 1861, the criminal law has unfortunately sought to constrain the potential of members of the gay community and put a limit to their human happiness. As we throw off the outdated legislation of another age tonight, this House is taking an important and decisive step towards an Ireland where every citizen is entitled to the equal protection of the laws in the fullest sense of that expression. We are taking another important step towards a society where individuals have an equal liberty to pursue their loving relationships and personal emotional projects and commitments, in a quiet, private space, free from the hostile scrutiny of the law. Tonight's work is as important as that.

Mr. Power: Information on Seán Power  Zoom on Seán Power  The Bill deals with an issue that has engendered much debate over the past few years. Indeed, many people will feel a certain amount of relief that the issue will shortly be removed from the agenda. The very word homosexual is one that people are embarrassed to use but if we could only accept that homosexuals are ordinary people living among us, a more purposeful and meaningful debate would have taken place over recent years.

Homosexuals are real human beings and not just people who live elsewhere. They live in every village and town in Ireland and, regretfully, such has been the hostility and contempt shown to them that they have been very reluctant to reveal their homosexuality.

I attended my first disco as a teenager and, like thousands of other young men throughout the country, I went in the hope of meeting some understanding female.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  Did you?

Mr. Power: Information on Seán Power  Zoom on Seán Power  It took a long time before they understood me and I never enjoyed [2018] the same amount of success as some of my colleagues.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  That is a shame.

Mr. Power: Information on Seán Power  Zoom on Seán Power  Nevertheless, I enjoyed my teenage years, the parties, discos and dances. Female company is a wonderful thing. I enjoyed the craic and all that goes with being single. In 1986 I married Deirdre Malone and during the past seven years I enjoyed a very fulfilling relationship with her. It has made me a more complete person and, indeed, a much happier one.

I make this point to demonstrate that we are in the same position as thousands of other couples throughout the country and this is accepted as being normal. By definition homosexuals are people who are sexually attracted to members of the same sex. For some reason they do not feel the same urge to form a relationship with someone of the opposite sex. We all need to love and to be loved. I pity homosexuals because they cannot share the same type of relationship as the one I enjoy. In most cases their relationships have to be conducted in a very secretive fashion. If found out, they face rejection by society and in some cases by their families. For too long we have made jokes about homosexuals instead of trying to understand them. The time has come for people to show tolerance, compassion and understanding to all our people. It is vital for a Government to lead its people and the introduction of this Bill is welcome.

The Bill makes it an offence to solicit or importune another person or persons for the purposes of prostitution. The penalty on summary conviction will be a fine of up to £1,000 or three months' imprisonment, or both. It has been argued that the present laws in relation to prostitution have been rendered inoperable by the courts and, therefore, changes are necessary. If these new laws are to work properly there will have to be a number of significant changes. If we were to jail all the ladies who provide sex to men for money in this city there would be no room in our prisons for the real criminals. [2019] Full sex is provided in many health clubs and massage parlours throughout our capital city, a fact we have chosen to ignore.

A few weeks ago I supported the Minister for Health when he successfully brought a Bill before this House to make condoms more freely available. The Minister laid great emphasis on the fact that he was bringing forward his proposals in an effort to prevent the spread of AIDS. Surely we must be consistent. If we are serious about fighting this dreadful disease action must be taken now. I know that a number of people outside this House today vented their anger and disgust at the introduction of this Bill, but I ask them if they really believe that people who engage in homosexual acts are criminals.

Dr. McDaid: Information on James McDaid  Zoom on James McDaid  I welcome this Bill and congratulate the Minister on bringing it forward. It is long overdue, but one cannot say she ignored it for long. It is to her credit that she brought it into the House in such a short time. There is legislation on the Statute Book which is more in keeping with the middle ages. I recognise that homosexuals are entitled to equal respect and treatment as human beings, but current law does not permit such equality and is in need of reform. Much of what has been written of a derogatory nature about this minority group in the past numbers of months has come from the same people who oppose all social change, people who fail to recognise the scale of the social revolution in Ireland in the past 30 years.

Social legislation will always rekindle some deep-seated prejudices within society towards certain groups — in this instance towards homosexuals, prostitutes and drug abusers. This has led to widespread discrimination against individuals belonging to these groups. Some people go so far as to say that if AIDS limits itself to these groups then it is a disease of public service.

Discrimination further arises from the phenomenon of society's constant search for scapegoats, people who are blamed [2020] for inexplicable events or for problems that cannot be solved. In the middle ages witches were held responsible and burned at the stake. In Hitler's Germany it was the Jews. Today it is homosexuals, prostitutes and drug users.

Our law provides for savage sentences on people who are branded as criminals because they were born with a sexuality different from that of most of their neighbours. They were born with a natural tendency towards having homosexual rather than heterosexual relationships with others. Many so-called normal people regard this as distasteful, something which could never be visited on their own families. Is this a justification for singling out certain people for abuse to the extent that they must be regarded as outcasts in society?

I cannot understand why so many people regard this Bill as a retrograde step. The present law is never enforced, nor is it ever likely to be, even if this Bill was withdrawn or defeated. However, some people feel comfortable in the knowledge that a law exists which places a cruel stigma on people who are certainly not criminals in any sense of the word simply because they happen to be homosexual.

There was a time not too long ago when parents and teachers punished children because they were naturally left-handed and forced them to reverse what nature had bestowed on them. This often led to serious psychological problems. Similarly, homosexuals have been branded because of a tendency for which they are not responsible. Why should these people be singled out for persecution?

A criminal is someone who deliberately sets out to injure or harm someone else or who engages in activity which is a serious threat to society. In sexual matters overall, it is quite clear that the vast majority of cases of criminal abuse of children or adults alike are carried out by heterosexuals. The most heinous crimes of a sexual nature in recent times were committed by heterosexuals, by males who purport to be normal — so much for normality.

Furthermore, there is no law which [2021] makes promiscuity a criminal act provided it is carried out by consenting adults. However, two homosexuals who are in a committed and life-long relationship are criminals in the eyes of the law. Are they to be regarded as more dangerous than so-called “normal” people who leap from partner to partner on almost a daily basis, spreading sexually transmitted diseases as well as threatening the fundamentals of family life? I think not. If any Member of this House finds that he or she has a homosexual son or daughter would that Member be happy in the knowledge that this child is branded a criminal? I am aware of recent opinion polls in this regard, but what the people who support this Bill have to do here is extremely difficult, namely, to separate deeply irrational and unfounded fears from scientific understanding.

I am glad the Bill seriously addresses the question of prostitution. However, I understand the reservations of people in regard to those forced into prostitution. I have no sympathy for those who make profit from these people. Some work remains to be done in this area. The Bill deals with unlawful sexual relationships with young people below a certain age, regardless of sexual orientation. At last it is acknowledged that criminals exist in both cases but not simply on the basis of how nature has dealt with them. I warmly commend this Bill to the House and once again congratulate the Minister on bringing it forward.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The Criminal Law (Sexual Offences) Bill is extremely important and is most welcome. I am delighted it has been introduced at such an early stage in the life of the new Government. The Bill should have been introduced at least five years ago when the European decision was handed down in the Norris case. I regret the decision was not made at that time to introduce it and to regularise the position in relation to homosexuality. The Bill meets the requirement of the European Court on Human Rights to decriminalise sexual intercourse and other sexual acts between consenting male persons. It [2022] reflects the commitment of the Labour Party to bring Irish law into conformity with the European Convention on Human Rights and is one part of a major programme of law reform and equality incorporated in the Programme for Government. It also reflects the interest and priority we are giving to this area by the appintment of a Minister for Equality and Law Reform.

I pay tribute to Senator David Norris, who has been here for most of this debate, for taking this case and for his courage in pursuing successive Governments to have it implemented in law. I remember his contribution in the Seanad and the number of occasions on which he rose to press successive Ministers and Governments to take action in this regard.

I pay tribute to the Gay and Lesbian Organisation for the well structured and carefully and calmly reasoned arguments they have made in recent years to promote education and awareness of the normalcy of homosexual orientation and particularly education in the context of the AIDS virus, which was spreading widely and about which there was an enormous amount of prejudice and bias. Some sectors tried to term it a homosexual disease. I regret that in the prison system there is still segregation and a stigma in that area.

The new provisions on prostitution and soliciting have merits and demerits. They put sanctions in place which apply to men and women, whereas in the past only women were prosecuted, sentenced and imprisoned. Thus the Bill takes into account the recommendations included in the report of the Commission on the Status of Women in relation to prostitution. The report suggested that clients of prostitutes should also be held responsible. The law on prostitution has been rendered inoperable by the courts. However, a case can be made for dealing with prostitution in separate legislation. This Bill reflects a harsh, punitive and unenlightened approach to prostitution and prostitutes. It takes no cognisance of the personal tragedies and health [2023] implications for those involved in prostitution.

Acting Chairman:  Pehaps the Deputy will conclude as we are taking time from the Opposition parties.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The Bill fails to distinguish between the individual activities of the prostitute, loitering or offering sexual sevices, and that of the pimp, the parasite who organises prostitution and lives off the earnings of the prostitute. The latter is where the dark, predatory and criminal world begins.

Sections 6, 7 and 10 need further examination before enactment. I trust that we will have the opportunity to tease them out on Committee Stage tomorrow. I take particular exception to the reference to prison sentences. The whole area of criminalisation in relation to prostitution needs to be re-examined. I commend the Minister on her straightforward courageous approach to the question of decriminalising homosexuality. I commend the initial approach in allowing options to be publicised. This created a sensible debate so that the Government deliberations were not carried out in isolation. It is unfortunate that the same approach has not been taken to prostitution.

Ms F. Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I propose to share my time with Deputies Flaherty and McGahon.

My support for this legislation and the discussion is marred only by the small amount of time allocated tonight. The decriminalisation of homosexuality which will result from the passage of this legislation is long overdue. The concept of male homosexuality as a criminal act has done its share in upholding prejudice and in creating and sustaining a climate in which some of our citizens have been marginalised and ostracised. Individuals and families have suffered greatly.

I congratulate the Minister on introducing this important legislation. I agree with Deputies who have said that it respects human rights and shows tolerance. This is extremely important in [2024] our maturing democracy. This Bill will at least put one building block in place as we construct a society based on tolerance and respect. There are many difficulties on this island in moving towards tolerance and respect for different viewpoints, but we should try to develop tolerance and respect. The lack of time for this evening's debate does not help that process. Unless we debate the issues and listen with respect to each other, the prejudice will continue even if it has no basis in law.

I have spent much time lobbying for change on issues of discrimination. I understand the importance of change at different levels. The law is one important level and attitudes are another. The behaviour caused by prejudice will not change easily and will definitely not change if discussion is swept under the carpet. That is why I regret that we do not have more time.

I have worked with women and women's groups looking at the issue of homophobia and invariably that opportunity has resulted in breaking down barriers and the sweeping away of many of the myths and misunderstandings. We need to share information and attitudes in relation to homosexuality more than we have done. I understand that for some colleagues this legislation is problematic. I respect their views; but as legislators we are here to lead, to make just laws and to ensure that fundamental human rights are respected. We have already been found guilty of infringing human rights because of our laws on homosexuality. What we are doing today simply brings Ireland into line internationally. As a modern democracy we need to face up to the meaning of tolerance, to the importance of having confidence in our citizens.

We hear much about our excellent education system and about the credit which Irish people bring to our country when working abroad. It does not make any sense that we have outdated laws, designed in a much more paternalistic time, a time when scant regard was had for individual rights. The Minister in her opening address referred to the age of much of the legislation we are [2025] discussing this evening. Certainly, much work has to be done in preparing young people for adult life. The emphasis must be on education of people to be responsible and tolerant. People need love and support and access to knowledge, education and information which can help them throughout their lives and help them to make informed choices about how they will live.

This Bill is the kind of legislation which a tolerant and competent community would want to have. The next stage on this issue must be focused on understanding and breaking down the barriers, understanding the fears and moving ahead. I agree with what Deputy Mitchell said in his opening speech in relation to the role of the education system and in relation to our duties as Deputies, that we must play a pro-active part in ensuring that in our schools we have discussion on these issues. We should ensure that programmes on sexual education, on parenting and on loving relationships are carefully included in our school curriculum.

I, like others in the House, pay tribute to Senator Norris and his many colleagues and those involved in many of the organisations who worked hard and often trod a lonely path in ensuring that this legislation would be produced and that we would be true to our commitment under the European Courts. Fine Gael has consistently said that it will ensure that legislation is enacted here to see to it that we meet our obligations under the European Court. I am pleased that that is the position of this party on this issue.

I share the concerns of my colleagues in relation to the sections on prostitution. I note that the Minister has taken on board some of the recommendations in the report of the Commission on the Status of Women. I would urge the Minister to examine some of their more detailed recommendations in relation to the health and welfare issues affecting prostitutes and the steps that could be initiated to help women make choices about how they wish to continue their lives. Certainly we know that many prostitutes [2026] have very little choice in regard to how they live their lives.

I welcome the thrust of the Bill in relation to decriminalising homosexuality. Nevertheless, I believe that the sections on prostitution need to be rethought and re-examined.

Miss Flaherty: Information on Mary Flaherty  Zoom on Mary Flaherty  The debate here this evening has shown just how little we have had to fear from allowing this House to debate this issue with a certain openness and freedom. Indeed, it has enriched many of the Members present and, hopefully, will have done something to prove that all of us, without any great fear or threat to our fibre, moral or otherwise, take up these issues and examine them with a little more openness.

I welcome the Bill, especially those parts which decriminalise sexual activity between homosexual adults. I should like to congratulate the Minister on the clarity and determination she has shown in relation to this Bill. As our spokesman, Deputy Gay Mitchell, said, there were choices open to the Minister and the Government to adopt a minimalist approach to reforming this legislation, such as was adopted in Britain, but the Minister chose not to go that road. As other Bills have passed through this House, we have witnessed the determination of the Minister. Her stance on the many cogent and passionate arguments put to her to go for a more minimalist approach necessitated a commitment and quality of leadership we have not always had on these issues and deserves to be acknowledged here.

I welcome also the tone of the Minister's introductory remarks. On an occasion like this, when we are trying to deal with deep-seated prejudices in our society, it is important that we understand the origins of those prejudices. It is also important that we scknowledge those prejudices and try, in so far as we can, to understand them and deal with them in a way that does not push people further back into their corners, or increase divisions, but rather moves the issue along. Again, the Minister in her introductory remarks dealt very gently [2027] with people who were concerned that the fabric of our society is being potentially attacked. I also welcome her sense of personal sympathy for and understanding of individuals who find they are part of a homosexual minority, and for their families and parents in coming to terms with that fact. Growing up is a difficult enough stage anyway but when one also has to come to terms with the fact that one is different from the majority, that constitutes an enormous additional battle to be fought in those adolescent years.

The central issue of this Bill concerns awarding basic human rights to a minority. Being homosexual, especially in Ireland, is not an easy experience. Even with this legislative change the position of homosexuals will remain difficult for many years. One of my colleagues referred to the fact that as a group they suffer more illness and have more deaths from murder and suicide. I read those statistics rather differently from my colleagues. I contend those statistics underline the very vulnerability of this group. Decriminalising homosexual relationships will allow their way of life to become more open, less clandestine and, I believe, will facilitate more responsible, stable relationships and lives. As some of my colleagues have said, in the past fear of difference led to appalling treatment of groups of our citizens of which we would now be justly ashamed — groups such as the mentally ill and children born outside of marriage. Indeed, it is not so long since the most appalling treatment of them was perceived as moral and justifiable. I firmly believe that by moving a stage further today in coming decades we will look back in horror at the attitudes that prevailed and caused us to put this legislation on our Statute Book.

I should like to join in the tributes to Senator Norris and the other leaders of the movement. Among families and colleagues most of us know gay people who have found great compromises being required of them in their lives. As Deputy McDowell has said, society has suffered because many of [2028] them were not able to fulfil their ambitions or reach full potential for fear of blackmail. This is, therefore, a welcome Bill, allowing them to come forth into the light, where they should have been for a very long time indeed.

I share the concerns of many of my colleagues about the sections on prostitution. While the Minister has adopted some welcome reforms, it is quite clear there are substantial concerns in relation to the total package of proposals here. I would suggest that these sections be deleted or referred to a committee of the House for detailed consideration. Many substantial issues have been raised here. Such referral would be a way of ensuring that we achieve major reform in relation to decriminalising homosexuality, leaving the sections on prostitution for much more thorough consideration.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  I appear to be heavily outnumbered here this evening, but that will not deter me from expressing my point of view. I shall not join in the vote of appreciation to the Minister for having introduced this Bill. Indeed, I believe that the masses of our people, had they been given the opportunity of expressing their opinion by way of a referendum, would not have appreciated it either. I have never discriminated against any person on the basis of their sexual orientation. I regard homosexuals as being in a sad category, but I believe homosexuality to be an abnormality, some type of psycho-sexual problem that has defied explanation over the years. I do not believe that the Irish people desire this normalisation of what is clearly an abnormality. I do not think the Minister will be thanked by our people. Indeed, a recent poll in the Sunday World so indicated. I know the remainder of Members present are all intellectuals and do not read the Sunday World, but the type of people who do read the Sunday World are the type of people who will express their revulsion of this obnoxious Bill at the next election.

Deputy De Rossa, with whom I agree on many issues, told us this evening that he was an atheist. I have no difficulty [2029] with that because I have problems myself in that area. However, Deputy De Rossa told us that it was our duty to legislate. We have a duty to legislate, to ensure that succeeding generations will not have the option of an alternative lifestyle but rather be told to lead a healthy lifestyle. That is the only conventional lifestyle with which I am familiar and that is accepted by the masses of people worldwide.

Homosexuality is a sad category which has defied explanation throughout the centuries. Many more enlightened Members might regard my views as rather Victorian. I ask them: what is wrong with Victorian attitudes? Irish society today, which is rather sick, could do with a return to some of those Victorian attitudes: they were not all wrong. Society, from the very dawn of history, has given its verdict on homosexuality.

I believe that this matter should have been the subject of a referendum, but that has been denied the Irish people. I wonder why. For example, do those gentlemen of superior intellect here feel that perhaps they know more, or that their opinion is more valuable than that of the people outside this House? I strongly believe that the legislation that has obtained to date should have been allowed remain unchanged. For example, I do not know of anybody who has ever been sent to jail for a homosexual act. For many years the legislation on the Statute Book permitted capital punishment but it was never availed of. I do not accept that there is an alternative lifestyle. When similar legislation was introduced in England the House of Commons had to pass further legislation to prevent homosexuals informing children about this alternative lifestyle.

Homosexuality is a departure from normality and while homosexuals deserve our compassion they do not deserve our tolerance. That is how the man in the street thinks. I know of no homosexual who has been discriminated against. Such people have a persecution complex because they know they are different from the masses or normal society. They endure inner torment and [2030] it is not a question of the way others view them.

The Lord provided us with sexual organs for a specific purpose. Homosexuals are like left hand drivers driving on the right hand side of the road. The Minister should seek a derogation from the ruling of the European Court to prevent this unacceptable legislation being foisted on the Irish people. I remind the Minister that the age of consent has been reduced to 12 years in Holland. Will we have to accept such an appalling move in years to come? Many Members of the Minister's party are very unhappy about this legislation although some of them have expressed their support for it. The Minister should put the issue to the people in a referendum.

Mr. N. Ahern: Information on Noel Ahern  Zoom on Noel Ahern  I wish to share my time with Deputies Derek McDowell, Dermot Ahern and O'Donoghue.

An Leas-Cheann Comhairle: Information on Joe Jacob  Zoom on Joe Jacob  Is that agreed? Agreed?

Mr. N. Ahern: Information on Noel Ahern  Zoom on Noel Ahern  I will not claim that I welcome the Bill. Indeed, it is sad that we are being forced to introduce legislation that is alien to the moral standards and ethos of many of our people. I am aware of the decision of the European Court of Human Rights and that we are a member of the Council of Europe. However, we should have sought a derogation from the ruling on grounds of the nation's welfare and morals. I heard — I do not know if this is true — that the Council of Europe granted a derogation to Liechtenstein on a similar issue.

It is not an offence to be homosexual, rather it is an offence to commit buggery. That is an unnatural and unhealthy act and those who engage in it — statistics prove this — account for a disproportionate share of those who suffer from sexually transmitted diseases. Society makes laws to discourage unhealthy, unwelcome or anti-social behaviour, be it smoking, buggery, drug taking and so on. Homosexuals live a secret and lonely life in many cases and we should adopt an understanding, [2031] caring and sympathetic approach to them. The question that arises is whether the rights of the individual or the common good should be uppermost in our minds. The State has an interest in the general and moral well being of the community. Commonsense tell us therefore that it should discourage conduct which is harmful to the way of life and the values which it wishes to foster and protect. I agree that politicians have a duty to give leadership but they must also take public opinion into account and we know what it is on this issue.

The problem is that this Bill will be seen as sending a message that society regards buggery as a natural, healthy and acceptable act but I disagree totally with that. It would be irresponsible to send such a message to young people in particular at this time when AIDS is such a prevalent disease. We must safeguard our young people in their sexual development.

This liberal legislation which is being rushed through the House has been designed to soften us up for what some people see as the big event — abortion. I wish to avail of this opportunity to send a message that that is a different issue.

I would like to repeat two points I made to the Minister when this matter was discussed at a parliamentary party meeting. I ask the Minister to reconsider the age of consent proposed before tomorrow. Why do we have to set the age of consent at 17 years given that even in the United Kingdom, which many people consider to be a Godless den of iniquity, it is 21? On this issue, we need an Irish solution to an Irish problem. If the change has to be made in stages so be it.

I have my fears about what some describe as the wider agenda of the gay movement. Can the Minister produce a formula of words to prevent what is called the “further progression” of that general movement?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Recently, as we are all aware, the freedom of the individual as well as the concept of equality have [2032] been the subject of considerable debate. The view has been expressed that one must deal in reality and not morality since they are separate and distinct. Others say we must not legislate for private morality which presupposes that there is a distinction between public and private morality.

That brings us to the question of what, in the final analysis, constitutes freedom. A noted philosopher once stated, that freedom to do every mortal thing one wants is to have no freedom at all. If I am at liberty to shoot you, a Leas-Cheann Comhairle, and you are at liberty to shoot me, both of us must hide. Furthermore, any demand for equality presupposes that a right exists, that right being the right to correct inequality.

We all accept that minorities have rights; but it is sometimes forgotten and lost in the fog of time that majorities have rights too. When both rights collide serious questions arise for legislators. In this context I ask the House to pause and think whether the decriminalisation of homosexuality is the duty of the House or whether it would in fact adversely affect future generations. Will the decriminalisation of homosexuality have grave consequences for the ethos of society? In short, what sort of society does the decriminalisation of homosexuality envisage?

It has been clear since the beginning of time that, no matter how much anybody may wish to deny it, it is an immutable part of the natural law that the will to procreate is engraved in every human being, it is part of the human spirit and to that extent, except in the case of a disorder, at best it is immutable.

Will the decriminalisation of homosexuality place the unnatural on the same platform as the natural and create an environment or an atmosphere which equates homosexuality with heterosexuality? If so, where will this lead? If the argument is accepted that homosexuality is not morally wrong is there still a basis for a law to protect youth from corruption?

I turn now to the question of dealing in reality and not with morality. I want [2033] to make it clear that I am no moralist nor have I ever pretended to be but it is patently untrue to say that these are distinct concepts. The morals of a society — this has been established by men far greater than I — are a reflection of the collective will of its members. I believe the law reflects the kind of reality which that society wants. Lord Devlin in his essay “The Enforcement of Morals” wrote:

But an established morality is as necessary as a good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and its other essential institutions.

He continued:

For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.

Public and private morality is a matter which has concerned great minds over the centuries. It has been argued vehemently — I do not think the argument has ever been broken down — that the distinction does not exist. The distinction does not exist because if what is done in private is not moral then what is done in public cannot be moral and vice versa.

There are very serious questions to be answered by the House not just in the context of this Bill but in the context of future legislation. When does tolerance and compassion reach the stage at which it grossly interferes with the rights of individuals in society to practice what [2034] they consider to be the normal moral code? When that point is reached, then it is clear that the common bond, the common view of the kind of society we want must be upheld. In the final analysis, that is what democracy is all about.

Mr. D. Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  How much time is available to Deputy McDowell and me?

An Leas-Cheann Comhairle: Information on Joe Jacob  Zoom on Joe Jacob  Ten minutes.

Mr. D. Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I do not often find myself in agreement with my constituency colleague, Deputy McGahon, but on this occasion I am. Perhaps it has something to do with the atmosphere in our constituency.

A Deputy:  Sellafield.

Mr. D. Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I have reservations about this legislation. I have already made these views known privately to the Fianna Fáil Parliamentary Party and the Minister.

Reference has been made to our international obligations. However, no reference seems to have been made to the Constitution of this Republic. I wish to give some Members of the House food for thought by quoting from the Constitution. Article 40.1 states:

All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

That question bears some thought. In regard to the family, Article 41.1.1º states:

The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

Article 41.1.2º states:

[2035] The State, therefore, guarantees to protect the Family in its constitution and authority ...

Article 45, which outlines the directive principles of social policy, states:

The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively ...

Article 45.1 states:

The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.

I am not being intolerant in my remarks. Anyone who knows me well knows that I am a very tolerant person. As legislators, we have a duty to legislate for the common good. We seem to have reached the stage where we are legislating for pressure and minority groups. We have a duty to consider what is in the common good of all the people and to legislate for that. We should not legislate for hard cases, I do not say this in any intolerant way but we should legislate for the common good.

Reference was made to our international obligations. We have a duty to legislate for the standards and norms which we regard as appropriate for the Irish people. This does not necessarily have to include all the people, but we should strive to achieve a certain standard and norm in our society. The Houses of the Oireachtas have the primary function of laying down rules for the people and the standards they should strive to achieve, and we should never forget that.

I quoted from Article 41 of the Constitution which deals with the position of the family in our society. Many countries, including Britain, are now looking at why families are breaking down. The tragic murder of the young Bolger child in England led to people questioning why [2036] society is breaking down in that country. One of the reasons given for the breakdown of society is that the family unit is breaking down. We should strive to protect the family unit as the primary unit in our society. That is not to say that families do not break up — of course they do — but we should aspire to attain that. I think most Deputies would agree with those sentiments.

It was stated that we would be in breach of the charter of the European Court of Human Rights if we did not introduce legislation to implement its decision. I do not for one minute accept that we have to implement this decision. Britain has decided to derogate from the Social Charter and, in effect, from European monetary union. Yet, business is still being conducted and no one seems to have taken the British Government to task for this.

Much play is made of the word “equality”, for example, equality in regard to the age limit. I wonder if this issue will end here. Will the pressure groups which have succeeded in having this legislation brought before the House stop here? I think not. Will we eventually see the day in this country when, as has happened in the USA, homosexuals will seek the right to adopt children? We should think seriously about this possibility.

I have a problem with the age limit of 17 years. I appreciate that the Minister is endeavouring to equalise the age limits for both homosexuals and heterosexuals. However, under the child care legislation passed by this House a child is defined as anyone under the age of 18 years. We should bear this in mind.

I have a problem with the provisions on prostitution. I understood that the norm in Europe was to liberalise the laws on prostitution but——

An Leas-Cheann Comhairle: Information on Joe Jacob  Zoom on Joe Jacob  There are only four minutes remaining.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I am pleased to have the opportunity to support what I understand is Government policy on this matter. In response to Deputy Ahern, [2037] whom I know to be normally a considerate person, it is outrageous to suggest, however obliquely, that the murder of a child is in any way linked to homosexuality. I find that suggestion offensive.

On the substantive issue, homosexuality has been and always will be with us. It is an innate disposition of a percentage of our population, both male and female. It is not a disorder. As such, it is an integral part of a person's expression of their identity, as integral as gender or race. To have to hide one's sexual orientation for fear of discrimination or worse is a cause of huge stress and damage to the individuals affected and, I would suggest, to our society as a whole.

While I welcome the Minister's and the Government's initiative, it also behoves us to recognise its limitations. This issue is essentially about attitudes. We cannot change attitudes solely by way of legislation. I confess that as a public representative I was slow to take this issue on board and to publicly articulate my view on it. The same applies to many other Members. Our failure to do so is shameful and I am ashamed of my failure in the past to have done so. We, as legislators, have a role as leaders in society to help to create a climate of acceptance and tolerance which ensures gay people are accepted as equal citizens. Members who oppose this legislation — Deputy McGahon said it this evening — frequently say it does not have the support of the people and point to opinion polls such as that of last Sunday which suggests that might be the case. Previous opinion polls suggested something different but that is not the point. In essence this is not about majorities, minorities or percentages but the fundamental human rights of certain human beings in our society.

We subscribed to the European Convention on Human Rights because we believed some fundamental human rights are essential in a democracy. To express one's sexual orientation is a basic right. This Bill is not an attack on conventional sexual morality and heterosexuality. It upholds the right of everybody, homosexual [2038] or heterosexual, to privacy in their own bedroom and does not present a threat to anyone. It enhances our society.

There are those who argue that 17 is too young and that the age of consent should be 18 or 21 years. The essential point is that the age of consent must be the same for homosexual and heterosexual activity if we are to send the right signal. The purpose of the legislation is to accord dignity to the gay community and to do this a common age of consent is essential — anything short of that would only encourage further discrimination.

I will draw the attention of the House, as the Minister did earlier, to the report of the Law Reform Commission which states categorically that the same legal regime should obtain for consensual homosexual activity and no case has been established for providing that the age of consent should be any different.

Our present legislation in this area dates from the Victorian era. Deputy McGahon seems to find some merit in Victorian values. When Queen Victoria was on the throne, children were forced to work in factories, women were accorded no place outside the home, the vast majority of people did not have a vote, most people lived in slum conditions and there was no universal suffrage. We have made a great deal of progress since then, much of it the result of developing a society and a sense of community solidarity. We have developed a notion of individual human rights in the context of that sense of society.

This Bill, for which I commend the Minister, forms part of the path of progress that I am happy to see this Government follow.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  It has been said so often now that it is almost a cliché that the true value of a society can be measured by how well it deals with its minorities. We have been waiting a long time for this Bill which implements the decision of the European Court of Human Rights. I commend the Minister for bringing it before the House. It is interesting —[2039] and I will develop this point later — that a female Minister brought this legislation before the House. The European Court of Human Rights declared that the Offences Against the Person Act, 1861, and the Criminal Law Amendment Act, 1885, violated section 8 of the European Convention on Human Rights. It is important to read into the record what Article 8 says: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

The case put forward by Ireland in the Norris case is that Article 8.2 allows us not to decriminalise homosexual acts, but, rightly, the European Court of Human Rights quoted Article 15 which refers to exemptions in times of war or other public emergencies and not even Ireland has the nerve to make a case in the European Court of Human Rights that somehow we were being forced into a war or public emergency by the fact that we had homosexuals in our society. It is important to pay tribute to Senator Norris because I can imagine how lonely it was during the years he was fighting this case against all the odds. He had to face all the prejudice and discrimination that was heaped on top of him but he continued to fight.

There is a belief that Ireland can choose à la carte the human rights we want to implement. It is interesting to note that Members were sent literature by various groups, the Dublin South Political Awareness group, the Canadian Intelligence Service — I do not know who they are, but they sent me the most lurid details — and Family Solidarity. I know that members of those groups would be the first to fight for human rights for the black people of South Africa because they believe it is wrong that they do not have a vote and that they are discriminated against. However, when it comes closer to home they think they can pick and choose human rights. The Convention for the Protection of Human Rights and Fundamental Freedoms was implemented in November 1950. I do not believe there is anything as fundamental, [2040] apart from the right to life, as the right to our sexuality, which is our very essence and makes us what we are. If we want to be a party to that convention, we cannot decide to pick and choose from it. As Deputy Flaherty said, maturing sexually is painful and very difficult. None of us is too old to have forgotten the difficulties experienced during our adolescent years. I am referring to the difficulties for heterosexuals but how much more difficult it must be for maturing adolescents who, through no act of theirs are attracted to people of their own sex rather than to the opposite sex. Despite all the stereotype role models in books and films young people may be attracted to members of their own sex and do not have anyone to whom they can turn for advice and help. Very often they cannot talk to their parents because of the lack of education in this area. I agree with Deputy Frances Fitzgerald's views on sexuality training and how we must learn to face up to the issues in our society. There is no point in ignoring or redefining homosexuals as if, somehow by doing so or thinking if you say often enough that they should not engage in these acts, they can stop being homosexuals. It is nonsense to say, as one of my colleagues said, that homosexuality is a recent phenomenon. Since the time of Adam and Eve people exercised all sorts of sexual preferences as they do now.

Earlier I said it was interesting that a female Minister for Justice introduced this Bill. While I do not wish to generalise I think it is easier for women to cope with the reality of the discrimination homosexuals suffer. I say that from my heart because women have had to face such enormous discrimination in their lives. We have moved in leaps and bounds to eliminate discrimination and perhaps we are ad idem facing up to what it must be like to be discriminated against. I sense that some of the men who have spoken find it uncomfortable to speak about discrimination against homosexuals. I do not want to generalise because there are fine men who have spoken on this inside and outside this House but somehow, [2041] having faced the discrimination practised against women, it helps us to have a better understanding. Women all over the world are still discriminated against for no other reason than that they are female. Black people are being discriminated against all over the world for no reason other than the colour of their skin. Homosexuals are discriminated against in many places throughout the world because they do not conform to society's norms of sexual behaviour, or what society considers are the norms.

In regard to all this talk about the increased dangers to health, I should like to give the lie to the myth that being homosexual is like having some kind of a bad flu, when if you go to your doctor he or she will prescribe tablets to be taken four times per day, tell you to go home and have a good sleep and that when you wake up in the morning you will be fine. It is not like that. It is the way people are and we must accept it, even if it is uncomfortable to talk about it. Of course, people can be uncomfortable and maybe the manifestations in some of the parades and marches upset people's sensibilities. I get upset too when I see some of the heterosexual behaviour which takes place, and that is natural. Such kind of behaviour in public should not be accepted by anybody, whether heterosexual or homosexual. With a view to getting rid of some of the myths, I would remind the House, as one or two others did, that the 1989 Law Reform Commission consultation paper on child sexual abuse pointed out that most of the heinous crimes of child sexual abuse are caused by males to females. Four in five offences are heterosexual, not homosexual, although people would like to imply that homosexuals are promiscuously rampant, racing around the country committing foul deeds of sexual abuse. That is a great insult to many decent citizens of this country. As I said, four in five of the offences listed in this report were heterosexual. Three in four victims of sexual assault were girls and one in four was a boy. Virtually all sexual offences against female victims are committed by [2042] males. The most recent awful cases we have had involved heterosexual offences not homosexual offences.

An Leas-Cheann Comhairle: Information on Joe Jacob  Zoom on Joe Jacob  I would remind the Deputy that two minutes remain.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  I should like to refer briefly to some of the issues which have been referred to, one of which was that if we legalise homosexuality we are making it compulsory. For goodness sake, we are not making it compulsory as if we should all go out and practise homosexuality as soon as this Bill is enacted. There is a feeling that this legislation is attacking heterosexuals and family life, but that is not the case. We are legislating for a basic human right.

With regard to the remainder of the Bill, it was unwise of the Minister to include the issue of prostitution in this legislation. I do not know what her reasons were, unless to ameliorate some of the criticism from her own backbenchers. It is wrong to include it in this Bill. The fundamental issues in the whole area of prostitution have been outlined in the report of the Second Commission on the Status of Women and there are all sorts of recommendations to deal with women who are forced into prostitution. Like Deputy Flaherty, I hope the Minister will take on board this suggestion, think about it overnight and come back tomorrow and suggest that those sections of the Bill be put to the Select Committee on Legislation and Security to be further teased out and augmented in order to assist women who have to turn to prostitution as a way of life. I am heartily pleased that this Bill has come before the House and hope there will not be a vote on it.

Minister for Justice (Mrs. Geoghegan-Quinn): Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  First, I should like to thank all the Deputies who contributed to this debate and for the contributions they have made this evening. I am particularly heartened to note there is considerable support in the House for the measures put forward and that the support is [2043] informed by what I perceive as a very sincere desire on the part of those concerned to extend a human right to a group of people whose rights are now the subject of unjustifiable limitation. I expect that some of the specific comments made may find further expression in the form of suggested amendments on Committee Stage. A number of speakers have indicated that they propose to table a number of amendments and, if so, they will be dealt with fully at that stage.

I should like to refer briefly to a few of the points made. The limited time available for debate has been raised by a number of Deputies. There is no question of my deliberately arranging to cut down the time for debate on this issue because I have no fear of debate on it. The reality is that Bills of this kind, as most Deputies and particularly those who have been in Government will realise, take time to prepare. Since I became Minister for Justice I have accelerated the preparatory process as much as I could. At a certain stage when the Bill went to the Parliamentary Draftsman it was outside my control and was finalised only in the past number of days. The time pressures on all of us are twofold: first, we are very close to the summer recess and, second, we need to get this legislation enacted without undue delay. I had the distinct impression that the vast majority of Deputies were in favour of the principle of the Bill and certainly that is the view that has come forward in the debate this evening. They all indicated they would not welcome any further delays. My position is that the Bill should be enacted as quickly as possible.

I should say to those who had difficulties about the time allowed for debate tomorrow that I understand the time for debate on Committee Stage tomorrow has, with the agreement of the Whips, been extended to two hours and ten minutes. That is progress.

I should like to turn to a comment by Deputy Michael McDowell. I freely acknowledge that the Government in 1988 defended the Norris case. That is a fact and we all know about it. It is a [2044] measure of our strength, or of any political party, that we acknowledge the need to look at situations afresh. For any person, or political party in particular, to assume that a position which was conscientiously adopted at a particular time, or at a particular point in its history, must stand for all time as the correct one is arrogant. When we as legislators fail to consider fundamental issues, fail to respond to the needs of minorities — however difficult it maybe to do so at times — we all lose the right to claim we are providing the public with quality representation.

Coming from the constituency of Galway West it would be much easier for me politically not to bring forward legislation of that kind. Since I became Minister for Justice and announced that this was one of the priorities of legislation for me, I have been constantly reminded by telephone and by letter of the type of constituency I represent. There comes a time when somebody has to act as a legislator and not as somebody who holds a particular view on behalf of the moral majority.

In relation to the age of consent, I regret that Deputy Gay Mitchell and Fine Gael are proposing to end one form of inequality by introducing a different form of inequality. I hope his colleagues, particularly his female colleagues who spoke here this evening — Deputies Nora Owen, Mary Flaherty and Frances Fitzgerald — will be able to convince Deputy Mitchell overnight that that is the wrong way to proceed. I know that all three Deputies are absolutely committed to the principle of equality. The issue we have to decide in relation to the age of consent is: at what age can a person be said to possess the capacity to form a valid consent to have sexual relations with another person? The age in the case of heterosexuality is 17. As I said in my statement earlier, there is no logical reason for assuming that, while persons of 17 are capable of giving valid consent to heterosexual activity, persons of homosexual orientation do not acquire such capacity until they are older. Underlying any such proposition would be the [2045] idea that homosexual orientation carries with it the burdens of lack of maturity or lower intellect. There is no basis for any such assumption. Not all individuals of 17 years are mature or capable of forming valid consent, and this has been acknowledged by most Deputies. That applies equally to homosexuals and heterosexuals.

There is nothing revolutionary in having a common age of consent. When homosexuality was decriminalised in the United Kingdom and age of majority was 21 years, that was the age chosen by the Government at that time. However, if we could raise our sights beyond our nearest neighbour to the European mainland we would realise that a common age of consent is the norm on the European mainland. For example, in France the common age of consent is 15 years; in Italy, 14 years; in Spain, 15 years; in Portugal and Belgium, 16 years; and in Poland, 15 years. All those countries have a religious heritage similar to ours. Other countries with a common age of consent lower than 17 years are Greece, the Netherlands and Denmark. In quoting ages of consent, it is important to highlight the tolerant attitude of the law to homosexuals in a wide range of European countries.

A number of Deputies stated that having a common age of consent might send a clear message to the community at large that this type of behaviour is acceptable. I understand the concerns expressed in this regard, but we are not proposing to dismantle the social fabric nor, indeed, the promulgation of a new morality. We are concerned about the removal of an unwarranted restriction on the basic rights of consenting adults in this community who are discriminated against at present by the fact that their private sexual activities are criminalised. It has been suggested that people who might have chosen either a life of chastity or a life of heterosexual union with another person will be swayed towards homosexuality simply because it suddenly comes to their notice that the age of consent for sexual relations is similar for both homosexual and heterosexual relations.

[2046]Miss Harney: Information on Mary Harney  Zoom on Mary Harney  We should hold a referendum on that matter.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  To put it another way, people would be less likely to become actively homosexual having established that the age of consent was one, two or three years higher. The whole idea seems to be underpinned by what is, no doubt, a genuine lack of understanding of human nature. Homosexuality does not become a more or less attractive option simply because the age of consent for heterosexual relations is the same as for homosexual relations. No credibility attaches to the idea that messages might be sent to the public at large because of the heterosexual and homosexual age of consent coincidence. We must ask ourselves whether such notions have any basis in reality and in my view the answer is no.

Deputy McGrath stated that gay people in Britain have suffered an increase in attacks since the decriminalisation there of homosexual acts between consenting male adults. It would be extraordinary if this House were to withhold from homosexuals, allegedly for their own good, a freedom from criminality which they are demanding.

I refute strongly the suggestion by Deputy Mitchell that I was seeking a smokescreen to placate some of my own backbenchers by introducing a number of changes to the laws on prostitution. We need to make a number of amendments to the laws on prostitution and I took the opportunity to make them in this Bill. Deputy Harney and others expressed concerns about those amendments, but we have until tomorrow to examine those issues. I undertake to examine seriously the points raised in this debate. A valid case was made about imprisonment, the difficulties in regard to lack of space in our prison system at present and whether we might find some other way of dealing with this issue. People in the community are genuinely concerned about the difficulties created in certain parts of this and other cities in regard to prostitution and we must deal with those difficulties. In doing so it is [2047] important that we consider the questions raised by a number of Deputies today.

This Bill is about human rights and most Deputies have acknowledged that fact. It is also about the rights of women to be free from the harassment and fear associated with kerb-crawling, the fear of being molested or solicited, and to know that the law will respect those rights.

Deputy Mitchell suggested that it should be made an offence not to display a health notice in a brothel. In reality, the operation of a brothel is illegal and the law requires brothels to cease operating, not to be better run. A suggestion that brothels should be legalised and regulated is a serious issue which the House would have to debate carefully in separate legislation.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  We could debate it tomorrow.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  Under the law as it stands the type of regulations suggested by Deputy Mitchell are not feasible. He is well aware that legislation on health notices is a matter for another Minister.

Deputy Harney suggested that we should have an integrated approach between Departments to deal with prostitution and I support her view. However, that does not mean that we cannot deal with the unacceptable aspects of prostitution, such as nuisance, exploitation and organisation. I am concerned about the facilities for women involved in prostitution. The Second Report of the Commission on the Status of Women recommended a co-ordinated approach by the Departments of Health, Justice and Education to the problems faced by women involved in prostitution. That recommendation is being examined at present by all three Departments to ascertain how best it can be implemented and Deputies will be aware that under the auspices of the probation and welfare service of my Department I have initiated a project under the NOW programme for women prisoners, some of whom have been involved in prostitution.

[2048] Deputy McDowell referred to section 10 (2) which is a watered down version of an existing provision in the law relating to living on the earnings of prostitution.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  It is not watered down enough.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  Again, that is something I will consider overnight and I am sure that in the extended debate on Committee Stage tomorrow we will have an opportunity to discuss that matter in greater detail.

Deputy Gilmore was concerned that I might confer on the Garda Síochána excessive powers or powers that might be used by certain members of the Force in an excessive manner. I understand the focus which this debate has thrown on prostitutes, but it must be realised that the real change brought about by the soliciting provisions of this Bill will be to extend the law to cover clients of prostitutes, and Deputy Gilmore welcomed that provision. I would expect the powers of the Garda concerning loitering to be used against kerb-crawlers where necessary. I would be as concerned as Deputy Gilmore that any powers conferred by any law on members of the Garda Síochána would be used in a proper manner. I know that the Garda Síochána, both at management and staffing levels, would be keen also to ensure that their powers are used in a proper manner.

If this House agrees to give this Bill a Second Reading, it will have taken a positive step forward in moving our social legislation closer to our social realities. I regret Deputy McGahon's contribution. I know he has three sons and I hope that none of them ever has to approach him as a father and indicate that he has homosexual tendencies because the one thing a young man or, indeed a man of any age with homosexual tendencies needs is compassion, understanding and tolerance. In all of the meetings and deputations I received since I became Minister for Justice in January, the person who had the most influence on my thinking in this regard was the [2049] mother of a young homosexual man who indicated that when her 19 year old son told her he was homosexual her reaction was to tell him he would grow out of it, that it was abnormal. She brought him to her general practitioner, to a psychologist, to a psychiatrist, and finally, after a painful 18 months she realised that this was something with which she had to live. She had to ask herself a very serious question, one which any parent should ask. In particular those who have doubts or difficulties with this legislation should ask what they would say to a son of 17 or 18 years of age — whom they had loved since birth — if he told them he was homosexual. They would need to show him love, understanding and tolerance. I hope this House will do that in regard to this Bill.

Question put and agreed to.

An Leas-Cheann Comhairle: Information on Joe Jacob  Zoom on Joe Jacob  When is it proposed to take Committee Stage?

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  Tomorrow.

Committee Stage ordered for Thursday, 24 June 1993.


Last Updated: 22/05/2011 07:46:26 First Page Previous Page Page of 106 Next Page Last Page