Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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For the information of the House, a typographical error has been noted in the Schedule to the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023. This Schedule contains the text proposed to be substituted for subsection 1° of section 3 of Article 41. In the Schedule to the Bill, as published, there are full stops after the numbering of section 1 in each language, as highlighted at the foot of this note. The use of these full stops is superfluous and inconsistent with the well-established numbering convention used in the Constitution. For consistency of formatting in the Constitution, it is considered prudent that these full stops be removed from the text in both languages in the Schedule. Accordingly, while discussing the Schedule, the Minister may request the Chair to direct the Clerk to make an amendment. Is that correct?

Roderic O'Gorman (Dublin West, Green Party)
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Yes.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Does the Minister wish to do that now?

Roderic O'Gorman (Dublin West, Green Party)
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Yes. I will make that request.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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The Minister has made the request. Is that agreed?

Seán Sherlock (Cork East, Labour)
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Agreed.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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That being the case, it allows us to move to a preliminary matter of procedure.

As this is a Bill to amend the Constitution, in accordance with precedent and Standing Order 184, the Schedule to the Bill will be taken out of sequence, given that the schedule contains substantive elements of the proposed amendment to the Constitution. The proposed sequence of the elements of the Bill is as follows: Section 1; Schedule; Section 2; Preamble; and Title. Accordingly, immediately following the disposal of the first section of the Bill, I will ask the Minister to formally move that consideration of section 2 be postponed until the Schedule shall have been disposed of.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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We may now proceed to alternative section 1. Amendment No. 1 in the names of Deputies Paul Murphy, Bríd Smith, Barrett and Gino Kenny has been ruled out of order.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Amendment No. 2 is in the names of Deputies Bacik, Howlin, Kelly, Nash, Ó Ríordáín, Sherlock and Duncan Smith. Amendments Nos. 2 and 3 are related and will be discussed together. Does Deputy Bacik wish to address this amendment?

Ivana Bacik (Dublin Bay South, Labour)
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Tairgim leasú a 2:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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It is rare that I comment on other contributor's words in this House but I cannot let one of the sentences that was uttered a moment ago go. I will not go out at the beginning of March to blow off steam in a ballot box. I will go out to think about all of those families that somehow were considered less in our Constitution and less in law because of that. It is about the likes of Johnny O'Meara, whose case is due on Monday, and the single parents out there who were less in the eyes of the State. It is not to blow off steam.

That said, I ask myself a question with my special Oireachtas committee hat on my head. In that committee we purposely sat down and came up with the title for the report: "Unfinished Democracy: Achieving Gender Equality". I wonder if that will still be the case after this referendum has been put to the people, and I sadly suspect that it will be. I want to ask the Minister - and I asked this question on Second Stage - why the Government moved so far from the citizen's assembly recommendations, despite that process beginning as far back as 2018 and being representative of the all-party Oireachtas Joint Committee on Gender Equality? I want to draw the Minister's memory back just over a year since that committee reported. The committee was so committed to doing justice to the citizen's assembly and the recommendations it had made and to bringing it one step forward and bringing it to Government as something that should be considered for implementation. So committed were we that we came back to the Houses of the Oireachtas and sought an extension. We did not just want to draw the line under something because a clock told us we had to do so. We wanted to ensure we had got it as right as we could, as a cross-party group of people.

Sinn Féin is not the only group that is concerned by some of the language in the proposed amendment, and it is not even just those of us in this House who are concerned. A lot of the stakeholders to whom I have spoken since this process began have concerns, that to their minds and to my mind, have yet to be fully addressed. This is so important. The expansion of the definition of a "family", as proposed, is hugely significant and important. The fact that it is so important and significant means it has to be gotten right. When we extend these constitutional protections to the single parents and cohabiting couples that have been in long-term relationships and to their children, it must be done in a way that is open and transparent.

This expansion of constitutional protections to families founded on durable relationships raises questions on what that means in practical terms. What are the implications in law and policy, be that social protection, taxation, education, succession or family law? The list goes on. It cannot be credibly suggested that a major amendment such as this to the constitutional definition of a "family" has no foreseeable consequences in existing law and policy. It has, and we want it to have consequences in existing law and policy. We want them to change also but what are they, how will they change and when will those changes take place? It is vital for that rationale that the wording, scope, meaning and expected changes in law and policy are identified to the greatest degree possible at this point and at this stage. In the absence of that information there is a significant risk of confusion among voters on the implications of the proposed changes. It heightens the risk of misinformation around the proposal, a risk that the Government has recognised.

Now is the point where Government should outline the research that has been carried out on the implications of the amendment for existing legislation. What were the findings and recommendations of the interdepartmental committee that was founded to prepare for the referendum? Will the Government publish any research conducted by that committee and by the Office of the Attorney General so that others can see the proposed amendments and the impact on legislation? The State needs to commit to expanding social welfare reforms to, at the least, families under a different definition from those that have been included to date. The Government also needs to consider the draft legislation and what it will look like. What is the Government's timeline for this? If six Bills will be required, when will they be prepared and when will they be brought before the Dáil? Amending the Constitution is one thing but delivering meaningful change does not just come from a referendum; it comes from the legislation that needs to come after. What does it look like and what is the Government's timeframe?

To use the term "durable relationships" is novel and the Government must admit that. My concern is around the term "durable". I have known deep and meaningful relationships that did not last as long as others may have. What is the threshold? Is it time, quality or quantity? Why were the words "interdependent" and "co-dependent" not chosen? They give a clearer definition that people can understand and that they have seen activated in other areas. On the face of it, it appears to provide that single-parent family with the constitutional protections that others have had, and that is welcome, but the language that has been chosen brings a risk to it that could easily have been avoided.

Michael McNamara (Clare, Independent)
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The fact that Committee Stage is being held in the Dáil Chamber rather than in committee rooms, as normally happens, makes it somewhat more formal. Normally in a committee room there is a possibility for an exchange with the Minister. Will there be such a possibility or do we just ask questions now and hope they will be answered at some point in the next three or four hours?

Catherine Connolly (Galway West, Independent)
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Hopefully, there will be answers when the Minister gets a chance to reply.

Michael McNamara (Clare, Independent)
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The Minister is a legal academic and he brings that strength to his position.

It is without doubt that a constitutional referendum, if accepted, will introduce changes to the legal regime. As I am sure the Minister will be aware, the issue of recognition of foreign marriages is one in which there has been very heavy litigation in the Irish courts, including in the case of HAH.

I would like to ask a question about polygamous marriages, an area of very heavy litigation. What impact, if any, does the Minister anticipate if the two changes are accepted? I am sure the Minister will be advocating the acceptance of both by the people. What impact will the two have on the recognition of polygamous marriages per sein terms of the recognition of the legitimacy of children from those marriages and also in terms of family reunification, including in respect of children of successive marriages? My understanding – I could be wrong on this – is that EU law as it stands requires that, for family reunification purposes, the spouse and children of the first marriage only are entitled to family reunification. In Irish law, the 2014 Act is quite clear that all children of a person granted international protection, once they are minors, have an entitlement. You could be an adult child and not be entitled to family reunification, but all minor children are entitled to it. I would assume that applies to all children of all marriages once the marriages are valid in the countries of origin. I am aware that in various cases that have come before the Irish courts, one spouse of a recipient of international protection with more than one spouse in the country of origin has been granted family reunification, and others have been refused. My question is on the impact the changes will have in this regard. It seems to be undoubted that there will be an impact. I do not know whether the Minister is shaking his head in response to something I am saying or something-----

Roderic O'Gorman (Dublin West, Green Party)
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It will not. There will be no recognition of polygamous marriages. Let us be very clear about that. That is not in any way the purpose. Perhaps when I speak to Deputy-----

Michael McNamara (Clare, Independent)
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I am quite happy to allow the Minister time to respond.

Catherine Connolly (Galway West, Independent)
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I am going to take all the speakers first, so if the Deputy wants to finish, he may do so.

Roderic O'Gorman (Dublin West, Green Party)
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It is an important question and I will come to it in detail when it comes around.

Michael McNamara (Clare, Independent)
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It is one thing to say it will not have an impact but I struggle to see how recognising durable relationships will not have an impact regarding polygamous marriages, regardless of whether we recognise them as marriages for Irish purposes. It is difficult to envisage how we would not recognise them as durable relationships in the countries of origin. It may be that we are going to make a very clear legal distinction whereby we will recognise what are durable relationships in the country of origin, with family bonds built up, and suddenly not recognise them when those involved are in Ireland, with the State not striving to support those involved in living together. I think that is the wording the Minister is advancing. I am curious to know whether the Minister is adamant that there will not be any impact whatsoever on the recognition of polygamous marriages, or at least the right of persons in a polygamous marriage to subsequent family reunification. I am referring to the basis on which he says that. I await and look forward to his response.

Paul McAuliffe (Dublin North West, Fianna Fail)
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Like the other Deputies who served on the committee, we should acknowledge that, with the date now set and the legislation before us, we have a historic opportunity to recognise those families who do not fit within the tight constitutional framework that the current version of the Constitution permits. That is important because, no matter how we get there, the House is united in ensuring that with regard to families who do not fit within the tight definition, the change will finally be made to our Constitution and those families will be recognised. My father has a great phrase: "Life is not a tidy place." There are so many different versions. Even quantifying how many people in my constituency might be impacted by this legislation is difficult. I was looking at some of the Library and Research Service's statistics. Of the 14,000 families in my constituency with children, almost 6,000 are regarded as one-parent families, but they may already be protected by the current Constitution because they may be based on a marital relationship that has been subject to separation. Even trying to quantify the multiple types of families and the different shades of families that exist is very difficult, and that is because of the complexity of this issue. I say this based on my experience of the marriage equality referendum. We fought very hard to extend marriage equality because we believed marriage meant something and that it was an institution that more people should have access to. I would hate to see red herrings in this referendum that would seek to say we are undermining the institution of marriage or the idea that marriage entails a positive decision by two people to come together. Referendums are often won and lost on the basis of red herrings.

As a member of the committee, I echo what was said by other members. We deliberately suggested wording that would in no way dilute the rights of the family. It was a conscious decision that we made. I am not opposed to the wording. These are just two different routes to the same place. In addressing the amendment put forward by the Labour group, I would like the Minister to try to answer some of the queries we will get on the doorsteps. We have heard some of them here. I object to the idea that recognising thousands of families in our Constitution for the first time is somehow blowing off steam. That comes from a position of huge privilege that entails not understanding that everybody does not fit the same mould. It is important, however, that the Minister answer some of the questions on the issues around immigration, diluting the rights of families and the idea that this will lead to the Government having to introduce legislation in certain areas. In doing what he has done by adding the phrase "durable relationships", he might actually be providing greater protection than the Oireachtas committee was willing to provide, but I ask him to equip us with the advice he has been given on why the decision was taken to go down the route in question. What are the definitions of durable relationships the Minister has discussed with the Attorney General and the Cabinet?

Mick Barry (Cork North Central, Solidarity)
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Clearly, there are provisions in this amendment that represent a step forward on the current position. There is a move away from the very rigid view of what constitutes a family that is embedded in the 1937 Constitution and that very directly reflects Catholic Church teaching, and that is the way it should be. It allows for the potential – only the potential but potential nonetheless – for a Government to extend rights to all family forms in our society, be the family members married or not. In its own way, it is a reflection, albeit a very pale one, of the social changes and movements we have seen in this State in recent years, including the feminist movement and the appeal changes.

I read in the papers in recent days that there was concern in Government quarters as to whether this legislation would be passed. The timid character of the Government's amendments increases the likelihood or possibility that it will not be. There are many people who want to see a bolder change and who would be more likely to be inspired to vote if there were bolder changes, including changes along the lines of the amendment we are debating.

The Constitution currently states that the State is to guard with special care the institution of marriage and protect it against attack. Marriage is made the gold standard but one arrangement cannot be elevated without pushing other arrangements down. That provision allows the State to discriminate and it could be argued, and this is reflected in a number of court judgments, one of whom I am thinking in particular of, that it obliges the State to discriminate. We have a situation in the State where an unmarried couple will not have the same pension entitlements as widows and widowers, cohabiting couples will not qualify for a variety of tax benefits and many pension schemes discriminate against non-married couples, and have a legal right to do so.

Are these going to be changed on the basis of the Government's proposed amendment? Would there not be a far greater chance of the amendment being passed and change being achieved if the Government was to widen and put a bolder amendment in front of the people? I would like to support amendments for change regarding Article 39 of the Constitution but I, and I think many other people, want a far bolder approach to this issue rather than the timid approach the Government is adopting on this. I will supporting this amendment.

Seán Sherlock (Cork East, Labour)
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In the Minister's speech on 14 December 2023 where he referred to durable relationships, he stated:

It simply recognises that the concept of the family outlined in Article 41 is no longer limited to the marital family and also encompasses other durable, committed relationships, including one-parent families and cohabiting couples and their children. In terms of the Constitution as it stands, the family continues to be described as the fundamental unit group of society. There are no proposed changes to this element of the existing Article 41.

On the issue of durable relationships and the implications for the making of policy in respect of social welfare, taxation, succession, family law and other areas, the signal I would like to receive from the Minister concerns the practical implications of the use of the term "durable relationships" for the making of policy. Can he tell us in clear and unambiguous language how that will be inculcated in the making of policy?

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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I come here today less than enthusiastic about this. I said to the Minister the last day we spoke about this that he has made it very difficult for parties and people like me and mine who really want to progress the equality agenda in this country and has made it even more difficult for the citizens' assembly, which did a lot of work on the question of equality and how it should apply to the Constitution. Amazing work was done by the Joint Committee on Gender Equality, much of which was based on constitutional legal arguments. Nevertheless, the work was very impressive. Regardless of what was recommended to the Government, it has been ignored and the Government has gone ahead and given us a very weak set of proposals for constitutional change.

This makes it difficult for people to be enthusiastic and to fight for it but it will provide an opportunity for some mischievous elements of our society, about which we spoke earlier in respect of questions of race. They will also use the question of gender to put their spoke in and try to influence and muddy the waters. How does the Government plan to campaign for a "Yes" vote on this? The Government is obviously going to promote a "Yes" vote because it has put forward these clauses it is asking us to deal with so if the Minister could outline how the Government's campaign for a "Yes" vote is going to proceed, it would be quite helpful.

We tabled two amendments that were ruled out of order. Again, I would like to ask the Minister questions about that because both the citizens' assembly and the Joint Committee on Gender Equality recommended non-discriminatory language for Article 40.1 but the Government chose to leave it out and keep the old-fashioned discriminatory-sounding language in the second clause, which states:

All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical or moral, and of social function.

We wanted to delete that, and I am speaking to it because it has been ruled out of order so we will get another chance, and replace it with the State shall in its enactments have due regard to the principles of equality and non-discrimination. Can the Minister explain why this has been ruled out of order and explain why that should not be included in the idea that we need to extend the definition of the "family", which we agree with? That is obvious. One cannot go against that. More than one in five relationships involves lone parents with children and marriage is basically almost like the last option. A councillor who was with me this morning at the press conference lived as a lone parent, then lived in a cohabiting couple and is now married. This explains the story of lots of people's lives, yet the Government is still continuing to give marriage a stronger status over the other states that people live in. Could the Minister explain that? I really regret that our amendments were ruled out of order and I would like him to explain why he made that decision.

Jennifer Whitmore (Wicklow, Social Democrats)
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I support the Labour Party amendment. The amendment seeks to remove the language from the Constitution that defines marriage as being the basis on which the family is built. It seems a very practical, clean and simple amendment to make.

It is important to note that these amendments do not undermine the value of marriage or traditional family structures. They acknowledge and validate the diverse forms of family that occur in our society today. Thankfully, Ireland is a very different place from what it was 20, 30, 40 or 50 years ago. We know that 40% of families are headed up by non-married parents be that in the form of co-parenting, single parents or those who have been widowed. One in five people in Ireland lives in a one-parent family. One in four families with children in Ireland is a one-parent family. We often quote the line in this House about all children in Ireland being cherished equally but this cannot be realised given the way the Constitution creates a hierarchy of family structures recognising the family established through marriage and excluding all others by omission. We need to see equality for all families reflected in our Constitution because as a constitutional democracy, it is the foundation of the legal and social code as well as our national statement of principles.

An organisation that has been calling for reform in this area is One Family, which launched its policy on Monday. It is worth quoting its statement on Monday regarding the vote.:

This referendum symbolises reparation and recognition for those who have long been shamed. Through this referendum, the Constitution will extend its protection to various types of families, such as unmarried parents and their children, one-parent families and unmarried couples.

This referendum is historic. It is an opportunity to break with the past and for us to recognise that Ireland is changing and that we are no longer confined by these very strict, tight and often religiously influenced binds we have had to date. The language in the Constitution needs to be consigned to that past, and we should be able to look forward to a future when we have equality among all families. The Constitution is the fundamental legal document of our State and it is a living document. As the principles of the Constitution guide our society, our society must also guide our Constitution. Marriage does not make a family; it is the relationships, actions, love and care between people that form a family.

Deputy Bríd Smith gave a personal example. When I lived in Australia, I had two children with my partner there and we were de facto spouses, a de facto couple. We had all the legal rights a married couple had. When I had my children over there, not an eye was batted, there was no issue, it was not a thing, and people would not ask us if we were married or anything like that. It just was not an issue for people. Then I moved home with the two children, heavily pregnant with my third. Once I stepped off the plane, the difference I felt being a parent of children when not married was incredible. There were the constant questions. There was a sense of shame. Even within my own family, there is, I think, a sense of embarrassment among the older generations that I had three children outside the bounds of marriage. Interestingly, we ended up getting married. It was not something I had a real grá for, but I did it because our rights were completely undermined in that relationship. My children were not treated in the same manner as other children. My partner and I were not treated in the same manner as married couples. I actually cannot remember the date of my marriage. We had it in a registry office. It was pure basic. We did not even tell our family we were going to do it. We went in and got it done and dusted. Would I be married now if I did not have to be, or did not feel like I had to be, because of the Constitution and the way our society has grown? I do not know - probably not - but I think that choice was taken away from me and my partner because of the very way in which society was set up here.

Whether or not this amendment is accepted, it is great that we are now moving to a place where we will be more equal and the children of those who decide to raise families by themselves will not have to be shamed. That is something to be very proud of. I ask the Minister, however, to consider these amendments because we want to get this right and make it as strong as possible.

Roderic O'Gorman (Dublin West, Green Party)
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I thank all Deputies for their amendments and their contributions that allow us to discuss, I hope in real detail, the important constitutional changes we are making. Like other Deputies, I welcome the groups represented in the Gallery today. The National Women's Council is here, as are Family Carers Ireland and One Family, and those three organisations are all advocating two yes votes on 8 March. I assure Deputy Bríd Smith that the three Government parties will vigorously advocate for a yes-yes vote in all the mechanisms that parties can use to convince, argue and engage with the electorate, be it the canvass, online-----

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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Of course. It is the messaging. I am just wondering how the Government will put its message across. What message is it giving the Irish people that says they should vote yes-yes?

Roderic O'Gorman (Dublin West, Green Party)
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The clear message is that our Constitution needs to reflect our values. Right now our Constitution does not reflect our values because it places women in a particular category and does not suggest that men or anybody else should be involved in the business of care. It excludes so many families from the recognition of the family in our Constitution. I remember that in 2015, when I was also in a situation in which I was forever excluded from access to the family through the institution of marriage, that was the driving force for my going out and knocking on doors. My situation was addressed by that referendum and, subsequently, being able to get married, but tens, if not hundreds, of thousands of people whom all of us would call families do not fit within the definition of "the family" under Article 41, and we can address that. We have to bring our Constitution into line with our values and with people's lives in this country. That will be a central argument.

As Deputy Smith knows, the Government does not make the decision as to whether something is ruled out of order; that is a decision for the Bills Office. I would not have been in a position to accept amendment No. 1. A lot of discussion was undertaken in respect of Article 40.1 and whether there should be a third referendum. We looked at the proposals, the wording, put forward by the Oireachtas joint committee. The term the Deputy seeks to delete and replace is: "This shall not be held to mean that the State shall not in its enactments have due regard to the differences of capacity, physical and moral, and of social function." That line is very wordy but actually quite important in that, after the broad statement of equality in Article 40.1, it allows for positive discrimination. It recognises that the Government can make certain changes. It recognises that the one-size-fits-all approach is not actually equality because there are measures that can be taken to support people, whether through gender quotas or supports for people with disabilities accessing work. Those are all permitted. It is not blanket equality and just walking away. It recognises that people start from different places, and that is provided for in law as well. That is the line the Deputy would be taking out. Looking back over the jurisprudence over the years, that line is quite important when the State designs schemes to support people who are more vulnerable.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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It is replaced with stronger language in our proposal.

Roderic O'Gorman (Dublin West, Green Party)
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The Deputies' language does not deal with the issue of positive discrimination, though, and I think that needs to have a constitutional basis.

Deputy Michael Collins is not here any more, and I do not like addressing critiques of Deputies when they are not here, but he suggested that this amendment could bring in discrimination against various groups. Fundamentally, this amendment is about addressing discrimination, including the constitutional discrimination that tens of thousands of people in families that are not marital families face right now. He said this is a one-size-fits-all approach. I would argue that our current Constitution is the one-size-fits-all approach. It is marriage or nothing. That is what I see as a one-size-fits-all approach. As regards the concern he raised about an unrelated member of a family getting the family farm, there is no cause for such concern. That is not in any way possible under this legislation. Succession law sets out inheritance rights, and there is no such risk. I hope I can reassure the Deputy on that point.

Speaking to amendments Nos. 2 and 3 from the Labour Party and People Before Profit, respectively, as the House will know, the Government proposes to amend Article 41.1 to read that the State recognises the family "whether founded on marriage or on other durable relationships" as "the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law". The purpose of the Government's amendment is to expand the definition of the family under the Constitution beyond just the marital family and allow us to include cohabitees and any children they might have as well as one-parent families.

The purpose of the change to Article 41.3.1°, which Deputy Bacik proposes, and the deletion of that word is to formally de-link marriage from the family, to say that one can exist without the other.

Speaking to the questions from Deputies Bacik and Clarke as to why we are putting the term "durable" into Article 41.1.1°, there are two reasons for that.

We wanted a broader, more inclusive recognition and definition of the family. We want to do that in an up-front way. We want to recognise at the start of the article on the family, in Article 41.1.1°, that there are families beyond the marital family and that the definition of family includes those who are married but other durable relationships as well.

The deletion only approach that Deputy Bacik is proposing in her amendment is technically doable, but it does not, in our view, go sufficiently far in calling out other families within our Constitution. This is not just a tidying-up exercise. This has to do something to tangibly recognise the existence of other forms of family in our Constitution. We are doing that through the use of the term "durable relationships". We will talk more about why that particular expression is used. That is the fundamental choice. We are doing it right at the start of Article 41. It is a deliberate choice with deliberate intent. Since some of the most marginalised families in the history of Ireland have been lone-parent families, I think this affirmative recognition is the correct approach in providing that the concept of family in Article 41 is no longer limited to the marital family and that it also encompasses other durable, committed relationships, like one-parent families, cohabiting couples and their children, if they have any. I absolutely recognise where the de-linking approach is coming from but we do not think that just de-linking marriage and the family is enough. We have to have an affirmative recognition of other forms of family in our Constitution.

Deputy Barry proposed amendment No. 3. The outcome of that is to remove the special protection afforded to marriage in the Constitution. It is the position of the Government that marriage is an important institution and it is highly valued, though not by everybody, which is absolutely legitimate, but for many people in this country, marriage is important to them. It was important in the context of the marriage equality referendum. A significant part of the argument I and many campaigns made was that marriage is important and should be open to same-sex couples as well. The Government amendment will mean the Constitution will recognise and embrace families outside of the marital family, but it will retain that special protection for marriage. Nobody loses anything from the Government proposal. Nothing is taken away from anybody under the Government proposal.

Our concern is that the consequence of amendment No. 3 is to delete that special protection of marriage. Irrespective of one's view on the issue of one's marriage, we would have a strong concern about how that will be portrayed in a campaign. The Government would be taking away the constitutional recognition of your marriage. Whether Deputy Barry disagrees with the overall principle or not, I think he knows how something like that could be weaponised in a campaign. I think it would be weaponised. I genuinely think that if we went with that approach to try to bring recognition to non-marital families, that would put the proposal in jeopardy. Deputy Barry may disagree with me but I really think it would. That is the primary reason we would not take such an approach. The approach we are adopting maintains the special recognition of marriage but also allows us to recognise families beyond the constitutional family, like one-parent families and cohabitees.

On the question from Deputies Bacik, Clarke and others on the use of the term "durable relationship" and what we mean by that, the rationale behind using the term "other durable relationships" was to expand the concept of the family in Article 41 to cohabitees with or without children and to one-parent families. The term "durable relationship" is intended to encompass relationships of strength, stability and commitment, such as are consistent with the existing definition of family contained in Article 41, that it is the fundamental unit group of society. I want to be very clear that "durable relationships" covers both horizontal relationships between two individuals in a cohabiting situation but it also covers that vertical relationship between a parent and their child. I want to be clear about the reference to the citizenship directive and the term "durable relationship" in it. There are multiple situations where European Union law and Irish law use similar language and are not talking about the exact same thing. The definition of "durable" that we are seeking to put into the Irish Constitution is not that from the citizenship directive. The citizenship directive is clear that it is just looking at the horizontal relationship between two adults. That is not the case here and I hope I can make that as clear as possible.

On the second reason we would use the term "durable", as a firm reassurance to Deputy Collins and to address the legitimate questions that Deputy McNamara raised about whether other forms of relationship or relationships we do not contemplate being given constitutional status now, we were always clear that serious, tangible relationships are meant to be protected in Article 41. No one wants something fleeting or transient. My reading of the citizens' assembly and the joint committee was very much in line with that. We wanted to give clear guidance to the courts and to the State about what is now encompassed. There is guidance already in Article 41, because it talks a little about what a family looks like. It never actually defines the family as being anything other than something based on marriage. It makes clear that the family, as I said, is the natural, primary and fundamental unit group of society. It also makes it clear that it is a moral institution.

We are adding "durable" to give further guidance about what sorts of relationships are protected under Article 41. A polygamist relationship would not be protected under that.

Michael McNamara (Clare, Independent)
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Why?

Roderic O'Gorman (Dublin West, Green Party)
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First of all, because polygamous relationships have never been recognised under Irish law and, secondly, because a polygamous relationship is not one that represents a fundamental unit group of society. It is not one that represents a moral institution in Irish law and it is not durable. The clear policy intention of the Government regarding polygamous relationships, and I have heard the word "throuples" being thrown around-----

Michael McNamara (Clare, Independent)
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The word what?

Roderic O'Gorman (Dublin West, Green Party)
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Throuples.

Michael McNamara (Clare, Independent)
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Truffles?

Seán Sherlock (Cork East, Labour)
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Three.

Michael McNamara (Clare, Independent)
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Sorry. Throuples. I thought the Minister said "truffles". I wondered if there were truffles in the Dáil restaurant. Sorry.

Roderic O'Gorman (Dublin West, Green Party)
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That issue has come up in some of the debate. So we are clear, such a relationship is not covered in the concept of durability and it is not covered in the expanded concept of the family we are seeking to protect. We have these guardrails already in the Constitution. Putting durability in there adds to that. It is important in a context where we are making a significant and meaningful change that people can understand it is a change to allow our Constitution to encompass serious relationships.

Deputy Clarke made an interesting point about length of time versus seriousness of the relationship. That was discussed with regard to the use of the terms "durable" or "enduring". Enduring speaks to the length of time but durable speaks to the strength of the relationship as opposed to the duration of the particular relationship. It is to convey the density of that very committed relationship and the network of interacting-----

Seán Sherlock (Cork East, Labour)
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We are getting into the laws of physics now.

Roderic O'Gorman (Dublin West, Green Party)
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I will steer away. I thank the Deputy. It tries to speak to the nature of the relationship rather than its length.

That is why the term "durable" was used.

Sorca Clarke (Longford-Westmeath, Sinn Fein)
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Quality, not quantity.

Roderic O'Gorman (Dublin West, Green Party)
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Yes, absolutely. I could not have put it better myself. That quality exists in cohabitees' and child-parent relationships.

Deputy McAuliffe raised the issue of the impact on immigration law. It is an important point to raise as I have seen it feature in the debate. The clear legal advice we received from the Attorney General is that there will be no legal impact on immigration law or, in particular, international protection law. It is likely the change will be cited in cases. It will probably be referenced. People will raise it in courts and ultimately courts will make a final determination. It is important to say, however, that there is a vast amount of legislation that sets out the rights of people who seek to come to Ireland, be it migration for international protection or through family reunification, work visas, etc. The State is given significant latitude in the decisions it takes in that area, as migration is seen as being very much a public policy issue, where the State needs to be able to exercise its discretion. We know already that the courts have allowed the State to make legislation that impacts on existing Article 41 and family law rights because it is regarded as an area where the State has discretion owing to its importance. The interests of public policy and the common good in maintaining the integrity of the immigration system have always been regarded as very weighty and, as I said, they already justify interference with family rights under Article 41.

Finally, on the specific tangible benefits that recognition as a constitutional family will give, from a legal perspective, being recognised as a constitutional family is a shield against Government interference. It places a limit on the State interfering in the establishment of a family - there is a strong limitation regarding the constitution of the family - and in the internal workings of a family or in its authority. When a family is recognised as a constitutional family, the State does not interfere with the internal workings of home or life decisions, including such issues as the religious belief a family adheres to or how and where a child receives education. Those are the core protections that being part of a constitutional family creates.

Once this referendum is passed, there will undoubtedly be a need to address other legislative issues. I am clear that this referendum is not a panacea for the challenges that cohabitees and especially one-parent families and different families face. No one on the Government side is claiming that and I do not think the citizens' assembly ever claimed that either. The citizens' assembly set out a range of other actions that need to be taken, many of which are being advanced with others in need of further work. If Deputies want me to share it, I have a list of what my Department has been able to advance in childcare, types of leave and work done with the Department of Justice on the establishment of Cuan, the domestic, sexual and gender based violence, DSGBV, agency. These are all things that were set out by the citizens' assembly.

I do want to be drawn on the O'Meara case as I think we will see a judgment soon and the Government will have to look closely at the outcome of that decision.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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I want to move on but I said I would give Deputy McNamara an opportunity to seek clarification. Deputy Bacik also wants to contribute.

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

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

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

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

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

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

Ivana Bacik (Dublin Bay South, Labour)
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I thank the Minister for his response, which has been helpful. I agree that the text in the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023 is a vast improvement on the current text in Article 41, in that it enables the recognition of family units beyond those based on marriage. We have all acknowledged that. Cohabitees and single-parent families will be recognised for the first time and that is hugely welcome. The Minister referred to the recommendations in the citizens' assembly report and the gender equality committee's report as being more expansive that just the constitutional changes recommended.

As others have said, we published a full report on the 45 recommendations of the citizens' assembly which was, in our view, a blueprint for achieving equality. We called our report Unfinished Democracy because we need to ensure protections beyond those currently provided for in law and the Constitution to achieve equality.

Other legislative change is required beyond this constitutional change. We have a Labour Party Bill down for next week, the Children and Family Relationships (Amendment) Bill, which seeks to provide for a stronger recognition for the children of same-sex couples who are not currently covered in existing child and family relationships legislation. We hope we will have support from Government for that.

I recently attended the launch of the Cherish archive and was struck by the immense stigma and shame that surrounded cohabiting couples and children born outside of marriage for far too long. We have all acknowledged that and it is time our Constitution reflected a change in our society.

Since we are sharing experiences, I was a happy cohabitee for many years before finally taking the plunge to get married. Our family unit never felt any less of a family for not being based on marriage. It is really important that we recognise that. It is now mainstream for people to have children in all sorts of different settings and relationships, and it is important that we recognise families in that way.

We are debating how we get to that point. I thank the Minister for his answer on why he is putting forward an amendment to Article 41.1. I note he wants to do this in an affirmative way and not just the more straightforward or simple deletion that we have proposed. Our deletion approach would de-link the definition of family from marriage; I think that is clear. In our view, it would enable a more expansive definition of family in an affirmative way. The concern might be that reinserting a qualifying provision on family would be more restrictive than a simple deletion.

The Minister described the phrase "whether based on marriage or on other durable relationships" as a guardrail. Perhaps it might be interpreted in a more restrictive way. As somebody said to me, they will not be able to know if they are in a family because it will depend on the court's definition of "durable relationship". I seek further clarity. The Minister has pointed out that in the Government's view the use of the phrase "durable relationship" is not related to the EU definition of durable relationship. What will stop the courts taking a different view and re-coupling it with the EU directive? I want the Minister to clarify the legal basis for this being used in a different setting to the EU directive setting.

In his speech on Second Stage, he pointed out that there are many instances where a different definition is used in EU law than in Irish law. In EU law, a regulation is one of the strongest legal tools but in Irish law a regulation is of less strength than a Bill, an item of primary legislation. Can we be clear that the courts will know this is not to be interpreted in the same way as in an EU setting and just covers horizontal relationships within a couple context?

On Second Stage, Deputy Carroll MacNeill asked why not use the term "enduring" instead of "durable". That would clearly be very different to the EU legal term and would have the same meaning. I am again struck by the quality not quantity approach the Minister mentioned. This is not about duration in terms of time, but rather in terms of strength, intensity and level of commitment. Another Government Deputy – I think it was the Minister of State, Deputy James Browne, used the phrase "committed relationship". The term "enduring" or "committed" could have been used instead of "durable". This is something that will come up in the debates on the referendum. Given that we are here with the same aim, namely, to change the Constitution to ensure that families are recognised beyond families based on marriage and looking back at our long history and so on, we want to make sure that in the debate we can be clear about why the term "durable relationship" is used.

Jennifer Whitmore (Wicklow, Social Democrats)
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On the point on the definition of "durability", under the Constitution the version as Gaeilge of an article takes primacy when it comes to the courts. The Irish definition of the word means lasting, enduring, constant, firm and persevering. To me, that seems to actually grasp what the Minister is trying to achieve through the use of the word "durability" in a the way the English-language version does not. That is something I came across I was doing my research.

Roderic O'Gorman (Dublin West, Green Party)
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In response to Deputy McNamara's questions, I remember when the definition of marriage was very much a legal question in Zappone and Gilligan v. the Revenue Commissioners and Others. At that point, the court would not include a same-sex couple who had a fully legal marriage in Canada in the Irish definition because it felt at that stage the definition of marriage and family in Irish law could not include such a relationship. The court was also very clear that a change of that magnitude was one to be made by the Oireachtas or the people.

Michael McNamara (Clare, Independent)
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We are making a change.

Roderic O'Gorman (Dublin West, Green Party)
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We are making a change, but we are not making a change that opens up the definition of family to the type of relationship the Deputy has suggested because there are existing guardrails. A polygamous marriage is not a fundamental unit group of society or a moral institution within this context. We have examined the question very carefully and we do not feel there is any context in which that would take place.

Michael McNamara (Clare, Independent)
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The reality is that we have absolutely no idea how this will be interpreted by the courts. We are making a change for the sake of it.

Roderic O'Gorman (Dublin West, Green Party)
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We do have an idea because we have the existing guardrails contained in Article 41, guardrails that were deployed in the Zappone case when the court prevented a much more minor expansion of a definition within our Constitution. The court used those guardrails and said it was not for it to expand the definition. What the Deputy is suggesting is far more far reaching and there is no practice within the courts-----

Michael McNamara (Clare, Independent)
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Durable will mean durable unless the durable relationship is a polygamous one, in which case it is durable but we are not going to recognise it because we do not like its durability.

Roderic O'Gorman (Dublin West, Green Party)
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No.

Michael McNamara (Clare, Independent)
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I simply do not understand which durable relationships will and will not be recognised. Are we saying durable but not polygamous? If that is what we are saying in what we are voting for, does that include all durable relationships? That is what we are voting on. All durable relationships will, by definition, have to include both polygamous and monogamous durable relationships. I do not see how it could possibly be interpreted otherwise.

Roderic O'Gorman (Dublin West, Green Party)
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We are not just using the term "durable". We also use the other language within Article 41. The family, following the amendment we are proposing, still has to be a natural and fundamental unit group of society and a moral institution.

Michael McNamara (Clare, Independent)
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Are we saying that some marriages are moral institutions and some are not? Are we saying that those are that are monogamous are and those that are polygamous are not, even though they are, of course, moral institutions in other countries protected by-----

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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You have made your point, Deputy.

Ivana Bacik (Dublin Bay South, Labour)
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With respect, we have established criminal laws against bigamy and polygamy. Presumably that will also be part of this. I do not think there is any reality to Deputy McNamara's points because we have such established law already.

Michael McNamara (Clare, Independent)
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Equally it could be-----

Ivana Bacik (Dublin Bay South, Labour)
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How could it be moral if it is based on a relationship that is illegal in Irish law elsewhere?

Michael McNamara (Clare, Independent)
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Homosexual relationships were moral institutions but were illegal in Irish law, and they were struck down. Just because something is-----

Ivana Bacik (Dublin Bay South, Labour)
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We changed the Constitution

Michael McNamara (Clare, Independent)
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We changed the Constitution, but before we did so the laws were changed and we had the Norris case in the Supreme Court and the European Court of Human Rights.

Roderic O'Gorman (Dublin West, Green Party)
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They lost in the Supreme Court.

Michael McNamara (Clare, Independent)
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Just because something is not envisaged at a particular time does not mean that when we change the Constitution we change the meaning of the institutions. The Minister said he wanted to expand the protections for relationships that can avail of the shield of the family.

The Minister wants to expand them, and I do not have a problem with that, but I want to understand where the Minister sees the limit of the relationships which do not currently enjoy the shield of the family but will enjoy the shield of the family after these amendments are made, if they are made.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Unfortunately, we have limited time. Does the Minister care to respond briefly?

Roderic O'Gorman (Dublin West, Green Party)
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The very clear Government policy intention in terms of what is protected is relationships that are durable or relationships that are also fundamental unit groups of society and moral institutions like a one-parent family or like a cohabiting couple, whether or not it has children. Those are the relationships we seek to include within this broadened concept of the Constitution.

Michael McNamara (Clare, Independent)
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Would siblings who live together and have done for their entire life be covered?

Roderic O'Gorman (Dublin West, Green Party)
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No.

Ivana Bacik (Dublin Bay South, Labour)
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But we also have established case law that states that polygamous marriages are incompatible with the understanding of marriage in Ireland and the Irish Constitution.

Michael McNamara (Clare, Independent)
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Yes, we do-----

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Ah no, please, Deputy.

Michael McNamara (Clare, Independent)
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-----but we also had established case law to say that potentially polygamous marriages were incompatible and that changed because the courts can change their case law. Deputy Bacik knows that better than most that it changed very recently, in H.A.H. v.S.A.A.-----

Ivana Bacik (Dublin Bay South, Labour)
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That is what-----

Seán Sherlock (Cork East, Labour)
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That is what we were referring to.

Michael McNamara (Clare, Independent)
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-----where potentially polygamous marriages were found to be incompatible. I think the Minister would acknowledge that. The courts found they were no longer incompatible because of a move in what we accepted as morally acceptable.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Thank you Deputy. I am putting the amendment.

Michael McNamara (Clare, Independent)
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I cannot accept Deputy Bacik's interventions.

Ivana Bacik (Dublin Bay South, Labour)
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That is what I-----

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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No. Hold on now.

Ivana Bacik (Dublin Bay South, Labour)
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With respect, I also put questions to the Minister.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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The whole thing is getting out of hand. Will the Minister respond briefly and finally?

Roderic O'Gorman (Dublin West, Green Party)
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I want to respond to Deputy Bacik because she has raised an important question about relationships between parents and children and the definition of durability. It is important to say the definition of the family is a capitalised term, "the Family". That is also in Article 41. That same term is used in Article 42. In Article 42 it is very clear that "the Family" includes parent-child relationships as well. That is why we are assured that the family, as protected in Article 41, deals with both those horizontal relationships between two adults but also the relationship between the parent and child and why we do not see a risk of an interpretation that would be narrowed in the way that the Deputy has suggested.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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Tairgim leasú a 3:

I leathanach 4, línte 15 go 28 a scriosadh agus i leathanach 6, línte 1 go 3 a scriosadh agus an méid seo a leanas a chur ina n-ionad: “(c) subsection 1° of section 3 of Article 41 of the Irish text shall be repealed;

(d) subsection 1° of section 3 of Article 41 of the English text shall be repealed.”, agus

I leathanach 5, línte 16 go 29 a scriosadh agus i leathanach 7, línte 1 go 3 a scriosadh agus an méid seo a leanas a chur ina n-ionad: “(c) aisghairfear fo-alt 1° d’alt 3 d’Airteagal 41 den téacs Gaeilge;

(d) aisghairfear fo-alt 1° d’alt 3 d’Airteagal 41 den téacs Sacs-Bhéarla.”.

I move amendment No. 3:

In page 4, to delete lines 15 to 28 and in page 6, to delete lines 1 to 3 and substitute the following:

“(c) subsection 1° of section 3 of Article 41 of the Irish text shall be repealed;

(d) subsection 1° of section 3 of Article 41 of the English text shall be repealed.”,

and

In page 5, to delete lines 16 to 29 and in page 7, to delete lines 1 to 3 and substitute the following:

“(c) aisghairfear fo-alt 1° d’alt 3 d’Airteagal 41 den téacs Gaeilge;

(d) aisghairfear fo-alt 1° d’alt 3 d’Airteagal 41 den téacs Sacs-Bhéarla.”.

Catherine Connolly (Galway West, Independent)
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I ask the Minister to formally move that consideration of section 2 be postponed until the Schedule shall have been disposed of. Is that agreed? Agreed.

Catherine Connolly (Galway West, Independent)
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Amendment No. 5 has been ruled out of order.