John Dardis (Progressive Democrats)

It is important to state that there is no argument on either side of the House about what should be done or about Senator Norris's approach to all of this. The question is whether the Bill is the correct approach and there might be some argument about that.

The Senator has done us a considerable service by having this matter debated on the floor of the House because there is a reluctance to consider these matters. Many people have congratulated him, as I would, on what he has achieved to date and his unswerving dedication to a difficult cause over many years. He should be commended for that as he should be commended for bringing forward the Bill.

It is also important to state, as confirmed by the Minister, that there is no homophobia on any side of the House. If there is any minuscule amount of homophobia it is not confined to one side of the House. We have come a long way since 1993 when Máire Geoghegan-Quinn, as Minister for Justice, introduced legislation to decriminalise homosexual acts.

I was involved to an extent with siblings who had been living together for years in very expensive houses who were crippled with capital gains taxes when they had no money. Something was done about that. Anti-discrimination legislation specifically stated that sexual orientation was no grounds for discrimination so we have come some way.

I agree with Senator Norris that we need to move on. Do I accept that there can be loving relationships between people of a single sex? Yes, of course I do. Do I believe they can be permanent? Yes, of course I do. Do I believe the State should support that? Yes, of course I do. There is no argument about that.

The Senator made an important point in the explanatory memorandum about the common good and the public good. We are charged with that and we can have differences as to how we interpret it. It is important that people who have property and who are in a loving, stable relationship should be able to hand on the property. It would be totally wrong if because someone had a natural child, that child would take precedence over someone who had lived with a partner for 30 years. That would be wrong and it needs to be rectified. There is no debate about any of those matters.

The constitutional aspect of this legislation has been raised. I find myself echoing many of the remarks made by the Minister even though I have not discussed the Bill with him. I take issue with section 6 which provides that the parties to a civil partnership shall be regarded in law as having the same rights and entitlements as the parties to a marriage. I made the point on the Order of Business this morning that there was a constitutional dimension to this issue. That was rejected by the Opposition. I still insist that there is a constitutional aspect to it. That view is supported by G. W. Hogan and G. F. Whyte in the fourth edition of The Irish Constitution by J.M. Kelly published in 2003 which states that regarding the constitutionality of State support for non-marital families, an issue not yet being addressed by the courts is whether the Oireachtas can provide equivalent statutory protection for non-marital families as is currently provided for marital families. More specifically, it poses the question as to whether the Oireachtas could legislate to recognise common law marriages, same-sex unions or polygamy. It states that the issue is whether or not the constitutional obligation to guard with special care the institution of marriage requires the State to maintain marital families in a privileged position in law, in which case the legislative promotion of alternative social units to such families might be unconstitutional, and that support for this view might be gleaned from the description of the family based on marriage in Article 41.1 as, inter alia, the primary unit of society. There is, therefore, a constitutional issue which must be addressed.

There is the question of legal property and inheritance rights about which the Minister has spoken. Regarding the matter of the family, at the all-Party Committee on the Constitution, Dr. Finola Kennedy quoted Senator Barack Obama of Illinois and first African-American president of the Harvard Law Review. The quotation is from the book Dreams from my Father, a Story of Race and Inheritance, published in 1995 and reprinted in 2004. Senator Obama asks:

What is the family? Is it just a genetic chain, parents and offspring, people like me? Or is it a social construct, an economic unit, optimal for child rearing and divisions of labor? Or is it something else entirely: a store of shared memories, say? An ambit of love? A reach across a void?

There are difficulties regarding how we define the family and constitutes the family.

Regarding the other aspects of the Bill, I have problems with the phrase "conjugal relationship". I am not sure what it means. It should be defined. At the all-party committee or perhaps in the Constitutional Review Group, there have been discussions regarding how the phrase can be defined and how it relates to the family.

There is another difficulty to which the Minister has referred. I do not see how it is not discriminatory that such a relationship can be immediately dissolved because it has irretrievably broken down when there is a four-year wait in the case of a marriage. That discriminates against married people. There must be consistency across the board, and that is an inconsistency which, in my view, amounts to a defect.

I also have some difficulty regarding section 12 which provides "Where two persons register as civil partners of each other, the civil partnership is voidable if, at any time when they do so, either of them did not validly consent to its formation (whether as a result of duress, fraud, mistake, unsoundness of mind or otherwise)." That seems the same as a person walking up the aisle having a mental reservation and assuming that, therefore, the couple are not validly married. That constitutes an easy get-out clause.

Section 14(2)(a) refers to capacity to enter into a relationship. Does that mean somebody with an intellectual disability does not have the capacity to enter into a relationship? I accept that the Senator would never suggest that. However, I wonder about that section.

Like Senator Tuffy, I am a member of the All-Party Committee on the Constitution. There is one example of that committee having a very significant effect. That was in regard to abortion. There was a constitutional amendment which was adopted by the people. Something as sensitive and as difficult as that was debated and the result was consensus. That is what the All-Party Committee on the Constitution can achieve — it can achieve consensus. That is why it is important for Senator Norris to come to the committee, as he will be doing tomorrow, and make these points.

There seems to have been some confusion this morning regarding whether this Bill can be referred to the All-Party Committee on the Constitution and be dealt with in a legislative way. The All-Party Committee on the Constitution does not have that competence because it is not a House committee, it is an all-party Oireachtas committee. While it can consider the contents of the Bill and propositions contained therein, it cannot go through it line by line and amend it in a Committee Stage debate. It is important to state that. The All-Party Committee on the Constitution has a role and can make a positive contribution. I accept that something needs to be done quickly to regularise the situation and allow people to enjoy the stable unions about which we have spoken.

On a lighter note, I am disappointed that Senator Norris has succumbed to the "in relation to" disease which Senator Quinn and I have campaigned for years to eradicate from our legislation. Here it is in this Bill introduced by someone who was described recently on television as a man of letters, albeit with a camera. How he can succumb to the "in relation to" disease I do not know.