Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank Senator Norris. I want to start by calling for the focus to be kept on the substance of the amendment that is being put to the people two days from now, the primary objective of which is the protection of children. When we debated the Thirty-First Amendment of the Constitution (Children) Bill 2012 in this House at the beginning of last month, it was clear that there was great unanimity and a strong sense of purpose about the achievement of positive constitutional change for children. As legislators, we should not lose sight of that in the crucial final hours before the people have their say. The contributions to last month's debate that were made by Members of this House were striking in their depth of commitment. Senators were forceful in their determination to work for the right outcome for children through the proposed constitutional change. I urge all Senators to maintain their focus on the enduring prize that the proposed amendment represents for the rights and protections of children. They should not let this be overshadowed by today's ruling.

When I addressed the House at the start of the Second Stage debate on the Bill, I said that as legislators we were giving the entire voting public a rare opportunity to look at how we view children in society and how that view is reflected in the Constitution. I noted that the Bill was giving this generation an opportunity to send an enduring positive message to future generations that we place the protection and welfare of children among the highest values of our society. Few changes matter as much as this one. Most of what we do in these Houses is about the issues of the day. By its nature, legislation has to be about delivering for the needs and problems of today. Constitutional change goes far beyond that in terms of the imprint it puts on values for upcoming generations. This referendum gives us a rare and historic opportunity. I know from the cross-party support the amendment has been given, and the unprecedented endorsement it has received from civil society groups across the broadest of spectrums, that when the choice is carefully considered, we will not want the position whereby children are virtually invisible in the Constitution to endure.

The conflicting claims regarding the amendment need to be subjected to objective scrutiny before we arrive at our decision on Saturday. The Constitution rightly recognises the centrality of the family and the special position of parents in the care and upbringing of their children. This is guaranteed by the Constitution under Articles 41 and 42. I would like to make it absolutely clear that the referendum will not alter this position. As it makes no change to Article 41, it does not remove or diminish the recognition given to the family under the Constitution. Equally, it does not remove or alter the rights and duties of parents under the Constitution to provide, in accordance with their means, for the education and care of their children. Unfortunately, exceptional cases arise where some children do not have a safe and nurturing family life. Hard and sometimes awful experience has taught us that we need to be clear in affirming the rights of these children to be protected. We also need to provide for the possibility of adoption for children in long-term foster care and a second chance for them to have a loving family that protects their safety and welfare.

I urge everybody to read the actual proposed wording of the article. While it is drafted in constitutional language, it is only four sections long. The stability treaty, by contrast, was 20 pages long. I am sure the clear purpose of this amendment will come shining through to those who read it. I encourage people not to be distracted from the crucial issue of considering the substance of the proposed constitutional change. I remind those who are seeking further factual information that a considerable amount of detail is available from the Referendum Commission. I remind Senators that the Referendum Commission has engaged in a substantial information campaign that has not been the subject of any objections. The four main changes proposed in the referendum are explained on the commission's dedicated website, referendum2012.ie, and in its booklet, which was delivered to every home. These changes, as explained by the commission, relate to the following: an explicit obligation to protect and vindicate rights of children; State intervention if parents fail in their duty; adoption; and the best interests and views of the child. The chairperson of the independent Referendum Commission answered questions on "Morning Ireland" about the referendum and provided considerable information of a factual nature. She confirmed that no change to Article 41 of the Constitution, or to the current constitutional protections afforded to the family and parental rights, is proposed. She said that the view of the Referendum Commission is that parents will not take a back seat to the State if this referendum is passed. She confirmed there is no link between the referendum and the UN convention on children's rights and that the convention will not be given any constitutional standing.

The Government fully respects this morning's Supreme Court ruling and is complying fully with it. We moved immediately to act on the ruling in terms of the distribution and publication of material. In addressing the ruling, I stress that we do not have the detailed judgments from each of the five judges. We have the short ruling that was delivered by the Chief Justice on behalf of the court at 11 a.m., in which she said that the individual judgments would be delivered on 11 December. I emphasise that my Department acted in good faith and with the best intentions to ensure the material complied with the McKenna principles. The provision of public information by the Government has been undertaken in good faith at all times, based on the prevailing view of what is permitted by the McKenna judgment. The McKenna case found against the then Government's funding of a publicity campaign that was explicitly designed to advocate a "Yes" vote. In her 1995 judgment in that case, the current Chief Justice, Mrs. Justice Susan Denham, said the McKenna principles do "not infringe upon the right .... of the Government to give information, to clarify situations, or to give explanations and deal with unforeseen matters and emergencies."

The Government initiated this proposed amendment and received the unanimous support of the Oireachtas in putting the amendment to the people. In doing so, there is a duty to provide explanations and information which can be understood by members of the public. Previous referendums have been criticised because of a perception that inadequate information was available to the public. In the intervening period since the McKenna principles were first enunciated, different Governments have sought to discharge their obligations to provide information and explanations for citizens in previous referendums through the use of websites, leaflets, booklets and advertisements.

The provision of public information on the amendment took account of practice in previous referendums. Public information has been provided in a similar fashion and at all times the Government sought to operate in compliance with the McKenna principles. Very considerable efforts were made by my Department in this regard, which efforts were acknowledged by the President of the High Court. In fact, even the plaintiff in his submission to the Supreme Court said there was no challenge to the proposition that the Department had endeavoured to comply with the McKenna judgment as it understood it. A detailed protocol underpinned the drafting of content for the booklet and website and the Office of the Attorney General was consulted for legal advice throughout the process.

This is a complex area of law and I expect that the detailed judgments to be delivered by the Supreme Court on 11 December will assist in formulating an approach to information provision in future referendums. These judgments will be a basis for further legal clarity and direction and studied carefully by the Government. I welcome the statements of Oireachtas Members from both Government and Opposition sides who share my view that the focus must remain on the children's rights amendment. There will be other occasions to debate the wider issues arising from today's ruling; the detailed individual judgments due in December will provide an important basis for such a debate.

I fully acknowledge the Supreme Court has found that not all of the material published complied with the McKenna principles. Until today's decision the Government had acted in line with the decision handed down by the President of the High Court on 1 November. At all times the Government acted in good faith based on its understanding of the McKenna principles and with the best of intentions in informing the people about the amendment. Today's ruling has not changed either the truth or relevance of the message that the rights and protection of children should be fully visible within the Constitution. It is important, as Senator David Norris said, to be clear that the Supreme Court has not commented on the merits or substance of the amendment. It has expressly said the "substance of the proposal is a matter for the people alone". The public relies on us to show the leadership on this issue, while not losing sight of the importance of what has emerged from the Supreme Court ruling. These are not mutually exclusive and we can and must attend to both, with the imminence of the children's rights referendum deserving of our greatest attention, energy and focus at this time. The substance of the amendment is the most important thing for us to focus on at this stage. This is a once in a generation opportunity and we should not be distracted from its importance. What this debate must be about is the rights of children being recognised in the highest law in the land, through a dedicated "Children" article in the part of the Constitution called "Fundamental Rights"; what happens in the rare cases where parents fail; making important changes to update adoption law; ensuring the views of the child are taken into account and that their best interests will be at the heart of all decisions about the child in certain legal proceedings; all of these changes without making any amendment to Articles 41 and 42 of the Constitution about families' and parents' responsibilities.

There has been a detailed debate and people are aware of the important issues at stake. I urge everyone to come out and vote "Yes" on Saturday on this important amendment. Clearly, addressing children's rights and protections in years to come will be about the wording in the Constitution, whether it is amended or otherwise, not the background to the referendum. The referendum on Saturday offers us all an opportunity to vote for additional, real constitutional protections for children.