Brian Lenihan Jnr (Dublin West, Fianna Fail)

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dail Éireann notes:

that legislative reform must be fully consistent with the relevant provisions of the Constitution;

the options identified by the Colley Group, including in particular for same sex couples;

the Tenth Report of the All-Party Oireachtas Committee on the Constitution, on the family, which recommended that civil partnership legislation should be provided for same-sex couples;

the report of the Law Reform Commission on the rights and duties of cohabitants, which recommended provision of a redress mechanism for vulnerable dependent cohabitants at the termination of a relationship;

the Government's decision reflected in the Government legislative programme published on 27 September 2007 to prepare a scheme of a Bill;

and supports the commitment in An Agreed Programme for Government to legislate for Civil Partnership at the earliest possible date in the lifetime of the Government, so as to establish a supportive legal framework for same sex couples in committed relationships."

As the law stands, same sex couples have no way to formalise their relationships in the eyes of the State and society at large. Their relationships go legally unrecognised and unprotected, they obtain no benefits under the tax, welfare or inheritance regimes and they cannot assume legally binding obligations to each other. These are enormously significant issues to those involved and they must be carefully and scrupulously addressed.

It is remarkable to think how very far we have come since the early 1990s. We have moved from a legal framework which criminalised and stigmatised homosexuality in particular to one in which the argument is a technical one as to how we can establish a legal framework to provide equality to couples in committed relationships. Decriminalisation was achieved in 1993 by my distinguished predecessor in this office, Mrs. Máire Geoghegan-Quinn. A broad range of equality legislation, and the associated equality infrastructure, has been put in place in the last decade. These changes have taken place over the lifetime of four Governments of varying political persuasions, but particularly ones led by Fianna Fáil. Notwithstanding differences of approach, it is worth noting that there is today a broad degree of cross-party support, if not quite consensus, on broad objectives.

An Agreed Programme for Government contains a strong commitment to legislating, as early as possible in the lifetime of the Government, to provide for civil partnership. At its meeting today, the Government asked me to bring forward a scheme of a Bill no later than 31 March next. Although the legislation is very complex, I assure Deputies it is receiving high priority in my Department.

I draw attention to the fact the British Civil Partnerships Bill contains 264 sections and 30 schedules. The Bill moved by the Labour Party today moves ten sections, including one extraordinary section, section 7, which purports to empower the Minister for Justice, Equality and Law Reform to make regulations for the purpose of giving effect to the Labour Party Bill, including regulations which can adapt, generally or specifically, or modify any enactment in conformity with the purposes, principles and spirt of this Bill. I assure Deputies that the detailed matters which are left open in that section will be brought before the House. Were the Government to introduce a Bill containing such a section, it would be vigorously opposed before it was even entertained for discussion in the House.

It is important and in the interests of justice and equality to allow those in long-term relationships to assume rights and responsibilities towards each other but these rights and responsibilities must be binding and enforceable. The assumption of such mutual and binding rights and obligations confirms to society as a whole the commitment of a couple to each other. It gives a couple more than just legal certainty in respect of a range of issues, such as pensions, tax, inheritance and shared property; it allows them to confer a status on their relationship and to affirm the lasting, caring and mature character of that relationship. Many same sex couples want to be recognised in society and to create mutually enforceable rights and obligations towards each other. Unlike heterosexual couples, same sex couples are excluded from marriage and cannot make a full legal and social commitment to each other. The Government is determined to put in place a legal framework which recognises and supports same sex couples in committed relationships.

The mechanism proposed by the Labour Party is not the way to achieve this objective. Although it would doubtless be attractive simply to state that all the rights and duties of marriage shall similarly apply to parties to civil unions, such an approach is fraught with difficulty. It is no light thing to say that this risks impugning the provisions of Article 41.3.1° of the Constitution, which provides: "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 interpretation placed on this clause in a recent High Court decision is clear and unambiguous. The advice available to me from the Attorney General on this matter is crystal clear and indicates that a legislative approach which seeks to define any other type of relationship expressly in terms of marriage, as the Civil Unions Bill 2006 attempts to do, is constitutionally unsound.

The subject matter of this debate concerns issues of real importance for many people, for example, next-of-kin status, pensions and inheritance. These issues require a well considered and constitutionally sound legislative response. What is at issue here is the intersection of the law, in both the public and private spheres, with personal relationships. I will bring detailed proposals to Government involving comprehensive law reform in this area. As outlined in the agreed programme for Government, our commitment is to legislate for civil partnership. This recognises that, although all of our citizens are equal before the law as individuals irrespective of sexual orientation, they are not treated equally in their relationships.

With regard to the constitutional status of the legislation before us and notwithstanding the question of Article 41.3.1°, it is clear that section 7 purporting to empower me to make regulations to repeal generally or specifically any Act of the Oireachtas is contrary to the Constitution.

What we must examine is how best to provide a supportive legal framework. Internationally, this is an emerging area of law and it is worth reflecting on developments in other progressive democracies. In recent years, there has been considerable legislative activity in this area. A small number of countries have extended marriage to same sex couples, usually following constitutional court cases. Others have elected to put in place statutory civil registration schemes, sometimes in conjunction with cohabitation schemes which require only some simple conditions and factual circumstances, such as a minimum period of cohabitation, minimum age and exclusivity, while others follow a cohabitation approach only. In some countries, registration schemes are available for both opposite sex and same sex couples.

In legislating for civil partnerships, each country faces its own set of unique legal, social and political circumstances. For this reason there is no standard model applied internationally. Many European Union member states have introduced specific schemes for same sex partners in committed relationships who register their partnership. These schemes are generally accompanied by a set of rights and duties consequent on registration. In some member states there is little or no differentiation between the set of legal consequences arising from registration as against those pertaining to marriage, while in others there are significant differences. In the United Kingdom, the Civil Partnerships Act 2004 established a registration scheme exclusively for same sex couples. The Act extends most of the appropriate legislative provisions on spouses to registered partners.

In Ireland, too, there has been significant public debate in recent years on how to provide enhanced rights and recognition for same sex couples. The Colley options paper was published in November 2006. The terms of reference for the Colley group included an express requirement that the options identified be "consistent with constitutional provisions". The Colley group options paper did not make recommendations for legal reform but instead set out possible options for consideration when proposals for legislative reform are being developed. The paper recognised that, with the exception of some recent statutes, the law gives limited recognition to unmarried opposite sex cohabiting couples. Same sex couples have even less protection before the law. Cohabitants do not have the degree of legally enforceable rights and duties to each other or the level of benefits from the State that are available to married couples. As marriage is available to heterosexual couples, the assumption can often be made that they do not want the full trappings of marriage.

On the break-up of a cohabiting relationship, whether married or unmarried, one of the partners is frequently vulnerable to serious consequences, including homelessness and loss of income. Marriage brings with it recourse to the protection of the law whereas unmarried couples do not have this protection. The Colley group put forward five options to address the vulnerability of such couples on the ending of the relationship and also in certain circumstances during the continuing relationship.

The first of these, known as "contractual arrangements", does not require legal reform. As the law now stands, cohabiting couples are free to regulate some aspects of their relationship by way of contract governed by contract law, enforceable through the courts, such as jointly owned property or financial assets. If the contract is not contingent on a requirement to perform marital duties, the Colley group was of the view that it is difficult to see how this would be enforceable in the courts.

The Colley group recognised that many couples will never make contracts for all kinds of reasons, such as a lack of awareness of the legal consequences of an unregulated relationship, unwillingness of one or both to make any formal commitment, one or other party being already married to someone else or an intention that the relationship be transient. As a result, vulnerable partners in unregulated relationships enjoy little, if any, legislative protection at present and the consequences, financial and otherwise, at the end of a long relationship owing to death or break-up may be catastrophic. Hence, the Colley group put forward a presumptive scheme for both opposite sex and same sex couples.

The presumptive scheme is designed to protect the vulnerable dependent partner in a relationship in the absence of any other formal recognition of that relationship. It would apply, generally speaking, at the end of a relationship, either through the death of one of the partners or the breakdown of the relationship, at which point it would be open to either partner to make an application to court for relief.

The third option described by the Colley group is a limited civil registration scheme, described as limited civil partnership. This entails introducing a statutory registration scheme, which extends status and a limited selection of rights and duties to cohabiting couples who choose to register their partnership. A limited civil partnership scheme would provide legal recognition and status for same sex couples. It would provide some protection for vulnerable persons in cohabiting relationships at the end of the relationship, on break-up or death.

Another option outlined in the options paper is full civil partnership. This is a civil registration scheme extending a full range of rights and duties to cohabiting couples who choose to register their partnership. Full civil partnership would accord status, recognition and protection to same sex partners and the Colley group's view was that full civil partnership is a viable option for same sex couples in the event that same sex marriage is not possible.

The Colley group examined the option of introducing civil marriage for same sex couples. The group was mindful of the constitutional position, especially in view of the fact that the first judicial decision on extending the definition of marriage to include same sex couples was before the High Court.

These options presented by the Colley group are not mutually exclusive. The group was of the view that a combination of a number of options is required to adequately address the range of issues of concern to cohabiting couples, taking into account their different circumstances and preferences.

In January 2006 the All-Party Oireachtas Committee on the Constitution, in its tenth report entitled "The Family", stated specifically that:

...the committee takes the view that an amendment to extend the definition of the family would cause deep and long-lasting division in our society and would not necessarily be passed by a majority. Instead of inviting such anguish and uncertainty, the committee proposes to seek through a number of other constitutional changes and legislative proposals to deal in an optimal way with the problems presented to it in the submissions.

The committee went on to make further express recommendations for legislative change, including a recommendation "that civil partnership legislation should be provided for same-sex couples".

In parallel with the publication of the Colley group options paper, the Law Reform Commission published its report on "The Rights and Duties of Cohabitants" in December 2006. The commission recommended the establishment of a redress scheme, which would allow vulnerable economically dependent qualified cohabitants, on termination of the relationship either by break-up or bereavement, to seek certain reliefs from the court. These reliefs could include provision of maintenance, the making of property or pension adjustment orders and provision from the estate of a deceased partner.

While respecting the privileged and protected position of marriage within the Constitution and as a matter of public policy, the redress scheme would provide a safety net for those couples who do not marry or register a civil partnership. It would provide a substantial improvement in the circumstances of those who, on the break-up of a long-term relationship or on bereavement, not only have found themselves mourning the loss of a loving relationship, but may also traumatically discover that they are left unprovided for.

While it is important that couples make themselves aware of the extent of their legal rights and that they are empowered to make their arrangements under the law, it is imperative that vulnerable people are afforded a measure of protection while taking into account the choice they have made not to regulate their relationship formally for whatever reason. The redress scheme would be available to vulnerable economically dependent partners irrespective of their gender or sexual orientation. Where the relationship ends through break-up, a dependent partner could seek a variety of reliefs through the courts, including maintenance orders and property and pension adjustment orders. A bereaved partner could seek to have provision made for him or her from the net estate of a deceased partner. It would provide a safety net for people who may be left facing hardship if they have not had the opportunity or the ability to make suitable arrangements.

I assure the House that work is progressing in my Department on formulating the detailed proposals essential to meet our commitment in An Agreed Programme for Government. That commitment is contained in the Government's legislative programme published by the Chief Whip in September 2007, namely, to publish a Bill in 2008.

The key areas I propose to address in this scheme include the establishment of a system to allow same sex couples to register their relationships and thereby to subscribe to a variety of mutual rights and obligations. I will take into account the work of the Law Reform Commission, which recommended establishing a safety net through a redress scheme that will be open to couples in long-term relationships. That will be significant and progressive legislation. It is of particular concern and importance to the gay community, the members of which have not had formal legal status for their relationships or the protections and obligations flowing from such status.

In formulating detailed proposals, I am fortunate to have the outcome of the broad-ranging public dialogue of recent years, which culminated in the publication of two reports last year, to draw upon. This dialogue has encompassed a wide discussion on the need to recognise particular relationships for which no provision is currently made.

We aspire through our legislation to achieve two core aims in parallel. First, we want to provide substantial and significant equality for same sex couples who do not have the option of formalising their relationships through marriage. The soundest way to achieve this is by means of a statutory scheme that will extend a range of rights and responsibilities to couples who choose to register. Second, we want to extend legal protection to a vulnerable cohort, namely, economically dependent cohabitants on termination of their relationships.

The Labour Party motion must fall because it seeks to restore a flawed Bill to the Order Paper. The Bill would not survive a constitutional challenge and no Government can support the restoration of such a Bill to the Order Paper. It appears to present an elegant and simple way to provide civil partnership for same sex couples. As legislators, we should be aware that elegance and simplicity are not the only criteria to be applied. We work within a constitutional framework that demands clarity and a proper balance in terms of personal rights and family relations.

I cannot disagree with many of the sentiments I have heard from the proposers of the Bill, but sentiment alone does not translate into legislation. The Bill falls far short of the necessary requirements under the Constitution and would be open to challenge on that basis. The Opposition will attempt to portray these real concerns as representing a reluctance on the part of the Government to make legislation in this important area when nothing could be further from the truth. There is no lack of support from the Government for the provision of a system of rights for same sex couples. The core question today is not whether greater rights, duties and entitlements should be available to same sex couples who choose to formalise their relationships, but how best to enable this to occur.

See this speech in context