Brendan Howlin (Wexford, Labour)

I will deal with the specifics of the reasoned amendment because I do not believe they are right or in accord with the shared opinion of Members on the Opposition Benches or the Colley report, which is cited in the amendment.

Under the constitutional understanding of marriage and in accordance with current law, persons of the same sex cannot marry each other. This Bill does not alter or seek to alter the current constitutional understanding of marriage. Instead, it would create an equivalent status relationship for the benefit of persons of the same sex. In simple terms, it provides that in most respects, the rules of law that apply to marriage will apply also to civil unions between persons of the same sex.

Article 41.3.1° of the Constitution, which has often been examined recently, states: "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." The Labour Party believes that the Bill does not offend against the provisions of that section since the Constitution, as interpreted by the Supreme Court, caters for people who can marry. The Bill is designed to cater for people who cannot marry under that constitutional definition and is in no way in competition with the definition.

The Government amendment, circulated at the last minute, asks the House to note that "the terms of the Civil Unions Bill as presented appear to be inconsistent with the provisions of the Constitution". I want the Minister who will respond to the debate to tell me where the inconsistency can be found because it is not my legal advice or the conclusions of the Colley report that such an enactment would have any constitutional infirmity.

This is the first time that a Bill on the legal recognition of same sex relationships has been debated in the House, but I wish to acknowledge an initiative by Senator Norris in the other House when he sought to advance this issue. No doubt there are some who regard this measure as controversial or unacceptable. The Government does not have the guts to argue that, but it will defeat the measure by its actions none the less.

I am long enough a Deputy to remember the debate on contraception, which was controversial and emotive. In my first month as Minister for Health, I was pleased to introduce the reforming contraceptive Bill. A decade on, we wonder what all the fuss was about. In similar terms, I remember the debate surrounding the legal recognition of divorce championed by my colleague, the then Minister, Mervyn Taylor. It is interesting to see a recent opinion poll showing that if the question, which was carried by a squeak, were put to the people today, 75% would vote in favour. Doomsayers' dire warnings of the end of marriage and an assault on communities did not come to pass. The institution of marriage has proven more resilient than they feared. This Bill or one like it will soon become law and we will again look back and wonder what the fuss was about.

Let me set out the details of the Bill. We propose that the general law as to capacity to enter a civil union should be the same as capacity to marry, that is, with similar restrictions as to age, the validity of an existing union or marriage, mental incapacity or closeness of blood relationship. We make legal provisions for the notification, solemnisation and registration of a civil union by the same people and in the same way as marriage, mirroring the provisions in the Civil Registration Act 2004. We provide that where a religious registered solemniser has a conscientious objection to presiding, he or she will not be required to preside. This does not apply to civil registrars, but many church men and women are registered solemnisers of marriage under thelaw.

The Bill deals with the benefits and responsibilities of parties to a civil union. The essential purpose is to provide that parties are entitled to the same rights, privileges and benefits and are subject to the same obligations as those that apply to spouses in a marriage. In particular, the Bill provides that parties to a civil union are responsible for the support of each other to the same degree and in the same manner as is provided by law for married persons. We propose that the rights and obligations of parties to a civil union with respect to a dependent child be the same as those of a married couple with respect to such children.

The Bill deals with issues such as pre-nuptial agreements, the recognition of foreign civil unions, civil union break-up and other related issues, as detailed in the Schedule.

In general, the Bill applies the various aspects of existing family law to civil union relationships. One area of particular focus is the issue of adoption. The Labour Party felt that this Bill should be as comprehensive as possible and we carefully examined this matter. Our examination led us to propose a general amendment to the law of adoption. We set out for the first time in law basic principles or criteria to govern adoption in this State. These principles would have general application in all adoption cases.

The subsection provides that, in any decision on or relating to an application to adopt a child, due regard shall be had to the principle that the first and paramount consideration is the best interests and welfare of the child throughout his or her life.

We set out in some detail the child focused criteria that we proposed should be applied to all adoption cases, including the child's ascertainable wishes and feelings regarding the decision considered in the light of his or her age and capacity to understand their particular needs; the likely effect on the child, throughout his or her life, of having ceased to be a member of the original family and to have become an adopted person; the likely effect on the child, throughout his or her life, of having become an adopted child of the person or persons who applied to adopt him or her; the child's age, sex, religion or religious background, national origin, cultural and linguistic background and any other relevant characteristics; any harm which the child has suffered or is at risk of suffering; the relationship the child has with relatives and with any other relevant person, including the likelihood of any such relationship continuing and the value to the child of its doing so; the ability and willingness of any of the child's relatives, or of any such person, to provide him or her with a secure environment in which to develop and otherwise have his or her needs met; the wishes and feelings of any of the child's relatives, or of any such person, regarding him or her; and, finally, the child's right to know the identity of his or her parents and, as far as practicable, to be brought up by his or her parents, each of them or by other family members.

All of that in the judgment of the Labour Party makes eminent good sense in any adoption procedure. The simple provision is that nobody has the right to adopt a child, but a child has a right to be adopted in the most nourishing, healthy, supportive environment objectively decided upon in his or her interest. That legal provision, which some have found controversial, is in accordance with the child welfare amendment published yesterday by the Government and proposed by the Taoiseach, as repeated today in the House, to be inserted into the Constitution. The new Government-sponsored constitutional amendment, which mirrors our legal provision, will insert a new subsection 42(A)4 into the Constitution as follows:

Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the child.

Our objective mirrors and parallels that set out by the Taoiseach and the Government in its constitutional form, which obviously will have an even more robust legal basis than the mere statute we propose to enact here. In essence, our proposal, which can hardly be considered controversial in any way, is that in any adoption case the paramount consideration is the welfare of the child.

The Bill makes provision for similar recognition in terms of existing practices and regulations for same sex cohabiting couples as for cohabiting couples of different gender. There has been debate and expert consideration of these matters in recent months. Most recently, the Colley working group on domestic partnership provided thoughtful and useful advice to all of us as legislators. The Labour Party Bill has been informed by the Colley conclusions. The Colley proposals are in stark contrast to the Government amendment tabled tonight.

What Ms Anne Colley and her group recommended, as she said, was that full civil partnership for same sex couples in contrast with opposite sex couples was viewed by the group as a distinct institution, separate from and not competing with marriage. The group believed that full civil partnership for same sex couples did not suffer the same constitutional vulnerability as full civil partnership for opposite sex couples.

She went on to say that introducing a full civil partnership scheme in Ireland would achieve equivalence in this area with Northern Ireland, where the Civil Partnership Act has been in force since December 2005. The essence of what she said is in stark contrast to the gobbledegook presented by the Government in its amendment tonight, where it wishes to re-entangle the issue of giving statutory rights to cohabiting couples of opposite gender and to put that into the mix of same sex unions.

That is constitutionally fraught because if equivalence is given to cohabiting couples as to married couples — where each member can marry if he or she wishes — then the institution of marriage is being attacked. That is what Colley said. However, by giving legal recognition to same sex couples who cannot constitutionally marry, no injury is done to the concept of marriage, which is unique under the Constitution, as currently defined, to opposite sex couples. That is a basic fact which Colley recognised and it has informed our proposals. It runs absolutely counter to the gobbledegook put forward in the Government amendment to the motion.

I have said the Government amendment is shameful because a good number of people — I thought the Taoiseach and Tánaiste were among them — believe the time is now right. Consequent to the very thoughtful proposals of the Colley group, we shall deal separately with the cohabiting issue, because it is a separate matter and is more constitutionally fraught than this one. That is the legal advice available to us. The Colley working group quoted the Taoiseach in its report. It is worth putting on the record what he said, which was so much vaunted in the Colley report and welcomed by people who sought to have equality under the law.

Our sexual orientation is not an incidental attribute. It is an essential part of who and what we are. All citizens, regardless of sexual orientation, stand equal in the eyes of the law. Sexual orientation cannot, and must not, be the basis of a second-class citizenship. Our laws have changed, and will continue to change to reflect this principle.

That is the end of an empty quote, because it is meaningless in the context of the amendment the Government has tabled to the Bill. I genuinely find it is shameful of the Government to actually attempt to present support for this measure. For those who do not understand it, the procedure postpones the Second Reading of the Civil Union Bill for six months. In the normal course of events, we need do nothing more than wait six months and the Bill is deemed to have passed. However, the Government knows full well that six months from now this Dáil will have expired and under the Standing Orders of the House the Bill automatically falls. It is a shameful betrayal of the words of the Taoiseach. I want him and the members of the Government who will respond to this debate to explain how our proposals are unconstitutional, why they want to re-entangle the issue of cohabitation with recognition of civil union of same sex couples and why they want to wait for Supreme Court and other decisions before moving to enact legislation which is long overdue.

I regard this Bill as a seminal equality issue. I challenge all Members of the House to support it in principle. If there are difficulties in the detail, let us deal with them, but let us give full equal citizenship to all citizens of this country, so that they are cherished and respected under the law.

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