Brendan Howlin (Wexford, Labour)

This day has been a long time coming. The recent chronology of key events leading up to it has been published in a GLEN document. In recent years, we have quickly come to this conclusion. It is heartening to have a large consensus on what needs to be done on these important social issues.

Tonight's debate and the Bill comprise an important milestone on the road to equality, but they are not the journey's end. Article 1 of the Universal Declaration of Human Rights states:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

This basic and simple concept has consistently proven to be one of the most difficult principles to put into practice. It was proclaimed by the UN's General Assembly on 10 December 1948. As various debates in the House this week have indicated, we are still struggling as a republic to make that simple and fundamental declaration a reality.

The Labour Party welcomes the Bill. It is not the end of the journey, but it is a long way down the path. It clearly does not go as far as the Labour Party's Civil Unions Bill, which I twice had the honour of introducing into the House, once in the previous Dáil and once in this Dáil. The first time, it was cynically kicked to touch, but I believe it formed a basis for a consensus that has led to tonight. I am proud of my party's role in this regard.

While the Bill before the House does not achieve equality, it gives same sex couples rights that are long overdue. It gives legal protection and recognition to same sex couples, as well as other non-traditional families. I refer to citizens of our Republic whose essence we have ignored and denied for far too long. The Bill does not provide for same sex marriage, as the Minister has said, nor could it under the Constitution, as it is currently interpreted by the courts. We are not legislating for true equality in this important measure. It is worth reflecting on the words of the Honourable Justice Michael Kirby, of the Australian high court, in his foreword to a report on this Bill produced by the Irish Council of Civil Liberties. He stated:

Marriage is a civil status, created and defined by the law. To it many legal consequences and some benefits attach. Civil partnership is a status, separate but equal, which goes part of the way, but risks leaving neither side very happy. The same-sex partners are then denied true equality which they know is now recognised in other civilised jurisdictions. The conservative traditionalists complain that civil partnership "mimics" marriage and therefore, in a mysterious but unexplained way, damages that institution for heterosexual couples who are now staying away from it in droves.

The argument against equality is a strange one. How can the extension of the right to marry, to more of our citizens who want to bond themselves with another human being in a loving relationship that is recognised by law, be said to undermine marriage? I assume those who believe that allowing same sex couples to marry would undermine the institution of marriage would not suggest that homosexual citizens of this nation should reconcile themselves to marriage as we understand it under the Constitution today. That would be absurd. Do such people believe that to offer marriage to same sex couples would somehow lure heterosexual people away from marriage? That would be a ludicrous suggestion. The fundamental debate on taking the final step can wait for another day. It is important to point out that this legislation is a step on that journey, rather than the end of the journey.

Given that there is such agreement across the House, I do not want to sound any note of discordance. This Bill has been produced two and a half years into the coalition between Fianna Fáil and the Green Party. I would like to remind Members of what Deputy Cuffe said on 21 February 2007, during the debate on the Labour Party's Civil Unions Bill 2006. I agree with his suggestion that "to relegate same-sex couples to some marriage-like institution is to deny them their human rights, dignity and rights as citizens of the State". It is probable that we could build a consensus to take the final step. I do not think it should be too far away. I am sorry that legislation to provide for the option of taking the final step, even if it meant a constitutional amendment, is not before the House tonight. I do not want to sound discordant, as I have said, because the Bill before the House, which is of profound importance to thousands of our fellow citizens, should be recognised, applauded and celebrated.

The stated purpose of this legislative measure is to establish a statutory civil partnership registration scheme for same-sex couples. It sets out a range of rights, obligations and protections that are consequent on registration. It prescribes the manner in which civil partnerships may be dissolved and the conditions that may apply. The Bill also establishes a redress scheme for opposite-sex and same-sex cohabiting couples who are neither married nor registered in a civil partnership, as the case may be. The proposed redress scheme has far more limited provisions than the civil partnership provisions, or marriage as we know it. The scheme focuses primarily on addressing a number of areas in which cohabiting couples are vulnerable, such as the protection of residential tenancies and maintenance rights. In general terms, the Labour Party supports these provisions, as detailed in the Bill. It is obvious that the Labour Party will table amendments in this respect on Committee Stage. I agree with some of the points Deputy Charles Flanagan made about the lack of clarity with regard to these provisions of the Bill.

I would like to signal two particular issues that I will pursue during the Committee Stage debate. There is a need for retrospective recognition of foreign civil partnerships if one partner dies before the provisions of section 5 of this Bill become operable. We can debate and tease out the extent to which it should be retrospective - how far back we should go - on Committee Stage. Many same-sex couples who live in this jurisdiction have obtained civil partnerships in Northern Ireland since 2005, when such a legal provision was first afforded in that jurisdiction. If one party to a relationship that is legally recognised on one part of this island dies before the provisions of this Bill become law, the surviving partner may be disadvantaged for the purposes of inheritance tax, for example, or may be made ineligible for the survivors' pension. Particular examples have been brought to my attention. I understand that dozens of same-sex couples who live in the Republic have obtained civil partnerships in Northern Ireland. A case in which the older person in a civil partnership has advanced cancer, and could die before the date on which the Minister for Justice, Equality and Law Reform signs this provision into law and thereby makes the partnership legally binding in the Republic, has been brought to the attention of the Human Rights Commission of Ireland and the Northern Ireland Human Rights Commission. If this legislation does not become law before the person in question dies, the partnership will not be recognised and the surviving partner will have no legal rights. That would be a disturbing and unfortunate consequence of our efforts. We should seek to make provision for such cases before we conclude our deliberations.

The second issue to which I would like to alert the House is a potential implication of section 4(2) of this legislation. The Bill as it stands requires at least one of the civil partners hoping to enter into a civil partnership to be domiciled in the State on the date of application. This may exclude some couples from the right to take a court action in this jurisdiction. I am advised that this residency requirement may affect couples who reside in Northern Ireland - they may have moved from this jurisdiction to formally legalise their relationship under the 2005 provisions there. If, after this measure has been enacted, they wish to argue for the recognition of their foreign partnership - the Northern Ireland partnership, in this case - they may wish to have recourse to the courts in this jurisdiction. These are technical matters we can debate in some detail on Committee Stage.

I am advised that section 2 of the Marriage Act 1972 provides retrospective recognition by the State of 33 services of blessing, namely, non-civil marriages performed in the département des Hautes-Pyrenées in France - so-called "Lourdes marriages" - between citizens of Ireland which were solemnised at Lourdes between 1953 and 1960 only.

By the provisions of the 1972 Act, these non-civil marriages were deemed always to have been valid marriages and have been recognised as if they had been performed and solemnised in this State. If we can do that for a blessing at Lourdes I believe we can provide legal measures within our own jurisdiction to recognise legally binding civil partnerships entered into by Irish citizens in other jurisdictions where, up to now, those partnerships have been recognised.

I should mention another possible difficulty with section 5 that, again, was pointed out in the submission from the Irish Council for Civil Liberties. In most equivalent foreign recognition provisions, there is a general provision of recognition. For example, the UK legislation expressly provides that same-sex marriages celebrated elsewhere will be recognised as civil partnerships in the United Kingdom. Section 5 of the measure before the House leaves it to the Minister to make that determination, stating: "The Minister may, by order, declare that a class of legal relationship, entered into by two parties of the same sex, is entitled to be recognised as a civil partnership if under the law of the jurisdiction in which that legal relationship was entered into". It enumerates a number of conditions. The essential point, however, is the first sentence, namely ,the Minister "may" recognise such civil partners. It is important we should have clarity about the exercise of the authority we will divest to the Minister after the enactment of these provisions.

I will seek to address these issues on Committee Stage. I will address one major argument which Deputy Flanagan touched upon that is in circulation concerning the Bill. This is a matter concerning which most of us received more e-mails than any other. They seem to have been generated because many of them were standardised. The argument was that the Civil Partnership Bill, if enacted, will introduce a law by which those whose religious convictions may prohibit them from being involved in a same-sex partnership will somehow be compelled, under duress of law or for fear of being sued, to aid or assist in a ceremony to which they have a genuine conscientious objection.

People may have regard again to the Labour Party's Bill. In that Bill we sought to create a formal civil union which, in virtually every respect, mirrored marriage. We proposed that a solemniser would perform that union in the same way that a marriage would be solemnised. For that reason, in section 3(2) of our Bill, we included an opt-out clause that stated: "Nothing in this Act requires a registered solemniser who is not registered to solemnise a civil union if the religious body of which he or she is a member has no recognised form of ceremony for the purpose of which he or she has a conscientious objection from so doing".

The Bill the Minister presented to the House today is quite different in context. It is different in a very significant respect. Under this Bill, a civil partnership can be entered into only in front of a civil registrar. Even if he or she wanted to, a registered solemniser, for example, a priest or minister of religion, would have no competence and no capacity to preside over or register a civil partnership as envisaged in this proposal. Therefore the question of inserting a conscience clause is moot. It does not arise. That point has been made clear and abundant.

The point was raised by Deputy Flanagan whether those who will be charged with presiding over civil partnerships, namely, officers of the HSE or old officers of the health boards who are registrars should be allowed opt out. My answer is "Certainly not". We are not going to have a situation where officers of the State can determine they will perform this function but not that one. It would be like saying that nurses and doctors could no longer give blood transfusions if they became Jehovah's Witnesses. That is not the way a republic operates. Laws are enacted and officers of the State, paid for by the State, carry out the legislation as enacted by this House. I do not see this as being an issue. As Deputy Flanagan rightly pointed out, other issues, for example, the re-marriage of divorced persons which is now the civil law of the land, have not been such that people may opt out from them in the future.

There is one other issue in respect of that plethora of odd e-mails we received, namely, whether we should provide a conscience opt-out for florists, bakers or candlestickmakers or anybody else who might be offended. In these challenging financial times I do not feel there will be a conscientious impediment among florists or anybody else who provides their wares or services.

For clarity in this respect, we enacted laws as far back as 2000 to protect against discrimination with regard to orientation. In this Bill, the Minister seeks only to replicate those laws. I see no argument or basis for suggesting that florists, photographers, printers or providers of any service can be allowed to discriminate against any citizen in respect of his or her sexual orientation. I do not see any scope for that point.

I wish to move to one major deficiency, as I see it, in this Bill. Again, Deputy Flanagan properly raised this point, namely, that the Bill is largely silent on the rights of children. It does not address in a clear or comprehensive way the rights of children who live with a couple who, in the future, will be civil partners. Of course, a child has full rights in respect of a person who is his or her biological parent. However, the child's right to the continuing parenting of the civil partner of his or parent is not enshrined in this measure. The very compelling, real and specific human case outlined to the House by Deputy Flanagan underscores the importance of addressing this deficiency. It cannot be that we will allow a Bill to be enacted that is silent on this critical issue, particularly that a child in such a relationship will not be able to seek maintenance from the non-biological parent and will have no succession rights if the civil partner of the child's biological parent dies. The civil partner will not be able to adopt the child jointly. It seems to me a ludicrous notion that under our current adoption law a single person can apply to adopt but a couple, even legal partners recognised by law, will not be in a position after the enactment of this provision to adopt jointly a child, even a biological child of one of the couple. That is a major deficiency.

The Joint Committee on the Constitutional Amendment on Children has focused on a number of issues concerning the safety, well-being and best interests of children. The Minister has attended many of the meetings. It has been a very important learning process on how the Oireachtas can shape better laws to advance the rights of children. God knows that, in light of the reports published this year, and previously in the Ferns diocese in my part of the country, we need far more robust protection of children.

The committee sought all-party consensus on recalibrating rights so the well-being and best interest of the child would be at the core of policy. Nobody has the right to adopt a child but a child has the right to be in the best place for himself or herself. That was the core of the Labour Party's Bill. We determined we could not bring legislation to this House without addressing the issue of children. The way we did so was simply to recognise that the best interest of the child should be the only criterion, such that one would not give a right to anybody to adopt but give a right to the child to be in the best place for himself or herself, be that with biological parents, grandparents, foster parents of long standing or a same sex couple who would serve as loving parents to the child. The decision should be made without regard to anything other than the best interest of the child. That is what the Labour Party proposed.

With regard to dependent children, our Civil Unions Bill proposed, "the rights and obligations of parties to a civil union with respect to a dependent child are the same, mutatis mutandis, as those of a married couple with respect to such a child". A dependent child, according to our definition, was a child adopted by both parties or in relation to whom both spouses are in local parentis, or a child of either party or adopted by either party or in relation to whom either party is in loco parentis where the other party has treated the child as a member of the family where the child is under 18. The legislation also included children above that age in full-time education with a mental or physical disability "to such extent that it is not reasonably possible for the child to maintain himself or herself" independently.

A child-centred approach that mirrors the developing conclusions of the all-party committee is the right approach. I will be interested in hearing the response of the Minister to the debate to learn whether he is open to determining whether we can craft, by consensus, a provision for children in this regard.

I have spoken almost exclusively on same-sex couples but now want to discuss the part of the Bill that deals with cohabitants. The duration proposed for the legislative provisions to have effect is three years, or two if a child has resulted from the relationship. I welcome the provisions in section 171 of the Bill. Qualifying cohabitants may apply to court for a range of orders - for example, property adjustments, maintenance and pension adjustments - where the applicant is financially dependent on the other cohabitant and complies with a range of other specified requirements, as set out. This was recommended by the last All-Party Oireachtas Committee on the Constitution in the report it produced in January 2006. There may be some tweaking to be done to ensure we recognise a legal starting point for cohabitation and to ensure there is no confusion in the courts.

In truth, there are many relationships that do not involve standard marriage. We need to provide some form of support when they break down or when one of the cohabitees dies. The provisions are, by and large, good in respect of this issue. One wonders whether it is proper to enshrine them in this legislation rather than address them in conjunction with the issue Deputy Charles Flanagan raised.

Conjugal relationships are unique. It upsets and annoys me when people blur the distinction between a loving conjugal relationship and that of any pair of people living together for convenience or mutual support. It denies the essence of the relationship, which is fundamental. We should be very clear and not obfuscate on that absolute point.

We have come to an important point in the legislative process. As speedily as we can, we should enact this measure. We will crawl ever slowly to be faithful to the first article of the Universal Declaration of Human Rights which recognises the essence of the equality of every individual. We should move to Committee Stage speedily. I hope we will address consensually the issues that have been addressed on this side of the House and provide a basis for acknowledging the fundamental worth of every citizen of this Republic.

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