Wednesday, 7 July 2010
Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009: Second Stage (Resumed)
I join my colleagues in welcoming the Minister from my neighbouring county. Other speakers have rightly recognised Senator Norris's lonely advocacy of this issue during the years. After a long, forensic and vigorous debate at a specially convened parliamentary party meeting, Fine Gael Members have decided to support the Bill based on a synthesis of the various views expressed.
My attitude to this legislation derives from a beautiful expression commonly used in the rural community in County Cavan in which I was reared - "live and let live" or "lig dom agus ligfeadh mé duit". While that expression may not have gained currency in institutional settings, it was the way of the people. Ordinary people were tolerant and appreciated human difference and individuality. This outlook had its genesis in Christianity and Celtic tradition. If one peruses the New Testament, particularly the Sermon on the Mount, one will find a rationale for this live and let live philosophy. The principles of republican philosophy, as expressed in the French Revolution and this modern republican democracy, also encompass this outlook.
According to the most recent CSO statistics, 121,800 cohabiting couples and 2,000 same-sex couples live in this country. The Bill will confer pension and succession rights and maintenance obligations on the people concerned, as well as afford protection against domestic violence and State benefits such as carer's allowance. Implicit in any live and let live philosophy is acceptance of and adherence to the rights and responsibilities on all unions, irrespective of their nature.
The world view that allows me to accept this legislation also makes me tolerate those who oppose it in all conscience. I am disappointed that the legislation does not include supports for siblings who have lived alone. The Minister will be aware of a particular union common in rural society, that of two brothers or sisters living together. They may run a shop, farm or other business together and have a community of interest. In effect, they are married without a sexual relationship for a number of years. It is important that the special rights that accrue to such couples are not undone by other siblings who may have done well in the new world before returning home for the funeral. It is a pity we are not legislating to deal with this issue.
I made that point at our parliamentary party meeting.
In the event of the death of one sibling, there is no protection in law for the surviving sibling who finds himself or herself battling a distant relative who contests the will of the deceased. Many siblings who found themselves in this position have been evicted from the home in which they lived their entire lives. As a professional lawyer by background, the Minister will be more aware than I am that certain rights accrue from personal investment in a property, working on a property and so forth. Notwithstanding such rights, it is an omission in the Bill to place on a distinctive footing the rights of siblings living together.
The issue of providing a conscience clause has generated a great deal of debate. Like everyone else, I grappled with this issue and found, on a superficial analysis, that it is difficult to object reasonably to permitting people to act in accordance with their conscience. However, when one considers the potential for bizarre circumstances to arise if people were allowed to exercise a right to act in conscience, one concludes that one must be careful in this regard. While it would probably not occur in practice, one cannot provide for a case in which a nurse in an accident and emergency unit, a general practitioner, a medical practitioner or a ward sister would refuse treatment to a patient on the basis of his or her perceived sexuality. The law of the land, as this legislation will become once it has been signed by the President, must not be thwarted by a succession of officials refusing to process civil partnerships.
Common sense should apply. If, for example, there is a conscientious objector in a legal office where there are two or more officials performing the function, provided it is practicable to do so, the non-objector should perform the relevant role on the given days. I expect that common sense will prevail and such flexibility will be shown in practice.
The criminal dimension of the Bill, which provides for a prison sentence of six months and a fine of €2,000, is excessive. It is not excessive to provide that an official who thwarts the law of the land in an unreasonable and unacceptable fashion should lose his or her job but it would be unacceptable to send such a person to jail for six months. The Minister should reconsider this provision and allow common sense to prevail. I believe this will be the case. While the bizarre example I cited of a nurse in accident and emergency refusing to treat someone he or she perceives to be lesbian or gay may never arise, the problem is that it could arise. The law must be predicated on the most bizarre possibilities.
The traditional or nuclear family - a heterosexual married couple rearing children - is the most common union in this country, although cohabitation is gaining in popularity. This legislation will not thwart such unions. On the contrary, a tolerant, Christian and caring society which encompasses and accepts everybody and reflects human realities will enhance all family units and institutions. We should not do anything that would besmirch the traditional family but this does not arise with this legislation as the traditional family continues to be protected by the Constitution and many realities.
The legislation must be accepted because society needs to be understanding, humane and accepting of all. In an open society, all relationships should be allowed to prosper, provided they are based on consent and do not involve harm to another person. On that basis, the Bill should be supported.
I thought the Acting Chairman, Deputy Coghlan, was about to overlook me. Given that I have agreed to postpone the taking of my Private Members' motion to facilitate an extension of the debate, I wish to welcome the Minister and take an opportunity to express my opinions on the Bill.
I spent my first five years in the Seanad sharing an office with former Senator Sheila Terry who, on behalf of the Fine Gael Party, drew up a policy in support of civil partnership. In 2004,. Fine Gael became the first political party to adopt such a position. Sheila Terry did substantial work on this issue and I recall having many long debates with her on it. It is interesting to note that the Bill before us is largely modelled, whether directly or indirectly, on the proposals made by the former Senator six years ago.
Having listened to virtually every contribution, I find this debate one of the best I have experienced in the House. I concur with Senator O'Toole's comments on how society changes. There is often a perception among politicians that we know what people think or we can tell them what to think. Our duty, however, is to engage with society as it is and this legislation is an honest effort to try to engage with society as it exists, which is not to say I do not have a couple of reservations about specific aspects of the Bill.
Previous speakers cited all sorts of people, including Edmund Burke. My favourite quotation from Edmund Burke relates to how politicians are supposed to use their judgment: "Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion". Burke was correct in this matter. I had reason to use these words recently at a selection convention which followed a turbulent period in my party.
I acknowledge the contributions of Fianna Fáil Party Senators who had the courage of their convictions and expressed reservations about the Bill. It is a credit to them that they did so because the House should have a full, frank and open exchange of views. Unlike the Seanad, the other House did not have a fully rounded debate. This is an example of the usefulness of the Seanad.
My bugbear with the Bill relates to section 23 and the prosecution of registrars who fail to do their duty. I understand registrars exercise an important role in implementing the law of the land and failure to perform this function should result in them losing their position. However, it is not acceptable that in righting a wrong done to people in same sex relationships - or opposite sex relationships in which the partners are not married - we should criminalise registrars who hold a different opinion. Like Senator O'Reilly, I have grappled with the issue of a conscience clause and concluded that it would provide too much scope for people to opt out of performing their functions. Registrars who have an objection and refuse to perform their role should lose their position but they should not be prosecuted for doing so.
I propose to address the issue of providing rights of siblings and carers, whether in this Bill or other legislation. I come from a rural area. I know a number of elderly siblings who have lived together all their lives and are not entitled to any State recognition of the relationship they have with each other. I would like to see that enshrined in legislation, whether in this Bill or in new legislation. We also need to address the issue of carers who may have given up their lives to look after family members. That effort on their behalf should be acknowledged by the State.
Many previous speakers mentioned the position of children. I used to hold a very particular opinion that children should only be adopted by a man and a woman. My mind was changed by a very good friend of mine when we were canvassing for the local elections in 2004. He pointed out to me the number of children who have a father and mother but were unfortunate enough to grow up in an abusive home. The most important thing for children is to be in a loving family environment. Whether that is a man and a woman, two men or two women is not the most important issue. The State has neglected children for too long and that is the most important thing I would like to see enshrined in legislation in the future.
I have absolute respect for the church's right to express its opinion on this issue and other related issues. It would be in dereliction of its duty and function within our society if it did not express its opinion. Equally people who are opposed to this legislation have a right and obligation to express their opposition and to be heard. Sometimes I get the sense from people who hold very liberal views that they can be very illiberal to people who hold the opposite opinion. The debate in this House has been conducted very well and in particular I was struck by the contribution of Senator Walsh, with whom I mostly disagree on other issues. He expressed his opinion very honourably on this subject.
We previously criminalised relationships between people of the same sex. For many years we have not allowed them to have that relationship recognised by the State. Despite some reservations I have about registrars and their treatment and strong views I have on the rights of siblings and how that should be acknowledged by the State, because we are taking a step towards the acknowledgement of the relationship of same-sex couples, I will be supporting Second Stage of the Bill.
I genuinely thank Senators for what I believe was a fantastic debate. Despite the fear of getting criticism yet again from a particular Deputy in the other House, every time I take a Bill to the other House having debated it here, I always mention that there was - as there always is - an excellent debate in the Seanad. A particular Deputy suggested that I might have a hankering to join the Seanad. I assured him that I do not. The debate on this and on a number of other significant Bills I have brought through are all the better for the input from the Seanad. We have had populist soundbites and proposals off the top of the head suggesting that we abolish something that is defined in our Constitution, which is having two Houses in the Oireachtas. Woe betide anyone who changes that because our legislation is the better for the type of debate we get in this House and indeed in the other House. If I have any influence on any suggestion to abolish the Seanad, I can assure Members that I will use that influence to ensure it does not happen. I do not say that in a political way.
Without people such as Senator Fitzgerald he would not have survived.
Today's debate does everyone credit. I have personal friends who spoke against the Bill. I genuinely understand the conviction they have on the matter. While I do not agree with it, I respect their views and the way in which they expressed them. Senator Phelan is correct.
The decision to introduce the Bill is not just mine, it is the Government's and it is based on the commitment my party made in our manifesto in 2007, building on the republican ethos and the equality agenda to which we are fully committed. In our previous years in government we showed we were committed to that equality agenda. I believe this is the right thing to do. If I had any doubts - I did not have any doubts - about introducing this legislation, they were totally dispelled recently when I attended a function at which I launched a report promoted by Outcomers, the gay and lesbian organisation in Dundalk. It was a very significant report in that it was not about those people who are gay in Dundalk, but about the families of gay people who had come out in Dundalk. Excellent contributions were made by family members, who were heterosexual, on how they were affected and how they reacted to a member of their family coming out.
A lady I have known for most of my adult life in Dundalk - I will not mention her name - spoke publicly to say - I did not know this until she said it - that she was the mother of a gay son. More than 20 years previously he told her that he was gay. She and her husband went to a local GP in Dundalk to get advice on what to do about their now declared gay son. She said they were shown the door by the GP. She had to come to Dublin to get advice on how to handle this. She said very eloquently in her own words that regardless of his sexual orientation, she still loved her son. Any society that does not react to assist not only the gay son but also the family of that gay person to help them deal with the coming out of their child is not the type of society to which we aspire.
Republicanism has been used by many speakers on both sides of the House in a way that epitomises republicanism. I do not refer to the type of republicanism that has been hijacked for many years through the troubles, but true republicanism means dealing with people not as how we want them to be, but on a one-to-one basis as they are. This legislation fulfils that republican ethos. Despite the reservations of some church leaders, this legislation represents the epitome of dealing with people in a charitable and Christian way. We are not dealing with the optimum situation as they see it; we are dealing with reality on the ground.
I have heard Senator Mullen say we do not have enough research and have not carried out enough examination of all these matters. I suggest that he go back and look at a report to which I was party when I became Minister for Social, Community and Family Affairs. The title of that ministerial position specifically included "family" when the then Taoiseach appointed me to the role. He asked me to go around the country and listen to the public about how we needed to sustain the family in a much changed environment. A broad consultation was carried out and a massive tome of a report was brought forward in 1998. It went through all the issues that were pertinent to the Constitution. Article 41.1.1° states that: "The State recognises the Family 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." Article 41.1.2° states that: "The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State." Article 41.3.1° states that: "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." The report was exactly about all this.
Many recommendations were made in the report as to how we should sustain family life in society. We set up various agencies, such as the Family Support Agency, family resource centres and a family mediation service. A huge amount of taxpayers' money was invested in all sorts of issues to do with counselling for couples and children throughout the country. This was not a report that sat on the shelf. This report was implemented by governments of which I was a member and of which I am very proud. I reject any suggestion that we have not done enough over recent years to sustain family life as recognised in the Constitution.
There was no definition of the family in the report because it was not possible to define the perfect family. There is a good reason for this, as there are so many diverse types of families in society. That is why I do not accept the argument that this is in some way diluting what some of us would describe as the ideal family, namely, husband, wife and children. I do not accept the argument that this Bill takes away from that. This Bill takes from no one but gives basic civil rights in fulfilment of Article 40.1 of our Constitution, which states that: "All citizens shall, as human persons, be held equal before the law." There is a rider to that which states that "This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function." That allows the State in its enactments to make differences and distinctions between society, but the general principle is that every citizen should be treated equally before the law. As far as I am concerned, that is what this Bill does.
I accept the argument that this Bill perhaps does not go the way everyone would want to go on one side, and equally so for those who believe it goes too far. It is a balance between those two constitutional imperatives that every person should be treated equally before the law and leave special protection for their family and for marriage.
Some reference has been made to the exclusion of children from the Bill. The Government spent a significant amount of time looking at this particular issue. There is an extensive body of law on the welfare of children in areas such as guardianship, maintenance, access and custody. Many of those issues are faced by different persons, whether they are married or not. However, the issue of children creates distinct issues, such as the welfare of the child, the constitutional position of the family and surrogacy issues. A neighbour of mine who is married is becoming involved in what is known as gestational surrogacy. I found out that there is no law on this issue in the State and that raises problems in respect of the citizenship of a surrogate child born outside the State and how we deal with such issues in the future.
The issue of children also creates rights of the natural father. Members have referred to "our children" of same-sex couples, but the reality is that one of the natural parents may not be part of that couple. Such a natural parent, not part of the same-sex couple, also has rights under our Constitution. The primacy of rights and duties of parents under our Constitution is based on the biological link between the parents and the child. If we were to deal with issues in this Bill solely in respect of children of same-sex couples, we would be leaving out issues such as how to deal with children in heterosexual step-families, whether they are based in marriage or not. The legal issues are similar in those cases.
If this Bill were to assign parental rights to the civil partner of a child's mother in circumstances where the law does not assign equivalent rights to the mother's heterosexual partner or husband, this would potentially discriminate between children, based on the sexual orientation of the adults caring for them, as well as encroaching on the rights of the biological parents. It is easy to say that we are not dealing with children in this Bill, but I can assure Senators that it would not be capable of dealing with the issue on its own, especially in such space of time. I received a submission from the Ombudsman for Children just last night, even though the Bill was published in June 2009.
Given that some people think the Bill goes too far and others think it does not go far enough, while the ombudsman thinks we should look at the issue of children, perhaps we should just withdraw the Bill and add in these things at a later stage. However, I think people want this Bill to pass because it deals with the issue of civil partnership in respect of same-sex couples. There is an issue in respect of children, but there is already an existing body of law. It may not go as far as some of these people would wish for same-sex couples, but we cannot deal with this issue without dealing with the biological parent who is not part of the same-sex couple. That is a much wider issue and the Law Reform Commission is looking at it. I suggest that it is better left to that debate.
I have heard a lot about freedom of conscience. I suggest to some of the Fine Gael Senators, in particular, who said that people should just lose their jobs, that we should not go as far as criminalising them and that it is terrible that all these registrars might have a conscientious objection. This is already provided for in the Civil Registration Act 2004 where on summary conviction, one is liable to a fine not exceeding €2,000 or imprisonment for a term of six months or both or on indictment, to a fine not exceeding €10,000 or imprisonment for a term of up to five years or both. It has been in legislation since 2004 and it has worked very well. No registrar has been convicted under the legislation. Registrars could have objected on religious grounds on the basis that they object to divorce but they have not done so. I respectfully suggest that is a bit of a red herring and another issue thrown up to throw dust in the eyes of people and say we are going to send all these registrars to prison. We have had consultations with An Ard-Chláraitheoir in this regard and no registrar has indicated any difficulty with the implementation of this legislation or of the divorce legislation since 2004.
As a matter of public policy, it ill behoves anyone to suggest that when we pass a law, we should give public servants the opportunity to decide whether they wish to implement it. People quote section 37 of the employment legislation in regard to goods and services. Perhaps we will go into this on Committee Stage when we can discuss it in more detail.
I respectfully suggest it is tailored, and decided on by the Supreme Court, in a way that clearly indicates that, in regard to the constitutional guarantee of freedom of expression and of religion, there is some ability for people to ensure the ethos of their religion is retained. Again, I respectfully suggest there is a muddying of the water in this regard.
Some people referred to the use of church property. Section 59E states: "A civil partnership may be registered only at a place and time chosen by the parties to the civil partnership with the agreement of the registrar and, if the place chosen is not the office of a registrar, the approval of the place by the Executive, and the question whether to give or withhold the approval, shall be determined by the Executive by reference to the matters that the Minister may specify." The executive is the HSE.
To suggest that a church could be used for a ceremony is a red herring. The only way a church could be used by a gay couple for a civil partnership ceremony would be at the behest of the church involved. Under the legislation, the couple must apply to the HSE to have the church certified as being capable of being a place for a civil partnership to be registered. Any church which does not want to participate in this has a complete get out clause in section 59E.
On the other hand, if a church hall is not used for worship but is rented out by the church, under existing equality legislation, the church is precluded from discriminating on the basis of sexual orientation. There are nine grounds on which it cannot refuse use. We are not touching the existing legislation which prevents discrimination on the grounds of sexual orientation, ethos, etc.
Many amendments have been genuinely tabled. We have looked at them in the relatively short space of time available. I thank my officials, in particular, for the hard work they have done over the past 48 hours. We have looked at the amendments but I am very reluctant to upset the balance we have struck in this legislation. However, I will listen to the debate.
Originally we intended to take this legislation in the House next week. Senator Regan mentioned in his opening words that the Dáil would not be sitting so we could not have accepted amendments but it will not be for that reason. We decided to take the Bill this week rather than next week in deference to any suggestion that we might be taking this House for granted. I have looked at all the amendments closely with my officials and there are a couple of major issues, such as freedom of conscience in regard to registrars, church property, children and siblings, which we can address on Committee Stage but my hands a relatively tied in regard to acceptance of amendments.
I thank all the Senators who spoke. This was one of the best debates in which I have participated since I became a Member of the Oireachtas more than 23 years ago. It is a credit to Senators on both sides of the argument who participated.