Dáil debates

Wednesday, 27 January 2010

Civil Partnership Bill 2009: Second Stage (Resumed)

 

3:00 am

Photo of Lucinda CreightonLucinda Creighton (Dublin South East, Fine Gael)

I am pleased to have an opportunity to address the House on this important and long overdue legislation. I support the Bill. Like Deputy Varadkar, I lament the exclusion of heterosexual cohabiting people from the civil partnership provisions of this legislation, which I believe to be a mistake. I urge the Government to at some point reconsider this matter. While I accept that it may not be possible to address this issue on Committee Stage, perhaps it could be done at a later stage in the life of this Government.

It is often tempting and easy for the Legislature to shroud itself in an air of fantasy and to ignore the reality of a modern evolving society and to refuse to acknowledge the changing environment in which we live. We are all well acquainted with gay couples and individuals who, like all members of society, live normal lives. They are no different from anybody else and are in most cases accepted and embraced in their communities, local environments and by their families. It is easy to forget it is only as recently as 1993 that homosexuality was decriminalised in this country, which is quite extraordinary. It was only then that archaic legislation such as the Offences Against the Person Act 1861 and Criminal Law (Amendment) Act 1885 were finally repealed following a lengthy decade-long campaign by Senator David Norris, Mary Robinson and others.

The step in 1993 to remove the categorisation of homosexuality as a criminal offence was opposed tooth and nail by people who were terrified of change and who were determined to oppose any severance with or departure from traditional Irish society as they knew it regardless of how rational or right it may be. It has taken a considerable amount of time for us to reach a point whereby the Legislature and the society which it reflects in this Parliament can finally and with confidence create laws which protect the interests of citizens in this country who have for far too long been isolated, exposed and ultimately treated as second-class citizens and human beings in our society.

This legislation is extremely important for a number of reasons. Obviously, we urgently need to legislate to reflect the reality of Irish society but we also need to legislate to ensure adequate protection for all citizens without judgment, ridicule, disdain or label. Gay life and gay relationships are a reality and normal part of Irish life. It is imperative that we as legislators introduce legislation that affords gay people the dignity, respect and basic human rights to which all citizens and members of society are entitled.

There are complex constitutional issues associated with this issue. I am conscious that other countries that do not have the type of constitutional restrictions we have, which make it difficult to navigate on some occasions, have introduced legislation in this area. I do not believe we can ignore some of the constitutional issues that arise.

While the Bill does circumvent some of these issues it would be remiss of me to do likewise. There are two particular matters of constitutional significance which I would like to address, the first being the protection of the special status of the family, as provided for in Article 41 of Bunreacht na hÉireann and alluded to throughout and, the protection of the child, which is a central issue, one to which some of my colleagues have referred. Taking the issue of the special status of the family in the Constitution, it is clear from the traditional construction of Bunreacht na hÉireann that the traditional family is defined in the context of a father and mother and whatever children they may bear. Deputy Varadkar also alluded to this issue. I do not dispute the special protection which is afforded to the family in the Constitution. Rather, I believe it is right and proper and I very much support it. I believe it is an important pillar of our society and is an essential aspect of the fundamental rights of children. We should not, as a society, be afraid on occasion to uphold some of the traditional values of our society, many of which are contained in our Constitution while at the same time advancing new protections that need to be provided under the law. I do not believe these two objectives need be mutually exclusive.

Civil partnership, as envisaged in this legislation, is a distinct institution and in my view, it is one which ought not challenge or compete with the institution of marriage. These institutions can be mutually complimentary and mutually supportive. They need not be in competition with each other, or one need not be judged on the basis of the other. No doubt couples who commit to each other in a loving way through the new civil partnership legal channels deserve the same protections and legal rights as other couples, but this is not to say that the institutions need challenge each other or that the institution must challenge a more traditional form of union between heterosexual couples. The two institutions, while being distinctive and, by necessity, somewhat different, can afford much needed protections for couples who are committed to each other, irrespective of their sexual orientation.

While the creation of legal civil unions is a new legislative departure which will serve to achieve equality, freedom and dignity before the law for many gay people in the State which each citizen is entitled to and deserves in any free democracy, it will also ensure that the traditional family, which has been the linchpin of our society for far longer than this State has held its freedom, will also be protected, preserved and respected. This is no humble achievement.

The other constitutional issue I wish to address is that relating to the protection of children, which is relevant to this debate on Second Stage. Deputy Shatter raised this in his contribution in this House last week. He pointed out that the Bill, as framed, fails in the context of child protection. It ignores the plight of children who are born to cohabiting parents and denies them the sort of protections and rights that children born in a traditional family environment are afforded. We must ask ourselves why this is the case. They are no lesser children with no lesser needs, and certainly no lesser vulnerabilities, and I strongly believe that they are worthy of every protection and security that can be afforded them by the law. I am conscious that there is likely to be a referendum this year on the protection of children and the placing of the child at the heart of the Constitution, but it is a missed opportunity to not secure the protection of children in this legislation.

The rights and needs of children also apply to children who are brought up by a gay couple. I fully agree with the points put forward by Deputy Varadkar in this regard. It is clearly preferable that the biological parents should always be the obvious guardians of a child. They should be the people who raise a child and look out for and protect his or her needs. That is the duty of a parent; it is the duty of a mother and father. Of course, we live in a society where the ideal is not always possible and in a society and world where the vagaries of reality must be borne in mind and taken into consideration.

In the context of a child who, for example, is being reared by a gay couple, the question is, when one parent is absent should the needs of the child be ignored or how are those needs to be prioritised. What about the possibility that one parent passes away? It is unfortunate that this legislation does not provide any legal protections for a child in those circumstances to ensure that he or she remains in a safe and secure environment for that child. The Bill is remiss in this regard, and I would urge the Minister to look at this and reflect on this discrepancy on Committee Stage. I do not have a particular amendment at this point, but I think there is a way in which the needs of such a child can be protected where there is a loco parentis situation and where it is clear that the paramount best interests of the child would be to remain in the stable and secure environment, to which he or she has become accustomed and in which he or she has been raised. It is a fear for many couples in that position and a genuine concern where there is a child involved. I would urge the Minister to look at this and to consider the issue of custody and guardianship as this Bill moves through this and the other House.

The issue of conscientious objectors is a difficult and contentious one. We must try to debate this rationally and consider the implications of the legislation. Much has been made of the suggestion that an amendment be tabled to reflect the religious beliefs of some members of society in some circumstances and whatever objections those people may have. Section 23 is not a rational or balanced approach to dealing with somebody who refuses on religious, faith or conscience grounds to register a civil partnership. It would not be just or correct to hand down a custodial sentence to a registrar on that basis. There are procedures in place throughout the public and civil service to deal with those who do not perform their duties. I am not sure that, on summary conviction, imprisonment - the legislation, in section 23, provides for up to six months imprisonment - is a balanced or rational way to go about this. It is excessive and disproportionate. If someone, on personal conscience grounds, does not wish to carry out a civil registration, then it should be dealt with through the appropriate channels, as would happen in the case of any civil servant not carrying out his or her duty or function as he or she should. In some ways it would fly in the face of the concept of freedom and choice. I am not in any way suggesting that such behaviour should be condoned, but I do not believe that the appropriate response is a six-month custodial sentence. Again, I would advocate that this section of the Bill be looked at seriously by the Minister and his officials to come up with a better and more suitable response.

On the case for the idea of an amendment to the legislation on an opt-out for conscientious objectors or people with particular religious views who do not want to participate or play any part in a civil partnership ceremony, the attendant celebrations or whatever afterwards, I tend to agree with the point put forward by Deputies Varadkar and D'Arcy. It is a difficult one and I do not pretend to have any clear solution to it. Certainly, one could not allow a situation - it would be completely contradictory to the Equality Act 2004 and the Equal Status Act 2000 - where people were entitled to refuse access, for example, to a hotel, a restaurant, etc. That would not be a wise or constructive provision to include in this legislation.

However, the issue of religious institutions and the use of their properties and premises is slightly different. The point is well made, that a gay couple about to get married would not want to impose themselves on a Catholic church, a synagogue or whatever. That is an unlikely scenario but we should not be hostages to fortune either and we should not allow a situation to arise whereby it could become an inflammatory issue. In some ways it is reasonable that religious institutions would be able to opt out, or at least to allow for the exclusion of their properties and premises, such as church halls or whatever, from use in terms of carrying out a civil union. Perhaps this is something for which an appropriate wording could be found or something the Minister might consider. No form of discrimination should be condoned in any way, certainly that is not the point I am attempting to make. However, we should consider some way in which a fair and rational opt out could be arrived at for religious institutions and the clergy.

My concerns regarding the fate of conscientious objectors and religious institutions under the proposed legislation do not in any way detract from my belief that this is necessary, imperative legislation that, I hope sincerely, will put the rights and protections to which same sex couples and co-habiting couples are entitled at the very centre of Irish policy making. Yesterday, I listened to an interview with Bishop Willie Walsh on RTE radio. I was struck by the tone and genuine goodness of his words. He was questioned about his views on homosexuality and gay relationships. He stated, correctly, that categorising and pigeonholing people is something we should not do and he is absolutely correct in this regard. Many people will oppose this legislation on grounds of religion, Christian faith or other forms of faith. The irony, at least in respect of Christianity, is that faith is about accepting people without judgment and with complete compassion. It is about embracing people not simply in spite of their differences but because of them. This is a lesson all of us can and should learn. More important, it is one we should all practice.

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