Wednesday, 27 January 2010
Civil Partnership Bill 2009: Second Stage (Resumed)
I wish to focus on the part of the Bill which relates to unmarried or unrelated cohabitants, whether they be of the same sex or the opposite sex. This relates to people who are in intimate and committed relationships and it provides rights in respect of succession, and so on. Qualified cohabitants who have lived together for three years, or two years if they have a child, will have extra financial rights if the relationship ends or if a partner dies. This provision will impact on a much greater number of people than did the civil partnership scheme.
According to census date, there were 120,000 cohabiting couples in the State in 2006 and one third of these had dependent children. I am sure this number has increased significantly in the interim. I wish to focus on this part of the Bill because it has not received a great deal of attention. There are people who have been residing together for two years or more who are not aware of the legal obligations placed on them. An article by Carol Coulter in today's edition of The Irish Times outlines a possible scenario in respect of a couple moving in together at 19 years of age and breaking up a few years later. Ms Coulter refers to the female in the relationship contributing a great deal and the male being unaware of his legal obligations. In that context, there are those who do not realise that they may have significant legal and financial obligations at quite a young age. This is an important change as it will give rights to certain individuals.
However, there is an obligation on us all to send the message that the situation has changed and could change for many people. The point has been made that this is such a significant step that it should be in separate legislation. None the less it is in the Bill now and I am sure the Committee Stage debate will expand on this matter further. It is extremely important and must be highlighted. If the couple is aware of the potential scenario they have the option to prepare a written agreement - prenuptial would be the wrong word. Nevertheless it is an important step and should be flagged as it could have implications for many relationships, notwithstanding the merits of the proposal.
I welcome the civil partnership registration scheme. It is an important statement for this country and signifies where we are at present. Much has been said about the difficulty for gay and lesbian people living here given the social stigma that can be attached. The statement that the introduction of the Bill makes will help to overcome the difficulties gay and lesbian people face. A survey by the Gay and Lesbian Equality Network, GLEN, found that one in four homosexuals has been punched, kicked or beaten in violent homophobic attacks. Almost one-fifth have tried to take their own lives, with many saying this was related to their sexual identity. Some 58% of respondents said there was homophobic bullying at school which is very serious given that it is among young people. Perhaps many young people are not aware of the implications of the bullying nature of their carry-on or the language they use. It can have serious detrimental effects on the recipient of the bullying.
The survey found that more than half said they had been called abusive names and a quarter said they had been physically threatened by other students. More than one third said they had heard homophobic comments by teachers, while 8% said they had been called names by them. Those are extremely worrying statistics as we depend on teachers and other adults in a position of responsibility to respect equally all those for whom they have responsibility. If such a statement is true - I have no doubt it is - it is a very serious situation. One third of respondents said they self-harmed over the stress of concealing their sexual orientation during their teenage years. Some 80% of those surveyed said they had been verbally insulted, while 40% had been threatened with physical violence.
That is the reality for many people and the theme of young people runs through those statistics. I hope that the legislation going through the House will help to bridge the gap and help people to understand that people being gay or lesbian is a natural phenomenon, and that the State recognises their existence and confers legal rights and obligations on them. I hope it will represent a step forward because it is a very serious situation. People have come to my clinic seeking to move house because they have been subject to bulling owing to their sexual orientation, which is unacceptable. However, I compliment the housing officer in the city council who was very receptive and sympathetic, which helped the individual in the case. The statistics highlight how difficult it can be for people to come out if that is the kind of society in which we all live.
Like others I voice my concern about the children of a couple in a civil partnership. The legislation is silent on the position of such children. For instance the Family Home Protection Act will not apply to children of a couple in a civil partnership. If a home is being divided the needs and rights of the children will not be taken into account. In the event of a dissolution of the partnership, it can proceed without regard to the child or children, whereas in the case of a married couple a divorce can only be granted if the children of that relationship are provided for. The Bill does not provide that a court be obliged to have regard to the care of the children when granting dissolution. The cost of caring for the children or the time and involvement that one or other parent may have given over the years of the partnership towards nurturing and rearing the children is not considered, whereas in a divorce it would be taken into account. If the partnership were dissolved, the children could be financially disadvantaged and the Bill makes no provision in that regard. Based on what we have heard in the Chamber today, the situation of children will command considerable attention during Committee Stage.
I do not know much about the children of same-sex partnerships. While I have read considerable negative comment about children of same-sex partnerships, from my experience and what I understand, children need security and a loving environment and it does not matter who provides it. It can be a single parent, two parents of the same sex or two parents of opposite sex. The most important thing is for children to have security, know who is picking them up from school, know where they are sleeping at night and be loved. Children will survive and thrive provided those circumstances are in place.
I believe it was mentioned earlier that some 2,000 children are looked after by people in same-sex partnerships. There may be a biological parent in that partnership, including possibly as a result of sperm donation. However, there are many such children and their situation needs to be recognised and the law needs to protect them at all costs. Many organisations have commented that provision for children is not addressed in the Bill, which will cause problems at some stage if not rectified. A child looked after by people in a civil partnership could be seriously disadvantaged should the partnership dissolve or should one of the parents pass away, which would give rise to a legal limbo. Now is the time to recognise the situation and make provision to rectify it. 4 o'clock
Provision for non-conjugal couples is omitted from the Bill. I had done some reading over the years which led me to expect that under such a Bill, brother and sister or perhaps an uncle and nephew living together or whatever would be recognised in this part of the Bill in terms of succession rights, taxation, next-of-kin rights and so on. Those are very important and I had expected them to be included in this Bill. I am surprised that they are not.
I know of many individuals living together. My maternal grandfather was one of 12, eight of whom did not marry. Four of them lived near us, two brothers and two sisters in the one house. The situation was similar on my father's side of the family, and I believe such situations were quite common. These people are elderly now, but it is not unusual for brothers and sisters to live together. I am surprised that provision is not being made for them in this Bill.
On the whole I welcome the Bill. It is an important step forward, we have many questions about it and I am sure they will be thrashed out on Committee Stage. I notice that taxation and social welfare rights will apply to the partners in a civil partnership. That is very welcome and has been described as being similar to the rights available to spouses. It is important that this be extended to the provisions of the Finance Bill and the Social Welfare Bill.
This is an important step forward. It is complex legislation, given the implications it will have for other legislation. It will be a slow and significant process as we tease matters out on Committee Stage. I look forward to the Minister's comments, in the event, on the various points that have been raised in this debate.
I am pleased to have the opportunity to speak on the Civil Partnership Bill 2009, and want to compliment the Minister on introducing it. While we may crib about the detail, it is a very substantial step in the right direction.
The Bill's proposals have been in gestation, one way or another, over the past ten years, with various reports, documents and debates. My colleague, Deputy Brendan Howlin, in 2006 produced the Civil Union Bill, which was something of a catalyst in getting the ball rolling and in terms of putting pressure on the Government to act on the various discussions that had taken place. The purpose of Deputy Howlin's Bill was to give legal recognition to the relationship that exists between two people of the same sex, and allow an equivalent status relationship for those people as well as recognising and approximating, as closely as possible, the rules of law that exist for marriage. Under the Constitution, of course, the marriage of same-sex couples is not allowed and to change that would require a referendum.
That was the thrust of that particular Bill, and this legislation covers some of the same ground, as well as some different aspects as well. It provides for a statutory registration scheme for the civil partnership of same-sex couples and a range of rights obligations and protections consequential on such registration. It also provides for a redress scheme for same-sex couples and opposite-sex couples in cohabitation but not in a marriage arrangement or not registered in a civil partnership.
It does not cover an area dealt with in Deputy Howlin's Bill, namely, adoption, which is a pity. More than anything else, as has been referred to, it does not deal with children in either the same-sex relationship category, where they can be involved as result of particular family relationships, or as regards cohabiting couples, where very large numbers of children are involved. That children are not part and parcel of the legislation, as drafted, is a conspicuous oversight, but I am sure the Minister will be open to amendments in this regard.
The original proposals that sparked off the legislation in terms of same-sex gay and lesbian citizens derive from a straightforward and basic principle, namely, that all citizens in this country are equal, and gay and lesbian citizens are no different. They are entitled, therefore, that the State will provide the same basic rights to them as to all other citizens. It is our duty, then, as legislators to make provision through the legislation introduced in the DÃ¡il and Seanad to address the issues whereby inequalities arise in the treatment of gay and lesbian citizens. We have a duty to address the constitutional bar on the marriage of same-sex couples, with the consequent denial of a host of rights, privileges and benefits, on the one hand, and a host of obligations, penalties and sanctions, on the other.
The status relationship conferred by the Civil Partnership 2009 Bill provides an avenue for progress, approximating to some degree the rights of gay and lesbian couples within the Constitution, but of course this does not extend to full rights for such couples.
The situation that pertains means that while a considerable degree of equality is being given, we are not giving full equality. Nonetheless, I believe we should recognise that this Bill is a milestone on the road to our desired destination. It seems the next step is to consider the issue of full equality and how this may be achieved. This is something that merits some level of discussion in the context of the Bill before the House.
Ireland, as many people have said in this Chamber, has changed considerably over the years, but still has a long way to go to become a fully fledged pluralist and egalitarian society, despite the principles that exist in that respect. The 1916 Proclamation was a ringing endorsement of that, full of idealism, declaring a Republic and stating categorically that all the country's citizens would be treated equally and cherished as such. That particular Proclamation is, perhaps, the anchor we might start with. It was followed by the Democratic Programme of the First DÃ¡il in 1919, which built on the ideals and principles enshrined therein. We are now only six years away from the centenary of the Proclamation and we might usefully examine a checklist as regards how the ideals of the Republic declared on that occasion have been dealt with. The commemoration of the centenary of 1916 might be usefully looked at in terms of rights, principles, values, the way in which our culture has gone and the degree to which Ireland has become a pluralist society with every category of citizen being facilitated in the enjoyment of his or her rights. As regards that checklist, we must see what needs to be done within the next six years to ensure those legal and constitutional rights are fully granted. Some interesting issues might come to light when we make a thorough assessment of the situation.
After 1916, the character and culture of the country was blighted by the bitterness of the civil war, the economic gloom visited on the country for many decades and - probably more than anything else - by a powerful and triumphant church that came into existence simultaneously with the new State. As a result of all that, the ideals that were proclaimed in 1916 were often lost sight of. We can see the situation that has arisen now with the Ferns, Ryan and Murphy reports. Instead of cherishing the children of the country equally, we found that both State and church had in many ways connived and conspired to abuse, neglect and institutionalise vulnerable children. Therefore, rather than doing what was proclaimed in 1916, the new State that emerged often did the opposite. It did not recognise or cherish many of those vulnerable children, but allowed them to be abused. It happened with relative impunity for half a century and only now when it is coming to light in an open, transparent and meaningful fashion, is any level of redress taking place.
In commemorating the centenary of 1916, we will have to examine closely what has happened concerning the rights of children. We did not see fit to write the rights of children into the Constitution, so they are not recorded there as such. That might be one way of moving forward towards commemorating the centenary. The least we can do at this point is to correct that omission with a constitutional amendment. Hopefully, that will be coming in the not too distant future, given the work of the committee currently dealing with children's rights.
In the context of child abuse, which has poisoned our society, it would be wrong to exclude from this legislation measures to extend legal protection regarding the new statutory entitlements we are providing to same-sex and co-habiting couples. The children of such relationships must be also included. How can we remain silent on these issues and not make such provisions? These children are legal dependants of the couples about whom we are talking and therefore they should be covered within the legislation. In his reply, perhaps the Minister will explain that omission, as well as indicating to what degree he will accept amendments in that direction. Does he propose to introduce such amendments himself? To my mind, this is the most glaring omission in the Bill, given the parameters within which the legislation is to operate. It would be worthwhile therefore to deal with the role and place of children within the context of the Bill.
The other side of the coin is that within our Constitution there is a presumption of heterosexuality in the provisions on the family. That presumption flows from the constitutional provisions on marriage between a man and a woman only, and the character of the nuclear family. The core message of the Constitution is that men and women marry to procreate. The State gives constitutional protection to the mother and to the family arising from marriage, which is the context of Article 41 covering the family. Therefore, religious tenets rather than secular pluralism are uppermost in the current constitutional provisions dealing with the family and marriage. In this respect, there is no recognition of addressing anything other than heterosexuality. The very fact that heterosexuality is addressed, however, means that, by omission, there is no consideration of any other sexual orientation. Therefore our Constitution is neglectful, which is a glaring omission.
By recognising the statutory registration of same-sex relationships in this Bill, the State is accepting that it has been neglectful of the rights of its citizens who are not heterosexual. In fact, the Bill is a recognition that there has been neglect within the panoply of rights granted in the Constitution in terms of other sexual orientation. It is accepting same-sex relationships and granting them the protection of the law. Likewise, similar protection is now being granted to co-habiting heterosexual couples who do not choose to marry. These are areas that our Constitution did not even envisage as being part and parcel of what might be provided for when it was framed in the 1930s.
The Bill represents a considerable step forward considering the statutory status that existed back in 1994 when the law defined homosexuality as criminal. We have now moved to give legal status and protection to gay and lesbian relationships. The next logical step is to look at the right to marriage between same-sex couples; that would be a full civil union between two citizens in a stable loving relationship. Otherwise, our Constitution will continue to reflect a two-tier discriminatory system based on sexual orientation. It would not be the end of the road, as some people might be inclined to believe. Quite a number of other European countries have already gone down this route. For example, Spain and Portugal, which are strongly religious countries, have legislated for marriage between same-sex couples. To my mind, that is the next step that must be contemplated by legislators here. It has been already contemplated by quite a number of commentators. In 2006, the working group on domestic partnerships reported to the then TÃ¡naiste and Minister for Justice, Equality and Law Reform. On the option of full civil partnership, the group commented as follows:
Full civil partnership falls short of full equality for same-sex couples as it excludes such families from the protection given to the family in the Constitution.
It clearly recognised that full rights are not available under the particular option we are now discussing. I am sure the Minister will be glad to know that no less a person than our former Taoiseach, Deputy Bertie Ahern, made the following enlightened statement in April 2006:
Our sexual orientation is not an incidental attribute. It is an essential part of who and what we are. All citizens, regardless of sexual orientation cannot stand equal in the eyes of the law. Sexual orientation cannot and must not be the basis of a second class citizenship. Our laws have changed and will continue to change to reflect this principle.
Clearly, Deputy Bertie Ahern, who was the Taoiseach at that time, was indicating that this was a work in progress and was moving down the road towards providing certain rights for cohabiting and same-sex couples and that this was right and proper within the context of our legislative framework. It was clear we were by no means coming to the end of the process, but were moving along the road with the process. That is the vein in which the Labour Party looks at the legislation. We accept it for what it is, a major step forward, but recognise it is not the final stage of the work. We will consider it and consider how it can be improved and expanded upon to provide further rights for those, particularly children, omitted from its provisions.
The legislation proper provides for a process of registration which is much the same as that for marriage and for the amendment of the Civil Registration Act 2004 to include civil partnerships, dissolutions, nullity decrees and so on. An issue that has arisen is the place of registration and the person to conduct the registration. Incidentally, it was interesting to read in today's newspapers that Croke Park can now be a venue for civil marriage ceremonies. Croke Park has been quite ecumenical in its approach to sport in recent times and besides being open to hurling and Gaelic football, it has been open to rugby, soccer and Australian football. I have no doubt the GAA will be just as ecumenical with regard to civil partnership ceremonies and I see no reason that there should be any problem with registration of such ceremonies there. It is only proper that people whose function it is to perform marriage or civil registration ceremonies should be willing to perform civil partnership ceremonies between same-sex couples. This is something they should not, willy nilly, refuse to do.
I welcome the legislation which the Labour Party accepts with its various faults and omissions. We hope it will improve during its progress through the House and that we take the extra step forward towards full equality for gay and lesbian people.
I consider this Bill a welcome opportunity to afford rights to the gay community. These are rights that all married couples enjoy without question, including rights to fairer rates of tax, pensions, inheritance and for basic status of next-of-kin. Homosexuality was rightly decriminalised by the State in 1993, but some people are still being punished in the context of the rights of a couple in same-sex partnerships. It is time to end this punishment and this is the opportunity to do so. This is an opportunity for Ireland to join the 15 other states worldwide that recognise the rights of same-sex couples to enjoy the tax benefits of married couples and to remove itself from the unfortunate position of being among the last two major western states that do not have some legal provision for recognising same-sex relationships.
I welcome the Bill because it will ease the lives of the many same-sex couples in this country. It will bring these couples in from the cold, give them security and ease their worries in times of grief, illness and financial insecurity as a result of unforeseen circumstances. I received a large number of e-mails supporting the legislation, but, strangely enough, not as many as I did when the Labour Party proposed its Bill in late 2007. These are Irish citizens who must be afforded the protection of legislation and they have outlined their wish for this Bill to be passed. Many unfortunate circumstances were outlined to me in these e-mails, too many to relate here. The Bill reflects Fine Gael policy and gives us the opportunity to complete the debate, which was cynically postponed by the Government in the run up to the dissolution of the DÃ¡il prior to the last general election. Fine Gael has been seeking this opportunity since it was the first party in DÃ¡il Ãireann to publish a comprehensive civil partnership plan in 2004, following a commitment in the Visible Justice document of 2002.
As I said earlier, the Labour Party moved a Private Members' Bill in late 2007, but it was defeated. Therefore, it is good, even if it is somewhat later than many people would have liked, to bring closure to this legal loophole. We can only assume from party manifestos that the Government will bring all its might to bear to ensure that this Bill passes as quickly and comfortably as possible. Fianna Fail stated in its manifesto that it would address the need to provide a legal framework that supports the rights of same-sex couples, including by extending State recognition to civil partnerships between such persons, so that they could live in a supportive and secure legal environment. The Green Party similarly promised to remove all gender specific terms from the current legislation and regulations governing the granting of marriage to allow same-sex couples enjoy the rights and responsibilities of civil marriage and that it would recommend the creation of a new category of civil partnership, an institution that could be created and dissolved with more ease than marriage. This would be available to both heterosexual and same-sex couples. If these are the policies of the Government parties, this is the belated opportunity for them to finally fulfil them.
Senator David Norris introduced a Bill on this issue in November 2005. The Government dismissed his Bill and promised it would introduce its own. That Bill did not materialise. When the Labour Party introduced a Bill in late 2007, the Government defeated it. In the programme for Government, Fianna FÃ¡il, the Green Party and the then Progressive Democrats pledged that they would legislate for civil partnerships at the earliest possible date in the lifetime of the Government. We have just completed the first half of a five-year term and are no longer in the earliest part of the Government's time, but the time has come now to deal with the issue. There has been considerable comment from some quarters that the Bill provides for same-sex marriage. It does not. That will only be decided following a referendum by the citizens. The people will decide on that matter, not the small number of elected representatives in the Oireachtas. If those who promote same-sex marriage are not satisfied that we need a referendum, there is nothing any public representative can do as it is a constitutional matter.
I am certain the more conservative elements in our society are not pleased with the legislation, but it is a step in the right direction. Equally, more liberal minded people believe that the Bill does not go far enough. They will not be satisfied with anything less than same-sex marriage. I feel the legislation is a reasonable attempt to find a balance between both sides. I do not often compliment the Minister on legislation, but he has the right principles at heart on this occasion. Improvements could be made. I hope the Minister will be co-operative in respect of accepting Opposition amendments on Committee and Report Stages.
We have now moved into the second decade of the 21st century. This is not the 1970s, 1980s or 1990s when homosexuality was illegal. This Bill would end discrimination against the gay community and afford its members the rights they need and deserve.
I agree with other speakers that there is a significant lack of knowledge regarding the fact that this Bill deals with cohabiting couples. The information that would benefit such couples is not available. I appeal to the Minister to ensure the existence of an information programme, administered by his Department and the Department of Social and Family Affairs, to ensure couples, including same-sex couples, be they cohabiting or otherwise, will not be left behind because they do not know their rights have changed.
The subject of fathers' rights is fraught with difficulty and should be dealt with. To do nothing is unfair to the fathers and children of the State. I will not pretend I know what needs to be done but I appeal to the Minister to ensure that the relevant Oireachtas committee considers the issue. Following a focused, considered discussion including input from family lawyers, fathers' groups and other relevant groups, a position could be found to help those who are in legal limbo.
It cannot be easy to be gay in Ireland. We still live in a very conservative society. Members of the gay community have been subject to significant abuse over the years, as touched upon by some Deputies. We need closure in this regard, in a way that is satisfactory to the gay community. We cannot allow Ã la carte equality.
The question of children is unclear and must be sorted out in the subsequent Stages of the Bill.
With regard to the question of civil ceremonies being conducted by members of the Civil Service, there can be no choice. It is their job and what they are paid to do. They cannot choose to do portions of their job as they see fit.
I do not have any gay or lesbian neighbours and do not believe there are gay and lesbian citizens in the same way as I do not believe there are heterosexual citizens. They are not gay, lesbian or heterosexual; they are just neighbours. The more we comment to the contrary, the more people become isolated. We are all citizens of the State and our sexuality is irrelevant. It would be better if one's sexuality were left unsaid.
The purpose of the Bill is to establish a statutory civil partnership registration scheme for same-sex couples. Fine Gael will be supporting the Bill, which is broadly in line with Fine Gael policy, as enunciated by former Senator Sheila Terry in 2004. The Bill is warranted for a number of reasons, particularly to recognise that there is a significant number of citizens in long-term same-sex relationships. Issues arise as a consequence and, at present, there is inadequate protection.
As a medical practitioner, I came across at least one case in which a next-of-kin issue involving a gay couple arose. Although the couple lived together for a very long time and were very much husband and husband, as it were, it was not possible to obtain consent for an emergency operation because the partners were not legally next of kin. Ultimately, the person deemed next of kin turned out to be a nephew who did not particularly like his uncle or approve of his lifestyle. This is a very practical example of why I believe the Bill is warranted, at least in principle. It is certainly warranted where the death of an individual who had been in a long-term relationship leaves a dependant without deeds to the house or an income. This can be resolved under existing law but the Bill sets out an appropriate way to achieve this.
Such difficulties can arise after the separation of a couple in a long-term relationship that involved an element of dependency, although the circumstances may be more complicated. They can also arise in respect of pensions and domestic violence. Domestic violence in relationships, be they straight or gay, is often not spoken about. It is very much under-reported and the Bill provides some protection in this regard. In this sense, it is very warranted.
It is on the basis that I have outlined that my party and I will be able to vote for the Bill with a clear conscience. That is not to say I do not have concerns. There are some omissions and points that should be taken into account. The first omission is that the Bill provides no facility for a brother and sister, two sisters or two brothers to register a civil partnership of the kind envisaged. Such people, if living in local authority housing or in an isolated rural community, would be covered by the cohabitation provisions of the Bill but could not form a civil partnership thereunder. That is a mistake. The Bill should recognise the circumstances of people in a dependent, but not sexual, relationship. All the issues that pertain to intimate relationships apply in respect of such people, including next-of-kin considerations and issues concerning pension supports and inheritance.
Having said that, I may sound a little contradictory in outlining my position on cohabitation rights, which are to come into effect after two years. Two years is a very short period. The relationships of many people who were going out together during the boom and who were encouraged to buy a house together have broken down. Those concerned are in a very difficult position, largely because the properties in which they invested are in negative equity. They are not in a position to sell because both parties would incur a serious loss from doing so. The Bill may change this dynamic, in a way that has not been considered fully, by giving cohabitation rights to one party or the other on foot of one party claiming those rights. This matter needs to be fleshed out in a little more detail.
The same difficulty arises in circumstances where two friends, male or female, have bought a house together and are co-owners. One may want to get married or leave but cannot do so because the house is now not worth very much. It will be up to the party who considers himself or herself to be aggrieved to claim cohabitation rights under this Bill. I am not satisfied this has been considered properly.
A Member with more experience than me once said we never debate one Bill in the House but two - the Bill before us and the law of unintended consequences. The Civil Partnership Bill may have a number of unintended consequences.
It is important to talk about the status of the family. Tax issues are not dealt with in the Bill but there will be follow-on tax implications in the next or subsequent finance Bills. I have a problem in this regard. I am single and live alone. Being single, I pay a lot of tax. I do not wish to be poor-mouthing but must state I probably pay 40% of my income in tax. As a result I have to pay the mortgage and utility bills on my own, which is the same for the many hundreds of thousands of single people in the State. Ironically, if I were to marry someone earning less than â¬25,000, I would be able to share the costs of living and reduce my tax bill by â¬7,000. It seems to be somewhat unfair that as a single person I am essentially paying more tax to subsidise other married people who may earn more than me. This anomaly of the tax system is designed to support marriage. This issue will also arise with civil partnership in that the Finance Acts will be amended to offer the same benefit for those who enter a civil partnership. Single people will effectively be subsidising the lifestyles of married people.
Why should single people have to pay â¬7,000 more in tax? I accept an issue arises where there is a family. However, in a family there must be children. We should consider changing the system so that those rights apply to families with dependent children. It is somewhat unfair that some Members with the same income as mine, who have stay-at-home wives who chose not to work but spend the day on the golf course or lunching, pay less tax than I do. I do not have an objection to their choice but I object to single people having to pay more tax so that other people have that choice. This anomaly needs to be addressed in our tax system.
Where we do give tax concessions to couples, they should not be based on the fact that a man and a woman, a man and a man or a woman and a woman are living together in a sexual relationship. They should be solely based on the fact that they are a family unit. The tax advantages should be given to the family unit and not that they are married. This will need to be addressed in the Finance Acts.
The same applies to inheritance and capital gains tax, areas where there could be potential abuses. Marriage is already abused with couples splitting up to go live in Italy for six months in order to avoid capital gains tax. Recently it was reported a business was established to bring women from the Baltic states to marry men from the Indian subcontinent to secure legal rights. We would be very naive not to factor these into our considerations of the possibility that people will use civil partnership in the same way marriage is abused for residency and tax proposes. For example, two male business partners may decide to divorce their wives and form a civil partnership to avoid paying millions of euro in capital gains tax. Then they may dissolve the civil partnership and remarry their wives. All these issues will arise.
I am sure I will be attacked for raising these matters but it would be a bad Parliament if these consequences were not considered on Second and Committee Stages. If one is introducing legislation in this area, one has to consider these matters to get it right so another Bill will not have to introduced later.
I have considered the issue concerning conscience. The job of a civil registrar is to register births, marriages and deaths. If this Bill is passed, they will be required to register civil partnerships. If one does not like that, then he or she should resign. I do not accept that a public servant employed by the State with such a job has the right to chose who they will or will not register. One is not allowed not to register a child because one does not like the parents or a marriage because it is between a Muslim and a Catholic. A civil registrar should not be allowed to use their conscience or any excuse to refuse to recognise a civil partnership if it is allowed by the law of the State. However, I do not believe they should be imprisoned as it would not be the place for civil registrars with excessive religious views. A fine and dismissal from employment is okay but Mountjoy is going too far. This provision should be removed from the Bill.
It has been suggested in some quarters that there should be an opt-out from this legislation for people with problems due to their conscience. I initially thought it was a good idea but, having discussed it, I now consider it a poor provision. For example, a hotelier should not be able to tell a same-sex couple that he will not accommodate them in a single bed. If that was allowed, where does it stop? The hotelier could extend this to a single mother or an interracial couple. Another example would be of a female photographer, who is a left-wing extremist feminist, deciding she does not want to photograph a Muslim wedding because the women are covered at it. There is no case for any form of conscientious opt-out from this legislation. We are not asking people to go to war and stand in the trenches. We are asking them to recognise the law of the State. If they do not like that, they can get lost.
Room for exception will arise for members of the clergy and religious bodies and properties, excluding schools and hospitals funded by the State. There are not many gay couples who will seek to impose themselves on a church or church hall without being welcomed. However, there are the Peter Tatchells of the world who may create cases and cause cÃ©lÃ¨bre which should not be allowed. We must recognise and accept there is a religious conscience issue for the clergy and churches, temples, synagogues and so forth.
The question of adoption is ignored in this Bill because it is contentious. Sooner or later, it will have to be addressed. Every child has a father and a mother. Two men or two women cannot have a child together. A single person cannot have a child on their own unless they procure the pre-products of conception from an alternative source. This is an undeniable fact. Unfortunately, sometimes in children's lives one of the parents is not interested in them or dies. Where a child is an orphan, the State should replace their mother and father. Every child has the right to a mother and father and, as much as is possible, the State should vindicate that right. That is a much more important right than that of two men or women having a family. That is the principle that should underline our laws regarding children and adoption. I am also uncomfortable about adoption by single people regardless of their sexual orientation. I do not believe I as a single man should adopt a child. The child should go to parents, a mother and father, to replace what the child had before.
There are exceptions to every rule and difficult cases. There may be a case of where a man previously had a child from a heterosexual marriage, the mother is off the scene and he and his gay partner have now entered a civil partnership. That type of relationship will have to be recognised. A similar situation may arise in respect of a lesbian woman who may have had a child for various reasons, later became involved in a same sex relationship which became a civil partnership and died and the only person the child knows as a parent is the other woman to whom he or she is not related by blood. That is an exception. These issues will have to be addressed. It is our duty as a Legislature and that of Government to address them. I do not know what is the solution. It may be for the Adoption Board to determine particular exceptional cases like that while upholding the principle that every child has a mother and father and is entitled inasmuch as possible to same.
I wish to discuss some specific points of the legislation. While I may be wrong on these issues it is important the Minister or Minister of State clarifies their purpose and reason for inclusion. I note that the term "marital status" is to be removed from the Employment Equality Acts. For example, under section 101 the term "civil status" will be substituted for the term "marital status." I do not understand the reason for this. If we want to reassure people that marriage is not being downgraded why then are we removing the term "marital status" from the Employment Equality Acts? Why not state "marital status" and "civil status" or "marriage status" and "civil partnership status?" I do not understand the reason that term is being removed. If people are protected on the basis of their gender, membership of the travelling community or sexual orientation why is the term "marriage" now being removed and replaced with "civil status?"
Another issue arises in respect of civil partnership, which appears to be much easier to dissolve than a conventional civil marriage, the reason for which I do not understand. If the argument is that civil partnership is necessary to recognise and give legal status to long-term same sex relationships, why should it be any easier to dissolve than civil marriage? If it is the case that we are saying that this institution is therefore lesser than marriage, which is what section 108 effectively states, then why should opposite sex couples not be able to avail of marriage light, which is essentially what is being proposed if that section stands. Section 170 deals with the cohabitation issue. If I am correct, cohabitation arises after two years. I am comfortable with that. Two years is not a long time for people to be cohabiting for all sorts of reasons as outlined earlier. I believe we should perhaps provide a lengthier period in this regard.
Fine Gael supports this Bill for the reasons outlined, namely, there are many long-term loving relationships involving same sex couples which deserve the protection of law, which this Bill seeks to do. I stand over my concerns as outlined and look forward to hearing the Minister's response to the Second Stage debate.
I am pleased to have an opportunity to address the House on this important and long overdue legislation. I support the Bill. Like Deputy Varadkar, I lament the exclusion of heterosexual cohabiting people from the civil partnership provisions of this legislation, which I believe to be a mistake. I urge the Government to at some point reconsider this matter. While I accept that it may not be possible to address this issue on Committee Stage, perhaps it could be done at a later stage in the life of this Government.
It is often tempting and easy for the Legislature to shroud itself in an air of fantasy and to ignore the reality of a modern evolving society and to refuse to acknowledge the changing environment in which we live. We are all well acquainted with gay couples and individuals who, like all members of society, live normal lives. They are no different from anybody else and are in most cases accepted and embraced in their communities, local environments and by their families. It is easy to forget it is only as recently as 1993 that homosexuality was decriminalised in this country, which is quite extraordinary. It was only then that archaic legislation such as the Offences Against the Person Act 1861 and Criminal Law (Amendment) Act 1885 were finally repealed following a lengthy decade-long campaign by Senator David Norris, Mary Robinson and others.
The step in 1993 to remove the categorisation of homosexuality as a criminal offence was opposed tooth and nail by people who were terrified of change and who were determined to oppose any severance with or departure from traditional Irish society as they knew it regardless of how rational or right it may be. It has taken a considerable amount of time for us to reach a point whereby the Legislature and the society which it reflects in this Parliament can finally and with confidence create laws which protect the interests of citizens in this country who have for far too long been isolated, exposed and ultimately treated as second-class citizens and human beings in our society.
This legislation is extremely important for a number of reasons. Obviously, we urgently need to legislate to reflect the reality of Irish society but we also need to legislate to ensure adequate protection for all citizens without judgment, ridicule, disdain or label. Gay life and gay relationships are a reality and normal part of Irish life. It is imperative that we as legislators introduce legislation that affords gay people the dignity, respect and basic human rights to which all citizens and members of society are entitled.
There are complex constitutional issues associated with this issue. I am conscious that other countries that do not have the type of constitutional restrictions we have, which make it difficult to navigate on some occasions, have introduced legislation in this area. I do not believe we can ignore some of the constitutional issues that arise.
While the Bill does circumvent some of these issues it would be remiss of me to do likewise. There are two particular matters of constitutional significance which I would like to address, the first being the protection of the special status of the family, as provided for in Article 41 of Bunreacht na hÃireann and alluded to throughout and, the protection of the child, which is a central issue, one to which some of my colleagues have referred. Taking the issue of the special status of the family in the Constitution, it is clear from the traditional construction of Bunreacht na hÃireann that the traditional family is defined in the context of a father and mother and whatever children they may bear. Deputy Varadkar also alluded to this issue. I do not dispute the special protection which is afforded to the family in the Constitution. Rather, I believe it is right and proper and I very much support it. I believe it is an important pillar of our society and is an essential aspect of the fundamental rights of children. We should not, as a society, be afraid on occasion to uphold some of the traditional values of our society, many of which are contained in our Constitution while at the same time advancing new protections that need to be provided under the law. I do not believe these two objectives need be mutually exclusive.
Civil partnership, as envisaged in this legislation, is a distinct institution and in my view, it is one which ought not challenge or compete with the institution of marriage. These institutions can be mutually complimentary and mutually supportive. They need not be in competition with each other, or one need not be judged on the basis of the other. No doubt couples who commit to each other in a loving way through the new civil partnership legal channels deserve the same protections and legal rights as other couples, but this is not to say that the institutions need challenge each other or that the institution must challenge a more traditional form of union between heterosexual couples. The two institutions, while being distinctive and, by necessity, somewhat different, can afford much needed protections for couples who are committed to each other, irrespective of their sexual orientation.
While the creation of legal civil unions is a new legislative departure which will serve to achieve equality, freedom and dignity before the law for many gay people in the State which each citizen is entitled to and deserves in any free democracy, it will also ensure that the traditional family, which has been the linchpin of our society for far longer than this State has held its freedom, will also be protected, preserved and respected. This is no humble achievement.
The other constitutional issue I wish to address is that relating to the protection of children, which is relevant to this debate on Second Stage. Deputy Shatter raised this in his contribution in this House last week. He pointed out that the Bill, as framed, fails in the context of child protection. It ignores the plight of children who are born to cohabiting parents and denies them the sort of protections and rights that children born in a traditional family environment are afforded. We must ask ourselves why this is the case. They are no lesser children with no lesser needs, and certainly no lesser vulnerabilities, and I strongly believe that they are worthy of every protection and security that can be afforded them by the law. I am conscious that there is likely to be a referendum this year on the protection of children and the placing of the child at the heart of the Constitution, but it is a missed opportunity to not secure the protection of children in this legislation.
The rights and needs of children also apply to children who are brought up by a gay couple. I fully agree with the points put forward by Deputy Varadkar in this regard. It is clearly preferable that the biological parents should always be the obvious guardians of a child. They should be the people who raise a child and look out for and protect his or her needs. That is the duty of a parent; it is the duty of a mother and father. Of course, we live in a society where the ideal is not always possible and in a society and world where the vagaries of reality must be borne in mind and taken into consideration.
In the context of a child who, for example, is being reared by a gay couple, the question is, when one parent is absent should the needs of the child be ignored or how are those needs to be prioritised. What about the possibility that one parent passes away? It is unfortunate that this legislation does not provide any legal protections for a child in those circumstances to ensure that he or she remains in a safe and secure environment for that child. The Bill is remiss in this regard, and I would urge the Minister to look at this and reflect on this discrepancy on Committee Stage. I do not have a particular amendment at this point, but I think there is a way in which the needs of such a child can be protected where there is a loco parentis situation and where it is clear that the paramount best interests of the child would be to remain in the stable and secure environment, to which he or she has become accustomed and in which he or she has been raised. It is a fear for many couples in that position and a genuine concern where there is a child involved. I would urge the Minister to look at this and to consider the issue of custody and guardianship as this Bill moves through this and the other House.
The issue of conscientious objectors is a difficult and contentious one. We must try to debate this rationally and consider the implications of the legislation. Much has been made of the suggestion that an amendment be tabled to reflect the religious beliefs of some members of society in some circumstances and whatever objections those people may have. Section 23 is not a rational or balanced approach to dealing with somebody who refuses on religious, faith or conscience grounds to register a civil partnership. It would not be just or correct to hand down a custodial sentence to a registrar on that basis. There are procedures in place throughout the public and civil service to deal with those who do not perform their duties. I am not sure that, on summary conviction, imprisonment - the legislation, in section 23, provides for up to six months imprisonment - is a balanced or rational way to go about this. It is excessive and disproportionate. If someone, on personal conscience grounds, does not wish to carry out a civil registration, then it should be dealt with through the appropriate channels, as would happen in the case of any civil servant not carrying out his or her duty or function as he or she should. In some ways it would fly in the face of the concept of freedom and choice. I am not in any way suggesting that such behaviour should be condoned, but I do not believe that the appropriate response is a six-month custodial sentence. Again, I would advocate that this section of the Bill be looked at seriously by the Minister and his officials to come up with a better and more suitable response.
On the case for the idea of an amendment to the legislation on an opt-out for conscientious objectors or people with particular religious views who do not want to participate or play any part in a civil partnership ceremony, the attendant celebrations or whatever afterwards, I tend to agree with the point put forward by Deputies Varadkar and D'Arcy. It is a difficult one and I do not pretend to have any clear solution to it. Certainly, one could not allow a situation - it would be completely contradictory to the Equality Act 2004 and the Equal Status Act 2000 - where people were entitled to refuse access, for example, to a hotel, a restaurant, etc. That would not be a wise or constructive provision to include in this legislation.
However, the issue of religious institutions and the use of their properties and premises is slightly different. The point is well made, that a gay couple about to get married would not want to impose themselves on a Catholic church, a synagogue or whatever. That is an unlikely scenario but we should not be hostages to fortune either and we should not allow a situation to arise whereby it could become an inflammatory issue. In some ways it is reasonable that religious institutions would be able to opt out, or at least to allow for the exclusion of their properties and premises, such as church halls or whatever, from use in terms of carrying out a civil union. Perhaps this is something for which an appropriate wording could be found or something the Minister might consider. No form of discrimination should be condoned in any way, certainly that is not the point I am attempting to make. However, we should consider some way in which a fair and rational opt out could be arrived at for religious institutions and the clergy.
My concerns regarding the fate of conscientious objectors and religious institutions under the proposed legislation do not in any way detract from my belief that this is necessary, imperative legislation that, I hope sincerely, will put the rights and protections to which same sex couples and co-habiting couples are entitled at the very centre of Irish policy making. Yesterday, I listened to an interview with Bishop Willie Walsh on RTE radio. I was struck by the tone and genuine goodness of his words. He was questioned about his views on homosexuality and gay relationships. He stated, correctly, that categorising and pigeonholing people is something we should not do and he is absolutely correct in this regard. Many people will oppose this legislation on grounds of religion, Christian faith or other forms of faith. The irony, at least in respect of Christianity, is that faith is about accepting people without judgment and with complete compassion. It is about embracing people not simply in spite of their differences but because of them. This is a lesson all of us can and should learn. More important, it is one we should all practice.
I welcome very much the opportunity to participate in this debate and to mark the introduction of the Civil Partnership Bill as a step forward. This is one of the many sometimes painful steps that we have taken in Irish society to give freedom and equality to all our citizens. I welcome the Bill in the context of moving forward in terms of rights of people who live in the country. In many ways I agree with the last point made by Deputy Creighton. We need a new morality in this country. We should judge people by what they do and how they treat fellow citizens, rather than put labels on people and judge them by such labels.
We should adopt such a new morality in Ireland in the context of all that we have learned about what took place in past decades, when, simply because someone had the label of being a priest or a senior person in society, one could get away with scandalous and criminal behaviour against weaker citizens. As a result of a title or the role carried out, such people were held in high esteem and were able to get away with practices with which no society should have to put up.
Recently, I listened to a programme about Hilton Edwards and MicheÃ¡l MacLiamÃ³ir. Those two wonderful men carried out great work for Ireland in the arts, including the foundation of the Gate Theatre, placing the theatre and the arts in a central place in Ireland, their interpretation of plays for the public in Ireland and so on. They were labelled as criminals at the same time that other men, protected by the fact that they were religious or held certain titles, were abusing children. We have emerged from a past in which we allowed people to behave in ways totally unacceptable and criminal, simply because of their title and the power they held in society. Slowly, we have come out of that era and we have learned a good deal about it in the recent past as a result of various reports. We must learn also to look at people for what they are and how they behave and how they treat fellow citizens rather than because of any label they carry.
While I welcome the Bill, I believe we should move towards allowing full, equal rights to same sex couples. I realise it is probable we cannot do so under the Constitution at present. However, assuming the Constitution must be changed and the people agree to any changes, we should move to full, equal civil rights for gay couples, including marriage.
I welcome the historic step being taken today but we should acknowledge the steps taken in the past, especially the decriminalisation of homosexuality in 1993. I congratulate the former Minister, Ms MÃ¡ire Geoghegan-Quinn and the Fianna FÃ¡il - Labour Government which initiated that legislation and brought it through the Houses of the Oireachtas. I was in the Seanad at the time. Despite many objections the legislation got rid of a label that should have disappeared long before 1993, but unfortunately, still existed in our laws up to then. Also, I commend Senator David Norris, who introduced a Civil Partnership Bill to the Seanad in 2004 and my colleague, Deputy Brendan Howlin, who introduced a Civil Union Bill in 2006. I now congratulate the Minister for Justice, Equality and Law Reform who has moved the process forward further from his position as Minister.
We should give these rights to couples who in many cases have been living together for years and who have committed to each other, in some cases through very difficult circumstances. For example, there are cases where one partner has been ill and the other partner has not been declared next of kin in terms of the right to consent to medical treatment. There are matters of inheritance and taxation issues and a variety of other issues where this legislation will make a real difference.
I wish well all the same sex couples who are waiting for this legislation to be enacted such that they can solemnise - if that is the correct word, although probably it is not because it is a religious word - or have their union recognised in a civil sense. I wish them a very happy union together.
I trust this legislation will make a difference in terms of society. Gay people have many difficulties in Ireland. I have a report before me entitled Proud Voices. It is an exploration study into the needs of lesbian, gay, bisexual and transgender young people in the counties of Limerick, Clare and Tipperary. I attended the launch of the document in the University of Limerick last year. It was carried out jointly by Rainbow Support Services in Limerick and the University of Limerick. It examined young people throughout the mid-west region and put questions about their experiences of finding out they were gay, addressing that fact, talking to their families, their experiences in schools, informing their friends and how they were treated across a range of areas. It is very enlightening and shows the difficulties gay people still have in Irish society, especially in schools. There is a serious issue of bullying in schools. While some schools are great at dealing with it and will confront the issue and support the young person having problems, other schools are not as quick to deal with these issues.
By taking this step, the Oireachtas is affirming the fact that we have a range of people living in our society and we must acknowledge their rights and the need for equality within our society. Not only will it provide practical measures in respect of taxation and inheritance, but we will send out a broader message about the way in which society values and treats all people. I have, however, a particular concern about young people. There are problems with homophobic bullying in schools. We must address that, specifically through the Department of Education and Science but also through the wider society.
The issue of children has been raised by many Deputies. There is a need for comprehensive legislation not only on the rights of children generally, but also on the rights of children in situations where their families are not what one would describe as the ideal family, that is, where there is a mother and a father. The reality is that, generally, we need protective laws for the many children who do not live in the ideal situation, where the relationships between their parents are not firm and solid, where the parents are not living together and so forth. The Labour Party civil union Bill attempted to address some of the issues relating to children, not just those of gay couples, but those of couples in general. That is not done in this legislation. I accept that there will be a constitutional referendum on the issue but public representatives collectively must ensure that the rights of children are protected in all types of situations.
As Deputy Varadkar said, children are living with gay couples, be they the natural children of women in a gay partnership or of men in a gay partnership. There could be other circumstances as well. Those children have the right to the protection of the law, to recognition of their circumstances by the law and to rights equal to those of other children. I recall attending a conference on this issue at a venue near this House. It was also attended by Deputy SeÃ¡n Power, who was representing Fianna FÃ¡il. A Canadian legislator gave a speech in which he referred to the reaction when the Canadian Government introduced marriage equality. He told of a child who was living with two men - he was the natural son of one of the men - in a gay household who asked him: "Does that mean that I live in a real family?" That child was securing recognition as a result of the Canadian legislation. We must recognise the rights of those children as well as the rights of other children. While the ideal family is in marriage and, of course, we must protect marriage under the Constitution, we must also recognise that children who live in other types of relationships have as great a right to be protected as children who are living in safe and secure marriages. We have a duty, as legislators, to address that.
Section 23 was discussed by both Deputy Varadkar and Deputy Creighton. I am inclined to agree with Deputy Varadkar's view that there must be sanctions when somebody is a public servant and is required to fulfil their duty under the law. I do not believe they should not have to do it because of religious objections. There must be a standard whereby public servants implement the law, and that must be clear. However, the suggestion that somebody would be imprisoned because they have not fulfilled their duty is not appropriate. I do not know if that provision can be amended. While there is a valid concern about the idea of somebody going to prison for not carrying out their duties, I am certain that there should be some form of sanction. Our laws must be implemented. The equality legislation must be implemented and people must be treated equally.
I wish to raise another issue which other Members might have raised. There is an article in The Irish Times today, which the Minister might have read, which suggests that an amendment might be required to the cohabiting couples section. I think the article was written by Carol Coulter. The article refers to younger people who cohabit. The intention of the cohabiting section is to provide for the rights of somebody who has been in a long-term relationship, perhaps in a caring role in the home, and whose partner leaves, leaving them with financial difficulties and so forth. I agree that those people's rights should be protected. However, the example given in the article is two 19 year olds who live together for a period of time and then separate. It made the valid point that there might be a need to amend the section to avoid doing something that was not intended in the Bill. The article raises a valid issue and there will be time on the other Stages to examine it. If the Minister has not read the article, he should do so before Committee Stage and ascertain if it makes a valid point.
I welcome the progress made in this Bill. I am sure it will be supported by all sides of the House and that there will be amendments to it. It is important that we take this historic step forward.
I am grateful for the opportunity to speak on the Bill. To put it bluntly, people have not been knocking down my door asking for this Bill to be introduced. However, I accept that there is a group that wanted this legislation and, in that context, I accept that the Bill will be passed by the House. The issue is how we deal with it as it goes through the system and whether necessary amendments are made to make it more acceptable and workable. I have received a great deal of correspondence on this issue, both very nice personal letters and e-mails. One e-mail might be asking when this will happen and saying it cannot happen soon enough, while the next might say it should not happen at all. Another might raise questions about the legislation and how it can be amended. That demonstrates the difficulties there are with the Bill.
On a personal basis, I support the Constitution. It recognises the family as the natural primary and fundamental unit of society and as a moral institution, and states that the State guarantees to protect the family as the necessary basis of social order and as indispensable to the welfare of the nation and the State. That is extremely important. However, times have changed and it is obvious that the Bill will be passed to provide for legal civil unions of gay and lesbian couples. This will clarify their situation with regard to inheritance and so forth. I understand the reasons for that and am aware of the serious situations in which some people might find themselves after years of being together. Under current law they do not have the right to decide what should or should not happen if the partner is in hospital or in some other situation. Those are the reasons for this Bill.
However, why does the Bill not go further, given that we are legislating for same-sex couples to be dealt with in this way? There are many brothers and brothers, brothers and sisters and sisters and sisters living together, especially in rural areas, with property in common. While I appreciate that their home is dealt with in legislation, the amount of property the brother or sister can inherit from their sibling is approximately â¬41,410. It was actually reduced in the last budget. It is strange that two strangers who come together through love or whatever and who remain together for three years or more will now be in a position legally to inherit everything, whereas others who have lived together for 30 or 40 years are not. As somebody who lives in rural Ireland, I come across that a lot and it is a major problem. It can mean the wealth of a family can disappear or will not exist to hand on to somebody else.
The other issue which has been already referred to by my colleague, Deputy Creighton, and to which I wish to again refer is section 23. I fully understand some of the logic behind it but the reality is a different story. It is difficult for me to understand why somebody should be fined or sent to prison because he or she is not prepared to deal with this, when in any other part of the Civil Service an alternative would be found. There has to be a provision for freedom of conscience in this Bill. People have said this is not a church matter; it is a civil matter. Surely, in civil structures people are entitled to have freedom of conscience. If they do not want to perform particular duties and they make that clear in a nice way, there is no reason other people cannot be found to do it.
I am aware of a case involving a county solicitor who did not want to get involved in a case for obvious reasons and the next county provided the personnel to facilitate the case. There are practical ways in which this can be done without getting all tied up in knots and making it unacceptable. This issue was not raised by Catholics alone. It has been raised by people of all denominations, including Baptists, Reformed Presbyterians and different groups, who are genuinely worried about the situation and cannot understand why we cannot allow a level of freedom in this area. I understand it was discussed at other party meetings, apart from ours, and that there were suggestions that an amendment would be tabled. I urge the Minister to examine the issue and every effort be made to ensure this Bill, which will never be acceptable to all, creates less problems than it does in its current form.
If the Bill is amended, it will be acceptable to many more people. If it is not amended, for the first time in the history of the State Christians will be in a vulnerable position whereby they can be prosecuted for acting on their beliefs in traditional marriages in a way deemed discriminatory towards gay couples. That is the view of many individuals who have written and spoken to me about this issue. I urge the Minister to deal with that matter. The rights of others who are living together should be examined in the context of inheritance. We have moved down the road from the marriage structure to this point.
In our jobs as politicians we come across some very strange situations. This Bill will resolve some of them. Recently I met a women who had lost her husband - as I was told - some weeks earlier and who wanted to know her rights. A private conversation, however, revealed that a marriage had not taken place. In the good old days the couple lived together in the United Kingdom or somewhere else, had a family together and moved back to Ireland, but they did not get married. In that context, the woman concerned had no rights. Her partner paid a full contributory pension but when I contacted the social welfare authorities, they did not want to know. It is important that such matters be rectified. I understand this Bill will bring about some rationale in that regard. Another case concerned a young couple with four children who had returned from England. The man was killed in a tragic accident. They had never been married and the widow, to all intents and purposes, had no rights. As a State we need to recognise these situations and try to bring some logic to them.
While some people tell us we should do nothing, we have to move forward and accept situations as they are today. However, we should not discriminate against others who should have freedom of conscience. I urge the Minister to deal with section 23 as it is a very important issue which will alleviate concerns, not just for me and some of my colleagues on this side of the House but, I understand, for many of the Government backbenchers.
I wish to make a number of points. I welcome the Bill. It represents progressive legislation for a modern, tolerant society. I welcome the fact it has finally come before the House. It is worth noting, as other speakers have, that my party produced a very similar policy document through Sheila Terry in 2004 which virtually mirrors this Bill, in terms of what it proposed. I recall the debates within the parliamentary party at that time which were difficult, with different views on the proposed policy at the time, but we decided to endorse it after a prolonged debate. I recognise that the Minister also comes from a catch-all party which has a series of different views on this Bill. It is also worth noting that the Labour Party introduced a Private Members' Bill which is also very similar to this Bill.
We know what is being proposed. The Bill will give legal recognition in Ireland to a relationship for same-sex couples. It will establish a registration scheme for civil partnerships for same-sex couples and it will provide a range of rights and responsibilities - which I will discuss later - following registration, including succession rights, pension rights, shared rights regarding property and so on. I presume the Finance Bill will contain provisions regarding financial rights regarding taxation which will be also passed into law.
There are also provisions to protect cohabitees in instances where a cohabiting dependent may find himself or herself vulnerable upon the death of another cohabiting relation, friend or whatever. Again, it is a difficult balance. One will hear people say we should give the same cohabiting rights to couples, whether they are a brother and sister, two men or two women, as we are now proposing to give to same-sex couples. I can understand why the Minister has not done that. There is a difference between two people committing to spend the rest of their lives together because they love each other and may want to have a family together, and two people who live together because of financial necessity.
My view on this has wavered as I have heard different arguments but, on balance, it would be wrong to introduce a Civil Partnership Bill whereby every cohabiting couple in the country would be able to apply on the basis that they live under the same roof. There has to be an emotional commitment to one another as a qualifying criterion to get married, in the case of a man and a woman as it is defined in the Constitution, or to avail of the new civil partnership proposals we are debating here.
I want to address some of the concerns expressed in favour of and against the Bill. I join Deputy Jan O'Sullivan in extending good wishes to the thousands of same-sex couples who are officially cohabiting and others who have been waiting for this legislation to enable them to secure legal recognition for already emotionally cemented relationships. I hope these couples will enjoy the legal benefits and supports they secure as a result of the enactment of this Bill. Figures from the 2006 census show 121,800 cohabiting couples form family units, of which 2,090 are same-sex couples.
Many same-sex couples have been living in legal limbo for a long time. This has had tragic consequences in cases where one of the partners died. In other cases involving persons who have been injured in road traffic accidents, decisions on whether to switch off a life support machine have been taken not by the same-sex partner to whom the person is closest, but by blood relatives with whom he or she no longer has an emotional relationship. This is a human rights issue. People who want to commit the rest of their lives to another person and provide emotional and financial support should be afforded the protection of law, irrespective of whether they are of the same or the opposite sex.
The legislation is a significant step in the right direction. I am one of those who have changed their minds on whether to take a further step and provide for same-sex marriage. I no longer have concerns about introducing a form of same-sex marriage, although I do not believe it is likely under this legislation. While I am aware that such a step would give rise to constitutional issues and complications regarding children and adoption, these matters have been addressed in various ways by other countries.
People who wish to commit their lives to one another should receive full recognition in the eyes of the law. I refer to civil rather than church marriage because many people confuse religion with marriage. Civil marriage is a recognition by the State of a union of two people. The State also recognises the institution of the family. Separate from this is the recognition of marriage in the eyes of the church. While church recognition of one's marriage is important to many people, including me, it should not determine how we legislate.
I do not accept the argument that this legislation is a threat to the status of marriage or the family. The status of marriage is clearly defined in the Constitution and is unaffected by the legislation. I understand the view that the State should try to support the nuclear family, that is, a mother and father and their children, because many of us were fortunate to grow up in this kind of stable environment influenced by a father and mother. The family structure has, however, been undergoing constant change. We cannot legislate to prevent such change. Our responsibility is to do everything in our power, through the institutions of the State and legislation, to support the different types of family entity in Ireland. These include lone parents, cohabiting couples who have chosen not to marry and same-sex couples, some of whom have children living at home, whether from previous relationships or for other reasons. Our focus should be on asking what we can do in legislation or by means of State structures to support and solidify family units, that is, relationships between two people of the same sex or both sexes.
The assumption that this legislation proposes to give same-sex couples a series of rights without asking them to make a serious commitment on the back of these rights is false. Signing up to a civil partnership is a significant commitment which cannot be undone unless one partner dies or a court issues an order dissolving the partnership. A civil partnership involves a series of commitments which will encourage people to stay together and be supportive of one another. For the first time, the State will support same-sex couples. This is a positive development and should be supported because it encourages commitment.
I propose to address the issue of children. While the Minister deserves recognition for introducing this legislation, his efforts to address the difficult and delicate issue of children are inadequate. The Bill makes few references to children, children's rights, adoption, guardianship or custody. We must do more in subsequent Stages of the Bill to ensure the rights of children are protected.
Many people reduce the issue of children to the argument that same-sex couples should not be allowed to adopt. This is an incredibly ignorant position which fails to address the complexity of the issue. There are two sides to the argument that same-sex couples should not be allowed to go through the adoption assessment procedure and adopt a baby. However, in most cases involving children, the reality is that the same-sex couple is seeking the right of guardianship or custody - or in some cases the right to adopt - of children who are already in the relationship and part of the home. One may have a divorced or separated woman who lives with her child and has entered a same-sex relationship. The new family structure consists of the biological mother, her child and another woman. Under this legislation, the couple will be able to secure recognition through a civil partnership if they choose to do so. In such circumstances, what would be the legal rights of the child in the event that the biological mother passes away and the biological father lives in a different country and no longer has a relationship with the child? Will custody or guardianship transfer to the new entrant in the family unit who has legal recognition in terms of her relationship with the mother but no such recognition in terms of her relationship with the child? That is a very real scenario which occurs in Irish homes and we must deal with it in this legislation.
There is also the issue of adoption; the bringing of a child into a family from outside. One may look at how countries such as the Netherlands, Belgium, Spain, Sweden, Canada, Norway and South Africa, all of which have introduced full same-sex marriage, deal with adoption. They do so in slightly different ways. In some cases a child can be adopted only if it is the biological son or daughter of one of the same-sex couple. In others applications for adoption are allowed but only within the state concerned. Foreign adoptions are not allowed because there are complications with regard to recognition of same-sex marriage in other states.
There is a range of ways in which we can deal with the issue but we cannot ignore it. We must put in place a legal structure for this circumstance. Perhaps I missed it, perhaps it is included. We must establish a structure to protect children in the family unit of a same-sex couple whose civil partnership breaks up. In the same way that children and the welfare of the child take primary position in cases of marriage breakdown we must have provision to protect children who may find themselves part of such an evolving family unit. I ask the Minister to consider that issue. I recognise it is a very difficult area but we have responsibility for it and must deal with it.
I disagree with some of my colleagues about conscientious objection. This is a classic example of the need to separate church and State in terms of policy. If we pass a Bill which gives a legal right to same-sex couples under civil partnership legislation those couples have the right to expect that the State will deliver the services it has signed up to deliver under the Bill. This is a question of the law not of a person's religious beliefs. It is important to say this. The Minister spoke of the potential for discrimination, perhaps on the basis of deeply held religious beliefs, but the law has an obligation to ensure that the protection of people against discrimination overrides those concerns. In the same way we must protect other minorities in Ireland, whether they wear a headscarf or have a different skin colour, religious belief or tradition. This is about ensuring that everybody is seen as equal in the eyes of the law and that the relationships we support through the civil partnership Bill cannot be discriminated against when this legislation is passed.
I try to keep religion out of this debate. I consider myself to be a practising Catholic and the basis of Christianity is about tolerance and respect for the diversity of others. In my view, it should be about taking a liberal and tolerant view on issues such as this. We must protect the people for whom we are legislating in this Bill. We must ensure that even if people have a conscientious objection they will not be able to discriminate against a same-sex couple because they do not approve of their behaviour.
This is not an ideological stance, one way or another. I am sure the Minister has heard both sides of this argument in his party as I have in mine. I do not espouse a Fine Gael position but give my personal viewpoint.
There is still some work to do on the legislation, particularly in the areas of children's rights and support for families. There is work to be done, too, in improving the support mechanisms to be provided for cohabiting couples in the Bill. I do not suggest we give them the legal recognition we propose for civil partnerships but we could go a little bit further in terms of financial supports and establishing rights in the areas of inheritance, wills, decision-making, property and so on. The Minister will see the tabling of amendments to reflect that.
I look forward to Committee Stage of the Bill where we can explore in more detail some of these issues.
I thank all the Deputies who made contributions concerning this important piece of legislation. There was a high level of cross-party support for the Bill and I very much welcome that. I was struck by the quality of the debate. It says a lot for the way in which we, as a society, have moved on. Many Deputies referred to what was termed a "new reality" and this legislation is indicative of the dramatic changes that have taken place in our society in the past ten to 20 years.
However, when the Bill was published, it was clear it did not satisfy everybody. There were those who said it did not go far enough and others who said it went much too far. As I indicated in my speech at outset of this Second Stage debate, in drafting the legislation I appreciate that other parties made contributions in its regard. I will make one point lest anybody thinks my party was dragged into this legislation. In our manifesto, long before there was any talk of our being in Government with any other party before the last election, my party indicated clearly that if we were re-elected to Government we would move on this legislation as quickly as possible. We have done so.
Returning to those references about what other parties contributed, the reality is they did this work in the luxury of Opposition. This is very detailed complex legislation and any political parties in Government must deal with all types of legislation on the basis of advice from the Attorney General, his office and that of the Parliamentary Counsel. They have an absolute obligation under the Constitution to ensure that any legislation which is brought forward is constitutionally sound. They cannot merely write it on the back of an envelope. I do not say this to criticise the Opposition. We were in Opposition too in our day.
Parties in Opposition have a much broader sense of possibility and a much more lax approach to drafting legislation. They do not have the same constraint as Government parties.
As I said at the outset of this Second Stage debate, I and the Government were obliged to deal with the balance required in our Constitution, namely, the balance between the special recognition of marriage as laid down in Article 41, on the one hand, which has been enunciated in many Supreme Court and court decisions regarding the status of marriage and the actual concept of marriage, particularly in its heterosexual guise and, on the other hand, the balance Article 40.1 of the Constitution which refers to equality. Again, this must be balanced with Article 41.
With regard to the many contributors who said that amendments would be required to the legislation, in its drafting we were obliged to take that balance very much into account. Concerning amendments that the Government or the Opposition might bring forward we must maintain that balance.
I appreciate the cross-party support afforded to the Bill. However, many Deputies on the opposite side of the House made political points about what their parties have done in respect of this issue. I could not put it any better than Deputy O'Rourke who stated that the entire ethos of our party is republicanism. In the true spirit of republicanism, we brought forward this legislation. We have a good record in respect of the issue of equality. All of the equality infrastructure that has been put in place in the State during the past 20 years was brought forward by Fianna FÃ¡il-led Governments. All of the legislation relating to equality which is currently on the Statute Book was brought forward by those Governments. One need only consider our record on this issue and Deputies on all sides recognised the work done by our current EU Commissioner when she held my position. Thankfully, my party and I are following our traditional line in this regard.
While Deputies supported the general measures relating to maintenance, ownership of the family home, pensions and succession, some of the issues to which they referred are not contemplated in the Bill. Several of them indicated the difficulties they have with regard to omissions from the Bill and a number pointed out the absence of provisions relating to children in the context of civil partnerships. In formulating the civil registration scheme for same-sex partnerships, the Government was mindful of the implications for children, be they the children of one or both partners. An extensive body of law relating to the welfare of children - in the context of guardianship, maintenance, access, custody - is already in place. Different persons, regardless of whether they are married, are obliged to deal with many of the issues to which I refer.
It has been suggested that the Bill is silent in respect of children. As already stated, however, there is already a wide-ranging body of law relating to children's rights in place and this will be available to the children of same-sex couples, regardless of whether the legislation is passed.
It has also been suggested that the Bill should make express provision for the rights of same-sex partners in respect of children. In the context of any debate on rights relating to children, I would refer Deputies to the decision of the Supreme Court on 10 December last in the case of J. McD. v. P. L. and B. M. The court made it clear that in the first instance "The child's best interests are the first and paramount consideration in any case to do with a child's future under section 3 of the Guardianship of Infants Act 1964." The court also held that:
... the mere fact that the law could be said to be silent as regards a specific situation does not necessarily mean that it is unaffected by the law or the Constitution. Silence of the law may speak volumes for the legal status to be accorded or not to be accorded to a particular subject matter or situation.
In view of the legal complexity of legal relationships between children and their parents, a comprehensive review of the law in this area by the Law Reform Commission is under way. This should, in due course, help to inform policy decisions on rights in general in respect of children, partners and others. The commission published a consultation paper in September 2009 on the legal aspects of family relationships and has invited submissions from interested parties on its provisional recommendations. The final report, which will contain the commission's recommendations, is expected later this year. This report will deal with the issue of children in the context of different family relationships not least in respect of separated fathers and how they are dealt with in terms of custody of their children, etc.
It was never intended that the Bill should develop principles that would inevitably have wider implications than those relating to same-sex partners. In reply to Deputy Shatter, I wish to state that the Minister for Health and Children intends to bring to Government later in the year proposals relating to legislation to govern the area of assisted human reproduction and related practices.
Deputies Charles Flanagan, Catherine Byrne and Barrett referred to the omission of reference in the Bill to siblings or other persons who live together and whose relationships could benefit from the regulation of what should happen in the event of disputes or that of hardship resulting from their being in a position of vulnerability. As with the position relating to children, I do not believe it would be appropriate to use the Bill for the purpose of establishing particular rights and obligations for a wider range of persons.
Giving the courts power to make orders in respect of maintenance, pensions and property would constitute an unwarranted intrusion into normal societal and familial relationships. It would be inappropriate to require siblings, family members or those sharing houses to pay maintenance to each other simply because a relationship or friendship has broken down. In addition, giving the courts the power to make orders restricting or mandating the sale of property would again be an undue interference with constitutional property rights. This issue is extremely complex but I accept that it could be addressed at a later date. Dealing with it in this legislation would inevitably delay what we require to be delivered in a relatively short period, namely, the registration of same-sex civil partnerships.
Many Members who contributed to the debate on the Bill rejected calls for the inclusion of freedom of religion provision and also a provision relating to conscientious exemption for registrars and service providers in respect of, for example, the rental of church property. I agree with the view that there is no basis for providing a right to discriminate against a class of persons on the grounds of freedom of religion or conscience. It would also be against public policy to prevent State officials to choose not to perform certain of their official functions on the grounds that to do so would be contrary to their religious beliefs. A number of Deputies referred to sections 22 and 23 in respect of this matter and stated that the provisions contained therein are new. That is not the case. They are already contemplated in the 2004 Act.
Deputy Crawford and others referred to imprisonment. This is already contemplated in the legislation in the context of the refusal by State officials to perform their other duties in respect of the registration of normal marital situations. In effect, all we are doing is extending that provision in respect of civil partnerships.
I wish to refer to some unintended consequences that could result from the inclusion of a freedom of religious conscience clause in the legislation. What would be the consequences if we were to allow officials to choose the parts of their job they would not do on the basis of their religious beliefs? In this regard, a registrar could refuse to register the marriage of a person who has been divorced. This matter has not arisen since the introduction of our divorce legislation and no registrar has indicated that he or she might have any particular problems with the Bill before the House. Other possible consequences could include a court clerk refusing to issue divorce orders; a science teacher refusing to teach about evolution; a fundamentalist Christian Garda refusing to arrest a husband who is breaching a safety order on the basis that he is entitled to chastise his wife; a judge refusing to register a power of attorney in favour of a person's civil partner; a Muslim or Mormon accident and emergency doctor refusing to treat someone presenting with alcohol poisoning; an official of the Department of Social and Family Affairs refusing to pay carer's allowance to a person's civil partner; or a probate officer refusing to issue a grant of administration to a deceased person's civil partner.
If we were to put in place a freedom of conscience clause, it would have completely unintended consequences. In addition, it would run completely contrary to policy to allow public servants to pick and choose in respect of the view of either the Oireachtas or the Executive regarding duties which must be carried out. As Deputies on both sides correctly pointed out, anyone is entitled to know that the services in respect of which provision is made in legislation will be provided without fear or favour. I cannot accept any amendments on that issue.
I wish to clarify for Deputy Barrett, who raised the issue, that the offences outlined in sections 22 and 23 of the Bill are not new. These provisions extend to civil partnerships the exact penalties already provided for in the Civil Registration Act 2004 for the failure on the part of the registrar to perform statutory duties regarding the registration of marriages. Providing exemptions on freedom of conscience grounds in the supply of goods and services would roll back the very extensive equality legislation introduced by successive Governments and supported by the House in the past dozen years. The conscientious objection amendment to the Equality Bill in the UK mentioned by Deputy Barrett was actually opposed in the House of Lords and was subsequently withdrawn by its proposer.
Deputy Charles Flanagan sought information on the operation of schemes for the protection of cohabitants in other jurisdictions. This matter was examined and reported on by the Law Reform Commission, which recommended the redress scheme in its 2006 report on the rights and duties of cohabitants. The Colley group also examined what are referred to as "presumptive schemes" in other jurisdictions and these are described in the options paper also published in 2006. The Deputy also drew attention to the need to raise awareness of cohabitants to the new obligations arising under the Bill. This matter will be addressed before the commencement of the cohabitants scheme.
The Deputy commented that legal experts have warned that the presumptive nature of the cohabitants redress scheme could give rise to legal challenges and that ambiguities in the Bill regarding the establishment of when cohabitation began may present problems. I shall, of course, take into account his remarks for further consideration. However, section 170 expressly defines the periods of cohabitation required to qualify under the redress scheme and provisions already exist in the Domestic Violence Act 1996, for example, that prescribe periods of cohabitation for the purpose of that Act. I do not believe that establishing the duration of cohabitation under the provisions in the Bill will be a particularly difficult matter, although there are certain necessary variations in a case where either of the cohabitants has been married to another person during the period of cohabitation. This is consistent with the Attorney General's advice that we must ensure that in such cases the spouse, being a party to a marriage, must take priority over the potential claims of any other cohabitant.
Deputy Shatter also raised a number of points on the cohabitants redress scheme. His first point was that the scheme would only provide minimal real protection. However, in formulating the provisions for cohabitants I was conscious of the necessity to protect the autonomy of those who choose not to marry and indeed those who in due course choose not to register as civil partners. The Bill's redress scheme is not designed to redistribute the property or finances of a couple who split up; it is designed to mitigate hardship where a relationship ends leaving one former cohabitant financially vulnerable. The Government has no proposals to widen the provisions for cohabitants in a way that would serve to undermine the institution of marriage.
The Deputy questioned the policy behind the shorter timeframe necessary to become a qualified cohabitant, where there is a child of a relationship. In its recommendation the Law Reform Commission acknowledged that the provision for a shorter timeframe would be desirable where there is a child of the relationship and the Government agrees with this recommendation. The law does not treat everyone in the same way regardless of his or her circumstances. There is a clear case for different circumstances warranting some differences in treatment in the Bill. The Deputy suggested that the redress scheme should apply from the date of the publication of the Bill so as not to encourage people in the meantime to extricate themselves from relationships with a view to avoiding obligations of one to another. There may be difficulties in seeking to apply the financial and property obligations arising under the Bill before its enactment, but we can return to the issue on Committee Stage.
Deputy CiarÃ¡n Lynch asked if it was intended to introduce an amendment on Committee Stage to provide that an order made in favour of a qualified cohabitant could not affect the entitlement of a civil partner. I refer the Deputy to section 206 of the Bill, which obliges the court when making orders under the Bill to have regard to the rights of others with an interest in the matter including a civil partner or a former civil partner.
Deputy Howlin sought to provide in the Bill for retrospective recognition of foreign civil partnerships if one partner dies before the provisions of section 5 become operable. I am very conscious that some people in committed long-term relationships, whether they have entered into a civil partnership elsewhere or not may, sadly, not live long enough to have their relationships recognised under Irish law. However, the Deputy will be aware that the issue of providing retrospective recognition has always presented a difficulty in legislation. Providing for it would introduce profound uncertainty into succession, pension and tax law. Where pragmatic solutions can be achieved without creating this uncertainty, I am very willing to consider them, but blanket retrospection of entitlements is simply unworkable. The Lourdes marriage provision in the Marriage Act 1972 does not provide a precedent if only because those who married in Lourdes believed themselves to be fully legally married under Irish law as it then applied. Couples who have registered civil partnerships or same-sex marriages abroad can have no such expectation regarding those relationships.
Several Deputies indicated that they would propose amendments on Committee Stage and I look forward to examining and debating these. Regarding Government amendments, a certain amendment to the Domestic Violence Act 1996 was not carried through consistent with the policy that was proposed in the general scheme. I propose to introduce this provision by means of a Committee Stage amendment. The proposal will allow a person to apply for a safety order against a person with whom he or she had a child in common even if the couple concerned never lived together. The occasion of access to children can be difficult and safety issues often arise. While it is in the best interest of the child to ensure that he or she can develop a relationship with both of his or her parents, this should not be at the expense of the safety or well-being of either of the parents. That is detrimental to everyone, including the child who may be caught in the middle. Making safety orders available in law, if necessary, in such circumstances sets down a clear marker that violent and intimidating behaviour is not acceptable. I hope to introduce an amendment to ensure the Bill is not found wanting in this regard.
The Civil Partnership Bill will put in place a legal regime that reflects many forms of partnerships in modern Irish society. It provides legal protection for cohabiting couples and essential State and societal affirmation of same-sex couples. I thank all the Deputies for the very considered contributions they made on the Bill. I look forward to the debate on Committee Stage when we can tease out these issues in more detail.