Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank all the Deputies for their very valuable contributions to our discussion this afternoon. An amendment to the Constitution is not something to be taken lightly and any amendment can and will have an impact. The amendment proposed here will have the effect of granting the protections currently available to marital families to a wider cohort of family arrangements such as single parents and their children and unmarried cohabiting couples. It will mean the Constitution of the State will no longer draw an outdated distinction between families. I think there was a common theme across the speeches today that there is agreement across the House that that change needs to be made.

I will begin by talking about what the legal changes of including a relationship within the definition of the family mean and the value of more families being defined within the constitutional family. From the legal perspective, the protection given to the family under Article 41 strongly limits the State from interfering in the establishing of a family - in a family's constitution - and the internal workings of that family - its authority. By being defined as a constitutional family, the State does not interfere with what might be described as the internal workings of a family or home-life decisions such as what religion the family adheres to or how and where children receive their education. Right now, the protection in the internal decision-making is limited only to marital families. The proposed amendment would extend this protection to non-marital families.

Many other issues related to the challenges non-marital families face in society were raised in the debate, including taxation and succession. Many of those issues can and will be dealt with in statute law, but it is important to understand what the extension of the definition of the family means to the families we hope to include within it.

I thank the Oireachtas special committee and the citizens’ assembly for the work they did, and progressing wording that is different from theirs is in no way a slight on their work. Regarding the amendment we did not go forward with concerning Article 40.1 there was a sense, backed up by the legal advice we have received, that what was proposed would have been a narrowing of the meaning of Article 40.1. I understand fully that was not the intention of the committee but we needed to scrutinise what was being proposed under each of the headings. We have given strong scrutiny on the wording around the family, as we are discussing now, and why we went with the approach that was adopted. The wording as advanced by the special committee on the family would have removed that special protection for marriage. It would have been special protection for the family – all families – but it would have removed the special protection for marriage. Deputy Bacik, who indicated she had to leave, argued the special committee was taking a minimalist approach. I would disagree on that point that removing the special protection of marriage would have been a minimalist approach. The Minister of State, Deputy Carroll MacNeill, spoke about the risk that this debate would see red herrings raised. It was the Government’s concern that proposing wording that removed the special protection of marriage or dissolved it into a special protection of families would have been taken and used and there would be Facebook ads telling people that voting "Yes" was voting "Yes" to getting rid of marriage and so on. It is unfortunate we have to think in that way but that is the world we live in. We are facing a vote in a number of months, and for that reason we felt we should take a more minimalist approach. We could have gone with an approach on the family article where we could have deleted the words in Article 41.3 to break that link between marriage and the family. However we also wanted to be affirmative and positive. We want to be clear that we are recognising families beyond the marital family and not doing a little deletion that would have resulted in that. We wanted to put them front and centre within Article 41.1 and that is what we have done by putting in the idea of other durable relationships and in so doing, including cohabitees and one-parent families.

I do not believe we are including the living scenario which Deputy Clarke set out where three people are living together as friends. That is certainly not the policy intention and I do not think that would be the interpretation. Article 41 already contains language that lawyers use, which is the word “guardrails”, for how we understand and define the family. I will read the article: "The State recognises the Family [and then there is the element we may or may not amend] as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law." When the Supreme Court comes to interpret the term “durable relationships”, it will be looking at the entirety of that article and whether the relationship is a natural, primary and fundamental unit group of society. In that context, I do not think the relationship Deputy Clarke spoke about constitutes that and it is certainly not the intent of the Government.

What are we talking about with the term? It is the relationship between cohabitants and parent-child relationships. The intention is to capture those committed relationships that exist over a period of time between couples and between a parent and children. It is not intended to capture shorter term fleeting relationships. I think that is right. The constitutional family is an important status and I do not think any one of us wants a very short-term relationship included there. There has to be language used to try and define that. Deputies Clarke and Cronin raised the use of the term “durable” in EU law. They are correct. It is used in the EU citizenship directive and has a meaning. It is used in connection with relationships. It is important to say there are many words used in EU and Irish law that have different meanings. For example, in EU law a regulation is one of its strongest legal tools where in Irish law a regulation is quite low down the pecking order. The definition of "durable" that we are seeking to put into the Irish Constitution is not influenced by the EU law definition of "durable".

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