Ivana Bacik (Dublin Bay South, Labour) | Oireachtas source

Tairgim leasú a 2:

I leathanach 4, línte 11 go 14 a scriosadh, agus an méid seo a leanas a chur ina n-ionad: “(a) in subsection 1° of section 3 of the Irish text, by the deletion of “Ós ar an bPósadh atá an Teaghlach bunaithe gabhann” and the substitution of “Gabhann”;

(b) in subsection 1° of section 3 of the English text, by the deletion of “, on which the Family is founded”;”, agus

I leathanach 5, línte 12 go 15 a scriosadh, agus an méid seo a leanas a chur ina n-ionad: “(a) i bhfo-alt 1° d’alt 3 den téacs Gaeilge, trí “Ós ar an bPósadh atá an Teaghlach bunaithe gabhann” a scriosadh agus “Gabhann” a chur ina ionad;

(b) i bhfo-alt 1° d’alt 3 den téacs Sacs-Bhéarla, trí “, on which the Family is founded” a scriosadh;”. I move amendment No. 2:

In page 4, to delete lines 11 to 14, and to substitute the following: “(a) in subsection 1° of section 3 of the Irish text, by the deletion of “Ós ar an bPósadh atá an Teaghlach bunaithe gabhann” and the substitution of “Gabhann”;

(b) in subsection 1° of section 3 of the English text, by the deletion of “, on which the Family is founded”;”, and

In page 5, to delete lines 12 to 15, and to substitute the following: “(a) i bhfo-alt 1° d’alt 3 den téacs Gaeilge, trí “Ós ar an bPósadh atá an Teaghlach bunaithe gabhann” a scriosadh agus “Gabhann” a chur ina ionad;

(b) i bhfo-alt 1° d’alt 3 den téacs Sacs-Bhéarla, trí “, on which the Family is founded” a scriosadh;”.

Go raibh maith agat, a Cheann Comhairle. I am delighted we are at this point where we are debating Committee Stage of the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023. We had a good debate on Second Stage in December. I think there was a general agreement that we do need to amend Article 41 and in particular to amend the provisions that restrict the definition of "family" to that based upon marriage. As I said in December, I think we all recognise the shameful legacy within this State of our treatment in the past as a society of families that did not conform to that constitutional model of a family based upon marriage. That current definition in Article 41 in no way reflects the current and wonderful diversity of family life in Ireland. We are, therefore, agreed on the need to amend the family definition just as we are agreed when we come to debate the Fortieth Amendment of the Constitution (Care) Bill 2023 that the language used in Article 42.2 referring to women and mothers is sexist, outdated and anachronistic. The question is about how we amend the provisions, which is why we have tabled amendments. We do this in order to be constructive.

The Minister will be aware that I pointed out on Second Stage that the wording in both the thirty-ninth and fortieth amendments that is proposed by the Government differs significantly from that proposed by the joint Committee on Gender Equality, which I had the honour of chairing. On that cross-party Oireachtas committee on which a number of those in the House served, including Deputy Clarke, we devised a particular form of wording to reflect the recommendations of the Citizens' Assembly on Gender Equality chaired by Dr. Catherine Day. We were keen to ensure the wording we proposed would be adopted by Government. Indeed, we called on Government to adopt that wording and to bring forward referendums in respect of both family and care during the course of 2023. We were disappointed at the delay. In particular, we were very conscious of the impact the continued failure to amend Article 41 would have for families, like the family of Johnny O'Meara.

I raised Johnny O'Meara's case with the Minister in December. This is the very tragic case of Mr. O'Meara, who is a father of three from Nenagh in County Tipperary and whose partner, Michelle Batey, sadly died from cancer following their relationship having subsisted for more than 20 years. Like so many other couples - 150,000 across Ireland - they were cohabiting and had not married. They had three children and it turned out that Johnny was not legally entitled to the support of the widower's pension upon Michelle's death because they had been cohabiting. Indeed, Johnny took his case to the High Court but lost his case there in October 2022. Mr. Justice Heslin said the case hinged on "a legitimate decision made by the State to support, not families, but those who made the choice to enter the marriage contract." The appeal was heard in the Supreme Court in October and judgment is awaited. Judgment is, in fact, due from the Supreme Court on that case on Monday. The reason I mentioned the case again is to note that judgment is imminently due, but also to note that the continued failure to amend the Constitution to reflect the true diversity of family life in Ireland has a real impact for those families who are excluded from protection currently. We are, therefore, agreed on the need for change.

I asked two specific questions in my Second Stage speech. I want to refer to those questions because that is why we tabled this amendment. I am speaking particularly on amendment No. 2, of course, which is our substantive amendment on this Bill. Given that we recognise the need to extend the definition of family beyond that based on marriage, in the committee, we took the view that it could be done most effectively in two different ways, and we proffered two alternative versions of the amendment.

Neither of our proposals would have amended Article 41.1 at all. My first question was why the Minister chose to amend Article 41.1 and why that was seen as necessary. I looked carefully back at the Minister's response on Second Stage and I still did not see why that amendment was necessary. Amendment No. 2 in the names of my Labour colleagues deletes the amendment the Government is proposing to Article 41.1. We believed it was possible to change and expand the definition of family simply by amending Article 41.3 of the Constitution and that this would be preferable - to leave Article 41.1 as is - because Article 41.1 "recognises the Family as the natural primary and fundamental unit group of Society". It does not restrict the definition of family in any way. It is Article 41.3, which has the clause stating, "the institution of Marriage, on which the Family is founded, ...", and we proposed simply an amendment to Article 41.3. We proposed two alternative versions. My first question is, why has the Minister amended Article 41.1 and will he accept Labour's amendment, which would delete that amendment to Article 41.1?

Our second question is, why, when amending Article 41.1, the Minister is doing so by inserting the phrase that he is proposing here, after "the Family, ", whether founded on marriage or on other durable relationships". On Second Stage, there was some discussion by quite a number of Deputies about this phrase, "durable relationships". I want to speak to that for a few moments and then turn to what we are proposing on Article 41.3 and why, in our Labour amendment, we have taken the second option that we proposed on the Joint Committee on Gender Equality - the more minimalist version but which continues to protect the institution of marriage.

The phrase "durable relationships" was addressed, as I have said, on Second Stage, by a number of speakers. The Minister of State, Deputy Carroll MacNeill, made an interesting contribution on the phrase "durable relationships". The Deputy pointed out that the phrase was "not a constitutional concept" that she had seen. Indeed, I made the same point, that it was new to the Constitution. In Deputy Carroll MacNeill's Second Stage speech, she asks the question:

What is durability? Is it about commitment or enduring? What is the difference between a durable relationship between adults and an enduring relationship? I could be in a durable intimate personal relationship with somebody that lasts for ten or 20 years, and I could have an enduring friendship with somebody that lasts for 40 or 50 years. These are different relationships. ... the way the concept is phrased ... links it to intimacy and permanence.

The Minister of State, Deputy James Browne, later on Second Stage, spoke about "durable and committed relationships", although, in fact, the word "committed" is not used. We are asking, why insert this phrase "durable relationship" and, crucially, what does it mean? In his response on Second Stage, the Minister, Deputy O'Gorman, talked about this some more. The Minister referred to the use of the phrase in EU law. It has been referenced in just one case before the Supreme Court, that is, the 2020 case which related to the EU directive on citizenship and in which Ms Justice Marie Baker made some comments about what durable means in the context of the EU directive. The "durable" requirement does not amount to "permanent", Ms Justice Marie Baker said. It means the relationship must be one which has continued for some time and to which the parties are committed, etc. The Minister, Deputy O'Gorman, pointed out that that is not the definition of durable that he is seeking to put into the Constitution. Indeed, the Minister said, "The definition of 'durable' that we are seeking to put into the Irish Constitution is not influenced by the EU law definition of 'durable'." The Minister stated further, "The intention is to capture ... committed relationships that exist ... between couples and between a parent and children.", whereas in the EU citizenship directive, it is used specifically in connection only with interpersonal adult relationships between couples, not the relationship between a parent and children. We all appreciate - not only those in this House but those who are watching these debates and looking at the wording and who are planning campaigning in support of the referendum - and are grateful for that clarification that "durable relationship" clearly applies to a single-parent family, a relationship between a parent and a child, as well as to couples who are committed to each other in what we might colloquially understand as a durable relationship. Although somebody said a relationship is always durable until it is not, people intend a relationship to remain durable in the context of couples.

There was significant concern on Second Stage about that phrase "durable relationship", and while, as I said, we appreciate the clarification that it is not meant in the same way as it is in the EU directive, and that directive and that definition, and Ms Justice Marie Baker's judgment should not have bearing on how we understand it in the Constitution, I suppose all of that reinforces my initial question. Why are we using it in the Constitution? If it is not drawn from the EU directive and if our understanding of it in the Constitution is to be different and to be more expansive, which is positive, why use it at all? Why not use the more minimalist amendment that we are proposing?

That brings me to what is in our amendment No. 2. We propose to take out the change the Minister is proposing to Article 41.1, not to use the phrase "durable relationships" but rather to change Article 41.3.1° to take out the phrase "on which the Family is founded". The reason we propose this change is because we were mindful that, as the Minister said, the first constitutional change the committee had proposed, where we would have said, "The State pledges itself to guard with special care the Family, including but not limited to the marital family.", would have removed the protection for marriage. The Minister pointed out that the Government does not want to remove the protection for marriage. I appreciate that. That is a fair point and indeed, the committee was mindful of that in the text of its report, at page 38 of which we said that an alternative means to achieve the citizens' assembly aim, that is, to expand the definition of family, would involve simply the deletion of the phrase "on which the Family is founded". That would retain the special protection for the institution of marriage but it would remove its qualification effect upon the definition of family. This alternative approach, the committee said, would enable recognition of a more expansive definition of family and would ensure retention of special recognition for the institution of marriage, and it would not introduce a new phrase "marital family", which is not currently in the text of the Constitution. For our Labour amendment, therefore, we have sought to achieve the aim of the citizens' assembly, the aim of the committee and the aim that most people in the House have expressed a desire for, which is to ensure a more expansive definition of family, but we have sought to do so in a way that will continue to protect the institution of marriage but that will not introduce any new phrase, such as "durable relationship", into the Constitution.

I ask that the Minister would consider taking this amendment on board or, if not, that he might say why not. I appreciate the Minister's reasoning behind not taking on board the committee's proposal to insert Article 41.3.1° with reference to marital family but we had that alternative proposition, which we have now brought forward by way of amendment, which would retain protection of the institution of marriage but which, in our view, would be enough to ensure an expanded definition of family and to protect those who might find themselves in the awful situation faced by Mr. Johnny O'Meara and his children.

We are appreciative of the immense work that has been done and the huge amount of preparatory work that has gone into this by the Minister, by his officials, by the committee, by the citizens' assembly chaired by Dr. Catherine Day and by all the civil society groups that have been working on this. I acknowledge that those groups are present in the Gallery. We have Ms Orla O'Connor and Ms Eilish Balfe from the National Women's Council and I know there are many more watching. One Family, Treoir and Family Carers Ireland have already launched campaigns in support of the referendum. I stress we are all very much supportive of the aims of the referendum. We want to see Article 41 amended, both in reference to family and in reference to care, and, of course, crucially, to see the sexist language around women and mothers deleted and replaced. We are all working to that same aim.

We are simply putting questions that will be important questions in the course of the referendum campaign. I am assuming the amendments will not be passed. Assuming that the Government wording goes to the people, it will be useful for all of us campaigning on the referendum to have clarification based upon what is said today in the Dáil. We want to put these amendments forward, therefore, in that constructive frame and to ask in response that the Minister might clarify those two issues, namely, why depart from our view that only an amendment to Article 41.3 would be necessary and if he is putting a amendment in Article 41.1, why use this phrase "durable relationships"?

I might add a third point. Why not take the more straightforward approach of just amending Article 41.3? I am conscious that the Government is doing the Article 41.3 amendment as well and deleting the phrase "on which the Family is founded". We are supportive of that but why is there a need for Article 41.1 to also be amended?

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