Ciarán Lynch (Cork South Central, Labour)

Some 17 years ago this House decriminalized homosexuality in Ireland and today we are debating legislation to give legitimacy to those relationships in a proper civil code. This debate marks a coming of age and maturity of a modern Ireland. In essence, this Bill is a milestone, as Ireland moves from a theocracy to a democracy. It was interesting to listen to the Minister of State, Deputy Mansergh, metaphysically struggling with aspects of the Bill. I recall a time when Ministers brought legislation to Archbishop McQuaid for his approval before it was passed in this House. I would not envy the task of a Minister if he had to bring this Bill to Archbishop McQuaid and the response to it he would likely get. This legislation is a milestone and I am pleased Fianna Fáil in particular and the Green Party have brought it forward.

It should be noted that it was the Labour Party in government that decriminalised homosexuality and that it was a Private Members' Bill introduced by my Labour Party colleague, Deputy Howlin, at the start of this Dáil term, that instigated this issue coming onto the legislative programme. I remember the Minister at the time gave a commitment to bring forward legislation in response to the Labour Party's Bill in 2007.

There are many contexts, interpretations and opinions about the Bill. There is a strong opinion that it is the gay community's aspiration to have full legal equality with their heterosexual peers, as that is as it should be. That is the policy of the Labour Party, as stated in this House and affirmed at our Labour Party conference. However, the best is often the enemy of the good. The introduction of full civil marriage for the gay community would require a constitutional referendum, as has been indicated by other speakers. This is the advice of the Attorney-General and our party's legal advice. At present there is far from a majority of this House in favour of putting this issue to the people, let alone surety that such a referendum would be carried. While a criticism of this Bill might be that it is a stagist approach, I do not view that as a bad thing. Therefore, I see merit in this legislation for those members of the gay community who cannot wait for a time when these circumstances change, particularly for gay and lesbian couples who need the protection of the law now, rather than the consolation of an ideal further down the road, irrespective of whether that be a constitutional referendum on this issue.

I also see merit in the provision for a couple, one partner of whom is ill and the other who has no recognised rights as next of kin and is fearful of losing the family home or shared tenancy in the context of the legislation as it is currently structured. This Bill will provide for the rights of a survivor of a relationship to inherit the home in which the partners have lived all their lives. It will allow them to benefit on the same terms as their peers from their partner's hard work by giving them access to pension entitlements. All these are measures are to be welcomed.

Another point I welcome is the nature of the scheme set out for gay and lesbian couples. At the beginning of this debate when Senator Norris first published his Bill there was much talk of allowing non-conjugal same-sex unions, for example, two unmarried sisters who live in the same home and for other situations. This Bill makes quite clear that the parties to a civil partnership must be of the same sex and in a conjugal relationship. This is welcome because to put the committed, loving relationship of a gay or lesbian couple on a par with two siblings in terms of the standing offered to it in law was a fudge in the first instance and did not recognize the significance of those in gay relationships looking for proper legal protections in their relationships. We have yet to see tax and social welfare provisions to complement this legislation, but the Government has assured us these will reflect the principle of equality and will be introduced in the near future. We certainly hope so. It is important that these matters are ironed out when we come to Committee and Report Stages. It would be a dreadful pity if, this time next year when the Finance and Social Welfare Bills are going through the House, there are anomalies still hanging over that will mean the Bills need to be significantly redrafted. It is important that this Bill achieves its intentions and that when future Social Welfare and Finance Bills are introduced, as well as other matters relating to taxation for same-sex couples, we do not find ourselves in an ongoing redrafting process.

The Bill has comprehensively failed to deliver with regard to the children of individual parents in same-sex relationships. Deputy Shatter also mentioned this in his contribution. The Labour Party addressed this issue in its Civil Unions Bill by proposing a significant change in the law relating to children. Our legislation would have made the best interests of the child the primary criterion for the courts in family law cases; this would address a number of the points made by earlier speakers.

This Bill, however, fails the children of same-sex parents in several crucial ways. Any child of a parent party to a civil partnership will not be able to seek maintenance from the non-biological parent and will have no rights of succession if the civil partner of the child's biological parent dies. The non-biological parent, moreover, cannot seek guardianship or custody of the child during the lifetime of the biological parent. Bizarrely, civil partners will not be able to be considered for joint adoption of a child, although this is rendered nonsense by the fact that either civil partner, regardless of sexuality, may apply to adopt individually under current law. Thus, it makes no sense that an arrangement in which the stability of a couple relationship is offered to an adopted child is prohibited. This will also require significant and detailed examination on Committee and Report Stages.

I refer to the redress scheme for cohabitants. Although the issue of civil partnership has been the subject of much of the public debate on the Bill, the second part - namely, that dealing with cohabitants - will probably affect many more people, irrespective of sexuality. The scheme is a long-overdue update to Irish family law which was recommended by the Law Reform Commission several years ago. There will be a significant change whereby two people who are in a relationship and have been living together for three years, or two years where a child has resulted from the relationship, will automatically be termed qualified cohabitants. As a result, they will be conferred with a number of rights and duties.

This scheme will provide legal protections to a large portion of the population. The most recent available data note that there are 120,000 people in cohabiting relationships, a third of whom have children. The arrangement will offer particular protection to a group that is currently very vulnerable: stay-at-home unmarried partners, who are currently in a complete legal limbo. Part 15 of the Bill also allows qualified cohabitants to seek various remedies, such as maintenance, property and pension adjustment orders, provided certain conditions are met. A qualified cohabitant may also claim provision from the estate of his or her deceased cohabitant, subject to stated conditions.

One weakness of the Bill that the Minister might be willing to address is with regard to the rights of civil partners of whom one has become a qualified cohabitant since the civil union was formed. Dr. Fergus Ryan pointed out an anomaly in the legislation, which is that a property adjustment order or pension adjustment order in favour of a qualified cohabitant cannot be made in such a way as to affect the rights of a spouse or former spouse. Similarly, an order for provision from the estate of a deceased qualified cohabitant cannot affect the legal right of a surviving spouse. However, no such safeguards apply where a qualified cohabitant is or was a civil partner. In effect, the court can make an order in favour of the qualified cohabitant even if these orders affect the entitlements of a civil partner. I ask the Minister to indicate in his closing comments whether he would be willing to consider an amendment to correct this on Committee Stage.

The purpose of the Bill is to introduce equality into Irish society. However, this cannot be a type of equality that is separated into components or is based on only one Act. I listened to the Minister of State, Deputy Mansergh, talk about this earlier. A concern is beginning to surface whose motivation and intent I would question. I refer to the commentary on the possibility of adding a conscience clause to the Bill with regard to civil registrars who object to presiding over civil partnership registrations due to their religious or other convictions. It has been suggested that an opt-out clause be inserted for civil servants and others who are obliged to perform public duties in accordance with the law. To my mind, either the legislation guarantees equality or it does not. Whether a person is a member of a local authority or the HSE or is working for the State in a registrar's office, the law which will apply as a result of the passage of this Bill compels that person to carry out his or her duties. There should be no opt-out clause. If a person is a public servant, he or she has functions to perform. There is a separation between theocracy and democracy, and a civil partnership registration is a secular event, not a religious one. It should be well within the functions of registrars to perform this as a secular service.

The purpose of this Bill is to ensure that those who wish to have the responsibility of a civil union are provided with the right to do so. The success of the civil partnership Bill will be measured by how it resolves issues of property, inheritance and entitlement; how it gives recognition and a sense of place to those who are currently disenfranchised; and, ultimately, how we as society define ourselves and the type of Ireland in which we wish to live.

I and other speakers made mention of the phrase "gay community". Who are the gay community? They are family members, relatives, work colleagues, colleagues in the House, and members of our society who should have the same legal entitlements as any other member. When this issue was being debated previously in the House, in the form of a Labour Party Private Members' Bill, my children asked me when I returned from the Dáil at the end of the week what I had done in work. When I explained to them that we had been debating the Civil Unions Bill, their response was that surely such legislation was in place already. Irish society has moved on; the children of Ireland have moved on. This House is playing catch-up with the type of modern society in which most Irish people now live.

It is natural and necessary that people form unions with each other. This Bill recognizes the rights and responsibilities that must be established to cater for those relationships that are currently outside the existing legislative framework. People in relationships wish for, and are entitled to, the legal security that can be granted by the State. Nobody should be deprived of that right because of his or her sexuality.

See this speech in context