Eugene Regan (Fine Gael)

I thank the Minister for his presentation of this Bill. I have two preliminary points. The Minister mentioned that he welcomes the debate on the legislation in this House, but it is unfortunate that it is taking place at this time when the Dáil will rise tomorrow and there will no opportunity for it to deal with any amendments that might be deemed to be warranted in the course of this debate. The effect of that is that no amendments will be accepted by the Minister. This has happened on other occasions as we approached the summer recess and the Seanad was debating legislation but the Minister in question had taken a decision that no amendments to the legislation would be accepted.

My second point is that the Minister referred at the start of his presentation to the commitment of his party to this area in the last general election and he wondered about the position of other parties. The fact is there was a commitment to this area on the part of all political parties, with variations on the form of civil partnership or recognition for same-sex couples that would be given in legislation. In fact, the Minister's party, the Fianna Fáil Party, is a late convert to this notion of civil partnership because it successfully blocked legislation in this area in the last Dáil. I point out to the Minister that in 2004 Fine Gael pointed a way in this regard in terms of civil partnership which did not require an amendment of the Constitution but nevertheless could have gone a long way to meeting the needs of gay and lesbian people in this country. GLEN in 2004, in its summary of the chronology of key events in this area, welcomed the new policy proposal by Fine Gael for civil partnership for same-sex and opposite-sex couples as an important step forward. It said that this was the first policy proposal from any political party in Ireland for legal recognition of same-sex couples. It is important to put that in context.

It is useful also to look back at the policy paper on civil partnership which was drawn up by a former Senator, Sheila Terry. It pointed out that: "In its 2002 document, Implementing Equality for Lesbians, Gays and Bisexuals, the Equality Authority said that lesbian and gay couples have no guarantee of fair treatment under the law because legally their relationships do not exist. The document went on to state:

This situation leaves thousands of couples unable to benefit from the extension of rights in relation to pensions, residency, property, taxation, next of kin, welfare and various other areas. Unmarried heterosexual couples experience the same discrimination. For our part, Fine Gael believes it is time to end this anomaly.

That paper was published in 2004. Some of the reasons given as to why it was important to end this anomaly were: "It is the right thing to do" and "It is fair and equitable". The paper particularly pointed out:

It is not an attack on the family or traditional marriage. The rights of married couples are not lessened in any way. Marriage will continue to provide rights regarding children that Civil Partnership does not provide.

The paper concluded by stating: "Our proposals do not involve a redefinition of the term marriage as expressed in the Constitution, and are completely secular". That is the ground-breaking policy that was adopted in 2004 and it is on foot of that model the civil partnership Bill is based dealing with not only the issue of gay and lesbian couples but also with cohabitees in heterosexual relationships where they do not wish to choose marriage to formalise their relationship.

The change in attitudes of all political parties was one which reflected the changes in society.

The polls which were conducted by GLEN and others clearly showed that in 2002 there were 76,000 unmarried cohabiting couples, that is, 8% of family units, while in 2006 the census showed this had increased to more than 120,000 or 12% of family units. The research was conducted by Lansdowne Market Research. The research also showed the attitude to gay and lesbian people changed dramatically over the years. The parties have been slow to recognise the changes but that is what is happening today with the passing of this Bill.

Lansdowne Market Research studied the attitude towards same sex marriage in 2006 and found 51% believed that same sex couples should be allowed to marry, 33% believed that should be allowed to form civil partnerships but not to marry and 10% believed there should be no legal recognition of same sex relationships. In 2006 attitudes had already changed dramatically. A further study in 2008 found that 61% of those questioned felt that denying same sex marriage was a form of discrimination and 62% answered that they would vote Yes if a referendum to extend civil marriage rights to same sex couples was held tomorrow. Some 70% felt that being raised in a loving home was more important than being raised by a mother and father.

We are taking account of the changed attitudes in our society. We are also recognising the extraordinary discrimination and victimisation which has taken place in the past towards gay and lesbian members of our society. The Bill attempts to deal with that by establishing a status of relationship for same sex couples which is legally recognised by the State. There will be a scheme of registration of civil partnerships for same sex couples together with a range of rights which are attached and which allow cohabitees to regulate their financial affairs. The Bill provides for a limited redress scheme where a cohabitant is left economically dependent. The presumptive scheme for cohabitants which has been followed in the other jurisdictions is also to be welcomed.

My party will support the Bill because it is modelled on the very policy document we adopted in 2004. It is a way of dealing with a complicated, divisive and constitutionally fraught issue. The manner in which we propose to regulate it is a step in the right direction. It is progress and means the Legislature takes its responsibilities in this area seriously. In the past we have tended to leave it to the courts to resolve our problems and in this case the courts here and in Europe have clearly indicated they do not wish to interfere in this area or transgress on our constitutional provisions or those of the European Convention on Human Rights.

In the Zappone case, the comments of Ms Justice Dunne in the High Court confirms the point that what is proposed here does not interfere with the constitutional protection for marriage. She also accepted that in so far as the institution of marriage is described within the Constitution that what was always understood by the framers of the Constitution was the traditional understanding of marriage as exemplified in cases such as Hyde v. Hyde, namely, the voluntary union of one man and one woman to the exclusion of all others. She went on to find that it was difficult to see how the definition of marriage could, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple. She said she did not see how marriage could be redefined by the courts to encompass same sex marriage. Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex and the plaintiff's case was refused on those grounds.

Another interesting High Court case which was ruled on by Mr. Justice Hedigan in 2008 helps to point the way in this area. The fact that non-marital families are not protected under the Constitution in the same way as marriage is does not mean they do not warrant protection. The case concerned guardianship. Mr. Justice Hedigan stated that it seemed to him that there existed between the parties such close personal ties as gave rise to family rights under Article 8 of the European Convention on Human Rights and he found that the relationship of B, C and D was that of a de facto family within the meaning of Article 8 of the European Convention on Human Rights. He said he could find nothing in Irish law to suggest the family, composed of two women and a child, had any lesser right to be recognised as a de facto family than a family composed of a man and a woman unmarried to each other and a child. He said it seemed to him the State has a strong interest in the recognition, maintenance and protection of all de facto families that exist since they are inherently supportive units, albeit unrecognised by the Constitution.

It also brings one to a point regarding the lacuna in the Bill before the House which relates to the children of same sex partnerships. On the European Convention on Human Rights, the courts have not imposed any obligations or restrictions on what we do in this area. It identified marriage in the same way and recognises the wide margin of the appreciation of member states and signatories to the convention as to how they define marriage. It is left to the Oireachtas to decide this matter. It is, in this instance, taking responsibility for it.

The Bill makes some 130 amendments to existing legislation. It is very complex and represents serious progress in this area. The manner in which we are attempting to regulate the registration system for same sex couples and cohabitees is fair, reasonable and correct. There is an anomaly in the case of the rights of children of same sex couples. It is one issue about which the Minister and Government clearly have a sensitivity in terms of putting forward proposals. I am not sure I understand the sensitivity.

The Ombudsman for Children in her opinion on this Bill made some very good points. There is an acknowledgement that the courts may interpret sections 1 to 7, inclusive, and section 206 of the Bill as assisting in regulating the position of the children of same sex relationships but at the same time it is not quite clear and we are leaving it to the courts to, in a sense, fill the lacuna on which the Oireachtas is not prepared to legislate. She recommends that provision should be made in law for special guardianship orders, either in civil partnership or other appropriate legislation. Is it the Minister's intention to revisit the issue with amendments to the Guardianship of Infants Act 1964 or will it be left silent? In the context of today's debate, it is important to know whether a commitment is being made on the issue. The Ombudsman recommends that the Bill be amended to ensure adequate protection for the children of civil partners in the areas of shared home protection, maintenance, succession, dissolution of partnerships and related matters.

The Bill does not specifically address the adoption or parenting of children by same sex couples but we will fail in our responsibilities if we remain silent on it. Other jurisdictions, including Denmark, Iceland and Finland, provide for regulations which appear appropriate. I ask the Minister to address this specific issue in his concluding remarks.