Dáil debates

Thursday, 3 December 2009

Civil Partnership Bill 2009: Second Stage

 

Photo of Charles FlanaganCharles Flanagan (Laois-Offaly, Fine Gael)

On behalf of the Fine Gael party, I am proud to welcome this Bill this evening. We welcome the legislation and will support it. As the Minister stated, the legislation is a milestone and is important. The Bill is long and detailed and includes more than 200 sections, almost 120 pages, and five Schedules. It also amends 130 pieces of legislation and will require detailed debate on Committee Stage. It is important that certain aspects of the Bill that require amendment or improvement are debated at that Stage.

Essentially, the Bill is a hybrid of two separate schemes. For the purposes of this debate, I wish to address each individually beginning with civil partnership. Legislating for civil partnership is a tangible testament to how far Irish society has come. Until recently, this country was characterised by oppression, patriarchy, dogmatism and a particularly rigid and domineering brand of Roman Catholicism with an inflexible set of social rules that meant one either had to conform to or leave. Church and State were intertwined to an inappropriate degree, and religious dogma dominated discourse not only throughout society but in this Legislature. We are only too well aware of the fate of single mothers, enslaved in laundries and socially ostracised for having a child out of wedlock, a "sin" in the eyes of the church. We now know the harrowing suffering that such girls endured, and these factors must be borne in mind by parliamentarians when we shape legislation.

In the Ireland of the past, homosexuality was not tolerated to such an extent that it was a criminal offence to engage in homosexual activity. It remained a criminal offence until 1993 when the European Court of Human Rights found Ireland in breach of the European Convention on Human Rights. It is to the credit of Members of the Oireachtas, particularly Senator David Norris and others, that they played a key role in having that law removed from the Statute Book. The Ireland of the past was undoubtedly an extraordinarily difficult place for gay and lesbian citizens. There was virtually no understanding of difference. The way the churches treated homosexuality as a "sin" and a "choice" must have led to painful turmoil for gay people in this country. Thankfully, we have made great strides as a nation and we now live in a more tolerant era, characterised more by reason and science than by bigotry, superstition and fear. This Bill will help us move to a place where tolerance, diversity and inclusivity are more than mere buzz-words, but are characteristics that define our corpus of family law.

In the concluding paragraph of the judgment in the case of Zappone and Gilligan v Revenue Commissioners, Judge Dunne commented:

Undoubtedly people in the position of the plaintiffs, be they same sex couples or heterosexual couples, can suffer great difficulty or hardship in the event of the death or serious illness of their partners .... It is hoped that the legislative changes to ameliorate these difficulties will not be long in coming. Ultimately, it is for the legislature to determine the extent to which such changes should be made.

The plaintiffs in this case, Katherine Zappone and Ann Louise Gilligan, are a same sex couple who sought a judicial review after the Registrar General and the Revenue Commissioners refused to recognise the validity of their 2003 marriage in Canada. Although the High Court found against the plaintiffs, the comments of the presiding judge on the need for us as legislators to "ameliorate" the painful difficulties faced by same sex couples in Ireland highlight once again the need for this Bill.

I have referred to the Ireland of the past being a difficult place for gay and lesbian people but, unfortunately, the Ireland of the today can sometimes reflect an ignorant, bullying prejudice that a majority want to consign to the history books. A comprehensive study by the Gay and Lesbian Equality Network, GLEN, published earlier this year revealed some horrifying statistics. One in four homosexuals has been punched, kicked or beaten in violent homophobic attacks. Almost one-fifth have tried to take their own lives - with many saying this was related to their sexual identity. A total of 58% of respondents said there was homophobic bullying at school, with more than half saying they had been called abusive names and a quarter saying they had been physically threatened by other students. More than a third said they had heard homophobic comments by teachers, while 8% said they had been called names by them. A third of respondents said they self-harmed over the stress of concealing their sexual orientation during their teenage years. Some 80% of those surveyed said they had been verbally insulted, while 40% had been threatened with physical violence.

The survey results paint a very bleak picture of life for young gay men and women in our country. We are all well aware that difference can give rise to bullying, whatever that difference may be. I believe we have an important role to play in addressing homophobia in Irish society. Introducing equality measures such as civil partnership legislation sends out the message that there is nothing wrong with being gay and that all our citizens are entitled to live in a society characterised by equality and tolerance.

The Fine Gael Party has long had a proud tradition of promoting social justice. My party's seminal equality and social justice policy, The Just Society, which was launched in the 1960s, has guided our social policies in the years since then. I am proud that it was a Fine Gael-led Government that in the 1980s introduced significant legislation to improve the legal position of women as well as introducing remedies for abuses such as domestic violence. It was a Fine Gael-led Government that introduced divorce. In doing so, we were not seeking to undermine marriage but to give a legal remedy to those whose marriages had broken down and who were left stranded in a legal limbo.

The rationale that informed the decision to legislate for divorce is very evident in the Bill before the House today. Civil partnership and the cohabitation scheme are about providing legal remedies and rights rather than undermining marriage. Similar to divorce, the rights and remedies contained in this Bill will be often the most relevant when people are experiencing difficulties or heartache in life, for example, when there has been a death, when a long-term relationship has broken up or when someone is seriously ill. Fine Gael recognised the need to address the legal difficulties faced by same sex couples in 2002 when we committed to removing legal barriers in areas such as property and inheritance rights. In 2004, we published a more comprehensive policy on civil partnerships, seeking to create an atmosphere of acceptance for gay people in Ireland through a range of measures not limited to civil partnership. I take this opportunity to pay tribute to those involved in framing that policy, particularly, former Senator Sheila Terry and Deputy Alan Shatter.

There have been objections to this Bill on the basis of marriage. Some have attempted to portray the Bill as an attack on the institution of marriage. That allegation must be refuted. Marriage is a matter of personal choice and religious conviction and the fact that there are many same-sex couples in Ireland who would like to get married only indicates how popular and desirable marriage is for many people. The process that has led to this Bill being read today in the Dáil has been described by some as a model process due to the raft of significant options papers and reports that preceded it, particularly in the past ten years. The Minister has referred to these, the most significant among them being the Colley report and the report of the Law Reform Commission on cohabitees. Many of the recommendations of the Law Reform Commission report are in this Bill.

We also had the opportunity to examine systems in other countries. Civil partnership for same sex couples is now available in a number of European countries, including Denmark, Iceland, Finland, Germany, Switzerland, the UK and Slovenia. Many countries have gone further and legislated for same sex marriage, including the Netherlands, Belgium, Spain, Sweden, Canada, Norway and South Africa. Ireland is part of a growing trend towards a more rights-driven world that permits and celebrates difference. I am pleased Ireland is moving in that direction.

We will have an opportunity on Committee Stage to deal with the legislation line by line. However, I am very concerned about the glaring omission of children from the civil partnership provisions. Such an omission fails to recognise the de facto situation in which an estimated one third of the approximately 2,000 same sex cohabiting couples registered in the 2006 census have children. Failing to take children into account fails these children in an unacceptable way. This was brought home to me just two years ago when a former constituent, Barbara Gill, was knocked down and killed, leaving behind a devastated partner and child. Barbara and her partner comprised a same sex couple, and they had a baby son to whom Barbara's partner had given birth. Barbara did not have a biological link to her son, yet he was her son and she was his parent. When Barbara was killed, her partner and her son were left in a legal quagmire with no relief.

I am delighted to welcome Barbara's parents who are in the Visitors Gallery this evening. They were distraught. Having lost Barbara, her loving partner and son were now faced with further trauma, this time caused by the failure of the Oireachtas to legislate to protect the inheritance rights of children in same sex partnerships. Barbara Gill contributed enormously to Ireland during her all too short life. She lectured in the Church of Ireland College of Education and in St. Patrick's College, Drumcondra. She espoused human rights and inter-cultural education before such causes became fashionable. She was a good person and a good parent. We owe it to people like Barbara Gill, her partner and her son to address the vulnerable legal position of children of same sex couples and their non-biological parents.

Studies have shown that children who are raised by same sex couples do just as well as those raised by heterosexual couples. Such studies have been carried out by the UK Royal College of Physicians, the American Academy of Pediatrics and the American Psychological Association. My understanding is that it is unusual not to address the matter of children in a scheme for civil partnership. It is not too late to make significant changes to this Bill and I hope the Minister will commit to addressing the gaping lacuna in the proposed legislation. Otherwise our law will remain out of step with reality and fail to protect the vulnerable.

The second major pillar of this Bill relates to rights and responsibilities for cohabiting couples, both same sex and opposite sex. It might have been more appropriate to introduce measures for cohabitants in a separate Bill. However, in recognising how infrequent it is for a significant Bill overhauling family law to come before the Oireachtas, I accept that there may be merit in including a scheme for cohabitants in this Bill. The scheme for cohabitants is a presumptive scheme and I believe this will give rise to challenges in respect of communicating to people that the law has changed significantly. I would be interested to hear the Minister's comments on how he intends to proceed in that regard. Some legal experts have warned that the presumptive nature of the scheme could give rise to legal challenges and that ambiguities in the Bill regarding the establishment of when cohabitation began may present problems.

I note again that we are following the precedent set elsewhere, in that similar presumptive schemes for qualified cohabitants are in operation in jurisdictions such as Scotland, Austria, France, Hungary, the Netherlands, Portugal, Spain, Sweden, Australia, New Zealand, Canada and the United States. Perhaps the Minister could brief the House on how these schemes operate and whether any significant legal difficulties have arisen.

Notwithstanding these technical issues, we must acknowledge that provisions recognising cohabitants and qualified cohabitants reflect the reality of modern Ireland. The 2006 census registered 121,800 cohabiting couples with 74,500 children. The census further recorded more than 2,000 same sex cohabiting couples, one third of which have children. Therefore, it is important that this Bill introduce a mechanism for cohabiting couples to regulate their financial affairs as well as providing a financially vulnerable cohabitant with access to apply for a number of financial reliefs, such as maintenance or a share in the family home.

Non-conjugal couples are omitted from the Bill. In Fine Gael's civil partnership policy paper, we included reliefs for cohabiting couples in non-intimate relations. Speaking as a rural Deputy, there are situations in which two elderly brothers or sisters might have lived together all their lives and wish to look after their siblings should one predecease the other. Both the Colley report and the Law Reform Commission, LRC, report referenced non-conjugal couples, but stated that they had received "few submissions". The Government should examine this issue. If we do not allow for relief in this regard, it would appear as if we do not consider the matter raised in those reports as an issue. Perhaps the Bill is not the most appropriate vehicle to address it, but it should be addressed in the context of further legislation. It is hardly surprising that there were few submissions, as the people that Fine Gael is seeking to protect in its policy document are not plugged into any advocacy group of which I am aware. The making of a submission to a Government report would not be easy for them, particularly given that, more often than not, they live in rural and remote parts of the country.

Both reports referred to "a lack of research in this area". I assume it is on this basis that non-conjugal couples have been omitted from the Bill or any indicative Government report on further proposals. Difficulties present in terms of inheritance tax, succession rights and family homes. The reports have indicated that there has been insufficient research. Research is required, as some people need greater legal protection. If a lack of research is the primary obstacle to helping them, it is time that it be commissioned.

I welcome the Bill and pledge Fine Gael's support to it. While many welcome it, others believe it does not go far enough. To those people, I would say that change is incremental and I hope that full equality is not far away. Objections have been made and I have received many items of correspondence from people, some of whom may hold a genuine belief that it should be possible to allow for opt-outs in this legislation on the basis of one's religious beliefs or otherwise. This poses a problem, as I do not know how such an opt-out could be framed, particularly for registrars. They perform a variety of statutory functions, namely, the registration of marriages, births, deaths and still births. They are statutory officers and are required to solemnise and register marriages of, for example, previously divorced people. This did not pose an issue when the divorce legislation was passed, yet people are seeking an opt-out from their responsibilities under the Bill. Were we to allow such an opt-out, we would effectively be dismantling much of our equality and anti-discrimination legislation.

To those who oppose the Bill, of whom there are many for a variety of reasons, and to those who have written to me outlining their objections, I would say that we live in a democracy, not a theocracy. As democrats and Members of Parliament, we must recognise and protect the rights of all citizens, not just some. We cannot have a tyranny of the majority. As legislators, we are charged with the responsibility of looking after our citizens. This Bill is a part of that process.

"Secular" is not a dirty word, as some have tried to assert. Secular, democratic measures have given women equal rights and blown the lid off decades of sexual abuse by religious congregations by conducting important investigations, the most recent of which was the Murphy report of this week. We do not inhabit a flat Earth. We exist in a diverse society where minorities make vital, welcome contributions. As Prime Minister Zapatero, speaking in the Spanish Parliament, stated before the final vote introducing gay marriage in 2005, "...a decent society is one which does not humiliate its members". I agree with those sentiments and I believe they are appropriate to this Bill. I welcome the legislation and look forward to dealing with its technical, detailed aspects on Committee Stage, perhaps in the new year.

Comments

No comments

Log in or join to post a public comment.