Martin Mansergh (Tipperary South, Fianna Fail)

I wish to share time with Deputies Kitt, O'Connor and White.

I welcome the opportunity presented by the Labour Party's Private Member' Bill to discuss an important subject that will clearly be an early part of the legislative programme of the Thirtieth Dáil.

In the programme for Government, there is a commitment to legislate for civil partnerships at the earliest possible date, taking account of the outcome of a Supreme Court case and a range of options and recommendations put forward by various bodies listed by the Minister in his speech. He might include in those options a paper, for which I wrote the foreword, just issued by the Iona Institute and written by David Quinn called Domestic Partnerships: A response to recent proposals on civil unions, which was circulated to Deputies and Senators.

It goes without saying that any legislation to be supported by the Government must be deemed, following proper examination by the Attorney General, to be constitutional until otherwise established by a court later. There is no point in passing legislation in this House that we know in advance is unlikely to pass the constitutional test.

My belief is that even those who would have approached the subject of this debate with some hesitation or reluctance in the past accept that it is a problem that now has to be tackled. While, like all Deputies, I have received a number of messages urging me to support the Labour Party's Bill, it is not a matter that I can recall being raised with me, face to face, in my constituency from any angle, either for or against. While not of pressing concern to most people, it is extremely important to a minority. If two unmarried people share a house in circumstances where they have been deeply attached to each other, very often over a long period, it must be a cause of dismay to the survivor if, when something happens to one of them, the relationship is abruptly ended and the law, the Revenue, society and perhaps even the extended family treat them as if they had been perfect strangers. There is clearly a need for reform. Unlike, for example, the decriminalisation of homosexuality, this involves not just a change in the civil law, but a significant Revenue cost. As became clear to me when I was a member of the tax strategy group, chaired by the Department of Finance, as an adviser between 1997 and 2002, capital taxes today are a big earner for the State and, unlike married couples and direct descendants, fall heavily on other categories of relations, not to mind those who are unrelated. There is literally a price to be paid for a fairer, more equitable society.

Like the late Douglas Gageby, former editor of The Irish Times, I believe that liberalism is inherent in republicanism. I would be broadly comfortable with the changes in social legislation that have been enacted, from the lifting of literary censorship by the Minister's father and distant predecessor in 1967 to the passage of the second divorce referendum in 1995. The decriminalisation of homosexuality, by then Minister Máire Geoghegan-Quinn during the Fianna Fáil-Labour partnership Government in 1993, was a model of radical legislative reform. Indeed, in the case of civil partnership there should be no necessity for there to be a physical relationship, though of course the public may tend to draw its own conclusions. There is a danger to be guarded against in any legislative scheme that confers tax advantages, that people will adopt a civil partnership that is in practice normal or non-existent purely to avail of the tax advantages.

The mantra of that earlier era was to keep the State out of the bedroom. It is important that any legislation on civil unions or partnerships does not bring the State back into the bedroom. The question of consummation, for example, as grounds for nullity does not arise outside of marriage. Have the promoters of this legislation worked out whether they want the same elaborate safeguards for the termination of a partnership, as exists for marriage, viz. five years separation, before being made absolute?

Two issues of principle require reflection. First, whether the primacy of marriage under the Constitution should be maintained and, if so, what that might mean in practice vis-À-vis civil unions or partnerships, and, second, the importance of equitable treatment of all who live together, including, for example, siblings, who are debarred from participation in partnership arrangements. With regard to the latter, it is indispensable that siblings living under the same roof should enjoy no less favourable tax arrangements on the decease of one of them than any other cohabiting couple. I would favour complete equality in all non-marital domestic partnerships.

Notwithstanding the variety of social arrangements, the value and social utility of marriage and the family based on marriage remains paramount, particularly for the upbringing of children. The social disadvantages of marriage breakdown, including its waning as an institution, are well documented. A fundamental flaw in Deputy Howlin's Bill and that of Senator Norris, which I debated in the Seanad a few months ago, is that they legislate de facto for same sex marriage and would give rise to an emotive debate which we are far better to avoid. The use of terms like "conjugal status relationship" and "an equivalent status parallel to marriage" make this plain to anyone who understands the English language. Anyone who trusts opinion polls on these types of issues should go back and study their very poor record over the past 22 years as a guide to the outcome of a referendum, once the public becomes engaged in the argument and battle lines are drawn.

Many people would not accept that a cohabiting relationship, heterosexual or gay, is an ideal just as worthy of promotion by educators as marriage. One could envisage in that event interesting clashes between a radical equality ethos and the ethos of the vast majority of our schools.

I do not on the other hand wish to underestimate the value of life-long companionship and caring relationships to society, whatever the gender of those involved. By way of illustration, I would like to mention the former partnership between Hilton Edwards and Micheál MacLiammóir, who founded the Gate Theatre. I was shown the other day letters written by Micheál to the Minister for Finance, Charles Haughey, in 1969 and again after his resignation in 1970, thanking him profusely for the first grant he gave to the Gate Theatre, which enabled it to keep going and to flourish. The Hilton-MacLiammóir partnership was of great value to Irish society. One might think back to the ladies of Llangollen, Eleanor Butler and Sarah Ponsonby, who eloped to avoid an arranged marriage, and who held court in Plas Newydd for about 40 years, where they had a steady succession of famous visitors, and whose home is still worth a visit. There was also a partner or companion, who, with great distinction, a few years ago helped our most senior elected official in this House represent this country abroad. However, one does not need to be famous or well-known to justify a happy caring relationship.

There are two approaches to progressing difficult and complex socio-moral issues. One is a divisive and confrontational approach, which is essentially counterproductive. The other is to try to build the maximum consensus. We need detailed, workable legislation that addresses all the issues and the wide variety of situations equitably.

In response to Deputy Flanagan, the only long-playing record being heard in this House is the tedious and repetitious jibes at the Green Party, mainly from Fine Gael, for not remaining in pristine opposition. If he thinks the Green Party is the vulnerable partner, I am sure our Green colleagues will be more than ready to show him his mistake over the next four and a half years.

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