Michael McNamara (Clare, Independent) | Oireachtas source

Specifically in the context of family, I have listened carefully to what the Minister has to say, but I am none the wiser as to why he thinks this will not have an impact. We are changing the Constitution because we want to change the parameters of what is protected. We want to broaden the definition of a family that is protected and of relationships that are protected. On the one hand, the Minister stated that the protections of the Constitution are a shield that protect the rights of a family and on the other hand he states it will not have any impact whatsoever on immigration law. I do not see how that can be the case because one of the most basic fundamental rights of a family is to live together, not necessarily in Ireland. That is what a lot of immigration cases are about.

It may well be that the courts, as they frequently do, determine that a family has a right to live together but that because of the conditions under which its members determined to get married or because they can safely live together somewhere else, they have effectively made their choice, one they have an absolute right to make, and do not have a right to live in Ireland but do have a right to live elsewhere, and that is possible. The difficulty arises under immigration law when it is not possible for them to live together anywhere other than in Ireland or any other country bound by the European Convention on Human Rights. There is an insurmountable obstacles test. If there is no insurmountable obstacle to living elsewhere, the family's rights can be vindicated elsewhere, but if there is, they have a strong case under the European convention.

The courts recently called for us to differentiate between the parameters of the protections available under the convention and those available under the Constitution and said the constitutional protections are far greater.

The Minister said that polygamous marriages will not be recognised because they have not been recognised until now, but they are durable. They exist and have existed for centuries in many cultures and the world is obviously getting smaller, so to say they are not durable would be inaccurate. We may not recognise them as marriages now in Ireland because until now Hyde v. Hyde was broadly followed and then there was the case of, I think, Conlon v. Mohamed, although I am not certain. In any event, because they were potentially polygamous, we said Islamic marriages could not be recognised. The courts moved away from that recently in H.A.H v. S.A.A and Others, but still said that polygamous marriages cannot be recognised. Are we to say that a polygamous marriage is not a durable relationship and that it is not a moral institution, if it is based on an ancient belief system, which is the fundamental bedrock of many societies in the world, albeit not ours? I still do not understand.

The Minister said he received advice from the Attorney General that it will have no impact whatsoever on positive immigration law because it is not covered by our current Acts, but the rights people enjoy under immigration law are often not covered by Acts. They are constitutional rights that inhere in families and durable relationships. If the Minister has received advice from the Attorney General, that is well and good, but I would like him to share that advice with us and explain why he thinks it will not have an impact. I fail to see how it cannot have an impact. I am not saying the impact will be negative, necessarily, but it will have an impact. This House should discuss that and people should know what they are voting for.

I am not talking about transient relationships. Throuples were mentioned but many polygamous relationships are not transient. There are polygamous relationships that are durable. I am sure there are polygamous marriages in Ireland. They may not be recognised as such, but they exist and subsist and certainly many cultures in the world have polygamous marriages that are durable and subsist and are moral institutions. I do not see how a change to Irish law does not require that we recognise that in our family reunification provisions, as well as in every other facet of our laws. The Constitution is superior to positive law and not the other way around.

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