Thursday, 21 January 2010
Civil Partnership Bill 2009: Second Stage (Resumed)
I welcome the opportunity to speak on this groundbreaking legislation, which shows that Fianna Fáil delivers on its promises when it is in government. My party's commitment to civil partnership was set out in its pre-election manifesto and affirmed in the 2007 programme for Government. This Bill has far-reaching consequences for same-sex couples. For the first time in Irish law, gay and lesbian relationships will be given official recognition. This new legal status is accompanied by a range of rights and responsibilities, including pension rights, succession rights, maintenance obligations and protections in the event of domestic violence. It would be unacceptable in a modern society to continue to ignore same-sex relationships. The over-riding aim of the Bill before the House is to bring about positive changes to same-sex relationships, on profound and practical levels. Some of the provisions in the Bill that have received less publicity are also important. The Bill will introduce financial protections for cohabiting couples in same-sex and opposite-sex relationships. It will make a redress scheme available to unmarried opposite-sex couples and unregistered same-sex couples, so that financially dependent people can enjoy some protection at the end of a long-term cohabiting relationship. The cohabitants' scheme will put in place a legal safety net for people in long-term relationships who may otherwise be financially vulnerable at the end of a relationship, whether through break-up or bereavement. The Bill gives legal recognition to cohabiting agreements, thereby enabling cohabitants to regulate their joint financial and property affairs.
It provides legal certainty on the status of cohabitation agreements made by couples who wish to regulate their financial and property affairs but do not wish to marry or enter into a civil partnership and do not want to be included in the redress scheme. These provisions are particularly important in light of the recent surge in cohabiting couples, which have become the fastest growing form of family unit in the State. Currently, cohabiting couples lack a number of legal protections even where they have been together for years. Contrary to common belief, common law or de facto marriage has no legal standing in Irish law and does not offer legal protection to either partner in the event of a break up of a relationship or the death of a partner.
The civil partnership provisions raise complex legal issues. The Bill has been carefully framed to balance any conflict between the Constitution's special protection for marriage and the rights enshrined in Article 41. Certain material distinctions between civil partnership and marriage therefore remain. For example, there is no provision for the adoption of children by civil partners or for religious ceremonies as the basis for registration of a civil partnership. Were the provisions of the Constitution not addressed, the Bill would have been vulnerable to legal challenge.
The Bill will improve the rights of same sex couples without weakening anyone else's. The Minister for Justice, Equality and Law Reform put it best when he stated: "This Bill takes nothing from anyone but what it gives is profound and is positive." Calls have been made to include a clause in the legislation to provide for freedom of religious conscience. This would be a broad provision which would give an absolute right to discriminate against people who are registered as civil partners. Providing such an exemption could lead to serious unintended consequences and the withholding of services. A bank could refuse to allow a couple to operate a joint account, a restaurant could refuse to take a booking for two men or a person may be unable to visit his partner in a hospital run by a religious order. As such outcomes would be contrary to public policy, an exemption based on freedom of conscience could not be contemplated.
Fianna Fáil is the republican party and it is our aim to build a republic founded on the ideals of equality and dignity of every member of the human family. My party stands for an open and inclusive society. Over the past two decades, as Irish society has become more open, Fianna Fáil has been to the forefront of reforming legal discrimination on the basis of sexual orientation. In 1989, a Fianna Fáil Government steered through the Oireachtas the Prohibition of Incitement to Hatred Act 1989, which makes it an offence to distribute material or use words and behaviour that is threatening or abusive or likely to foment hatred against persons on certain specified grounds, including sexual orientation. This principle was subsequently extended into the area of broadcasting. Fianna Fáil brought forward the Criminal Law (Sexual Offences) Act 1993, which finally brought an end to the unfair criminalisation of homosexual practices. The Employment Equality Act 1998 and the Equal Status Act 2004 made it an offence to discriminate against people in employment or in the provision of goods and services on a range of grounds, including sexual orientation. Through these legislative means the State has clearly indicated that individuals are entitled to receive fair and equal treatment, whether they are gay, lesbian or heterosexual.
As the law stands, same sex couples have no way of formalising their relationships in the eyes of the State or society. They obtain no benefits from our tax, welfare and inheritance regimes and cannot assume legally binding obligations to one another. These significant lacunae will be addressed by the Bill before us.
I am delighted to have an opportunity to speak on this Bill. I am proud to be a member of a party which has advocated legal reform in this area. Credit is due to the Minister, Deputy Dermot Ahern. The Bill will have no negative impact because it builds on previous equality legislation introduced by Fianna Fáil. It deals with the issue of freedom of conscience and our legislation is sufficiently robust to address any issues that arise.
I have met the Irish Council for Civil Liberties and the Gay and Lesbian Equality Network to discuss the Bill. It is clear that both organisations recognise it as progressive legislation. The Government's efforts to bring the Bill before the House demonstrate that we remain active on social issues even while we continue to focus on our economic and financial problems. The media think that everything starts and ends with finance but a significant body of legislation on other matters is being progressed.
Irish society and the traditional family unit have changed dramatically over the past 20 years. A one size fits all approach can no longer be taken because provision must be made to protect people in loving same sex relationships and couples who choose to cohabit rather than marry.
According to the excellent brief prepared by the Oireachtas Library and Research Service, cohabiting couples are the fastest growing form of family unit. The 2006 census revealed that cohabiting couples account for 12% of all family units, compared to 8% in 2002. The number of cohabiting same sex couples is also on the rise, having grown from 1,300 couples in 2002 to more than 2,000 in 2006. The law as it stands does not give any legal protection to cohabiting couples, even where they have lived together for many years. Many couples may not realise their vulnerability until they experience break up or the death of a partner. This Bill seeks to address these concerns. Given past difficulties in Irish society, it is difficult to understand why anybody could object to this positive proposal, the overarching objective of which is to encourage and support loving relationships. It is irrelevant whether those relationships are same sex or otherwise.
The Bill will rectify the unacceptable situation where a broad section of society was thus far unprotected legally. For same sex couples it establishes a new status of relationship which is legally recognised by the State. It provides for a scheme of registration of civil partnerships for same sex couples, together with a range of rights and duties following registration to include shared home protection and succession and pension rights. It will also allow cohabitees, whether opposite or same sex, to regulate their own financial matters and will provide for a limited redress scheme where a cohabitee is left economically dependent. Under the Bill, legislation relating to mental health, immigration and domestic violence, for example, will be amended to ensure the same provision for same sex partners as for spouses in opposite sex marriages.
Although the Bill is extremely progressive, I acknowledge that it does not offer an equivalent to marriage for same sex couples and, for this reason, it will not satisfy everybody. However, it would be churlish not to acknowledge that it is a major step forward which, for the first time, offers recognition and protection to those in same sex relationships. That said, the legislation should include greater reference to children of civil partners. I accept that there are constitutional barriers, as referred to by other speakers, which must be addressed. I am certain, as sure as night follows day, that legislation will be introduced in due course which offers children of same sex couples the same status and protection as those of opposite sex relationships. In the meantime I am concerned that children of same sex couples are left somewhat isolated and vulnerable as a consequence of this omission in this legislation. However, it is not appropriate to deal with these issues in this Bill. These concerns will inevitably be addressed in future legislation.
Since the Bill was flagged some time ago, I have met several couples in loving same sex relationships and found that they were, broadly speaking, pleased with the proposals. Many gay people had been of the view that this type of legislation would never be introduced. I spoke recently to a friend raising a child with her same sex partner and she was extremely sceptical that these measures would become law. I will be pleased to send her the transcript of today's debate. Many gay and lesbian people were not confident this day would ever come. In this context it is important to acknowledge the commitment of the Government not only to economic issues but to social policies. I warmly welcome the Bill, which represents an enormous step forward for our society.
Like other Deputies, I welcome the publication of this Bill and the opportunity for a serious and considered debate on its provisions. Although I broadly support its intentions, I propose to address some of the issues that have given rise to public debate and controversy outside the House and to outline my concerns with the Bill as drafted. There is a myriad of legal anomalies derived by the Bill that may result in its provisions not impacting as beneficially as may be intended by the Government and the Deputies speaking in favour of it. The Bill highlights in different ways the oddity of many of the family law provisions that currently apply to married couples and the need for reform. It is ironic that when enacted this Bill will clarify areas of law with regard to gay couples that are not addressed by legislation in respect of heterosexual couples.
I will begin by addressing the main issue that resulted in demonstrations outside this House following the publication of the Bill before Christmas. There is broad support from the gay community for the legislation, but there are some who are disappointed that it refers to civil registration and civil partnership as opposed to marriage. I accept that the Minister had to address the issue in the way he has because of Article 41 of the Constitution which protects the family based on marriage. If, instead of using the formula "civil partnership", the Bill referred to marriage simpliciter, there would have been a serious risk of a constitutional challenge to the legislation and therefore a substantial delay in its enactment. Alternatively, that constitutional challenge might have come following the enactment of the Bill and its signature by the President, or the latter may have decided to refer it to the Supreme Court. We might have had litigation going through the High Court and Supreme Court and one or two years would elapse before clarity could be applied to the legal situation. The Minister therefore had no choice other than to use the formula in the legislation.
Those in the gay community who are concerned that their relationship is not referred to as marriage should note that in practical terms, the provisions that apply to the celebration of a civil marriage ceremony between a heterosexual couple are exactly the same provisions which apply to the celebration of a civil partnership ceremony between a gay couple. In other words, the relationship is marriage in everything but name. The Bill plays with semantics in the hope it is constitutionally on the right side of Article 41. It is not beyond possibility that when the legislation is enacted, somebody may challenge its constitutionality. If so, I hope that challenge is unsuccessful. I hope it does not arise because it will create difficulties of a temporary nature for people. I welcome the fact that a gay couple in a permanent, intimate relationship can have afforded to them under the legislation recognition of that relationship such as that which now extends to many gay couples in other countries across the world.
There are, however, anomalies in the legislation that bear some reference. For example, section 105 is headed "Nullity of Civil Partnership". As well as dealing with certain aspects of nullity that apply to married couples that form part of existing statute law, section 105 sets out all the grounds on which a civil partnership can be annulled. It was in or about 1975 that the first report was published detailing the reason that we need legislation on nullity for heterosexual couples. The irony is that large parts of the nullity civil law applied by the High Court and Circuit Court to heterosexual couples is law as prescribed by the matrimonial courts of the Church of Ireland and inherited by the civil courts as part of Church of Ireland canon law all the way back to 1870.
Since the foundation of the State, this Parliament has never enacted a single statute setting out clearly to the courts the grounds on which a marriage between heterosexual couples can be annulled. Over the years those grounds have changed and varied as the Judiciary has sought in the pre-divorce era to develop them to facilitate couples to extricate themselves from relationships that were clearly a disaster from day one until more recently when the Supreme Court was perhaps trying to restrain the enthusiasm of judges in lower courts from granting annulments in the civil area. They are less sought now that divorce is available. I say to the Minister that I welcome the fact there is clarity in the Bill as to the circumstances in which a civil partnership may be declared a nullity. It is about time the Government recognised that there should be similar clarity for the vast majority of the heterosexual community who enter into civil marriages. It is extraordinary. We must be the only country in Europe which has no legislation that details clearly all of the circumstances in which a civil, heterosexual marriage can be annulled.
A particular anomaly relates to something Deputy Chris Andrews quite correctly referred to. This applies to both gay couples and to cohabitees. The Bill is entirely blind and in denial when it comes to children. There are cohabitees, both gay and heterosexual, in long-term relationships who have children, and who live in such relationships, have done for decades and will continue to do so. If they are cohabitees, following the enactment of the Bill they may qualify for various protections in the law that they can utilise. In the context of gay couples, the legislation prescribes all sorts of legal protections, extends various important statutory provisions to them and sets out the legal remedies available when the relationship breaks up. With regard to cohabitees, equally, it sets out the legal arrangements that apply and the orders the courts can make when the relationship breaks up.
There is nothing about children. The Bill does not recognise that when a relationship of cohabitees breaks up, provision may have to be made for children just as there is following the break up of a marriage. The Bill is apparently in denial that there are gay couples who have children. One may have a gay couple who has gone through a civil partnership registration and within the relationship there might be a child from a previous relationship that they both parent for many years. An issue arises about whether the non-biological parent has any obligations to that child in the same way as in a marriage a husband may be regarded as having obligations to a child fathered by someone else prior to the marriage taking place.
The Bill, in the same way as the Government and its various predecessors, is in denial about the availability of methods of assisted reproduction. We have no legislation in this House on this area. We had a major Supreme Court judgment on the matter prior to Christmas involving a heterosexual couple, but we also had a Supreme Court judgment only in December on a dispute between a gay father whose sperm was used to facilitate a party to a lesbian relationship to have a child.
I cannot understand the proposed legislation. The Government has had the wisdom to bring the legislation before the House. We have had a myriad of family law legislation that recognises that when marriages break up and when the courts are addressing the consequences of the break up, they must not only provide protection for spouses, particularly dependent spouses, but also for dependent children. Why does the legislation ignore the position of dependent children? This is not a political critique. This is simply an area that the legislation does not address, but which, as Deputy Andrews indicated, was ably and succinctly addressed by the Oireachtas Library and Research Service.
Under the heading "Parental Rights" on page 16 of its brief it states:
The Bill contains few references to children of civil partners or cohabitants, and makes no provision as to custody, guardianship, adoption or affiliation. [I presume "affiliation" means supports.] In general, Civil Partnerships are treated in terms of the partners only.
It further states:
Similarly, the provisions on dissolution do not generally require the court to consider whether proper provision has been made for any dependent children. Section 127 of the Bill sets out the general considerations to be taken into account when making maintenance or other orders on dissolution. [That is dissolution of a civil partnership.] The clearest of these is "the rights of ... any child to whom either of the civil partners have an obligation of support".
In other words, the court must have regard to that, but the court can make no support order for such child. It can only make a support order for the partner. If we take the contrast, when a decree of dissolution or divorce of a marriage is granted, the courts have an obligation to make "proper provision" under the Family Law (Divorce) Act 1996 for spouses and children. Under that legislation the courts have an obligation to make "proper provision", the same phraseology, for the gay partner who requires it, but there is silence as to children. What objection is there to recognising reality? Are we trying to pretend that gay couples whose relationships break up do not have children? We have an obligation to ensure that those children are treated equally to any other child in the State.
The committee of which I am a member has been labouring for two years on the rights of children. The Minister of State, Deputy Barry Andrews, is a member of the committee and the Minister, Deputy Dermot Ahern, has dropped in two or three times but beyond that we have not seen him. I appreciate he has a lot of other obligations. I do not mean that in a snide way but if he had been at those meetings more comprehensively he might have understood that. We intend to propose a constitutional amendment to ensure that all children are treated equally but, at the same time, we are introducing legislation in this House which is intended not to treat equally children of gay civil partnerships and cohabitees. I do not understand why. Is there a fear that there would be some public backlash because we acknowledged reality? People engage in a myriad of different relationships of various natures and children in all circumstances should be treated equally. No child should ever be discriminated against because of the circumstances of their parents or because of the nature of the status of their parents or their parents' relationship. We will come back to this on Committee Stage, I hope, and I hope the Minister will consider addressing the issue.
I wish to refer to the provisions relating to cohabitees. There is a need to provide for recognition given that, when people cohabit in relationships and the relationship breaks up, there are often issues that have to be addressed which are similar to those which have to be addressed when marriages break up. I can only describe some of what is contained in the legislation addressing this as bizarre. It will give rise to extraordinary court cases of great difficulty and will result, I believe, in the provision of minimal real protection for the people concerned.
Section 170(1) states: "a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship" - this is the definition. Section 170(3) states: "For the avoidance of doubt a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature." Let us assume that after living together for five years, the relationship breaks up and a cohabitee - we will presume it is the female cohabitee because most often that is the person who is at most economic disadvantage - goes to the courts to look for some sort of support order or property adjustment order under this provision. What will happen? The other cohabitee - the man - who does not want to make any provision, will want to ask the court to examine the minutiae of the intimacy that they engaged in. Will we have judges being asked to examine the number of occasions per week, month or year in which people engaged in sexual intercourse? Will men and women have to give explicit detail under cross-examination of the nature of their sexual interactions? Will they be put through this sort of degradation? Will we leave it to the subjective assessment of judges to determine what level of sexual interaction amounts to sufficient intimacy and at what point need it stop?
We are told in subsection (3) that sexual relations, seizing of themselves, would not exclude a person. It would have to be first established that there were some intimate relations. What if one was intimate for four years, not intimate for three years and then the relationship broke up? Does one qualify? If it was the other way around and one was intimate for two years and continued living together for four years, does one qualify? I have no idea, and neither will anyone else. The other criteria in section 170 are quite reasonable but I ask the Minister to reconsider the issue of the duration of the period people have resided together.
I have said all along that the legislation ignores children. It does a very weird thing in regard to cohabitees. One is a qualified cohabitee if one was in a relationship of cohabitation with another adult for two years and have given birth to a dependent child. However, if one has not had a child, one does not qualify unless the couple have been living together for three years. Why the difference? The fact one has a child under this legislation gives one no entitlement to claim support for the child in any case. Why introduce this? I do not understand it.
There is a decision of the High Court with regard to a couple who lived together for some years, a child was born and they broke up. Under existing law, which is defective, the mother sought adequate provision by way of a lump sum for the child. The court held that, for constitutional reasons, because the father was still married, though he and his wife had not lived together for many years, one could not provide a lump sum for the benefit of that child but one could do so for marital children in similar circumstances.
The law in this area is riddled with problems and this Bill will exacerbate it. In the context of children born outside marriage to couples who resided together, or even just generally born outside marriage, this legislation affords an opportunity to address the anomalies that have arisen as a consequence of a judgment delivered by Mr. Justice Sheehan in a recent case - I should make a declaration of interest because I appeared for one of the parties in the courts in that case. That judgment has turned the law back substantially from where we thought it was, and it needs to be addressed in this Bill.
To conclude, all of the provisions in sections 170 and 171 relating to cohabitees need very substantial rewording and consideration. All the focus on this Bill has essentially been on the provisions relating to civil partnership and gay couples but there are enormous anomalies with regard to couples cohabiting. There is a failure to provide the proper protection that is necessary when cohabiting relationships break up. For some reason, instead of ensuring that when they do break up, to use the phrase of the legislation in other areas, proper provision is made for the dependent person, there is a sort of redress scheme which ensures, and is designed to ensure, that only some assistance is given to someone who is economically dependent. That creates an anomaly. If a man and a woman live together for 30 years, most of the assets are in the man's name but the woman has been intimately involved in that man's family life and business life, and they have cohabited. If she has some degree of income of her own but the man is left with ownership of substantially more of the property, under these provisions, the woman will get nothing.
The final problem is, of course, that none of these provisions apply to anyone whose relationship under cohabitation breaks up before the Bill commences. That is a little time-bomb ticking away that could create disaster in the lives of many people. My suggestion is that this provision should be amended to ensure these provisions and amended provisions apply, in so far as there is any value in them, as and from the date of publication of the Bill rather than as and from the date of the Bill's commencement. Otherwise, we could have hundreds of individuals very badly affected by some persons extricating themselves from relationships to avoid meeting their financial obligations to others with whom they have lived for many years.
Martin Mansergh (Minister of State with special responsibility for the Arts, Department of Arts, Sport and Tourism; Minister of State with special responsibility for the Office of Public Works, Department of Finance; Tipperary South, Fianna Fail)
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This is landmark legislation, which I welcome. The Minister for Justice, Equality and Law Reform is justified in claiming it as an example of civic republicanism at work. I believe he can say this with more conviction than might have been possible in the past. As in 1993, when homosexuality was decriminalised, he has decided to go the whole way, with the obvious caveat of the status of marriage. Other than that, it is a thoroughgoing piece of legislation.
One could also say that, as in 1993, the legislation is a demonstration of the benefits of coalition Government. Undoubtedly, the decriminalisation of homosexuality was pushed up the agenda by the formation of a coalition with the Labour Party. Without detracting from the initiative and policy of my own party and Minister, the Green Party is entitled to a sense of co-ownership of this legislation. My belief is that this legislation provides the substance of equality, though the status of marriage is missing. There are two groups of critics. On one hand are those from the gay and lesbian community who complain that it does not include conferral of the status of marriage. On the other side critics say the legislation, to all intents and purposes and in substance, amounts to marriage and they oppose it for that reason.
There is common ground in our understanding of the Constitution that a constitutional referendum would be required to introduce the status of same-sex marriage. It is better to take this step now. In the successful divorce legislation of the mid-1990s, rather than the unsuccessful legislation in 1986, all the ground work had been done in the Judicial Separation and Family Law Reform Bill introduced by Deputy Shatter in the late 1980s, in which details of substance were largely dealt with. Divorce became a form of final marital separation, leaving only limited modalities to be addressed. If a decision is made by the people at some point in the future the vast majority of practical questions will have been dealt with in this legislation, such as in the areas of taxation and inheritance.
The argument was made that divorce would alter the nature of marriage as a life-long commitment. The people listened to that argument but decided, albeit by a very narrow majority, to override it. In a registry office in England recently I heard it stated that marriage under the laws of that state was between one man and one woman. This dealt not only with same-sex marriage but the issue of polygamy, which is permitted by certain religions.
A view which has some backing from the wisdom of ages is the one that marriage as we understand it today is probably the best framework for procreating and rearing children. A same-sex marriage or partnership cannot procreate children. I am aware that children of heterosexual marriages may endure appalling circumstances and that children of same-sex partnerships may have a near-ideal upbringing but I am talking about the average situation. It will ultimately be for the people to decide if the differences which exist are vital and overriding factors or whether the status of marriage should be conferred on same-sex couples. Under the 1938 Constitution such fundamental socio-moral issues have generally been reserved to the direct judgment of the people as a matter of direct democracy, as opposed to the representative democracy which deals with most other questions.
Deputy Shatter dealt with the issue of children where there is a separation involving a same-sex couple, which I am sure will be teased out on Committee Stage. In such a situation the primary responsibility of the biological parent is clear and one can imagine very few situations where responsibility for the child would be conferred on the non-biological member of the couple.
All of us on the other side of the fence will have received correspondence and e-mails opposing this legislation, in the vast majority of cases on religious grounds. There has been reference to Sodom and Gomorrah and I reread the verses this morning. The iniquity of the inhabitants of Sodom and Gomorrah is not actually closely specified. The word "sodomy" has a certain meaning but there is nothing in the Bible to specify the conduct or relationship to which it normally refers. We are living in the aftermath of the disastrous earthquake in Haiti and, notwithstanding the use of the phrase "acts of God" by insurance companies we are long past thinking of natural disasters as some form of divine retribution for wickedness or iniquity. Some non-natural disasters can be linked to bad human behaviour but that is a separate issue.
We have been reminded by a certain Northern saga in recent weeks of a passage in Leviticus but, except for such things as the Ten Commandments, we rarely assign a lasting validity to or are guided by the Mosaic law of a nomadic people of thousands of years ago. When the civil partnership legislation was published I happened to be in church the following Sunday and the verse of the lament of David for Jonathan was read out, which I would like to read into the record. The verse reads:
I am distressed for thee, my brother Jonathan; very pleasant hast thou been with me, thy love to me was wonderful, passing the love of women. How are the mighty fallen ...
If one studies the Bible closely, one will note that Jonathan was married. No specifics are given of the precise nature of the relationship between Jonathan and David but if one is to refer to the Old Testament, that passage is at least as striking as the passage on Sodom and Gomorrah. Therefore, one cannot draw any definitive conclusions. I am not aware nor have I seen quoted anywhere any statement by Christ on the subject of gay relationships. They are statements on adultery and so on. There are one or two passages from St. Paul but they are not stronger than his inveighing against fornication in general and various types of non-regular relationships. At one point he said it would be better to be celibate but if one has to, then get married.
The issue is nonetheless one on which churches have taken what can only be described as a very strong position, the Catholic position is well known. We know that the issue of homosexuality has been hugely divisive in the Anglican communion. Most of us look on in horror where Sharia law in other parts of the world leads young men, in particular, to be executed for homosexual acts.
Some proposals have been made for what would in effect amount to discrimination, namely, that offices of the State should be allowed to withhold or not participate in civil partnership ceremonies. My view is that if one takes up a public appointment, one must carry out the duties that the law prescribes and those duties will change from time to time as the law changes. We should not give sanction effectively to homophobia for conscientious reasons.
Like Deputy Flanagan, I would have some regret concerning the matter to which he referred, but I also accept the argument that perhaps this is not the appropriate context to address it. Perhaps another context should be chosen to address issues regarding the situation of siblings, they being a brother and sister who have a certain status. I refer in particular to the inheritance tax position of people who have lived together for a long time in a sibling but non-intimate relationship. There is a loose end in this respect that may need to be tidied up. When I spoke on this matter on a previous occasion, the Leas-Ceann Comhairle took grave exception to any equation of siblings with same sex partners. So be it, and I respect that argument but that area needs to be examined. The Cawley report did refer to it.
I look forward to a detailed and intensive debate on Committee Stage. This is the type of legislation for which sufficient time should be allowed. I am sure the Minister will be open to constructive suggestions for its improvement and amendment in this and in the other House. This is a very important Bill and one that will be remembered as having been passed by this Dáil.
Some 17 years ago this House decriminalized homosexuality in Ireland and today we are debating legislation to give legitimacy to those relationships in a proper civil code. This debate marks a coming of age and maturity of a modern Ireland. In essence, this Bill is a milestone, as Ireland moves from a theocracy to a democracy. It was interesting to listen to the Minister of State, Deputy Mansergh, metaphysically struggling with aspects of the Bill. I recall a time when Ministers brought legislation to Archbishop McQuaid for his approval before it was passed in this House. I would not envy the task of a Minister if he had to bring this Bill to Archbishop McQuaid and the response to it he would likely get. This legislation is a milestone and I am pleased Fianna Fáil in particular and the Green Party have brought it forward.
It should be noted that it was the Labour Party in government that decriminalised homosexuality and that it was a Private Members' Bill introduced by my Labour Party colleague, Deputy Howlin, at the start of this Dáil term, that instigated this issue coming onto the legislative programme. I remember the Minister at the time gave a commitment to bring forward legislation in response to the Labour Party's Bill in 2007.
There are many contexts, interpretations and opinions about the Bill. There is a strong opinion that it is the gay community's aspiration to have full legal equality with their heterosexual peers, as that is as it should be. That is the policy of the Labour Party, as stated in this House and affirmed at our Labour Party conference. However, the best is often the enemy of the good. The introduction of full civil marriage for the gay community would require a constitutional referendum, as has been indicated by other speakers. This is the advice of the Attorney-General and our party's legal advice. At present there is far from a majority of this House in favour of putting this issue to the people, let alone surety that such a referendum would be carried. While a criticism of this Bill might be that it is a stagist approach, I do not view that as a bad thing. Therefore, I see merit in this legislation for those members of the gay community who cannot wait for a time when these circumstances change, particularly for gay and lesbian couples who need the protection of the law now, rather than the consolation of an ideal further down the road, irrespective of whether that be a constitutional referendum on this issue.
I also see merit in the provision for a couple, one partner of whom is ill and the other who has no recognised rights as next of kin and is fearful of losing the family home or shared tenancy in the context of the legislation as it is currently structured. This Bill will provide for the rights of a survivor of a relationship to inherit the home in which the partners have lived all their lives. It will allow them to benefit on the same terms as their peers from their partner's hard work by giving them access to pension entitlements. All these are measures are to be welcomed.
Another point I welcome is the nature of the scheme set out for gay and lesbian couples. At the beginning of this debate when Senator Norris first published his Bill there was much talk of allowing non-conjugal same-sex unions, for example, two unmarried sisters who live in the same home and for other situations. This Bill makes quite clear that the parties to a civil partnership must be of the same sex and in a conjugal relationship. This is welcome because to put the committed, loving relationship of a gay or lesbian couple on a par with two siblings in terms of the standing offered to it in law was a fudge in the first instance and did not recognize the significance of those in gay relationships looking for proper legal protections in their relationships. We have yet to see tax and social welfare provisions to complement this legislation, but the Government has assured us these will reflect the principle of equality and will be introduced in the near future. We certainly hope so. It is important that these matters are ironed out when we come to Committee and Report Stages. It would be a dreadful pity if, this time next year when the Finance and Social Welfare Bills are going through the House, there are anomalies still hanging over that will mean the Bills need to be significantly redrafted. It is important that this Bill achieves its intentions and that when future Social Welfare and Finance Bills are introduced, as well as other matters relating to taxation for same-sex couples, we do not find ourselves in an ongoing redrafting process.
The Bill has comprehensively failed to deliver with regard to the children of individual parents in same-sex relationships. Deputy Shatter also mentioned this in his contribution. The Labour Party addressed this issue in its Civil Unions Bill by proposing a significant change in the law relating to children. Our legislation would have made the best interests of the child the primary criterion for the courts in family law cases; this would address a number of the points made by earlier speakers.
This Bill, however, fails the children of same-sex parents in several crucial ways. Any child of a parent party to a civil partnership will not be able to seek maintenance from the non-biological parent and will have no rights of succession if the civil partner of the child's biological parent dies. The non-biological parent, moreover, cannot seek guardianship or custody of the child during the lifetime of the biological parent. Bizarrely, civil partners will not be able to be considered for joint adoption of a child, although this is rendered nonsense by the fact that either civil partner, regardless of sexuality, may apply to adopt individually under current law. Thus, it makes no sense that an arrangement in which the stability of a couple relationship is offered to an adopted child is prohibited. This will also require significant and detailed examination on Committee and Report Stages.
I refer to the redress scheme for cohabitants. Although the issue of civil partnership has been the subject of much of the public debate on the Bill, the second part - namely, that dealing with cohabitants - will probably affect many more people, irrespective of sexuality. The scheme is a long-overdue update to Irish family law which was recommended by the Law Reform Commission several years ago. There will be a significant change whereby two people who are in a relationship and have been living together for three years, or two years where a child has resulted from the relationship, will automatically be termed qualified cohabitants. As a result, they will be conferred with a number of rights and duties.
This scheme will provide legal protections to a large portion of the population. The most recent available data note that there are 120,000 people in cohabiting relationships, a third of whom have children. The arrangement will offer particular protection to a group that is currently very vulnerable: stay-at-home unmarried partners, who are currently in a complete legal limbo. Part 15 of the Bill also allows qualified cohabitants to seek various remedies, such as maintenance, property and pension adjustment orders, provided certain conditions are met. A qualified cohabitant may also claim provision from the estate of his or her deceased cohabitant, subject to stated conditions.
One weakness of the Bill that the Minister might be willing to address is with regard to the rights of civil partners of whom one has become a qualified cohabitant since the civil union was formed. Dr. Fergus Ryan pointed out an anomaly in the legislation, which is that a property adjustment order or pension adjustment order in favour of a qualified cohabitant cannot be made in such a way as to affect the rights of a spouse or former spouse. Similarly, an order for provision from the estate of a deceased qualified cohabitant cannot affect the legal right of a surviving spouse. However, no such safeguards apply where a qualified cohabitant is or was a civil partner. In effect, the court can make an order in favour of the qualified cohabitant even if these orders affect the entitlements of a civil partner. I ask the Minister to indicate in his closing comments whether he would be willing to consider an amendment to correct this on Committee Stage.
The purpose of the Bill is to introduce equality into Irish society. However, this cannot be a type of equality that is separated into components or is based on only one Act. I listened to the Minister of State, Deputy Mansergh, talk about this earlier. A concern is beginning to surface whose motivation and intent I would question. I refer to the commentary on the possibility of adding a conscience clause to the Bill with regard to civil registrars who object to presiding over civil partnership registrations due to their religious or other convictions. It has been suggested that an opt-out clause be inserted for civil servants and others who are obliged to perform public duties in accordance with the law. To my mind, either the legislation guarantees equality or it does not. Whether a person is a member of a local authority or the HSE or is working for the State in a registrar's office, the law which will apply as a result of the passage of this Bill compels that person to carry out his or her duties. There should be no opt-out clause. If a person is a public servant, he or she has functions to perform. There is a separation between theocracy and democracy, and a civil partnership registration is a secular event, not a religious one. It should be well within the functions of registrars to perform this as a secular service.
The purpose of this Bill is to ensure that those who wish to have the responsibility of a civil union are provided with the right to do so. The success of the civil partnership Bill will be measured by how it resolves issues of property, inheritance and entitlement; how it gives recognition and a sense of place to those who are currently disenfranchised; and, ultimately, how we as society define ourselves and the type of Ireland in which we wish to live.
I and other speakers made mention of the phrase "gay community". Who are the gay community? They are family members, relatives, work colleagues, colleagues in the House, and members of our society who should have the same legal entitlements as any other member. When this issue was being debated previously in the House, in the form of a Labour Party Private Members' Bill, my children asked me when I returned from the Dáil at the end of the week what I had done in work. When I explained to them that we had been debating the Civil Unions Bill, their response was that surely such legislation was in place already. Irish society has moved on; the children of Ireland have moved on. This House is playing catch-up with the type of modern society in which most Irish people now live.
It is natural and necessary that people form unions with each other. This Bill recognizes the rights and responsibilities that must be established to cater for those relationships that are currently outside the existing legislative framework. People in relationships wish for, and are entitled to, the legal security that can be granted by the State. Nobody should be deprived of that right because of his or her sexuality.
I listened to the contributions of previous speakers and I wish to refer to the points made by Deputy Shatter regarding what he rightly pointed out should be improvements to this legislation, with particular reference to the rights of children. In statistics supplied by the Central Statistics Office, I came across a startling fact on the increase in the number of cohabiting couples in the ten-year period between 1996 and 2006. In 1996, there were 34,300 cohabiting couples with 23,000 children, while ten years later the corresponding figures were 121,800 and 74,500, respectively. During that same period between 1996 and 2006, the number of cohabiting same-sex couples increased from 150 to 2,090.
The previous speaker commented that society is changing and it surely has changed. For many people in our society, for religious reasons in particular, many such changes have been difficult to accept. In the 29 years since I first was elected to this House, I have been through the entire gamut of changes, ranging from contraception to divorce and to the famous referendum on so-called abortion. It is flippant to state that this caused a great deal of unrest in society because it caused huge problems. I saw Members of this House grappling with their conscience in respect of many of these issues, particularly during my period as Government Chief Whip from 1982. I have always stated that in so far as is humanly possible, when introducing such legislation one should always try to respect the views of all members of society. People genuinely hold views that differ from those I might hold, possibly on religious grounds or whatever, and I try at all times to accept this to be a fact.
Nevertheless, our society has changed greatly on foot of our membership of the European Union with 26 other member states. As for different religions, the population now includes people who adhere to all types of religions and in some cases to none. Members' role as legislators is to make certain that civil rights exist and that they are protected. It is to face reality in order that in circumstances in which someone dies or there is a break-up, society can deal with the division of the spoils in respect of homes, properties, pensions or whatever. Members are now moving to deal with the fact that the number of cohabiting couples, both same-sex and heterosexual, has increased greatly. This legislation constitutes a genuine attempt to deal with this. While I will support the Bill, it is important for the Government to be open to changes. Those who are listening on the Minister's behalf should accept good ideas introduced on Committee Stage and the Government should be open to changes, particularly those that would be beneficial to children in such relationships.
I wish to deal with one aspect of this legislation on which I am sure many Members have received the same correspondence as have I. It pertains to the concept of penalties imposed if someone does not agree to the civil partnership arrangements on genuine grounds of conscience. Section 23 deals with this issue and provides that a registrar who, without reasonable cause, fails or refuses to issue a civil partnership form shall, on summary conviction, be liable to a fine of up to €2,000 or imprisonment of up to six months. While I do not believe this will ever happen, it can cause a great deal of unnecessary upset. I do not believe that someone who has a genuine religious difficulty with his or her conscience should be imprisoned for six months and to do so would be ridiculous in this day and age. Moreover, as I noted, this will never happen. I have heard arguments to the effect that unless such a provision was included, people in hotels would refuse to rent out a room or that people would refuse to serve meals. However, this is a ridiculous argument because at present gay couples stay in hotels and have meals like anyone else and are entitled to so do. I have never come across an instance of anyone being refused. Consequently, putting up such arguments is ridiculous. Although I am certain this issue will never arise, but why create the problem?
I note that in Britain, the former Lord Chancellor, Lord Mackay, introduced an amendment in the House of Lords to deal with this issue there, the wording of which has been forwarded to me. I suggest that the Minister should consider this matter and ascertain whether it is possible to make a provision in cases in which there are genuine conscientious objections, in order that this matter can be dealt with. As the amendment was introduced to the House of Lords by Lord Mackay, a former Lord Chancellor, it is easily obtainable. My point is that it should be considered.
I do not stand over any form of discrimination against anyone on grounds of religion, colour or sex matters.
No. However, our equal status legislation rightly bans discrimination and creates an offence of discrimination. Therefore, someone who wishes to discriminate can be dealt with under existing legislation. People should be educated into believing that one should not interfere with the religious rights of others, which are their own business. The job of Members is to deal with human situations in which circumstances such as a break-up, death or whatever dictate that people's property rights should be protected. This also is the purpose of this Bill, particularly in respect of cohabiting couples and in particular to the rights of the children. Were we to educate society into thinking like this rather than always thinking of such matters in religious terms, we would have a far better society. Sticking people into jail for six months will only make martyrs out of them and I do not discern a necessity for such a legislative provision. As I noted, legislation already exists to deal with any form of legislation and the Equal Status Act can be used to deal with that issue at any time. However, it would be worthwhile to try to understand other people's points of view and to relieve them of any difficulties they may have with regard to their own conscience.
I welcome the fact that this legislation deals with same-sex relationships. People are living together perfectly happily, which is their business. Members' business as politicians is to ensure that if something happens, such as a break-up or a death of one of the parties, there is protection for the other partner. This is what this legislation endeavours to do. Unfortunately, cohabiting couples do not have rights currently and if one of the partners dies, particularly the income earner, this can result in a horrific scenario for the surviving partners and children. There is no such thing as common law marriage and, therefore, there are no legal rights. The Bill endeavours to deal with this issue and not before time because I have dealt with too many cases where surviving partners and their children have suffered greatly.
There is cross-party support for the legislation but on Committee Stage if we can deal with people's fear in a rational and reasonable way while, at the same time, making sure we do not encourage any form of discrimination, we should do so. Amendments may be tabled to strengthen the rights of children. In 2006, cohabiting couples had 74,500 children. That is a significant number and it is probably nearer 100,000 today. They are human beings and their rights must be protected at all costs. I wish the legislation well and I hope people understand our job, as legislators, is to protect people's rights regarding property and so on.
During the divorce referendum debate I was confronted by a priest outside a church who said I should have been ashamed of myself because I supported divorce. I asked him what problems he had with divorce. He said, "It is contrary to the teachings of the church". I put the following simple question to him: "If I arrived to your church with my partner and said I wanted to get married and you arranged and performed the religious ceremony and then invited me to sign the register, which is the civil part of the marriage and I said, "No, Father, I am not interested", would I be married?". He said I would be married in the eyes of God. I asked him whether I would be married in the eyes of the State and he said I would not. I explained to him that all we were doing was allowing the civil aspect of marriage to cease under certain conditions. We were not interfering with the religious marriage, as it was up to each individual to decide whether he or she should remarry following a divorce. I said that was his business and that our business was to deal with the civil aspect of marriage.
The same argument applies in principle to this legislation. The rights and wrongs of cohabiting couples, whether they are gay or heterosexual, is a matter for each individual. Our duty is to ensure where there is a break up, death and so on, safeguards are in place, particularly where children are affected. If that message can be understood by people who are concerned about this legislation on religious grounds, we will have done a good job. However, in Great Britain, an amendment proposed by Lord Mackay provides that where somebody has a genuine conscientious objection, they should not be put in prison. Plenty of others can perform what has to be performed and a big issue should not be made of this because all it will do is divide society. I ask that we discuss the possibility of adopting a similar amendment on Committee Stage.
I am glad to have the opportunity to contribute to the debate. For too long people have been in same sex and cohabiting relationships without enjoying the same protections under the law as married couples. This derives from a failure of the Government to recognise the legitimacy of their relationships and the changing attitude in modern society in this regard. This has led to inequities in the way same sex couples and thousands of unmarried and cohabiting heterosexual couples have been treated by the State, including partners being unable to visit loved ones in hospitals on occasion, problems with inheritance and property rights and issues under the tax and social welfare codes. Many other problems are faced by such couples for which the State has not made adequate legal provision to date.
My party and I believe equality and civil liberty are cornerstones of republicanism and they are among the most important ideals we, as legislators, must uphold in this society. With this in mind, I welcome the change in attitude of the Government reflected in this legislation but the Bill stills falls short of being a comprehensive solution to the problems faced by same sex and cohabiting couples. Legal eagles suggest traditional civil marriages have the protection of the Constitution, which is not afforded to the types of relationships being recognised in the Bill. The legal protections I seek to be included in the legislation will, therefore, not be guaranteed under the Constitution. I do not agree with the legal experts because I have read the Constitution on a number of occasions recently and it makes no reference to "husband and wife". It refers to "spouses" regarding the dissolution of a marriage and to the importance of the woman in the home. That is discriminatory language, which needs to be amended.
There is no reason we cannot legislate for civil marriage for all couples. The 1916 Proclamation, which was supposedly the guiding document for the Constitution, calls on us to cherish all the children of the nation equally and that is often quoted. The spirit, theory and practice of republicanism should be to promote equality and, in that spirit, this issue needs to be revisited properly and constitutional protection needs to be afforded to the reforms I seek. These reforms should be included in this Bill or another Bill dealing with proper civil marriage for all. A constitutional referendum should be held to deal with discriminatory language, which implies the woman's place is in the home. A committee of the House has dealt with the need to insert defined children's rights in the Constitution and that would be appropriate in the context of this legislation.
The Bill falls short regarding social welfare entitlements, inheritance rights, child maintenance and adoption and I will return to these issues later. I am sure many Members, like myself, have received a great deal of correspondence in recent weeks and months from concerned constituents regarding the legislation. Some were concerned that it has not delivered the full and proper recognition of civil partnership that they were promised and some were concerned that it does not give full rights to marriage. Civil partnership recognition in the Bill does not go far enough and does not adequately give the protection required. There is inequality between the protections and rights given for marriage as it exists at present to those who will be in civil partnership unions.
Many people are also worried about the effect this legislation will have on the institution of marriage and the traditional family unit. We received many queries from members of the clergy, religious orders and lay people from various denominations expressing concern that the Bill may interfere with their moral obligations or religious practices. Sinn Féin recognises that the maintenance of a strong and stable family unit is and always will be an essential component in raising the youth of our nation and in turn assuring the prosperity of our country in the future. We also acknowledge that religious organisations have the right to hold particular views on the definition of marriage and what constitutes a legitimate relationship as long as this does not infringe on the public good. The definitions of State marriage and religious marriage are different; they involve different duties and responsibilities and this needs to be recognised.
I am assured that while the provisions of the Bill do not go far enough, they do not interfere in any way with the traditional forms of marriage and family. The Bill expressly states that its aim is not to change the definition of marriage as protected in the Constitution. I regret that because there is a need for a proper definition and clarity on exactly what is a family. This needs to be contained in either legislation or the Constitution. Is the unit of an abusive father who beats his wife more deserving of constitutional protection than a loving same-sex couple with children or a single parent raising a number of children? The Constitution should protect all equally but in particular it needs to define children's rights so they have primary consideration and protections.
As I stated earlier, the Constitution does not mention husband and wife; it only mentions a mother with regard to her place within the home and spouses in the case of dissolution of marriage. A broader definition should be allowed to be legislated for through a constitutional amendment. Far from having a negative effect on traditional families in Ireland, I believe the Bill will have a positive effect on families that have previously not been fully protected under Irish law. This Bill will go some way towards belatedly filling a hole in Irish family law and can only be positive to society as a whole. I cannot see how full civil marriage for same-sex couples is contrary to the constitution and I will return to this point.
In much the same way as it would be a dereliction of duty for parents not to care for and nurture their children, or for a religious organisation not to advocate its beliefs and care for the moral needs of its congregation, it would be a dereliction of duty on our part as legislators not to embrace the concept of equality for all and acknowledge the realities of modern society and provide appropriate legal protections for all citizens. It is the Government's role to ensure that all people are protected under the law.
Co-habitant couples are the fastest growing form of family unit in Ireland. Earlier, I heard somebody mention the significant jump in the number of those living in such relationships as reflected in the recent census. It is also just and right that our society no longer sees same-sex relationships as a crime, but rather as a legitimate way of life. When it comes to the family unit, however, legislation has once again fallen behind social reform. It is our duty to redress this situation, and the Bill goes some way towards this although not far enough.
If there is a threat to the traditional family unit, it does not come from progressive legislation of this kind but from the harsh policies of the Green Party and Fianna Fáil Government. Negative equity, huge mortgage repayments related to the property boom, the unfair tax burden on lower-income families, the over-reliance on two incomes to make ends meet, cuts to benefit payments, increases in the cost of medical care, prescriptions and child care, high unemployment and the slow but sure erosion of fair conditions and hours of work all contribute to a threat to the family unit as traditionally perceived. These are what are putting an enormous strain on people trying to maintain relationships and create a stable family environment in which to raise their children. Sinn Féin has been outspoken in our opposition to policies that we believe are detrimental to the economic and social wellbeing of families and communities. We believe it is by helping families cope with the realities of these tough economic times that we can best ensure that they stay together and prosper.
People have also expressed concern that there may be legal or employment issues emanating from a refusal to provide services based on moral objections to the new types of relationships suggested in the Bill. Our answer to this concern is simple: discrimination law should apply in these cases. In the same way as it is illegal for people to discriminate against clients based on race or religion, it would also be illegal for people to discriminate against clients based on sexual orientation or family type. It is the responsibility of all people, particularly those performing a public function, to provide a satisfactory service to their clients or to ensure that another party is brought in to provide that service to a satisfactory standard. The onus is on them to provide the service if they are public servants.
Another issue many people raised was that the Bill fails to address non-intimate relationships, for example, those of a carer or two siblings living together. While I recognise these may be covered by other legislation, it would be helpful to conduct a review to ascertain whether they receive fair and equitable treatment under the law and whether there is a need for amendments that could be tabled on Committee Stage.
I stated that I would return to the shortfalls of the Bill. Prior to Christmas, I attended a protest outside the House organised by MarriagEquality. I was surprised to hear about the number of rights which will still not be enjoyed by couples after the Civil Partnership Bill has passed. There will be a difference between the rights of those who are married under the current law and those who will be in civil partnerships. More than 220 rights will not transfer equally to those involved in civil partnerships. There is no equity. If a married person leaves a will, his or her surviving partner will receive at least one third of the inheritance regardless of what is in the will. However, in the case of civil partners, children can apply to the courts to have that share reduced. The same applies if a person does not leave a will; children can apply to reduce the amount to which a surviving partner is entitled. A civil partner in the same situation must apply for each order separately.
In respect of registering a partnership, all couples need to give three months' notice before marrying or obtaining a civil partnership. One can apply for an exemption to this rule, for example if the person is terminally ill. The conditions on these exemptions are different for marrying couples and civil partners. There are also differences in providing free and informed consent. There are differences when relationships end and people split up. There are differences in issues in the home, providing for children and the dissolution of partnerships and marriages.
A foreign same-sex marriage is not treated in the same way as a civil marriage here, nor are foreign same-sex divorces and dissolutions. There are also equality issues for transgender people. There is also a range of inequalities in the tax and social welfare code. One of the ways to deal with these issues is to allow same-sex couples marry in a civil ceremony, where all rights are equal across the board. Another way is to change the legal definition as to what constitutes a family, and to change the Constitution to allow for legislation in that area. We could change the Interpretation Act 2005 for tax and social welfare purposes to ensure it clarifies marriage as including civil partnerships. The term "child" could be altered to include the child of a civil partner.
As Members of this House, we will try to tease these issues out with the Minister to ensure that the Bill is the best possible. I am realistic enough to understand that this Government will not go as far as I would like to see it go on civil partnership. However, there are anomalies that are not addressed and which need to be tightened up to ensure that the Bill will progress. Even though the Bill does not go far enough, I will not oppose it. I am disappointed that we are not dealing with a civil marriages Bill that gives full rights to same sex marriages, but an inadequate Civil Partnership Bill 2009. I will not oppose it, but I will try my best to attend on Committee Stage. As I am not a member of the committee, I cannot put amendments down in my name. I can raise them and deal with them on Report Stage, but this hampers Members in trying to deal with Bills in a positive way and play as full a role as possible.
This Bill is a step forward. We have gone a long way and I recognise that. I commend the Government for having taken this step, but I regret that it did not go the whole way. We will be back here again much sooner than people think. The Bill will throw up other anomalies, which when challenged in court, will lead us to dealing with this issue. We should look at our EU partners that have the same traditional associations with Christian churches that have taken the full step, and this has not affected those countries. The social fabric of Spain and Portugal has not collapsed and the naysayers should look at that. This is a positive Bill, but it does not go far enough.
I am very pleased to contribute to this debate and I congratulate the Government on bringing this Bill forward. I know that some speakers do not feel it goes far enough, but it is useful to remind ourselves from whence we have come. It is well within living memory when homosexuality was a crime in this country. Before that, it was even considered to be an illness. Awareness and enlightenment has slowly come, but it has come nonetheless. This is not about a liberal agenda, but about a human right. The same rights afforded to heterosexual couples should be afforded to same sex couples.
I feel very strongly about this because we have seen some tragedies. I have seen them in my own community, where people have fallen ill and their partners have not been afforded visiting rights to the hospital. This is deeply upsetting for both the patient and his or her partner.
This is a welcome move by the Government and the Bill enshrines in law rights that should be available to everybody in our country. Couples who are together for years are treated differently by the tax man. They do not have security of the home they have built together, which is deeply disturbing. Therefore, the Bill is welcome as it will end this injustice. If a partner dies prematurely and his or her wish to be a donor is not expressed in writing, the surviving partner is not able to express the opinion of his or her loved one and this is another wrong. The wrongs are myriad and this Bill seeks to address that, which is very welcome.
It has been pointed out that the issue of children and their rights may not be fully covered in this Bill, which is something that should examined on Committee Stage. Deputy Flanagan referred to the case of a same sex couple where the mother died and the remaining partner did not have any rights over the child, and that was extremely upsetting for all concerned. There are always two sides to the people involved. There is security for the surviving partner in terms of property rights and the ability to continue to nurture a child, while there is a peace of mind for the person who is passing on, as that person knows that his or partner cares for the child as much as he or she does and will be there to continue on, without being obstructed by the law.
The Bill is not clear on co-habiting non-conjugal couples. I am talking here about siblings living together for many years, which is not an uncommon situation in Ireland. These people should be included in this Bill for the purposes of treatment under the tax laws.
The main thrust of the Bill is to right a wrong that we have allowed happen to people who are in same sex relationships. I am pleased to take part in this debate and delighted that, at long last, we will have true equality for same sex couples. Outstanding issues in the area of same sex marriage and civil unions can be addressed at a later date. This legislation is progress and all progress is welcome, although it often comes incrementally and not quick enough for those who seek it. Nevertheless, progress has come. I hope all sides will support the Bill.
I listened with interest to my colleague, Deputy Reilly, state that change has come. It has been my experience in this republic and Chamber that change does not come but is driven by the passion and energy of citizens who want to be free. It is dragged through against the resistance of conservatives who believe that anything other than the order they have inherited cannot stand because any change would lead to the entire edifice falling down around their feet. This change has not come, nor has it matured or found its place in the sun because today is different from yesterday. What is different today is that a reluctant, so-called republican Government, which more properly earns the title of "publicans' Government", has been forced to bow to the inevitable but it has not bowed far enough.
This is a fundamentally bad Bill. While it introduces some necessary changes, these changes could have been introduced many years ago. I recall, as an Opposition spokesperson for finance in 1991 and 1992, making proposals in this Chamber to at least harmonise the tax code for the non-conjugal couples to whom Deputy Reilly referred and the cohabiting couples to whom Deputy Ó Snodaigh referred. I was told on the floor of the House and in friendly off-the-record exchanges with officials and the Minister for Finance that the tax code does not anticipate social change. This was an unwritten law within the Department of Finance. While this is not an unreasonable observation given that it is not the duty of the Department or a Finance Bill to anticipate or promote change, the Department has an obligation to reflect change.
This State is six years away from the centenary of the declaration of the republic in 1916. While we have come a long way in terms of time, we have an awful long journey to travel if we are to make the republic a reality. In any republic, on any continent of the globe the fundamental principle is that all citizens are free and equal before the law. If and when this legislation is enacted, whether in the current or an amended form, we will not be able to say we have a republic in 2010 because all citizens will not be free and equal before the law. There will be those of us who are free citizens and happen to enjoy the status of being married, those of us who are free and able to enjoy the status of having a civil partner, those of us who are able to have children naturally, with medical assistance or by adoption and those of us in loving relationships who will not have that right. This is not republican legislation. It does not deliver and does not go far enough.
The Labour Party has been to the fore in promoting liberation in this area and other areas. In the time remaining to me, I will address those who express a concern that we have a secular agenda. In the words of various commentators in the media, my party is anti-religious, has no respect for the belief systems of other citizens in this republic and wants to drive some form of secularisation of the State to the point at which religion would have no place. None of this is true. The place in the western world where religion flourishes most is the United States, a republic where there is a complete and absolute separation between church and state. The places where the church languishes either in irrelevance, dispute or abandonment are the countries in which it used to dominate, namely, Italy, Spain, Portugal and even Poland.
I need not mention where we, in this island, are today. Next month we will have the spectacle of the Irish bishops, who have been summoned to another country by the head of another state who happens to be the head of their religion, answering for their behaviour in this country. We do not know what will be the outcome of this development. There was, however, a time when these same officeholders would have told this assembly what to legislate for and how to legislate and that we could not trespass beyond the boundaries they had set for us. That day has gone and will not return in my lifetime and, I hope, the lifetime of my grandchildren. They will, I hope, be republican citizens who will be free to choose to believe and practise whatever they want and, when summoned before a court, will be equal in the eyes of the republican Constitution, both as believers and non-believers.
Let me say this on the issue of belief. Everybody is a believer. There is no such thing as a non-believer, just as there is no such thing as a non-national, non-Catholic or non-person. There are citizens who believe different things. Some people believe in God, while others believe in atheism, humanism or agnosticism. We all believe and need the protection and security of a republican state and its constitution to give equality in terms of the rights of belief and to behave in a manner informed by our conscience. We need the laws and courts of the land and the enforcers of those laws to ensure that the manner in which we behave and act out our beliefs does not impinge on the liberties, rights and beliefs of our neighbours.
Attempts to argue there are those among us who have a destructive, secular agenda are the sting of a dying wasp. This claim is not true. We have a liberating republican agenda which seeks to complete the task commenced 94 years ago in this city on this island when the republic was proclaimed. The ringing poetry of the Proclamation is not echoed in the words of our Constitution which does not treat all the children of the nation equally and, as a consequence, does not treat all citizens of the nation equally. Some day the words of the Proclamation will come true. Members of this House will make them law but we will not do so today or for as long as a Bill of this temerity, timidity and inadequacy is put before us by a Government which claims to be the republican party when its better boast is to be the publicans' party.
It is necessary in this discourse to recognise that what cannot be achieved today should not get in the way of making as much progress as possible or serve as an excuse for doing nothing. What cannot be achieved today cannot be used as an excuse for not remembering that while we only be able to do some business because of the conservative majority on the Government side, the majority will have the full and final word on how far this assembly can go.
There is a wonderful inscription on the base of the Parnell Monument at the top of O'Connell Street, a beautiful piece of sculpture, architecture and design. Among the many phrases Parnell uttered to the greatest imperial power at that time were the immortal words:
[N]o man has the right to set limits to the match of our nation. No man has the right to say [...] "Thus far shall thou go and no further"
We will go as far as the Constitution allows us to go, but that is not the end destination. Until such time as we arrive, this will not be the Republic signed up to in the Proclamation of 1916. That task remains to be done.