Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009 - Committee and Remaining Stages - 7th July and 8th July 2010
Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009: Committee Stage
An Cathaoirleach: I draw the attention of Senators to a drafting error in the Bill. In the version of the Bill as passed by Dáil Éireann on page 91, line 15, “on that behalf” should read “in that behalf”. Accordingly, as provided for in Standing Orders, I will instruct the Clerk to the Seanad to make the formal correction in the text of the Bill.
SECTION 1.
Senator Jim Walsh: I move amendment No. 1:
In page 13, subsection (1), lines 16 and 17, to delete all words from and including “Civil” in line 16 down to and including “2010” in line 17 and substitute the following:
“Partnership and Cohabitants (Non marital Relationships) Act 2010”.
As stated on Second Stage, we have a number of concerns with regard to this Bill. One aspect in this regard is the fact that the rights it confers more or less mirror those relating to marriage. Many of the amendments we have tabled are designed to ensure there is a clear distinction between civil partnership and marriage. The first of these, amendment No. 1, proposes a change to the Title of the Bill. In the Dáil, the Minister amended the Title so that it now reads “Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009”. Amendment No. 1 proposes that the Title should be “Partnership and Cohabitants (Non marital Relationships) Act 2010”, which is a tidier formation.
We have not, however, tabled amendment No. 1 in order that the Title to the Bill might be more streamlined. Effectively, we wish to signal that there is a definite distinction with regard to partnership, cohabitation and marriage. That is why the term “non-marital relationships” is included in the amendment. For various reasons outlined on Second Stage, we are of the view that it is imperative this change be reflected throughout the Bill. A number of the later amendments we have tabled do, perhaps, put the case in this regard more clearly. When they are discussed, we may be able to argue further in respect of this matter.
8 o’clock
On Second Stage, the Minister and various Senators stated there was all-party agreement on the Bill in the Dáil. While there may have been all-party agreement, it is certain there was not agreement among all Members of the Lower House on the Bill. The reservations I articulated on Second Stage were also reflected within my party. At that point, I read into the record of the House a motion tabled at a meeting of the Fianna Fáil parliamentary party and which was signed by 15 Deputies and 11 Senators. Within Fine Gael, the second largest party in the Houses, a significant number of people were particularly engaged in respect of the conscience clause. I spoke to a number of these individuals. Five or six Deputies from Fine Gael were very much engaged with regard to the conscience aspect and some of them indicated publicly that they wanted changes to be introduced and that they intended to table amendments.
I do not wish to comment, in a pejorative sense, on the business of the Lower House. How it conducts its business is its own affair and how the Seanad conducts its business is our affair. However, when Marriage Equality and the National Women’s Council of Ireland applied to appear before what was then the Joint Committee on Justice, Equality, Defence and Women’s Rights to outline their views on the Bill, several members of that committee, including me, suggested that we should also seek the opinions of other bodies. On foot of this, a decision was made that submissions would be accepted but that there would be no oral hearings. On the day on which this decision was made, Fine Gael’s then spokesperson on justice, Deputy Charles Flanagan, sought clarification to the effect that only members of the select committee would be in a position to table amendments. That removed the option for certain members of his party to put forward amendments. Some of these individuals expressed their personal views on this matter on Report Stage in the Dáil. It is important that this fact be placed on the record.
We had a good debate on Second Stage. That was acknowledged by Senators on both sides of the argument. If I recall correctly, the Minister stated that it was as fine a debate as he has heard in either House during his time as a Member — a period of some 23 or 24 years. Having engaged in such a good debate, it would be a pity if none of the amendments we have tabled, some of which are substantial and others of which are more symbolic in nature, was accepted. Symbolism is none the less important. The message we, as legislators, send to society on this matter, especially in the context of our system of values and the matters within our Constitution that are held to be important, must be clear. It is for that reason we have tabled an amendment to the Title of the Bill.
Senator Eugene Regan: I do not support the amendment because it is unnecessary. The Title to the Bill was changed in the Lower House and is perfectly clear in its intent. On the general issue of the distinction to be made between the family and non-marital relationships, which is the purpose of the amendment, there is no confusion. The Bill does not involve a change to the Constitution. It is designed to provide rights and dignity to people involved in relationships which are different in form from marriage. There is no lack of clarity in the Bill and, in such circumstances, I cannot support the amendment.
Senator Ivana Bacik: The Labour Party is also opposed to the amendment. It is clear that civil partnership is not marriage. The Labour Party has been critical of the Bill because it is of the view that it does not create a status that is close enough to equality or marriage. However, we support the concept of civil partnership as an advance. It is only now that the many people who were involved in loving and committed relationships for a long period will obtain legal recognition from the State in respect of those relationships. It is a shame that there are those who are seeking to restrict the Title of the Bill so that it will, as it nears its entry into law, only refer to partnership and non-marital relationships. That is mean-minded and mean-spirited and is not in keeping with the generous and progressive nature of the legislation.
Even though the Labour Party believes the Bill does not go far enough, we are of the view that it is generous and progressive. This legislation represents an enormous step forward not just for the members of the gay community in Irish society but for all citizens. It marks a step up in maturity and a move towards a more inclusive and more tolerant Irish republic. As a republican, I am of the view that even as we criticise the Bill for not going far enough, we should support it to the fullest extent possible. Seeking to restrict it further is something neither I nor my party could support.
Senator Labhrás Ó Murchú: I support the amendment and I concur with the remarks made by Senator Walsh. The Senator placed into perspective the fact that we engaged in a good debate on Second Stage. I am disappointed, therefore, that Senator Bacik in some way resents that we are seeking to protect our ideals. We engaged in a good debate on Second Stage because, as democrats, we accept that this is the process which must be undergone. To use a term such as “mean-minded” so loosely is very unfair and could almost be regarded as being anti-democratic. We have tabled a number of amendments to the Bill. It might be the case that those of us who do not agree with the Labour Party’s amendments could use terms such as that to which I refer in respect of them. I will not be using such terms because I respect everyone’s right to put forward their views. The best legislation is produced when people feel free to express their views. There should be no personal animosity involved. The cut and thrust of political life is built on the notion that we should tease out every single element of legislation brought before us in this House. I would like to think the Minister accepts that, when we propose an amendment, we are not trying to muddy the waters. I am certainly not trying to do so. I feel strongly about what I am saying.
Messages have been pouring into my office for the last few hours. I am inundated with messages. I have not received any hate mail from anyone. I respect those who did not send me such mail. They accept that we are going through a democratic process. I would be worried for the future if we were in some way to feel restricted or, even worse, intimidated, as we try to express our views. That is not the intent of this House and certainly should not be. Perhaps it was in the past, but I have not noticed it in my 13 years as a Senator.
I accept that people may believe they have a reason to celebrate. They have expressed that feeling exceptionally well in the House and I wish them well. I am anxious to make my views known in the hope we might be able to convince the Minister to revisit some of these issues. Our proposals are very reasonable.
The suggestion the Title of the Bill be amended is not mean-minded. It has been proposed to copperfasten what the Minister is saying about the difference between civil partnership and marriage. That message needs to be transmitted. If, on some future occasion, the Minister or some future Minister introduces legislation to move these arrangements in the direction of marriage, we will debate the issue at the appropriate time. I am supporting the amendment for the reasons mentioned by Senator Walsh. If it is accepted, it will clarify issues for the general public.
Senator David Norris: Senator Ó Murchú has said he is disappointed. I am afraid he will be disappointed further by what I have to say. I agree 100% with Senator Bacik and do not think she said it half firmly enough.
Senator Ivana Bacik: I thought I was very restrained.
Senator David Norris: The Senator was extremely restrained. I would like to comment on the language used during the debate on the amendment. I compliment the three gentlemen on the other side on their newly acquired, if specious, status of victimhood. They were politically astute when they jumped before they were pushed. If they had not been pushed, I had a loaded pistol and most certainly would have pulled the trigger. I will tell the House why. On the subject of respect, there has been no retraction of the odious comment made about the Penal Laws, about which I continue to feel very deeply, if I am allowed to have feelings. The other day, after I had been struck by posters and prevented by the allies of the conservative side in this debate from expressing my right to freedom of speech on Bloomsday, a democrat on this side of the House told me it would be better to make a laugh out of the incident rather than pretending to have feelings I did not have. Apparently, I now have to apply for permission to experience my own feelings. That is a——
Senator Rónán Mullen: I detected a note of humbug in the Senator’s comments at the time.
Senator David Norris: Now I am a humbug.
Senator Rónán Mullen: I said I detected a note of humbug.
Senator David Norris: I would like to say——
Acting Chairman (Senator Diarmuid Wilson): This is a long Bill with many amendments.
Senator David Norris: Indeed.
Acting Chairman (Senator Diarmuid Wilson): I ask Senators to speak to the amendment before the House.
Senator David Norris: I wish to make it clear that I think this is a mean-minded and thoroughly nasty amendment. Senator Ó Murchú presumed to tell me what those whom he inaccurately described as the bishops of the Protestant church believed on this issue. He got it wrong. I am a long-standing member of the Anglican church. Apparently, I cannot even stand by my own church. I know exactly how to interpret what is happening. I say the amendment is mean-minded because, having persuaded the Government to make a clear distinction between various marital states, certain interests then felt the need to rub our noses in it, as a community, by making an amendment to the Title, contrary to all the evidence from other countries. The entire purpose of the change was to rub the noses of the members of the gay community in their second-class status, just in case we had not noticed it. For that reason, I will definitely oppose the amendment.
I have a lot to say about freedom of speech and freedom of conscience. It would be wonderful if that debate were to take place tonight.
Senator Lisa McDonald: I oppose the amendment, too. The inclusion of the word “partnership” is fine, but the inclusion of the term “non-marital relationships” could cover many forms of relationship not of an intimate variety. There can be partnerships in business, etc. This change would water down the Title of the Bill and make it so broad that it would cover almost every form of relationship in society. Each of us has plenty of relationships of various forms. We had a good debate on Second Stage. It would be a shame if the debate on the Committee Stage amendments were to degenerate into insults and name calling. I hope we can try to keep this out of the debate.
Senator Rónán Mullen: Hear, hear.
Senator Ivana Bacik: Hear, hear.
Senator David Norris: Hear, hear.
Senator Rónán Mullen: I am surprised, delighted and somewhat bemused to hear Senators Bacik and Norris express their support for what Senator McDonald said. However, I am glad to hear it. I support the reasonable amendment proposed by Senator Walsh. I do not understand why Senator Bacik characterised it as restricting further what was on offer. The Title of a Bill is largely descriptive of what is contained in it. Senator Walsh is striving for accuracy in the context of the constitutional preference for, and recognition of, marriage. He is simply seeking to describe what we are talking about in direct terms such as “partnership”, “cohabitants” and “non-marital relationships”. If such a modest proposal leads to the kind of response we have just heard from Senators Bacik and Norris, I do not know what is in store for the rest of the evening, when Members who have more substantive objections to the Bill stand up and explain their reasons. As I listened to Senator Norris, I could not help asking myself if this was the man who wanted to unite everybody as President of Ireland. That was not showing a spirit of kindness towards——
Acting Chairman (Senator Diarmuid Wilson): Could we avoid personalising the debate?
Senator Ivana Bacik: I thought we were not going to personalise it.
Senator Rónán Mullen: I am trying to nip in the bud a rather unhealthy tendency towards using a divisive and aggressive debating technique. I hope I will succeed. I will try to avoid using terms such as “mean-minded” which was used by Senator Bacik. I never look at the motives of those who disagree with me. I never try to claim they have a particular reason or motivation for doing what they do. I criticise them on the merits of their case. If I have ever failed to achieve such a distinction, I apologise. I certainly try to live by this rule which involves not looking into people’s motivations and not judging them personally, even if I disagree with their approach to an argument.
I would like to respond briefly to what Senator Regan had to say. One cannot take away people’s dignity, or confer it on them. They have their own dignity. I would oppose any legislative measure that sought to detract from their dignity.
We have heard many references in recent times to the “new republic”. I suspect some have a certain idea of what the new republic will be like. They seem to expect it will involve the separation of church and State, which I would support. People have to remember that the new republic will have to accommodate all of its citizens, including those who can be characterised as traditionalists, liberals or radicals.
In supporting Senator Walsh I appeal to Members to moderate their language and be temperate in their disagreements. If they are not going to be temperate, I have to ask the following question: if this is what they are like in victory, what would they be like in defeat?
Acting Chairman (Senator Diarmuid Wilson): Before I call Senator Hanafin, I ask Senators to speak to the relevant amendment and avoid personalising their remarks and commenting on other Members’ contributions. We have many amendments to get through tonight and tomorrow.
Senator Ivana Bacik: Hear, hear.
Senator John Hanafin: I share the views expressed by the Chair. I have every intention of speaking to the amendment which I second. Senator Walsh’s proposal, although reasonable, was misrepresented. I do not like to hear of standards of conduct being imposed on other Senators to which others do not adhere in any way. I referred before to the intolerance of liberals and, sadly, this can be the case. If we wish to continue in a better vein, we should start now.
Senator Labhrás Ó Murchú: There is time to step back from the temperature being created in this debate. When I spoke on Second Stage I do not believe I offended or insulted anyone nor did I personalise the debate but I was shocked by the aggressive tone I just heard and the underlying virtual threats which come with it. That cannot be correct. Amendments have been tabled in a democratic way. It is up to both sides to put forward their case and set out their stall. It will not help the debate if we are to go down the road of name-calling, personalisation and insults. I will not engage in that. I never have in my 13 years in the Seanad and do not intend to start now. For the sake of the debate and the amendments, it is time for those who started it to step back at this point.
Senator Jim Walsh: On Second Stage, I referred to aggressive secularists, as I have done before in the House. I believe we have seen examples of this in the past few moments.
Senator Ivana Bacik: I thought we had all agreed not to start name calling.
Acting Chairman (Senator Diarmuid Wilson): On a point of order——
Senator Ivana Bacik: I thought we had agreed not to name call and insult. The other side was displaying a great deal of wounded sensitivity around that.
Acting Chairman (Senator Diarmuid Wilson): I ask Senators to speak to the amendment before the House.
Senator Jim Walsh: The fact that in many ways——
Acting Chairman (Senator Diarmuid Wilson): Please, Senator. It has been well rehearsed on both sides.
Senator Jim Walsh: It is not my intention to engage in that type of intolerance.
Acting Chairman (Senator Diarmuid Wilson): Thank you.
Senator Jim Walsh: I shall refer to this when we come to much more fundamental amendments in regard to what we will allow take place, whereby people of reasonable and tolerant views will find themselves in jail as a consequence of those views.
It has been suggested we are mean-spirited. That would not be my intention in any way. Senator Bacik may have had a point, which I had not noticed until now, with regard to placing “civil” ahead of “partnership”, so that the title would read “Civil partnership and cohabitants non-marital relationships Bill 2010”. If the Minister is minded to accept the amendment, I am happy to allow him bring back his own proposal in that regard on Report Stage.
The thrust of what we are endeavouring to do in this amendment is to make a reference in the title that clearly distinguishes the civil partnership, which is the subject of this Bill, and the cohabitant arrangement as being entirely different from marital relationships. I make no apology to anyone inside or outside this House. I have stated that consistently since Senator Norris tabled his Civil Partnership Bill in 2005. I said I would support measures he sought, justifiably, in respect of people in his own community who have suffered long and hard because of discrimination. I acknowledge that. However, I stated that the threshold for me would be equivalence to marriage. I oppose marriage equality measures for same-sex couples because I believe marriage is for heterosexual couples. It is safeguarded in our Constitution and there are very good reasons, which we may touch on later, as to why that is the case.
Minister for Justice and Law Reform (Deputy Dermot Ahern): When I concluded on Second Stage I said this had been one of the best debates in the past 23 years. I hope I will not have to retract that statement at the end of the evening or whenever this Bill passes.
I cannot understand this amendment and cannot put that point better than Senator McDonald did. Before I came into this House I was a member of a partnership although it was not a civil partnership. The proposed amendment suggests the Bill should be called the partnership and cohabitants non-marital relationship Bill 2010. I believe Senator Walsh is nodding in the direction that instead of his amendment deleting the word “civil” the word should be left in which might make it better from his point of view. In other words it would be the civil partnership and cohabitants non-marital relationship Bill 2010.
However, the reference to non-marital does not describe the Bill properly. The Bill is in two parts, one being the civil partnership element, the other the cohabitant element. In the Dáil we accepted the suggestion from the Opposition that, as originally initiated, the Civil Partnership Bill did not properly reflect the two distinct elements to the Bill. That is why we tabled an amendment and although we did not accept the exact amendment proposed by the Opposition, having discussed it with the Attorney General’s office and within my Department, the best solution as far as we were concerned was the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009. Therefore, I cannot accept the amendment.
Senator David Norris: I shall try not to take up too much time on this but, with the greatest goodwill, bonhomie and tolerance——
Acting Chairman (Senator Diarmuid Wilson): And speaking to the amendment.
Senator David Norris: ——and speaking to the amendment, I wish to comment on the new title proposed by my colleague, Senator Mullen, “A modest proposal”. I am not sure whether he is aware of the origin of that in a remarkable document by the late Dr. Jonathan Swift which was replete with irony. The whole point about the modest proposal was that it was one of the most sinister plots ever hatched. The Senator’s title may exaggerate the dangers a little.
Senator Rónán Mullen: You are much better when you are ironic.
Senator David Norris: With regard to the Senator’s comments about any possible future career in politics I might have, I do not delude myself that I am President yet. However, one never knows. It is a possibility and in those circumstances I would know very much how to behave with people.
Acting Chairman (Senator Diarmuid Wilson): That question does not arise in regard to this amendment.
Senator David Norris: I merely include that little point. However, I wish to ask for guidance from the Chair on this matter. I take it we are to discuss all these amendments because they are grouped. Is that correct?
Acting Chairman (Senator Diarmuid Wilson): We are discussing amendment No. 1. We have quite a road to travel yet.
Senator David Norris: All right. That is fine. I am very happy to leave it at what the Minister had to say. I cannot speak for other people but I am a humble and totally imperfect member of the Anglican communion so I doubt if I can accurately be termed an aggressive secularist. However, I believe in the separation of church and state and just as I believe the state should be separated from the church so the church should be separated from the state. It is an equal position and I believe in equality. Senator Walsh acknowledged, very charmingly and honestly, that in this instance he simply does not believe in equality. I do not think I misinterpret him because he said he did not believe in marriage equality or that the two should be equal. He stated he does not believe in equality and on that point I beg to differ with him. However, despite the various imprecations, I hope I am still allowed to express this view in the House. I shall not speak on this amendment again and hope it comes to a vote shortly because there are a very large number of amendments.
Senator Jim Walsh: In regard to the last point about equality——
Acting Chairman (Senator Diarmuid Wilson): Speak on the amendment, please.
Senator Jim Walsh: I believe I am in order to speak on issues that arise on Committee Stage. I am not trying to delay this. It is not our intention to delay. However, I wish to deal with that because the Minister made the same point in his summing up on Second Stage. I clearly put on record on Second Stage my interpretation of republican equality which differs from the interpretation of left-wing liberals. It is equality of opportunity for the individual. The Constitution refers to equality for each person, as the Minister rightly pointed out when he quoted from the Constitution. Senator Norris is talking about equality for different types of relationships and what is involved is not individual relationships but couples or institutions such as marriage. The interpretation of republican equality does not stretch to all relationships or to all situations such that they should be equal. It pertains specifically to persons.
In regard to the specific amendment that I and my colleagues tabled, I accept it could be interpreted that due to the omission of the word “civil” the proposed wording to be inserted could appear narrow-minded. If the wording proposed to be inserted was “civil partnership and cohabitants (non marital relationships) Act 2010”, I would press the amendment. However, in view of the fact that we have omitted “civil” from the proposed words to be inserted and that people might take offence, I will withdraw the amendment.
Senator Rónán Mullen: I welcome what Senator Walsh said by way of clarification. The more widely accepted principle in regard to equality is that all persons are equal but different situations can be treated differently. It is worth remembering what our Constitution has to say in that regard in Article 40.1 on equality, which provides that the State can have regard in its enactments to differences of capacity and function. Therefore, just as it is acceptable for some people to see an appropriate inequality between intimate couples and non-intimate couples, by the same token it is surely appropriate to argue that the doctrine of equality does not necessarily mean that all relationships have to be viewed by the law in the exact same way.
An Leas-Chathaoirleach: I understand the amendment is not being pressed.
Senator Jim Walsh: I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
An Leas-Chathaoirleach: Amendments Nos. 2, 22, 63 and 64 are related and can be taken together by agreement. Is that agreed? Agreed.
Senator David Norris: I move amendment No. 2:
In page 13, between lines 30 and 31, to insert the following:
“ “dependent child” means a person under the age of 18 years, or if the person has attained that age—
(a) is a person who is or will be or, if an order were made under any Act providing for periodical payments for his or her support or for the provision of a lump sum for the child, would be receiving full-time education or instruction at any university, institute of technology, college, school or other educational establishment and is under the age of 23 years, or
(b) is a person who has an intellectual or physical disability to such extent that it is not reasonably possible for the child to maintain himself or herself fully;”.
All these amendments deal with the important matter of the defence of the rights of children. As I spoke on the Order of Business today concerning this matter, I do not intend to rehearse these matters in any great detail, but it is important that we put on the record the strong support of the majority of the Members of this House for the rights of children. I had tabled these amendments with considerable care before I received a very significant document, entitled Advice of the Ombudsman for Children on the Civil Partnership Bill 2009, yesterday afternoon from the Office of the Ombudsman for Children. The ombudsman is the person and office charged with vindicating the rights of children in this State. For that reason it is important that those who cherish the rights of children in this State, especially politicians and particularly in the passage of legislation such as this, should listen with due attention to what is in this document. I will, with the indulgence of the House, as it is directly relevant, quote briefly what I regard as the most salient points of this significant document. I would like the House to consider that I believe that these comments cover all the amendments I have proposed. I cannot speak for my colleagues who tabled the other amendments. Amendment No. 64 is in the name of Senator Bacik and her colleagues and amendment No. 63 is in my name. All these amendments represent the same point of view. I know that to be the case from my conversation with Senator Bacik.
In the introduction to this document, the ombudsman states:
[T]he Bill does not adequately address the rights and needs of children. It is clear that the situation of children was considered at length in the drafting of the Bill; it is unclear why that resulted in a Bill that did not prioritise the rights and interests of children.
That is very clear. It is not prejudiced. There is no intolerance and there is no name calling. It just states an objective fact, that it is clear the rights of children were considered but were omitted from the Bill and it is not clear why it did not prioritise them.
The ombudsman goes on in the document to indicate that this is not a hypothetical problem or abstraction, it is something that deals directly with a very real and existing situation. The ombudsman states:
The omission of robust protections for the children of civil partners will have real consequences for the young people concerned and it is in their interests that the law reflect and provide for the reality of their lives. Current research being carried out in Ireland on the experience of young adult children with same-sex parents has indicated that there is a strong awareness among these young people of the lack of recognition of the reality of their family lives.
I put on the record earlier the very clear results of the Swedish commission which was instructed to investigate this matter in 1999 by the Swedish Parliament. Interestingly, it acknowledged that there might be some negative consequences for children in same-sex relationships, but it also made it very clear that this came not from the same-sex partnership relationship but from peer group pressure. In other words, the children were expected to pay in their own lives for the prejudices of the society that some groups would still wish to foster. That puts the blame very squarely on opponents of these kinds of measures.
The ombudsman goes on to say in the document: “the failure to provide adequately for children in the Bill is concerning, particularly as no arguments based primarily on the interests of children has been advanced by the Government to support its approach to children in the Bill”. I understand it is suggested that this will be addressed in other Bills. The Adoption Bill was passed recently and there was no hint that this issue would be addressed in it, although there were some interesting points made in the debate on that Bill. The Government did not take opportunities already offered to address this issue.
The Minister might feel a sense of pleasant surprise about this, as I did when I got this document yesterday evening. I had no inkling that the Ombudsman for Children was so deeply concerned about this matter that she would provide impetus politically for this kind of change. Even long before that the Minister will know very well, because he is not only a decent man he is a highly intelligent man, that the Colley report stated:
Given that the welfare of the child is paramount, in principle, same-sex couples who are married or in a full civil partnership should be eligible for consideration to adopt any child who is eligible for adoption. It should be noted that, rather than confer a right to adopt, this would allow registered same-sex couples the right to be considered for adoption subject to the existing rigorous assessment process for married couples and single adopters already in place under the Adoption Acts.
I emphasise that I will not be returning to make these quotations, so I apologise to my colleagues if they are long-winded but they are directly germane to the content, and I will not be repeating them.
I draw the attention of the House to the fact that part of my amendment deals with the protection of “a person who has an intellectual or physical disability to such an extent that it is not reasonably possible for the child to maintain himself or herself fully”. I would be interested to learn of an objection to that, particularly on, as we would say in Ireland, the day that is in it when a very large number of people campaigned outside the gates of these Houses for the rights of people with disabilities.
The recommendation of the ombudsman’s document states: “Provision should be made in law for special guardianship orders, either in the Civil Partnership Bill or in other appropriate legislation, particularly in the absence of an amendment to the law governing the eligibility criteria for adoption.” I respectfully say to the Minister that this is what I have provided. I hope the amendments I and my distinguished colleague, Senator Ivana Bacik, tabled with the support of the Labour Party will have the support of the Fine Gael Party. If I may allow myself an aside on this, some negative comments were made about Fine Gael from the other side of the House. I will not be negative in my response but I would like to take the comments positively and say that I am deeply grateful to Fine Gael, its Leader in the House, Senator Frances Fitzgerald, and Senator Eugene Regan for their dignified and courageous espousal of this cause. Even before that, in very difficult times when in their party there was a nasty attempt to amend the legislation decriminalising homosexuality, a wonderful group of Fine Gael people filibustered the amendment out of existence. I honour and salute them for it. I would not like Fine Gael to be excluded from the paean of praise which has been rightly paid to Fianna Fáil, Labour and the Green Party. All the parties have behaved with great honour in this process.
An Leas-Chathaoirleach: Can we get back to the amendment?
Senator David Norris: Yes. It is clear that the children of same-sex parents who enter into civil partnerships are greatly disadvantaged. I have tabled these amendments with the intention of starting the process of redressing this wrong. I believe, from the comments of the Minister in his speech earlier today, that it is his intention to address this at some stage.
I was told there would be a vote on Second Stage and I am determined to vote with the Government and will continue to do so until the very last minute in the hope that this Bill will be amended, even on Report Stage. If that does not happen I will have to vote against the Bill but I believe it will pass anyway. It is important for people like me, who have the significant luxury of being Independent, to be able to hold the Government to the gold standard, even in circumstances where it may not feel it to be a practical approach.
Senator Ivana Bacik: I am delighted to support these amendments, three of which were tabled by Senator Norris with the support of the Labour Party and one of which we tabled, amendment No. 64 which in essence has the same aim as amendment No. 63. All four amendments have in common the main and critical aim of seeking to write into the Bill the rights of children which are noticeably lacking now. The single biggest criticism of the model of civil partnership with which the Minister has presented us is that it makes no provision for the rights of the children of gay couples.
As I said earlier, we know many children are living in families with gay parents whose rights are not recognised, in particular their rights vis-à-vis the non-birth or non-adoptive parent in the relationship. Senator Norris referred to the very helpful advice of the Ombudsman for Children, which I quoted earlier. It is worth noting that she said the children of same-sex parents who enter into a civil partnership will be left at a clear disadvantage compared with other children if the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill remains as it is. She made some very practical suggestions for amendments to the Bill and many of her recommendations are incorporated into these amendments and in amendments Nos. 5 and 37 which we also tabled with the support of Senator Norris.
The ombudsman recommended that provision be made in the Bill for special guardianship, which is what amendment No. 37 seeks to do, to ensure the non-birth or non-adoptive parent in a gay couple who enter a civil partnership would be able to be made a guardian of the child, which would then give him or her rights of access and other rights if the relationship were to break down. Any provision for that is notably absent from the Bill. She also recommended 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 civil partnerships and related matters. They are very important areas.
It is wrong to say there is no reference to children in the Bill. I am sure the Minister will refer us to the provisions which exist and are welcome but they are very limited. Section 73(8) provides for the succession rights of a child of a civil partner’s estate but it does not refer to the child of a non-birth or non-adoptive parent in a civil partnership, which again is a major omission. Section 129, which was section 127 when the ombudsman referred to it, also refers in the context of the dissolution of a civil partnership to a court being able to have regard to the child to whom either civil partner owes an obligation of support. Again, that is welcome because it will give some discretion to the courts to make maintenance orders but there is nothing in the Bill about the rights of child to the guardianship of their parent who is not a birth or adoptive parent within a civil partnership which is a glaring omission and will place the children of gay families at a real disadvantage.
I am very grateful to Senator Norris for tabling these amendments. We planned to draft similar amendments and when we saw his amendments were framed in such a well-crafted way, we felt they were worth supporting. Amendment No. 2 defines “dependent child” very similarly to the definition already provided in the Bill in section 171 which provides for the children of cohabiting couples. It is very close to the Minister’s wording and I do not see why he could not support it.
Amendment No. 22 simply refers to writing in the dependent child in section 29 and amendments Nos. 63 and 64 seek to do similar things, giving the court specific power to have regard to the circumstances of the dependent child or children of civil partners. These are vital amendments which need to be made to ensure the children in gay families have rights and status equal to those in marital families.
In 1987 we abolished the status of illegitimacy and no longer think it acceptable for a child to have a different status depending on whether his or her parents are cohabiting or marital, but we still regard the children of gay couples in a different and discriminatory way, as the ombudsman has so clearly pointed put. The Minister said he is awaiting a review from the Law Reform Commission on this area but we have been waiting a long time. Senator Norris pointed out that when we debated the Adoption Bill, to which he and I tabled amendments on special guardianship and extending eligibility to adopt to gay couples, the Minster of State, Deputy Andrews, told us this Bill would come to the House which would be a more appropriate time to consider the issue.
We have been waiting long enough. It may well be that the review will provide greater guidance as to how we may see a comprehensive reform of the law on children, which we very much welcome, but this is the time, given that we are passing a law which will recognise gay couples for the first time and giving the status of civil partnership, that we should also be giving status and rights to the many existing children of gay couples and give them rights in this Bill. I urge the Minister to accept these amendments and the others we have tabled with the aim of seeking to write the rights of the child back into the Bill.
Senator Eugene Regan: I support these amendments. They are carefully crafted and fill the lacuna in the legislation. The Bill, as drafted, assumes there are no children of same-sex relationships. On whether the issue is dealt with in this Bill or another, the Minister has not been clear as to his intentions in this regard and I raised this question on Report Stage. For example, amendment No. 64 simply provides for the court to have regard to the fact that when a partnership is dissolved, provisions that the court considers proper, having regard to the circumstances which exist, will be made for any dependent child or children of the civil partners. It is very light, sensible and appropriate.
I referred on Report Stage to the judgment of Miss Justice Elizabeth Dunne in the Zappone and Gilligan case. She stated that undoubtedly people in the position of the plaintiff, be they same-sex or heterosexual couples, can suffer great difficulty or hardship in the event of the death or serious illness of the death of his or her partner and that it is hoped that the legislative changes to ameliorate these difficulties will not be long in coming. She went on to say that ultimately it is for the Legislature to determine the extent to which such changes should be made.
I also referred to the judgment of Mr. Justice Hedigan in which he speaks about the de facto family. He stated that it seemed to him that the State had a strong interest in the recognition, maintenance and protection of all de facto families which exist since they are inherently supportive units, albeit unrecognised by the Constitution. In terms of children not following through, there is a lacuna. The general principle of recognising the relationships of same-sex couples and cohabitants confers dignity on them by acknowledging their worth and, as Mr. Justice Hedigan stated, the strong interest in maintaining and protecting all de facto families. For too long that has been denied.
I support the amendments, although I do not expect the Minister to accept them because he has set his face against all of the amendments. I hope, however, that he will indicate whether he intends to address the issues raised by revising the Guardianship of Infants Act or other legislation.
Senator Rónán Mullen: I find I have conflicting attitudes to the amendments. I am inclined to support Senator Norris’s amendments. As I have consistently supported the principle that our legislation should be child rather than adult centred, it is difficult to argue against including the concept of a dependent child in amendment No. 2. The wording proposed in amendment No. 22 in regard to any dependent child of either civil partner appears to recognise the possibility that there is a child from a previous relationship. Amendment No. 63 is similar and, as such, deserves our support. However, I oppose the Labour Party amendment because its drafting is poorer and refers to any dependent child or children of the civil partners.
Those who emphasise the importance of putting children’s welfare at the centre of policy have rightly identified certain shortcomings in the Bill in terms of its failure to consider the needs of children. However, it is more difficult to get them to engage adequately in the debate on the context in which we should provide for children in the first place. It is undoubtedly the case that some children will be cared for outside marriage or the society of their two parents. Similarly, there will be cases in which same-sex couples care for children who are the offspring of one of the partners. However, I do not want children’s welfare to be used, whether accidentally or deliberately, to buttress the argument for making alternative relationships to marriage equally valid in the eyes of the State and society ab initio. In that regard, I understand why the Minister is keeping the issue of children largely separate from this legislation.
In the context of our general discussion on equality, it is interesting to note that our adoption laws provide that in nearly all situations a married couple shall seek to adopt. A single person is allowed to adopt in special circumstances. This is the context in which same-sex couples are often assessed for adoptions. When the legislation was debated in the Dáil in the early 1990s, however, the concept of special circumstances was taken to mean exceptional situations. I understand the example outlined was that of a single person working in an orphanage abroad who wanted to adopt a child. When we are rushing headlong, we can conveniently forget that there are places where our law deems it appropriate to make distinctions.
In regard to the needs of children, I read with interest what the Ombudsman for Children had to say. I disagree with her approving citation of the Colley report on the extension of consideration to adopt any child to same-sex couples because I do not believe this is in the best interests of children. I note, however, that she discussed the need for further measures to support children, including special guardianship orders. She made the point that such orders could be beneficial to children in a range of circumstances beyond those immediately relevant to civil partnership such as step families, families reorganised following divorce or the children of a widow or widower and that an argument could be made in favour of addressing this issue by means of other legislation.
To some degree, this offers us an answer to the puzzle. Instead of lumping together ostensibly well intentioned measures aimed at protecting the welfare of children in civil partnership legislation in a way that might cause confusion about the State’s intentions for children, it would be better to legislate at all times from a child-centric perspective. Just as I have argued that civil partnership should be available to all couples in caring dependent relationships who have made sacrifices for each other, our provisions for children should be included in separate legislation in a way that they are not confined to civil partnerships. This would make it clear that our primary and sole motive was securing the welfare and best interests of children.
It has been suggested on occasion that children are more bereft than is actually the case. It is possible, for example, under section 7 of the Guardianship of Infants Act to appoint a testamentary guardian where a non-biological parent is in a partnership of the kind we are discussing. For these reasons, while there is a strong case for making child-centred amendments to the Bill, perhaps an even stronger argument can be made for looking at it as a separate matter precisely because it is not only in the context of civil partnerships that there are gaps in the welfare and well-being of children.
Senator Jim Walsh: I agree the amendments are important. They go to the core of the reservations people have about aspects of the Bill, including those who have children in loving and caring same-sex relationships. There is a temptation in dealing with such sensitive issues to sidestep them, but, while that is wise in some instances, it is also dishonest. I concur with the view of the previous speaker that the focus in this area should not be on the interests of same-sex couples or adults of any particular gender but should centre on the child. For this reason, I do not embrace the notion of gay adoption. I know there are good gay couples who have children and I have no doubt the children in question are well cared for but, as the Minister acknowledged, children have an entitlement, where possible, to a mother and father. This is recognised in our Constitution and, as Senator Mullen correctly noted, in our adoption laws. We should have a hierarchy of adoptees and preferences in the interests of the child.
9 o’clock
I referred to reports that were done in the United States and Britain, especially in the former, with regard to children in various relationships. I am sure those countries have the same multiplicity of relationships as we have in this country. The reports in question clearly indicate that children reared by their mother and father tend to have better outcomes in a range of areas. One of my colleagues in the House took some umbrage at this point and may have understood it to be a criticism of single parents. I came from a single parent family. In the past two decades, I have seen many young girls who were single mothers sacrifice careers and give full and absolute attention to the rearing of their children. It is commendable that they chose to do this and many of their children have turned out to be excellent citizens. That is not the point, however. A child who has the complementarity of the influence of a male and female — his or her mother and father — as he or she grows up through childhood, adolescence and into adulthood has better prospects. This is the issue on which we should focus.
I was appalled the other evening on “The Frontline” television programme to hear the chairman of the Law Reform Commission dismiss as insignificant the surveys to which I referred. A young man in the audience asked whether the judge was dismissing evidence. I raise this because I have listened not only in this area——
Senator Ivana Bacik: On a point of order, this debate should not be used to attack persons who are not present. I understood there was a rule on that matter.
Senator Rónán Mullen: On a point of order, the person in question was not named. If we are to have a reasonably fluid debate, we must be able to critique various positions.
An Leas-Chathaoirleach: I ask Senator Walsh to continue but he must speak to the amendments, from which he is straying.
Senator Jim Walsh: No, I am dealing precisely with issues related to children, which are to the core of all the amendments. My concern is that those in pivotal, influential positions should be objective, irrespective of what role they occupy. I was amazed to receive a report from the Ombudsman for Children dated July 2010 given that the heads of this Bill were published in summer 2008. It is astonishing that she is only now making her views known on the legislation. We need an explanation for this.
I noted the Ombudsman for Children’s report indicates that, in producing further recommendations to be submitted to the Law Reform Commission, she will rely on a survey which has been undertaken by Marriage Equality. While I have the height of respect for the good people involved in that organisation, if we are serious about examining these issues of fundamental importance to the development of society, we must do so with independence and absolute objectivity. Not only should this be the case but it should be seen to be the case.
Similarly, a spokesperson for the Equality Authority stated that this Bill is only a stepping stone towards what it seeks to achieve, namely, marriage equality. As I stated earlier, the individuals to whom I refer are all recompensed from the public purse.
An Leas-Chathaoirleach: The Senator’s point does not have anything to with the amendments.
Senator Jim Walsh: We have a Constitution——
Senator Ivana Bacik: He is straying far from the amendment.
An Leas-Chathaoirleach: Senators must speak to the amendments.
Senator Jim Walsh: ——which protects the interests of the family and children and there is an onus on everyone to uphold it. I appeal to the Minister to review these appointments given the emphasis he placed on Legal Aspects of Family Relationships, a paper published by the Law Reform Commission. If the commission’s members are not objective, only one outcome will be possible and the traditional family will not be considered.
Senator Ivana Bacik: I must raise an objection.
Senator Jim Walsh: That is my opinion and I am entitled, as a Member of the House, to make that point.
Senator Ivana Bacik: The Senator is making a serious attack on persons who are not present.
An Leas-Chathaoirleach: Senators must speak to the amendments.
Senator Jim Walsh: I am speaking to the amendment.
Senator Rónán Mullen: I ask the Leas-Chathaoirleach to consider that this House has a distinguished reputation for having debates which are adventurous and examine issues in a more considered manner than the other House. While some people may not accept that, it is a reputation the House enjoys. The Leas-Chathaoirleach will curtail and truncate this reputation if he heeds voices that wish to cut short Senator Walsh who is in order in speaking about——
Senator Fiona O’Malley: The Senator’s contribution must be relevant to the amendments.
Senator Rónán Mullen: Of relevance to this issue is anything that touches on children being considered.
An Leas-Chathaoirleach: That is not a point of order.
Senator Rónán Mullen: We are not attacking the character of individuals but raising issues.
An Leas-Chathaoirleach: That is not a point of order. I ask Senator Walsh to speak to the amendments.
Senator Jim Walsh: On the amendment, my concern is about children. I am highly critical of people with a driven agenda being appointed to positions in which they can have adverse effects on children. That should not be permitted and the State is not fulfilling its obligations in that regard. I make no apology for making that criticism. This issue is related to the adoption issue which is fundamental to what is being discussed.
An Leas-Chathaoirleach: We had Second Stage speeches earlier.
Senator Jim Walsh: Time limits do not apply on Committee Stage. I am not trying to delay the House but I insist on being allowed to make my point.
An Leas-Chathaoirleach: It must be relevant to the amendment.
Senator Jim Walsh: Despite what the Clerk of the Seanad may think, I want to make my point. My view on guardianship is entirely different from my view on adoption. Where children of——
An Leas-Chathaoirleach: Section 90 is the relevant section to raise that issue.
Senator Jim Walsh: Senator Norris discussed guardianship.
An Leas-Chathaoirleach: Section 90 is the relevant section.
Senator Jim Walsh: I am entitled to respond to what was said.
An Leas-Chathaoirleach: The Senator is entitled to respond to the amendments.
Senator Jim Walsh: Senator Norris referred to guardianship.
An Leas-Chathaoirleach: We are discussing a group of amendments, not Senator Norris. The Senator must stick to the amendments.
Senator Jim Walsh: My view on guardianship may not be 100 miles from Senator Norris’s view on the issue.
An Leas-Chathaoirleach: I will allow the Senator to speak to that issue when we reach section 90.
Senator Ann Ormonde: I did not speak on Second Stage, although I had hoped to do so. While I believe in the principle of the Bill, I am concerned about an anomaly in the area of the protection and welfare of children. The Minister indicated he would revisit this issue and Senator Mullen referred to child centred legislation. The Law Reform Commission will publish a report on how children will be protected. Will the Minister revisit the Bill on the issue of the protection of children? My only concern is that children may not be protected, specifically children from a previous relationship who find themselves disadvantaged as a result of the legislation. While I welcome the Bill, I am concerned about the protection of children.
Senator Lisa McDonald: The amendments, as drafted, have some merit, as does Senator Mullen’s contribution. For too long, we have swept under the carpet issues related to children and their welfare. I do not want to say there is blood on many people’s hands on that issue, but we do not have a proud history in the manner in which we have dealt with children’s rights. As a matter of urgency we need to bring forward the amendment to the Constitution enshrining children’s rights. We need to review the area of the de facto family cohabitants. We need to be upfront and realise that biologically gay people can have children. As I said on Second Stage we do not wish to create children of a lesser god and we need to ensure those children are protected. If our past has taught us anything it is the need to ensure that children are protected for the common good. There is great merit in parking this issue to one side, but not for long. We need to move on it immediately in separate legislation.
Senator David Norris: I must confess there is an element that I significantly left out in what I said, which was——
An Leas-Chathaoirleach: It needs to be relevant to the amendment.
Senator David Norris: Yes, very much so. It is a directly relevant element. It is the practical question of payment and financial support. That is in the first amendment. Some of the others deal with guardianship and so on. I am parking to one side the question of adoption and whether single parents are capable of doing the job or whether two parents are needed. I am just considering the question of financial support, which is what this amendment addresses. I would be surprised if anyone on either side of the House questions the fact that all the indicators and sociological surveys demonstrate that financial security is an important factor in developing a child’s emotional security and welfare. For that reason I welcome the moderate tone adopted by my colleagues who take a different view on this. It slightly surprises me.
We are all capable of unfortunate sentiments and occasionally I indulge in them myself. I will not name anyone, but with regard to impugning the motives of people, I remember people not too far from me indicating that they wanted to impugn the motives of scientists by saying they were motivated not by humanity but by an interest in fame and wealth. That was actually impugning. I very much welcome that that kind of thing has not been engaged in here tonight. For that reason, for the time being I will suspend this hand-written note that I made from radio broadcasts of other unfortunate comments made in the area of this general Bill. It is a temporary suspension, but I do so as an earnest of goodwill so that we can all get on with the debate without name calling.
While I am not trying to be contentious, I do not believe that the liberals——
An Leas-Chathaoirleach: To which amendment is the Senator speaking?
Senator David Norris: I am just making a general point. I do not believe that the liberals are rushing headlong towards a liberal agenda or——
An Leas-Chathaoirleach: We have spent considerable time on these amendments.
Senator David Norris: —— jumping the queue. It has been a very long queue — 2,000 years long. To try to ease up towards some resolution after 2,000 years is not jumping the queue at all.
Senator Ivana Bacik: I wish to clarify a number of points on these four amendments, in particular amendments Nos. 63 and 64. I will stick to points on those amendments and not stray into other territory by mounting attacks on anyone at all. In essence these amendments are child-centred. They are about trying to ensure the rights of existing children — some of whom are now adults — who were brought up by gay couples in loving families where they deserve the same recognition as children brought up in any other type of family.
I believe Senator Mullen was critical of amendment No. 64. That amendment is not poorly or shoddily drafted. It is very carefully drafted to ensure that it refers to the child or children of the civil partners. A child or children of a civil partnership may not be the biological or adopted child or children of either civil partner in fact. We can all think of examples. There is one very high-profile couple who have children who are not their biological or adopted children. We need to be careful to be inclusive in our definitions and that we cover all children.
We also need to ensure our laws are extensive enough. Senator Mullen referred to the testamentary guardian provision. While I am very much aware of that provision, it only applies where one of the existing guardians or parents dies. One needs to have made provision in one’s will for testamentary guardian. That is the nature of testamentary guardian. Clearly it is not adequate to cover guardianship rights of a child to his or her guardian where the partner is alive. That is why I was careful to give the example of a civil partnership that breaks up and a non-birth or non-adoptive parent is the one of the civil partners. In that case the child will have no right of access to that parent — someone he or she has always regarded as a parent — because of the absence in our law on guardianship.
I very much welcome Senator McDonald’s comments. She is right that we need to address all these issues. Perhaps it will be in some other legislation. Senator Regan has already specifically asked the Minister, if he is to introduce this legislation on the rights of children of same-sex couples and in other situations, when he will do so. I acknowledge that special guardianship orders have relevance considerably beyond civil partnership. That is why, with the support of Senator Norris, I tabled an amendment to the Adoption Bill about special guardianship orders. I am well aware of them and am familiar with them from Britain. I used the model of the British legislation. The provision is commonly used there where children are in long-term foster care. I have practised in this area and I know about it. When a child is in long-term foster care and wishes to have a more permanent relationship with the parent, the special guardianship order is a means of doing so that is short of adoption, which means the child does not break the tie with the birth parent. It fulfils a very specific role, but in a range of different areas, for example, long-term foster care. It could also fulfil that role for civil partners.
As we know very well and as the Minister of State, Deputy Barry Andrews, acknowledged during the debates on the Adoption Bill, many gay couples are engaged in foster parenting for the HSE and doing an excellent job. There is no reason not to extend adoption rights to gay couples. I know that is addressed in another amendment. I have strayed somewhat, for which I apologise. Critically, these four amendments are simple and straightforward. They seek to make provision for the dependent child or children of civil partners. Amendment No. 64, which we drafted, simply makes that provision in section 110, which already provides that where a court is making a grant of decree of dissolution of civil partnership, the court must have regard to whether proper provision has been made for the civil partners. We have simply added in “for any dependent child or children”. Senator Norris’s amendment No. 63 is to the same effect. These are very simple and provide a safety net for a child of a civil partnership in the event of dissolution.
Senator Rónán Mullen: I compliment you, a Leas-Chathaoirligh, on allowing Senator Bacik the leeway because her contribution was much more coherent as a result of her being allowed to discuss in interesting detail the issues on guardianship. I want to encourage you along that route because we will have a more informative debate if we do it that way. I also compliment Senator Norris, but I encourage him not to be slow to bring statements, whether from hand-written notes or otherwise, into the debate. No one would like him to be seen to have a chilling effect on the contributions of fellow Seanadoirí.
Senator David Norris: I would never wish to do that.
Senator Rónán Mullen: It is much better to do bring it all out. Bring it on, as they say. If there is anything that requires clarification, I am sure the Senators so impugned will be delighted to respond with precisely what they mean.
An Leas-Chathaoirleach: I gave latitude to Senator Bacik because the amendments were in her name.
Senator Rónán Mullen: I know you will want to be very fair in allowing it to me. Senator Walsh was correct in pointing to the need for objectivity when it comes to assessing what is in the best interests of children. In that regard I, too, was surprised by the comments of the president of the Law Reform Commission. I recall an occasion when a previous president of the Law Reform Commission lost his job because he dared to express a view on the abortion issue. As we know, he subsequently settled a case. When people pooh-pooh evidence, it worries me as to what extent any of us would get any respect were we to approach the Law Reform Commission with any kind of evidence.
Likewise, I had not considered the timing of the report of the Ombudsman for Children, but I would prefer if, generally speaking, personages such as the president of the Law Reform Commission and the Ombudsman for Children would confine themselves to assisting us within our constitutional apparatus. To recommend, for example, the widening of the law to provide for applications by same-sex couples for adoption would be to go beyond the requirements of the Constitution. Therefore, I think one is justified in questioning the appropriateness of that particular recommendation being made.
In respect of what Senator Bacik said about guardianship, we must be careful here. It is agreed that there is a wide category of situations where something may have to be done for children in respect of guardianship. However, things are different in circumstances where a non-married biological father just has the right to apply to be considered for guardianship. Let us be very careful of doing anything under the heading of civil partnership that would undermine the child’s primary right, which is to the care and society of his or her biological parents as far as possible.
Internationally, it cannot be said that there is anything like a recognised human right to same-sex marriage or same-sex adoption. There has been correspondence in that regard. Last year, Amnesty International sought to bring the case for same-sex marriage and adoption under the international human rights architecture. In fact, it is patently clear that the references are to the rights of men and women of marriageable age to marry and to found a family. Those terms “men and women” are used quite distinctly, because there are more general references to “people” or “persons” elsewhere in those human rights instruments. The very specificity of the reference to men and women suggests it was clear what was intended. None of the contracting parties sought to enter protocols or distinctions when these rights instruments were being drawn up.
It is important that we have a debate about where the best interests of children lie. There will be other times in this debate when we consider the appropriateness of people making arrangements with surrogate parents or sperm donors to bring children into the world so that they may parent. I will certainly be opposing any sense of a right to have a child under that heading, but that is all in the background of what we are discussing here. In trying to secure the best interests of children, we must not be blind as to what are the ideal and preferred circumstances in which children come to be parented. We cannot be bleeding hearts about the best interests of living children and totally neutral about the circumstances in which children come to be parented. We have to open our eyes and take one hard look at what the evidence has to tell us in that respect.
Senator John Hanafin: I agree with those Senators who express the view that the ideal situation is a loving and caring relationship for the child with a mother and a father. If that is a biological mother and father, then all the better, but if not, then it should be an adoptive mother and father because that is as nature has given it to us. Given that nature would have some interest in this matter, we should send a clear message for the future in that. There are many different types of scientific developments that allow the development of children, be it surrogacy or sperm donors, so we will have to come back to this issue and I ask the Minister to be cognisant of what I have suggested.
I also share Senator Mullen’s point about the list that may or may not be produced. Things seem to have gone full circle. It was Joe McCarthy who had a list that he might produce in certain circumstances. If Senator Norris has a list, he should just produce it. I think we can stand up for ourselves.
Senator Jim Walsh: When I spoke about guardianship, the Leas-Chathaoirleach referred me to section 90, which in fact deals with the interpretation of domestic violence.
An Cathaoirleach: We are dealing with the relevant amendments. Amendments Nos. 2, 22, 63 and 64 are all related so we must deal with them.
Senator Jim Walsh: That is correct. They deal with the issue of children, which includes the guardianship issue to which other speakers have referred. There are issues that need to be carefully evaluated and examined. We have to be mindful of where children bond in a relationship. If civil partnership had gone on over a number of years and children had been living in a good, low conflict environment, that should be taken into account. It cannot be taken into account without regard to the biological fathers. There are many problems with that.
These complex issues should be examined fairly, openly and objectively. It is essential that we get commissions and vehicles that will do that. If I want to count my chickens, I will not send the fox in to do it for me. We need to be careful with who we put in charge of these jobs on behalf of the State.
Deputy Dermot Ahern: I have been somewhat of a bystander during this debate on children. I have no doubt this Bill will be tested in the courts at some stage, so I think it is appropriate I put on record the reasoned view the Government has on the proposed amendments.
Under the Family Home Protection Act, a spouse may be considered by the court reasonably to withhold consent to the conveyance of the family home, where there are dependent children of the family. Amendments Nos. 2 and 22 propose to impose the same restrictions on the conveyance of the shared home of civil partners where there is a dependent child of one of the partners. The Bill does not impose these restrictions on a civil partner in respect of the child of the other civil partner. This is because the Bill’s scope is confined to the relationship between adult couples and the extensive range of mutual rights and obligations between them.
Section 110 of the Bill provides that a court may grant a decree of dissolution to civil partners, only if proper provision exists or will be made for the partners, having regard to the circumstances of the case. Amendments Nos. 63 and 64 propose that in order to grant a decree of dissolution, a court will also have to be satisfied that proper provision is made for the dependent child of either of the civil partners. The Bill again makes no provision for children for constitutional reasons we have discussed at some length. This does not mean the court is required to ignore the needs and requirements of a dependent child or children of either civil partner. Section 110 requires the court to be satisfied that proper provision, having regard to the circumstances, exists or will be made for the civil partners.
The parental responsibilities of either of the civil partners is a relevant circumstance for the court to consider in making ancillary orders on dissolution of the civil partnership. Section 129 sets out factors for the court to consider in making ancillary orders. This includes, under section 129(2)(l), “the rights of any person other than the civil partners but including a person with whom either civil partner is registered in a new civil partnership or to whom the civil partner is married, or any child to whom either of the civil partners owes an obligation of support”.
A dependent child cannot be regarded as a child of both civil partners, but safeguards are in place to require the courts to have particular regard to the parents’ responsibility to maintain dependent children. The Bill can go no further than this without, in our view, undermining the fine constitutional balance it attempts to achieve. The Bill has been rigorously scrutinised by the Attorney General during the drafting process and he has given advice related specifically to making provision for children within the Bill. In particular, he has advised that “Giving a familial unit that is not based on marriage a constitution — two adults who are co-parents of children — and authority — full parental powers, rights and duties of adoption — substantially identical to that of a family would probably be viewed as reneging on the guarantee to protect the family in the Constitution.”
My legal advice is very clear on these matters, and I have no doubt that introducing substantial legislative provisions relating to the children of a civil partner will upset the careful constitutional balance of this Bill. The issues surrounding children are extremely complex and I do not wish to ignore the fact that there are children being brought up by same-sex couples. However, this is not the Bill to deal with matters relating to children being cared for in non-marital households. The position of children in a marital family is different by virtue of the additional constitutional protection afforded to the marital family. Civil partners caring for children do not have the same constitutional protection, and we cannot impose obligations on them with respect to their parents’ children in the same way as is done in family law Acts. The Attorney General’s advice on the constitutional robustness of the Bill has been very clear that providing a formal legal relationship between a civil partner and children of the other civil partner may undermine the constitutional protection given to the family. The amendments would make the Bill more vulnerable to a constitutional challenge.
However, as Senator Bacik said, the Bill is not entirely silent on the matter of protecting children. Section 129(2)(l) the Bill expressly mandates the court in making financial and property orders to consider the rights of people other than either of the civil partners, specifically including any child to whom either of the civil partners owe an obligation of support. This is an important provision to protect children as the right of the child to the financial support and care of its parent must be considered before any financial or property order is made in favour of the civil partner. We believe the Bill achieves a balance in protecting children while respecting the special constitutional position of marriage.
When the Government looked at the formulation of the civil registration regime for same-sex couples, it was very mindful of the implications for children. As I stated previously, there is a very extensive body of law in regard to children generally in areas such as guardianship, maintenance, access and custody and many of these issues are faced by persons, whether married or not.
Some people have made the suggestion that there be express provision in this Bill, including the Ombudsman for Children. As I said when concluding on Second Stage, I received just last night the submission from the Ombudsman for Children. I had an opportunity during Second Stage to read the submission. I made the point that this Bill was published in June 2009 and I was somewhat surprised I only got that submission last night.
As I said, a significant examination is being carried out by the Law Reform Commission in regard to legal aspects of family relationships. It issued a consultation paper in September 2009 after the publication of the Civil Partnership Bill. It outlines the sort of issues that need to be discussed. It is an extremely complex and well set out paper. It does not refer to same-sex couples as such but refers to step-parents. Interestingly, the Ombudsman for Children is thanked by the commission for her valuable assistance along with other people. Obviously, she has had an input in this regard, although the paper is silent in regard to same-sex couples. That shows that one could not just deal with the issue of children of civil partners in this Bill without affecting a myriad of other types of relationships which children have with biological parents and adopted parents and the rights of the natural father who may not be part of the civil partnership.
There are also issues relating to guardianship. That is being considered by the Law Reform Commission. The consultation forms part of its third programme of law, involving the examination of the rights and duties of fathers in regard to guardianship, custody, access to their children and the rights or duties of the extended members of families, including grandparents and step-parents.
This document also examines the area of the law. The issue under discussion by the commission is whether Irish law should continue to distinguish between categories of fathers for the purpose of guardianship and so on. The commission sought submissions by the end of 2009 with a view to publishing its final report and recommendations within 18 months. If anyone in this House or outside it has not made a submission, in particular in this area, I suspect the Law Reform Commission would be able to take one on board in the context of the consultation it is carrying out.
In her submission, the Ombudsman for Children states she is mindful that I have outlined previously the reasons behind the Government’s approach to this Bill. She refers to the reasons we have dealt with it in this way, Article 41 of the Constitution, the desire to avoid addressing discrete questions relating to guardianship outside the wider context of reform of this area of law and the review currently being undertaken by the Law Reform Commission in regard to legal aspects of family relationship. She recognises that these issues relating to children are complex and interact with other areas of the law beyond the scope of the civil partnership Bill. That is the very reason the Government decided not to include specific provisions in regard to children of same-sex couples in this Bill. She concludes by stating that she fully appreciates that these matters relating to the rights and welfare of children in the Bill are complex and interact with areas of the law beyond the scope of the civil partnership Bill.
Senator Regan raised the issue of the de facto family. He referred to a High Court judgment which was appealed to the Supreme Court. In the Supreme Court judgment on that case, Mrs. Justice Denham stated:
The term “de facto family” has arisen as a shorthand method of describing circumstances where a couple have lived together in a settled relationship for some time with a child. Such a set of relationships are relevant in considering the welfare of the child. There is no institution of a de facto family.
79. Thus, there is no institution of a de facto family which may be applied by analogy to the respondents. Therefore, it was an error on the part of the learned High Court judge to describe the respondents and child as a de facto family as if it were a recognised institution. However, the circumstances of the case show that the respondents have lived together for years in a loving relationship and that they provide a settled and loving home for the child. These factors are critical and of importance in assessing the welfare of the child.
I return to the point that has been raised time and again that the way the Supreme Court has adjudicated on the issues has confirmed that a family is made up of a heterosexual couple. That was confirmed as recently as December of last year.
In regard to children, I wish to make a number of points which again show the complexity of this issue and the reason the Government has made the restriction in regard to the Constitution. There must be material differences between civil partnership and marriage. I accept people do not accept that but it is the case in regard to the Constitution. Until the Constitution is changed, we must work within it.
The issue of children creates significant distinct issues relating to the welfare of the child, the constitutional position of the family, surrogate issues and other issues relating to IVF etc. and the rights of the natural father. Senators adverted the fact the children of a same-sex couple are children. However, the fact there is obviously other biological parents of the children involved raises the issue as to how their constitutional rights are dealt with. These are extremely complex legal and social issues and we believe would not be appropriately dealt with in this Bill. When Irish law assigns parental rights and duties, it already accords primacy to the biological link between the parent and the child. The law does not currently recognise the concept of what is sometimes termed social parenting. A child living with a same-sex couple can only be the biological and legal child of one of the couple, and the child’s other biological parent has rights in respect of the child, whether or not those rights are currently being exercised. This was confirmed recently in a Supreme Court case, JMcD v PL and BM.
If we were to deal in this Bill with children of same-sex couples and not deal with a similar situation, that could lead to the accusation of discrimination on the basis of sex. We would not be dealing with similar situations such as heterosexual step-families, whether based on marriage or not. If the Bill were to assign parental rights to a civil partner of a child’s mother in circumstances where the law would 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 existing constitutional rights of biological parents.
Under section 129 there is protection for the children in relation to division of property. I go back to the point I made earlier about the major report of the Commission on the Family, which I was party to when I was Minister for Social, Community and Family Affairs as far back as 1998. We could not come up with a definition of a family, given that even in those days there was a myriad of different types of relationships and, flowing from that, different types of relationships between those family units and children. Given that this is being dealt with by the Law Reform Commission in an ongoing consultation leading to a final report, I suggest to Senators and others outside the House who have made submissions on the Bill that the proper place to provide for dealing with legal aspects of family relationships is this consultation process. A composite response to looking after the best interests of children of civil partnerships is this vehicle and not a very focused Bill which would not be able to deal with the concurrent issues of the relationship and the constitutional rights with natural parents who would not be part of the same-sex couple.
An Cathaoirleach: The Guardianship of Infants Act is referred to in amendment No. 37 which proposes to insert a new section before section 90. Amendment No. 37 may be discussed with amendment No. 5. This point was raised and I merely clarify the matter.
Senator David Norris: I propose, with your permission a Chathaoirligh, to address some of the remarks the Minister has, most helpfully, made. I will be as brief as I can.
An Cathaoirleach: Those points may relate to other amendments. I am anxious that Senators should confine their remarks to the amendments we are discussing at present.
Senator David Norris: In that case, I will return to these issues. However, I must address one matter to which the Minister referred, that is, the decision of the Supreme Court concerning a de facto family. I found the judgment of Mrs. Justice Denham surprising. In any event, I believe it has been overtaken by a recent decision of the European Court of Human Rights. The Minister will know better than I do that since the absorption into Irish law of the European Convention on Human Rights, a citizen can seek a declaration of incompatibility. It seems to me very clear that the Supreme Court view would be incompatible with the most recent judgment of the European Court of Human Rights which clearly states that there is in existence a de facto family.
With regard to the rights of the natural father, the Minister is absolutely right. I wish something could be done about it but the Cathaoirleach will say, perfectly appropriately, that this is not the place to do it. The natural father has virtually no rights whatsoever. Mr. John Waters has been properly eloquent on this subject for many years. I have supported him in this, as I have supported my colleagues who say one should consider the rights of housekeepers, siblings and so on. I was the first person to raise this and I got certain ameliorations of that situation from the then Minister for Finance, Deputy Charlie McCreevy. However, it is a separate issue and I saw it as such. It is now muddying the waters.
I have many other comments but under your direction, a Chathaoirligh, I will save them until amendment No. 37, except to say this is developing into a mature and interesting debate. The Minister, in particular, has been extraordinarily helpful in illustrating how very complex these issues are. They are not simple or easy to separate and I absolutely agree with him on that. However, if we are not able to accept in good faith the view of the Law Reform Commission and the Equality Authority, even after it has been disastrously politically tampered and interfered with, we are in trouble because we are not going to trust anyone at all.
The Minister will understand the human situation of people. I am sure he says, in all good faith, that this is not the appropriate Bill and we should wait for the Law Reform Commission. These matters have been pushed into so many commissions and long-fingered. We were told the Adoption Bill was not appropriate and we should wait for the Civil Partnership Bill. I refer the Minister to Seanad debates of March 2009, May 2009 and March of this year.
Deputy Dermot Ahern: I hope Senator Norris is not suggesting that the Minister politically interfered with the Equality Authority. If anything, the Equality Authority——
Senator David Norris: Interfered with the Minister?
Deputy Dermot Ahern: ——was used in a very political way by others, but not by the Minister.
Senator Ivana Bacik: I wish to make three brief points in response to the Minister. First, we are disappointed that he is not going to accept any of these four amendments or indeed any of the others on children. If that is not going to happen, the promise of a composite response with regard to the rights of children is welcome. Can the Minister give some indication of when that is likely to happen? He says the Law Reform Commission is likely to report within 12 months from now. Has any work been done preparatory to legislation following that? I know the Minister for Health and Children is working on legislation on IVF and assisted human reproduction. That might be part of it.
Second, the Minister said any amendment dealing with the rights of civil partners to guardianship should also deal with a step-parent in a heterosexual relationship. Amendment No. 37 would do that.
Third, I must take issue with the Minister’s point that there are constitutional difficulties with providing for dependent children. There is some very limited provision for dependent children in the Bill and that creates no constitutional difficulty. I do not see how some form of recognition for the children of gay couples could cause a difficulty with the Constitution. The Law Reform Commission, in its earlier work on cohabitants, stated categorically that there would be no constitutional difficulty with creating a bundle of rights and responsibilities for cohabitants so long as they were not greater than the rights of a married couple.
Senator David Norris: Exactly.
Senator Ivana Bacik: They could not be greater than the status of married people but they could be equivalent. Legal recognition could be given to a cohabiting couple, including a same-sex couple, to a level equivalent with marriage. I do not see how our amendments go anywhere beyond that. They are not even equivalent to marriage. I do not see how there could be a constitutional difficulty with those.
Senator Eugene Regan: The Minister has not spoken to the amendments. He has given a blanket rejection of any provisions in the Bill for the protection of children of same-sex relationships. He refers to careful constitutional balance. I do not quite get the point he is making. What the Minister said is that the design of the Bill is to deal with the relationship between adults, and the line he takes is that this does not conflict with the Constitution. However, he suggests that to provide any protection for the children of those relationships would be, in effect, unconstitutional, if I understand him correctly. I cannot fathom the premise, the basis or the logic of the argument which is being advanced.
The Minister said that this matter will be examined by the Law Reform Commission in a wider context. What he might confirm, perhaps, is whether he is happy that the chairperson of the Law Reform Commission is and will be objective in carrying out her duties, because it has been suggested by a Senator that she is not objective. That would be an important point to clarify.
Deputy Dermot Ahern: I do not accept Senator Regan’s contention that I did not address the points in regard to each of the amendments. I have full confidence in the members of the Law Reform Commission, including the chairperson.
Senator David Norris: Good.
Amendment put:
The Seanad divided: Tá, 22; Níl, 31.
Tá
Bacik, Ivana.
Burke, Paddy.
Buttimer, Jerry.
Cannon, Ciaran.
Coffey, Paudie.
Coghlan, Paul.
Cummins, Maurice.
Doherty, Pearse.
Fitzgerald, Frances.
Hannigan, Dominic.
Healy Eames, Fidelma.
McCarthy, Michael.
McFadden, Nicky.
Norris, David.
O’Reilly, Joe.
O’Toole, Joe.
Prendergast, Phil.
Regan, Eugene.
Ross, Shane.
Ryan, Brendan.
Twomey, Liam.
White, Alex.
Níl
Boyle, Dan.
Brady, Martin.
Butler, Larry.
Carroll, James.
Carty, John.
Cassidy, Donie.
Corrigan, Maria.
Daly, Mark.
Dearey, Mark.
Ellis, John.
Feeney, Geraldine.
Glynn, Camillus.
Hanafin, John.
Keaveney, Cecilia.
Leyden, Terry.
MacSharry, Marc.
McDonald, Lisa.
Mooney, Paschal.
Mullen, Rónán.
O’Brien, Francis.
O’Donovan, Denis.
O’Malley, Fiona.
O’Sullivan, Ned.
Ó Brolcháin, Niall.
Ó Domhnaill, Brian.
Ó Murchú, Labhrás.
Ormonde, Ann.
Quinn, Feargal.
Walsh, Jim.
White, Mary M.
Wilson, Diarmuid.
Tellers: Tá, Senators Dominic Hannigan and David Norris; Níl, Senators Niall Ó Brolcháin and Diarmuid Wilson.
Amendment declared lost
Question proposed: “That section 2 stand part of the Bill.”
10 o’clock
Senator David Norris: It is clear the Government has won a victory and I deliberately front-loaded my concerns about some of the other issues involved in a general discussion on the first couple of amendments. That was the only vote to be called by me and it is perfectly obvious we will not have any more. It is very important that we get that out of the way in order that we can discuss the principles and the Minister’s view and urge people of goodwill who are in any degree moved to act within the parties. I am sure, for example, that many want to provide financial support for children with disabilities who are very vulnerable. There is not a single person in the House who would not want to see such children properly catered for. It is open to people of goodwill within the parties to urge the Minister to address this issue as rapidly as possible in another Bill. I am a realist and as such, I do not believe in wasting time, or at least I try not to do so. I have had my vote and have demonstrated that I am serious about dealing with this issue. I have ventilated and voted on the principles about which I am most concerned. For that reason, I will not challenge the section.
Question put and agreed to.
NEW SECTION.
Senator Ivana Bacik: I move amendment No. 3:
In page 14, before section 3, to insert the following new section:
3.—For the purposes of this Act, a reference to the presence of any person in the State or co-habitation in the State shall include presence or co-habitation while abroad in the service of the State.”.
As this amendment was tabled on Report Stage in the Dáil, I will not press it here. It is to clarify an important point in that has been designed to preserve pension and other rights for partners of diplomats or members of the military posted abroad. It takes into account civil partners abroad while in the service of the State.
Senator David Norris: This is a most practical amendment. We can be very pleased that at a very early stage a Fianna Fáil Minister for Defence, Mr. David Andrews, indicated there would be full equality in the consideration of gay members of the Defence Forces. This is clearly a practical arrangement which applies not only to the Irish diplomatic and foreign service but also to those of other countries. I am aware of the Minister’s interest in the area of foreign affairs and he will know that a number of distinguished diplomats who represent other countries and who are resident in this city at present are not only gay but are involved in partnerships or married relationships which are recognised in their home countries. All we are doing in this amendment is reflecting the reality that exists. However, for the technical reasons to which I referred earlier, I accept it is highly unlikely that this or any other amendment will be accepted.
Deputy Dermot Ahern: The Senator misunderstands what is contained in the Bill. The terms used in the legislation are “ordinarily resident” and “domiciled” and they act as alternatives to each other. The court may have jurisdiction if a couple, or one member thereof, is ordinarily resident in the State or is domiciled here. Being ordinarily resident does not require that one need be present within the State at all times in the relevant period. However, some measure of residence within the State will be required.
It is difficult to understand why the Irish courts should have jurisdiction over a person whose domicile is not in the State and who is also not ordinarily resident here if a question arises as to his or her civil partnership status or if there is a dispute between him or her and his or her partner. Having one’s domicile here certainly does not require presence in the State. The argument is made that a person posted abroad in the service of the State for an extended period could lose his or her Irish domicile. This is a highly unlikely eventuality. To lose a domicile, a person must have actively decided that he or she is moving abroad permanently. It is very difficult to lose domicile in law. A person posted abroad by the Department of Foreign Affairs, for example, would not lose domicile. Furthermore, the ongoing links with the State are crystal clear. Members of the Defence Forces do not lose their domicile of origin merely because they go on overseas missions to Lebanon or wherever. The person in the Department of Foreign Affairs would, while abroad, still be paid and taxed by the State and would be working on its behalf. Much looser links than these are sufficient to establish domicile within the State. The amendment is designed to remedy a problem which, I respectfully suggest, does not exist.
Senator David Norris: The Minister indicated that there might be some question of a particular, if fairly flexible, timeframe. Does he have in mind a timeframe within which residence or domicile might be established? In this regard it must be borne in mind that a question of domicile relating to a member of his party, who is also a Member of this House, has given rise to difficulties.
Deputy Dermot Ahern: No, there is no particular timeframe involved. One has a domicile of origin and if one wants to change this, one can then adopt a domicile of choice. In the context of the people to whom the Senator refers, namely, members of staff of the Department of Foreign Affairs, members of the Defence Forces and others in the employ of the State who are stationed abroad, they do not lose their domicile unless they make a conscious decision to the effect that they want to have a different domicile.
Senator David Norris: A question relating to the domicile of a Member of the House is before the Select Committee on Members’ Interests of Seanad Éireann.
Deputy Dermot Ahern: The provision relating to what constitutes being ordinarily resident, which is also contained in the Bill, would cater for those people who are resident in Ireland as a matter of fact.
Progress reported; Committee to sit again.
Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009: Committee Stage (Resumed)
Debate resumed on amendment No. 3:
In page 14, before section 3, to insert the following new section:
3.—For the purposes of this Act, a reference to the presence of any person in the State or co-habitation in the State shall include presence or co-habitation while abroad in the service of the State.”.
Amendment, by leave, withdrawn.
Acting Chairman (Senator Feargal Quinn): Amendment No. 4 is out of order.
Senator Rónán Mullen: I am sure the fact that the amendment is out of order is as much a surprise to the Acting Chairman as it is to me. Amendment No. 4 relates to a fundamental issue——
Acting Chairman (Senator Feargal Quinn): The amendment is out of order and cannot be discussed.
Senator Rónán Mullen: That is fine. Perhaps I might have an opportunity to refer to some of the matters to which it relates in respect of later amendments.
Senator David Norris: I am glad the amendment has been ruled out of order. Is it possible for the Acting Chairman to outline the grounds on which this ruling was made?
Acting Chairman (Senator Feargal Quinn): We cannot discuss that matter.
Senator David Norris: Were there no grounds for ruling it out of order?
Amendment No. 4 not moved.
Section 3 agreed to.
NEW SECTION.
Acting Chairman (Senator Feargal Quinn): Amendments Nos. 5 and 37 are related and will be discussed together.
Senator David Norris: I move amendment No. 5:
In page 14, before section 4, but in Part 1, to insert the following new section:
4.—In a case where one of the partners in a civil partnership has, or had prior to the entry into a civil partnership, adopted a child or children to whom they may or may not be biologically related, and in the event of the death of that adopting parent, the surviving partner shall be regarded in law as a guardian of the child or children.”.
This amendment involves the insertion of a new section into the Bill and involves the granting of a degree of retrospection in respect of an extremely serious situation.
I wish to place some flesh on the bones of the amendment. The Minister may have been too busy to hear an extremely important discussion on this matter which occurred on radio in recent days. During that discussion, Henk Krol, who has been involved in the areas of civil and human rights for many years and who hails from the Netherlands, referred to a situation in which a young Dutch woman married a Frenchman. They had one daughter together but after some years the marriage broke down. The biological father and ex-husband did not pursue an interest in the child and the former wife took the child back to the Netherlands to live with her. Tragically, the biological mother and former wife was killed in a traffic accident. As already stated, the biological father had no interest in the child but his parents — of whom the child had no recollection whatever — intervened and took a case in the Dutch courts in order to secure access to her and transport her to France, a country of which she had no recollection and in whose language she was not conversant. Needless to say, that young person had an extremely troubled childhood as a result. It was in the aftermath of this case and others like it that the Dutch authorities changed the law.
I am realistic with regard to whether these two amendments are going to be accepted. It is highly unlikely that they will be accepted but the Minister may, of course, spring a surprise on us. However, I do not believe this will happen.
Amendment No. 37 is quite substantial in nature and the Minister has indicated a degree of movement in respect of the area to which it relates. I hope he will request that his officials pursue this matter. If it is an issue which should be explored by the Law Reform Commission — I share the Minister’s confidence in that body — I hope the effect of what we are doing here will be, at the very minimum, to impel the debate forward and provide a new vigour in respect of it. As the Minister will see and as colleagues on all sides of the House have been kind enough to remark, amendment No. 37 is very detailed and carefully crafted. I pay tribute to the various individuals who assisted me in its production. It is important that we take it seriously. I am a realist, but I hope, at the very least, the Minister will accept it is important that we advance all of these issues. I would like to see a full resolution of all of them. If we are forced by circumstances to adopt an incremental approach instead, I hope we will be moving in the right direction, at least.
I again quote from the Ombudsman for Children’s report on the Bill:
However, if the intention of the legislation were to provide such protection to children of civil partners, then it should have done so explicitly and mandated the courts to consider the needs of children affected by such orders, rather than relying on courts to utilise the latitude provided by the Bill in a discretionary manner. It would not be unreasonable for a court to assume that the clear decision not to provide for the children of civil partners in the areas outlined [there are many] signified an intention on the part of the Oireachtas for there to be some substance to the difference in the level of protection afforded to those children.
The Minister has spoken about what he perceives as the required differential between marital status and the status of civil partnership. I assume he would not wish to discriminate between children. That brings us to the nub of the moral issue.
As the Minister said, this issue is extremely complex. He has indicated that there was a ruling in one of our higher courts to the effect that in a partnership a child could only be the child of one of the partners in a civil partnership of the same sex. That is not necessarily the case. I respectfully suggest the courts may have misdirected themselves in law. This is not the first time they have done so. There was a notorious example when the late Mr. Justice O’Higgins — I hope I am right in that regard — misdirected himself in law in a case in which I was involved. I do not have any malign intention when I say I hope I am right. I do not want to suggest he is dead if he is not. I believe he is. I mention this because it is theoretically possible — I wonder if the Minister agrees — to have a relationship between persons of the same sex, with the biological child of one being adopted by the other. It may be unlikely and may not be contemplated by law, but it is certainly a theoretical possibility. I respectfully suggest the judgment in this case was wrong. If possible, I would like to extract from the Minister some comfort, in advance of a possible court case, on the question of whether it is the intention of the Oireachtas for there to be some difference in the level of protection afforded to these children. If so, that would be a very worrying concept.
Senator Ivana Bacik: I support these two amendments which are related in their purpose. We have already put to the Minister the need to ensure the rights of children are protected in this legislation. I know he has said he will not accept the amendments at this stage. I am glad to hear him say, however, that he will adopt a composite response to the needs of children, as part of a more comprehensive review of guardianship law. I do not think he has indicated when that is likely to happen. Even if he does not accept these two amendments now, they should inform any future development of legislation. Amendment No. 5 provides that “where one of the partners in a civil partnership has, or had prior to the entry into a civil partnership, adopted a child or children to whom they may or may not be biologically related, and in the event of the death of that adopting parent, the surviving partner shall be regarded in law as a guardian”. It would overcome the difficulties that would arise if the partners had not made a will appointing the non-adoptive parent as the testamentary guardian. It would ensure the rights of the child in that situation and such a child would not be left without a guardian in law. I know a good deal of work has gone into the well crafted amendment No. 37 to section 90. I commend the officials in the Gay and Lesbian Equality Network and elsewhere who assisted Senator Norris with the amendment.
Senator David Norris: I think Mr. Brian Barrington drew it up.
Senator Ivana Bacik: It may have been. I am not sure who it was.
The amendment covers many issues. It would be worthwhile for the Minister to examine it in a broader context because it would give rights to a child beyond a civil partnership. It would amend the Guardianship of Infants Act 1964 to ensure the acquisition of guardianship by a step-parent, regardless of whether that person is “a person who is married to or is the civil partner of a parent of that child”. It would address the current anomaly where a woman who has a child subsequently marries a new partner and that new partner has no relationship in law to the child, unless he is the father of the child. It would also include coverage of civil partnership and recognition of the natural father. It recognises that a child may have a number of guardians, all of whom would have to consent to the step-parent being made a guardian. It is commendable because it would encompass the voice of the child, providing that the court should consider “the views of the child himself or herself in relation to the application, as the court thinks appropriate and practicable”, “the views of the guardian or guardians of the child” and “the views of any other parent of the child”. It would cover a natural father who is not a guardian. It would covers circumstances in which the guardianship may have ended. It is not quite the special guardianship provision I mentioned, but it would help to address the difficulties faced by children of a civil partnership when the partnership dissolves and they have no relationship in law with the non-birth or adoptive parent.
Senator David Norris: I wonder if I can correct some misinformation I have given to the House. Having looked at my documents, I realise it was Dr. Fergus Ryan of the faculty of law in the Dublin Institute of Technology who prepared this specific amendment at my request.
Senator Rónán Mullen: He is not here to defend himself. Perhaps we should not say too much more about the identity of the person who concocted these amendments.
Deputy Dermot Ahern: Do not go there.
Senator Rónán Mullen: Regretfully, I disagree with thee amendments. However, I would like to join Senator Norris in commending Mr. John Waters for his excellent work in drawing attention to the rights of non-married fathers. He has done public debate a great service in his writings on this and other issues. Senator Norris has raised the issue in the context of the recent decision in the case of Schalk and Kopf v. Austria. It is true there was some recognition in that case of the family status involved. The case is probably more notable for the fact that it was found that under the European Convention on Human Rights, there was no obligation on member states to legislate for same-sex marriage, nor was there an obligation on them to legislate for same-sex partnerships. It has to be said any references to the European Convention on Human Rights or decisions of the European Court of Human Rights should also recall that we have incorporated the convention at sub-constitutional level. Therefore, everything here is subject to the over-riding requirements of the Constitution.
Senator David Norris: That is why I mentioned the certificate of incompatibility.
Senator Rónán Mullen: We need to take a closer look at the issues raised in the amendments. Amendment No. 5 proposes that “the surviving partner shall be regarded in law as a guardian of the child” in a case in which the deceased partner was the adopting parent. Amendment No. 37 is similar. It seems we are getting very close to the boundaries of the Constitution. I recall my earlier comment that, although we are right to seek to affirm and vindicate the rights, welfare, dignity and best interests of children, we must not do so in a way that will have the result of relativising the context in which we would like children to be brought up. That seems to be a recurrent problem in this debate. I hear constant appeals to the rights and best interests of children, but they often seem to be linked with seeking a particular status for an adult relationship. I have a problem with this. I do not question the motivations or bona fides of those who make this argument, but I point to the downsides of that political approach. That is why I commend the wisdom of the Minister on this issue in keeping the issue of children separate from the issue of civil partnership. In this context it must be said we want to vindicate the rights of children in a way that does not undermine the marital family as the socially preferred context. We should not regard that as an anachronistic constitutional inheritance we have not yet shaken off. It is worth pointing out that social science studies consistently show that family form is not an accidental feature of relationship quality. In the context of married and cohabiting couples, for example, the millennium cohort study of 2008 stressed the right of children to be brought up by their biological parents and was able to show evidence that where parents were living together at nine months, the question of the family form involved had a material impact on the child experiencing family change. Children living with married natural parents at nine months were much less likely to have experienced family change than children living with cohabiting natural parents or with a lone natural mother. The figure was one in ten in the context of married parents who experienced family change within the next five years or first five years of the child’s life. It was one in four for cohabiting parents and one in three in the context of lone parents. That is just one example, admittedly from an area examining marriage and cohabitation. Miss Justice Elizabeth Dunne considered the evidence in her decision in the Zappone-Gilligan case and expressed concerns about arguments being made that sought to relativise where the best interests of children lay in the context of same-sex parenting vis-à-vis married parenting. We cannot ignore those issues as we consider these amendments and for that reason I oppose them.
Senator Jim Walsh: These amendments go to the heart of a very important issue and also challenge us in many ways. They are a test for the depth of our Christianity and our republican ethos. That is my firm belief. I gave my views with regard to guardianship which may have surprised Senator Norris. These issues need to be looked at and teased out thoroughly and objectively because they are complicated.
Senator Norris said that although the Minister may take the view that he must discriminate between marital status and civil partnership status, he should not discriminate between children.
Senator David Norris: Exactly.
Senator Jim Walsh: The converse is true. Why should we discriminate between civil partnership and marriage if marriage was not the institution into which children are born in the natural order? Without that issue surely there would be no need to have any such discrimination and there would be very little need to give any sort of unique financial assistance.
Senator David Norris: Does the Senator approve of discrimination against children?
Senator Jim Walsh: I do not. I mean that the natural order where children emerge focuses my mind. In the overwhelming majority of cases that will be through the institution of heterosexual relationships, specifically marriage.
I was very taken by and wish to acknowledge that I was reassured by the Minister’s response to us on the last amendment, tabled by Senator Norris. We touched on this issue and on adoption although I recognise the Senator’s current amendments are probably more relevant to the topic of guardianship. I was reassured because it was obvious from the Minister’s comments that very careful consideration had been given to these issues by him, his officials and the Government. Knowing the Minister as a good family man and knowing the value he would place on children, it does not surprise me that such is the case. He pointed out that it is a comprehensive and complex area.and we need to be extremely balanced. Many interests are involved, including, as Senator Norris rightly said, biological fathers in instances where they have no say in the rearing of their biological children. It is an enormous area and I agree with the Senator. John Waters has been a champion in this area for many years, often a lone voice. That should be considered.
I heard Senator Regan ask the Minister if he had confidence in the Law Reform Commission. Like the good lawyer he is, the Senator knew the answer before he asked the question. The Minister would not be in a position in the House to say other than what he said.
Senator Eugene Regan: On a point of order, may I say——
Senator Jim Walsh: Given that this is an extremely important matter I ask the Minister to consider appointing an objective committee, commission or group — I exclude the Law Reform Commission because its views are already on the record — to look at international surveys which have been done, especially in the United States and Great Britain, with regard to the impact on children of the various kinds of relationships. We would thereby have some international comparisons and could consider the matter in the House. This is a very complex area and it needs to be evaluated objectively and comprehensively. Obviously, we should look at international practices and experience in that regard. I put that as a genuine suggestion to the Minister.
No Member in this House has any priority in regard to family values or anything else. We must approach this collectively and must ensure we make the right decisions. Although I have a very firm view as to what I think is best in this regard, I believe it should be fairly, objectively and independently evaluated.
Senator Geraldine Feeney: Given the contribution I made earlier, I must say to Senator Norris and the Labour Party I do not see anything wrong with that amendment. I heard a lovely couple, two women who live in County Kildare, being interviewed, perhaps on “The Late Late Show” or on the radio. Between them they had two children, the biological children of one of the women. They spoke about no arrangement being in place in the event of the death of the biological mother, yet from the time the two boys were very young, the female partner was the only other parent they had ever known. This amendment made me think of that interview. I ask the Minister whether there might be a case in which provision could be put in place by a same-sex couple to be enacted in the case of a death.
Before my husband died we had an arrangement which applied in the event of both of us being killed together. We had four children. We put a provision in place that in the event of both of us being wiped out at the same time, our children would go where we wanted them to go. We had chosen family members to look after and rear them as their own children. Perhaps nothing can be done with regard to in-laws in this case but might a couple, having all their faculties and being well, put a provision in place that if something were to happen to the biological mother, the children could be cared for by the partner?
Senator David Norris: I reiterate my support for the position of Mr. Waters on the problems attaching to the status of the natural father, although he is almost as much of a monomaniac on that subject as I am on some others. He acknowledged that I had spoken out on this matter at a very early stage. I believe my credentials are established in that area.
With regard to the business of getting reports and statistics, I also put on the record the report of a formal commission initiated by the Swedish Government in 1999, and I regard that as authoritative. We may be getting ourselves into a situation such as that described in a short story of the late Seamus O’Kelly in which there was a court case involving two families regarding land. They had no knowledge of the intricacies of law but they acquired lawyers who produced maps and one said to the other “sure our maps are as long, as big and as complicated as yours and isn’t our lawyer even bigger, fatter and more expensive”. I am not sure about the benefit of comparing these things, especially in light of a case that is still before the courts. I believe it at the level of Supreme Court and therefore we must be reasonably careful. I recall clearly that a consultant psychiatrist gave evidence in that case and it was very strong evidence as I remember, but under cross-examination it was established that this particular highly reputable consultant had not written or published papers, lectured or had any detectable expertise in the area. Therefore one must be extremely careful. I say this without reference to anyone present. Following on from the person to whom I previously referred, there are an enormous number of crackpots in the United States on both sides. If we get into selecting and firing crackpots, it would be almost like the Bertie Ahern situation, which so endeared him to the nation, when he said we are not going to get anywhere if we sit here all night throwing red elephants and white herrings at each other.
Senator Rónán Mullen: Do not upset the apple tart.
Senator David Norris: Exactly, it would upset the apple cart.
Senator Ivana Bacik: I do not want to prolong the debate either but I cannot hear of these attacks on the Law Reform Commission. It is an objective body and its review is welcome. I am disappointed that amendments to this legislation on the rights of children will not be accepted, but I hope we will see comprehensive legislation on the rights of children very soon.
As Senator Norris said, one can cite all sorts of evidence and studies. A great number of the studies cited have not looked at gay parenting versus straight parenting versus parenting by heterosexual couples. The US NIS-4 study, which has been quoted routinely by many people, shows that biological parents are better in this respect, but it did not look at gay parents in particular. The studies which have looked at gay parenting as opposed to parenting by heterosexual couples have shown over decades that there is no adverse impact on children raised by gay and lesbian parents. In 2002, the American Academy of Paediatrics Committee, which is not made up crackpots but is a respected American body, found no substantial difference between children raised by gay parents and heterosexual parents. One can quote all these studies but the specific studies looking at and contrasting gay parenting and heterosexual parenting have found there is no adverse impact. What matters is the quality of the parenting and the bond between parent and child.
Senator Jim Walsh: That is not true.
Senator Ivana Bacik: With respect, I did not interrupt the Senator. It is true and that is the evidence that has been put before the High Court here and it is the evidence internationally. We are looking also at independent research commissioned by Marriage Equality which has not yet been published but which the ombudsman referred to as ongoing research on the experience of children born into gay relationships and raised by gay couples in Ireland. That will give us an interesting set of findings also, but in the meantime we are left with the situation where a large number of children are being raised by gay couples and they have no legal protection at present. We should not forget that one third of children in Ireland are born outside of marriage. Senator Walsh may refer to the natural order of things but clearly the natural order is changing.
Senator Pearse Doherty: I rise to add my voice of support for the two amendments under discussion. While I acknowledge it is unlikely the Minister will accept these amendments, this issue should be reconsidered. These amendments encompass what this historic day is all about. It is about acknowledging and recognising same-sex families. They are families. I have listened to the debate with interest.
Some of the derogatory comments made earlier were unhelpful. I mention in particular the reference to some children and those in civil partnerships as foxes and hens, which was despicable. We were all children——
Senator Jim Walsh: On a point of order, that comparator was not made. That is a distortion. I ask the Senator to correct that.
Acting Chairman (Senator Feargal Quinn): That is not a point of order.
Senator Pearse Doherty: Those who are in same-sex unions were once children. We all went through the same experience. As a father, the best thing one can ask for any child is to ensure they are being brought up in a loving relationship. I commend Senator Norris, with the help of outside support, on crafting these amendments, in particular amendment No. 37 which goes further than dealing with same-sex unions in that it also deals with the issue of step-parents. I look forward to the Minister’s response to it.
I have spoken previously on civil partnership, same-sex unions and same-sex marriage. My position and that of my party on this area is very clear. This Bill falls short in a number of areas. It definitely falls short in regard to the rights of the child. The amendments discussed earlier and particularly these amendments, if accepted, would go a long way towards making this legislation more worthy of our support.
It is great to be in this House today as a republican because the Seanad is clearly republican. Everyone has outlined how republican they are but, unfortunately, perhaps some of them are talking about American style republicanism instead of Irish republicanism. We talk about cherishing the children of the nation equally. These amendments deal with that principle. They give rights to those in same-sex families, to the partners in a civil union, but it does take away rights from the biological parents. The issue of the rights of fathers in particular has been mentioned, which needs to be addressed.
I would like the Minister to deal with a number of points. Senator Bacik raised the point of conferring rights on others that do not supersede the rights of the family. My second point is if these amendments are not accepted, when can we expect legislation to be introduced to deal with the complex issues that have been raised by members of the Opposition? I am not asking the Minister to give a date or month but to indicate a reasonable timeframe. I am sure that Members of the Government parties would like to see these amendments, or some of them at least, in some way, shape or form, encompassed into legislation that would give rights to children and to those who are in same-sex unions.
Senator Rónán Mullen: It is difficult when listening to the various contributions not to reflect on how increasingly complicated children’s lives are becoming and it is not, it seems to me, in the direction of their well-being. I listened to what Senator Feeney said earlier. She spoke eloquently about a situation that can arise. I draw her attention to something that was said earlier about the existing possibility under section 7 of the Guardianship of Infants Act, whereby one can appoint a testamentary guardian to provide that in the event of one’s death, someone else can take up the role of being a guardian. The difficulty with doing this in one’s lifetime is that one must ask what price is the role of the absent biological parent. I do not want to be flippant but I was reminded of a song Brendan Grace used to sing when I was child called “I’m my own Grandpa”. We are discussing issues of such complexity that such outcomes look increasingly possible with the twists and turns in people’s lives. It is very much to be regretted if we are talking about situations where there are not one or two but three guardians, if one considers a civil partnership couple as the new de facto family. Therefore, one starts arguing in favour of a guardianship or formalised role for the non-biological parent. One is also trying to factor in what we could call the John Waters agenda which is valid and legitimate. The sheer complexity of the issue illustrates just how much we are losing our way as a society in failing to have a vision for what we want for our children. It is, of course, right and proper to consider de facto families.
One point which struck me while listening to the debate — I would like the Minister to consider talking to the Minister for Health and Children about it — concerned the policy of adoption authorities when assessing individuals. Does the State take the view that when it comes to adoption, a married couple is best, or is there a nod and a wink, whereby we say it does not matter, that we will use the exceptional circumstance of a single person as cover in assessing same-sex couples who wish to adopt? Are the organs of the State neutral on the issue? Perhaps we need answers on it. Perhaps it is a fit topic for a future debate because I do not believe the organs of the State should be neutral on the issue.
I have a concern because I hear much talk about children’s rights. However, I do not hear much about what is the best context in which to bring up children. In that regard, I support some of Senator Norris’s comments on our being willing to consider international evidence. It is one thing to be aware of the fact that sometimes the evidence is flawed, it is another to use that fact as an excuse never look at evidence. That is why the recent comments of the chairman of the Law Reform Commission were worrying. It is legitimate to consider her comments in a critique; it would have better if she had not intervened on one side of the debate in a television discussion programme because of the role she plays. It does not necessarily flow, however, from such a critique that one should immediately ask the Minister whether he has confidence in the Law Reform Commission. We are entitled to offer a degree of fraternal correction from the national Parliament when we see something like that happen which is not in the best interests of proper public debate and a thorough scrutiny of the issues.
On the issue of evidence and having said what I said about the concerns we should have for the increasingly complicated and compromised nature of child welfare because of fractured family structures, a meta-analysis was made by Moore, Jekielek and Emig in 2002 in which they said research clearly demonstrated that family structure mattered for children and that the family structure which helped children the most was a family headed by two biological parents in a low conflict marriage. Children in single parent families, those born to unmarried mothers, those in step families or cohabiting relationships, face a higher risk of having poor outcomes. I cannot remember when I last heard a State official confess to the reality which causes me profound concern. The meta-analysis of 2008 concluded that even in nations with the most extensive welfare measures such as the Scandinavian countries and France, a substantial gap in child welfare remained between those children who grew up in intact families and those who did not. It has been correctly suggested some of the studies cited do not refer specifically to same-sex parenting. There is a very good reason for this, namely, this area of life is very new in the sense of formal recognition of same-sex parenting and legal rights being accorded to it. I am not suggesting homosexuality is new. That is partly the reason festina lente should be our motto. We should be advancing with great caution. That is why I am very concerned about the potential radical reach of some aspects of the Bill.
One person whom we can trust is Ms Justice Elizabeth Dunne who spoke on this issue in the Zappone and Gilligan case. She referred to Professor Green who had advanced evidence in support of the case for same-sex parenting. She said:
Taking on board the evidence that I also heard from Professor Casey and from Professor Waite, I think that one must have some reservation in relation to the conclusions drawn by Professor Green. The phenomenon of parenting by same sex couples is one of relatively recent history. The studies that have taken place are consequently of recent origin. Most of the studies have been cross sectional studies involving small samples and frequently quite young children. I have to say that based on all of the evidence I heard on this topic that I am not convinced that such firm conclusions can be drawn as to the welfare of children at this point in time. It seems to me that further studies will be necessary before a firm conclusion can be reached. It also seems to me having regard to the criticism of the methodology used in the majority of the studies conducted to date that until such time as there are more longitudinal studies involving much larger samples that it will be difficult to reach firm conclusions on this topic ... Having considered [Professor Linda Waite’s] evidence it reinforces the view that there is simply not enough evidence from the research done to date that could allow firm conclusions to be drawn as to the consequences of same sex marriage particularly in the area of the welfare of children.
Clearly, the precautionary principle is being invoked. Evidence and studies are useful and will help us to make a decision, but they will not be the final decider because we have to factor in issues of principle. However, evidence will have a very strong role to play. The judge in that case said the jury was still out.
In addition to the lack of longitudinal studies and the small number of samples, there is also the point which arises indirectly as a result of something said by Senator Bacik when she referred to an Irish study that very often the studies are based on people self-assessing their well-being, a flaw in many studies one comes across. None of us can arrive at full conclusions on this issue, but it is clear that for the time being and a long time into the future the precautionary principle is the one we will have to adopt.
Senator Jim Walsh: I am taken by one of the points made by Senator Mullen on testamentary guardians. Perhaps there is some scope within it for a resolution of this issue. Issues surrounding children need to be addressed in their best interests; there should be no other agenda attached. In that regard, to underline the complexity of the matter to which the Minister referred, some time ago I chaired a meeting which a woman from England, Ms Joanna Rose, addressed. She was conceived with the aid of a sperm donor. Her father was a student who was a sperm donor and she estimated that she probably had some 300 siblings. There was a recent case in which a brother and sister married each other, not knowing they were siblings. We need to put in place significant safeguards in this regard.
I fundamentally disagree with Senator Bacik. If we are to hand over to a gay rights group responsibility for conducting studies on our behalf which we will accept as being independent — that is why I said any studies should be independent——
Senator David Norris: Does the Senator agree with the Swedish Government?
Senator Jim Walsh: I agree with Senator Norris that studies were conducted in the United States and Britain which were not as objective and that the correct methodology may not have been used. However, we should not just consider the position in Sweden, rather it should be part of a process. There should be an independent body with no axe to grind and whose sole interest would be to come up with propositions and recommendations exclusively directed towards the best interests of the child without regard to various relationships. That would inform the debate and be a valuable input in teasing out what is an extremely complex issue. Just because it is complex does not mean we should not address it.
Senator Niall Ó Brolcháin: I will not take up much of the House’s time but I ask the Minister to examine this important area because legislation will be needed on it in due course. The proposed amendments have great merit.
Senator Ivana Bacik: Thank you.
Senator Niall Ó Brolcháin: The rights of the child are important in these cases. I hope the Minister can introduce legislation at a future date.
Senator Eugene Regan: I support the amendments for the reasons I set out earlier. These protections should be in the legislation, although I understand the Minister has no intention of adopting them.
Minister for Justice and Law Reform (Deputy Dermot Ahern): Under section 7 of the Guardian of Children Acts 1964 to 1997, the father, mother or adoptive parent of a child may appoint a testamentary guardian. In a case where a child is being brought up by a parent and a civil partner, the parent is free to appoint the civil partner as testamentary guardian of the child. Although such guardianship does not bring with it succession rights, the testamentary guardian will otherwise have parental responsibilities if he or she is the sole remaining guardian of the child. The matter may be complicated if the child has another living parent who is a guardian. Any dispute over custody and guardianship in such a case may be referred to the courts, which shall take the welfare of the child as their first and paramount priority in considering what orders to make. We believe, therefore, that amendment No. 5 is unnecessary.
There is clear provision in existing law for a parent to decide who should best care for his or her children in the event of his or her death. Often, the person concerned is a spouse, trusted relative or, with the passage of this legislation, a civil partner. The amendment specifies that the civil partner shall have the same parental relationship with the child without regard to wider circumstances. This may remove the discretion of the child’s civil partner parent to decide who should be the child’s guardian. It may also infringe on the rights of another guardian of the child and we believe it ignores the sometimes complex relationships between parents and their children.
Amendment No. 37 proposes extensive reforms to the Guardian of Children Acts. It would have an effect on a marital family where the child is not the offspring of the marriage, which is outside the scope of the Bill, as well as on civil partners. I have outlined the strong advice I received from the Attorney General regarding the constitutional scrutiny required of this Bill. The issue of giving a unit which is not based on marriage a constitutional authority that is substantively identical to a family would probably be viewed as reneging on the Constitution’s protection for the latter.
11 o’clock
I do not want to rehearse our earlier discussion on children generally but the Law Reform Commission is examining this area. In regard to Senator Bacik’s specific question, the LRC indicated approximately six months ago that it would require 18 months to prepare a report. I do not think it is necessary to state that I have full confidence in the commission. However, that is not to say this or any other Government should slavishly adopt its recommendations on any subject. The home defence Bill which I will publish tomorrow is based on a Law Reform Commission report in that area but we are not going as far as it recommends. Similarly, we will debate the Multi-Units Development Bill 2009 in the Dáil tomorrow. With due respect to the LRC, the Bill we published some time after it issued its own draft legislation on this subject was much more comprehensive. The rationale behind the commission is to bring together independent experts who can objectively investigate a range of issues and make reports and recommendations to Government and the Oireachtas. Senator Walsh called for independent and objective analysis of these issues but what better place than the Oireachtas to consider them? We are elected to make those decisions. The Government proposes and the Oireachtas disposes.
Senator Rónán Mullen: We need a free vote for that.
Senator David Norris: We always have a free vote.
Deputy Dermot Ahern: I do not worry about the ability of the Oireachtas to deal objectively with issues. Senator Feeney described the example of a female same-sex couple, one of whom is the biological parent of a child. Leaving aside the testamentary guardianship issue, they can make arrangements for the death of one or both partners in the form of a will but this would be subject to the Succession Act 1965. If the biological parent previously divorced the natural father of the child, the father may be entitled to a legal share under the 1965 Act. If there are other children from previous relationships, they could apply under section 117 of the Act for proper provision on the basis that they were not looked after. These are not simple issues.
As I noted in my response to amendment No. 1, Irish law gives primacy to the biological link between parent and child in assigning rights and duties. While emotive issues arise from the loving relationships between children and same-sex couples, this does not detract from the rights of natural parents who are not part of this relationship. The Supreme Court has ruled that they are constitutionally entitled to these rights irrespective of whether they exercise them. John Waters regularly defends the rights of unmarried fathers and this is a relatively analogous situation in that ignoring the rights of a natural father in the example to which Senator Feeney referred would be a contravention of the Constitution. That is further reason for looking at this issue in a holistic and comprehensive way. I accept the bona fides of Senators who say they are not happy we are opposing their amendments but the Ombudsman for Children accepts wider issues arise.
Senator Norris raised a case which he acknowledged was hypothetical involving a biological parent who is the same-sex partner of the adoptive parent of the child.
Senator David Norris: One parent has the child and the other adopts him or her.
Deputy Dermot Ahern: The biological parent would have to sign away his or her rights before the child could be adopted by the other partner. I hazard a guess that this is an unusual situation which is highly unlikely to arise.
Senator David Norris: It is possible.
Deputy Dermot Ahern: Senator Mullen spoke about the issue of adoption. I do not like to bring personal circumstances into a debate, but as an adoptive parent who has been through the adoption process, I know that the best interests of the child, rather than the interests of the adoptive parents, are primary in the decision to sanction an adoption. It is entirely a matter within the law laid down by the Oireachtas for the Adoption Board to authorise an adoption in circumstances as they are presented to it. I fully accept that there have been circumstances in which same-sex couples have adopted children. To the best of my knowledge, such circumstances were not envisaged when the legislation was initiated. The exceptional circumstances to which it refers relate mainly to the circumstances cited by the Senator.
I return to the central point, namely, that whether through the Hague Convention or our Adoption Acts, the best interests of the child are regarded as paramount, which is as it should be. Ultimately, the decision should be left to the Adoption Board, which has served the country well in that respect. The Senator may be correct that the Oireachtas should discuss this issue in due course. It might not necessarily form part of the deliberations of the Law Reform Commission on the Legal Aspects of Family Relationships report.
Senator Jim Walsh: While I had not intended to contribute further on this amendment, the Minister stated that the complexity of these issues — all sides acknowledge that they are complex — could be addressed by the Executive making proposals and the Oireachtas making decisions on the disposal of these complex matters. If it is suggested that this will be done under the Whip system, the necessary checks and balances will not be in place. If, however, a free vote will apply, as I believe it should, Members of the Oireachtas may have personal views on the matter. To have these views informed by socio-scientific studies that have been collated independently would be of remarkable assistance to the process given the large number of issues involved and the difficulty associated with steering our way through these matters and arriving at good decisions in the interests specifically of children.
Amendment, by leave, withdrawn.
SECTION 4
Senator Ivana Bacik: I move amendment No. 6:
In page 14, subsection (2)(c), lines 33 to 35, to delete subparagraph (ii), and substitute the following:
“(ii) prior to the death had ever been ordinarily resident in the State for a period of one year.”.
This amendment, which was, I understand, tabled on Report Stage in the Dáil, responds to submissions we received. Its purpose is to address injustices that are occurring by extending the coverage of protection by broadening the category of person who may apply to the court to make a declaration of civil partnership status. This would apply in cases where a person has died before the date of the application, in other words, where one of the civil partners has died and the other applies for a declaration of civil partnership status. Currently, section 4 requires that the deceased person was domiciled in the State or ordinarily resident in the State for one year immediately preceding the date of death. The amendment proposes to broaden this to provide that the person had been ordinarily resident in the State for a period of one year at some stage prior to the death rather than immediately prior to the death.
Deputy Dermot Ahern: Declarations as regards civil partnership status will rarely be required. If, after the passage of this Bill, a person enters a civil partnership here, he or she will always be entitled to be treated as a civil partner for the purposes of Irish law, unless and until the civil partnership is dissolved. Likewise, if a person has entered a civil partnership or equivalent registered partnership elsewhere and both of the couple are alive on the date that the relevant order recognising that relationship comes into effect, he or she will always be entitled to be treated as a civil partner for the purposes of Irish law, again unless and until that civil partnership is dissolved. This includes for all relevant rights and obligations which accrue under civil partnership, including succession, pensions, shared home protection and so forth.
The circumstances in which a declaration as to the status may be required are, for example, where a relationship entered into in another state was dissolved and there is a question as to the validity of the dissolution, whether it took place in the same state or another, or perhaps where a civil partnership entered into in this jurisdiction was purported to be dissolved in another jurisdiction after the couple concerned had moved their permanent domicile elsewhere. This may have implications for whether the civil partner is free to enter a new civil partnership or whether the person has certain succession rights and so forth.
In a case where the relevant person does not have a direct or continuing connection with the State, it is not appropriate to confer jurisdiction on our courts to deal with such matters. However, domicile gives extensive jurisdiction to our courts because it is not easy to lose domicile in this State. In 2003, the Supreme Court judgment in F.L. v. D.T. related to a foreign divorce of a married couple who had emigrated to the Netherlands in 1988. The court concurred with the prior finding of the High Court that the couple’s Dutch divorce obtained in 1994 was not recognised in Ireland on the basis that the husband’s domicile was still in Ireland. In the judgment in question, Chief Justice Keane remarked: “Evidence as to a form of residence in a foreign country so dependant on the particular personal circumstances of the person alleged to have abandoned a domicile of origin is very far removed from the evidence of a fixed intention to make one’s permanent home in a foreign country, which the authorities stipulate as the essential precondition to a finding that a domicile of origin has been abandoned and a domicile of choice acquired.” As I indicated, it is very difficult to lose a domicile of origin.
The jurisdiction we have conferred on our courts is directly comparable with the jurisdiction in relation to marital status. This is based on clear, well-understood and applied principles of jurisdiction in private international law. I do not see any case for deviating from that settled policy. This is exactly what pertains in regard to the manner in which we deal with foreign divorces.
Senator Ivana Bacik: I am grateful for the Minister’s considered response, in light of which I do not propose to press the amendment.
Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5
Acting Chairman (Maurice Cummins): Amendments Nos. 7 to 9, inclusive, are related and will be discussed together.
Senator Ivana Bacik: I move amendment No. 7:
In page 15, subsection (1), line 27, after “into” to insert the following:
“(including a relationship entered into prior to the commencement of this section)”.
Section 5 relates to recognition of registered foreign relationships. The amendments are all aimed at strengthening this provision. The first amendment is a simple statement that the provisions will cover relationships entered into prior to the commencement of the section. I believe this may already be the case. Given that the Minister is nodding, I presume the amendment is unnecessary. It was proposed for the simple purpose of clarifying that persons who had entered same-sex marriages or partnerships abroad prior to the commencement of the Act would still be entitled to recognition. I am glad this is clear from the wording.
The Labour Party supports amendment No. 8 in the name of Senator Norris which addresses an important point on which I have received submissions. Where a gay couple get married abroad in a jurisdiction in which same-sex marriage is recognised, as it is increasingly in various European jurisdictions, including most recently Portugal, as well as Canada, South Africa and elsewhere, under section 5 a marriage contracted abroad will only be recognised here as a civil partnership. Senator Norris has correctly tabled a simple and straightforward amendment providing that the Minister can declare a class of legal relationship to be entered into by two parties of the same-sex as entitled to be recognised as a civil partnership or marriage. Under section 5, as it stands, the Minister would only be entitled to recognise a Canadian same-sex marriage as a civil partnership here, which clearly does not give the marriage equivalent status to that accorded in Canadian law. From the point of view of the couple concerned, this could be viewed as a downgrading of their status since they have entered a marriage. We propose to give recognition to foreign marriages as marriages rather than just as civil partnerships. It is complicated because there are many different types of civil partnership across different EU countries, some open to same-sex and opposite-sex couples and some only to same-sex couples. It is difficult to say they are all equal. The amendment recognises that same-sex couples may marry abroad.
Amendment No. 9 is to address submissions we received about individual cases of hardship where persons have died before the Act commences. While we very much hope that will not happen, there may be cases where people would wish to enter a civil partnership arrangement but there is likely to be some delay before the Act is commenced. If one partner in a relationship dies before the Act is commenced, we are seeking to ensure that if they entered a foreign civil partnership or marriage abroad, that could be recognised retrospectively here as a valid civil partnership. Perhaps the Minister can clarify when it is likely to be commenced and whether he is willing to accept amendments Nos. 8 and 9. I will not press amendment No. 7 in the light of what he has said.
Senator David Norris: I agree with Senator Bacik that the issue of foreign relationships is extremely important. The Minister may remember a previous occasion — it may have been on the Order of Business — when I brought in three enormous files, each 1 ft thick. That is the degree of the practical problem on the ground. It is essential that we establish a clear position on the recognition of foreign relationships. Senator Bacik has absolutely intuited what I intended in this amendment. While I will not press it tonight, I reserve the right to re-enter it, as I might do with some other ones, on Report Stage.
I would like the Minister to consider the following proposition. I am sure he is well aware that the Icelandic Prime Minister, Johanna Sigurdardottir, has married within the last week in Reykjavik her female, same-sex, partner. That is a marriage. If there was a visit, or a decision to come and live in this country, would the Minister consider it appropriate to purport to downgrade the recognition given to that relationship in a foreign country? That would be colossal impertinence. I would be astonished if that happened. We ought to have respect for other institutions. Even if there is reluctance to recognise marriage here, we should certainly recognise the right of other jurisdictions to make what arrangements they democratically, with free votes, in full conscience, with due deference to tolerance and all the rest of that decide to make for their citizens.
Senator Rónán Mullen: One cannot but comment on these amendments.
Senator David Norris: One can exercise restraint.
Senator Rónán Mullen: We will not detain the Minister with any comments on section 7.
An Leas-Chathaoirleach: I remind Senator Mullen that we are on amendment No. 7. We are not on section 7 yet.
Senator Rónán Mullen: I will take a lecture from Senator Norris on restraint at some future point when we have both undergone Operation Transformation.
Senator David Norris: I had the Operation Transformation. We won it, did we not, Senator Buttimer?
Senator Rónán Mullen: The Senator might need to have the operation, full stop.
The maxim here is that those who join the army wear the boots. The Icelandic Prime Minister and her consort would be most welcome to settle in Ireland. However, if we are to have any sense, sanity or coherence in our laws, I am afraid we would have to insist that we define marriage according to our own laws.
Senator David Norris: She would be unmarried temporarily during her visit.
An Leas-Chathaoirleach: Senator Mullen without interruption, please.
Senator Rónán Mullen: We have had complicated situations in the past about prime ministerial consorts which need not detain the House at this hour of night. It would make a mockery of our laws on marriage if they were to be subjected to the lowest common denominator of marriage laws internationally. It would also mean that to redefine marriage in Ireland all that would be needed would be for a same-sex couple to go abroad and contract to a marriage — so-called — in the jurisdiction where there is a thing called same-sex marriage. Such amendments make no sense as they would mean that our laws have no coherence.
Senator David Norris: They do not.
Senator Rónán Mullen: We have had this debate in the context of the divorce regime. We went to considerable trouble to define in what circumstances our Constitution and our laws would permit the dissolution of a marriage. We have had debates about the impact of change in European law on our ability to maintain coherence in our marriage laws. I would certainly disagree with that.
Amendment No. 9 seems to be the civil partnership equivalent of what would be called baptism by desire. It would not add to the clarity, coherence or the intrinsic fairness of our laws.
Deputy Dermot Ahern: Amendment No. 7 proposes to specify that a relationship entered into prior to making an order under section 5 is also recognised by that order. However, there is no doubt that this is already the case. The wording of section 5 makes this abundantly clear. A relevant relationship is recognised from the later of the date on which the order took effect or the date on which that relationship was entered into. For example if a couple entered into a civil partnership in the United Kingdom in 2006, that relationship will be recognised as and from the date on which the relevant order takes effect. If a couple entered a same-sex marriage in Spain in 2012, a relevant order having been made in 2011, their relationship will be recognised as and from the date of their marriage. Officials in the Office of the Parliamentary Counsel considered the issue carefully during the drafting of the Bill. Since the passage of the Bill through the other House my officials have again reconfirmed with the Office of the Attorney General that this is the correct and only interpretation possible. As I believe Senator Bacik has already acknowledged, amendment No. 7 is unnecessary.
On amendment No. 8, section 5 makes provision for recognition by ministerial order of certain legal relationships entered into by same-sex couples in other jurisdictions as being entitled to the same legal treatment in Ireland as a civil partnership. The amendment is intended to allow such relationships to be recognised as a civil partnership and a marriage, presumably in the case where the relevant relationship is a marriage between a same-sex couple entered into in a country such as Spain, Canada, Belgium or South Africa, which provide for marriage between same-sex couples.
Public discussion since the Bill was published has concentrated on a number of specific areas of which the most fundamental is why we have not decided to open civil marriage to same-sex couples. My clear legal advice on this area has consistently been that it would not be constitutionally sound to legislate for same-sex marriage without holding a constitutional referendum on the definition of family. Marriage may not be expressly defined in the Constitution, but it has always been understood in common law as being between a man and a woman, ideally for life. I do not believe the necessary political and social consensus exists to make such a constitutional referendum desirable. The all-party Oireachtas Joint Committee on the Constitution concluded that a referendum to change the definition of family would be extremely divisive and would by no means be certain of success. When I was party to the Commission on the Family, its report was unable to define the family as such.
Amendment No. 9 allows for recognition of foreign civil partnership where one of the partners dies before the section is commenced and possibly prior to the enactment of the Bill. The effect would be to give recognition here of a foreign-registered civil partnership entered into, for example, in 2006 where one of the partners died, for example, in 2008 when civil partnership was not recognised in the State. This would introduce grave uncertainty for the tax code and for succession law. It is not possible to provide for retrospective recognition of foreign civil partnerships where there is a potential detriment to third parties, such as by improving the share of a surviving partner in their deceased partner’s estate.
It has been suggested that the Lourdes Marriage Act 1972 provides a direct precedent to allow retrospective recognition. However, I cannot accept this. There is a substantive difference between the situation of an opposite sex couple who marry in another jurisdiction with the belief that marriage is internationally recognised and binding, and that of a couple who enter into a same sex civil partnership elsewhere in the full knowledge that there is no provision made in Irish law for recognition of that relationship. In the first circumstance, the couple have always assumed that they are married for the purposes of Irish law with all its rights and obligations. In the latter circumstance, the couple can have no assumption in respect of rights and benefits that would accrue to them under existing Irish law.
The amendment would also have a discriminatory effect on the basis of nationality. Some of a particular category of legal relationships where the partner has died would be recognised as existing at a particular time, whereas others would not be recognised, depending on whether one or both of the partners was Irish and was resident in Ireland at the time the relationship was registered. A further anomaly would arise simply if the couple had registered the relationship before the arbitrary cut off point of 1 January 2004.
The amendment also proposed the insertion of a new subsection 4. This would create a new function for an tArd-Chláraitheoir in enabling him to register relationships entered into in another jurisdiction as civil partnerships. The making of a ministerial order under section 5(1) is sufficient in itself to entitle the parties to foreign registered relationships to be treated as civil partners of each other under the law of the State. There is no requirement or necessity for re-registration. By way of comparison, opposite sex couples who marry in another jurisdiction are neither required nor permitted to re-register their marriages under Irish law. There is no reason that couples entitled to be treated as civil partners should do so either.
Amendment, by leave, withdrawn.
Amendments Nos. 8 and 9 not moved.
Section 5 agreed to.
Section 6 agreed to.
SECTION 7
An Leas-Chathaoirleach: Amendments Nos. 9a, 10 to 13, inclusive, 16, 17, 38 to 57, inclusive, and 77 are related and may be discussed together.
Senator Jim Walsh: I move amendment No. 9a :
In page 16, to delete lines 37 to 40.
These amendments go to the core of the motivation that has prompted us to relinquish the Whip of our own party, which has been a difficult decision for all three of us. It goes back to comments we have made on the record over a long period about upholding the constitutional position of marriage, specifically for the reason that the constitutional protection is there.
Marriage is not only the foundation stone for the family, but it is also for society. This has been the case for many generations. We need to be extremely careful that we do not jettison an institution that has stood society in good stead for many generations and many centuries. It is a Christian institution, but not only that. No matter what part of the world one visits, the structures of the society and the value system they have within their society emanates from the quality of their family systems. One will be struck by this in many parts of the world, particularly in China, where there is a strong family ethos.
We should remind ourselves that those Christian values have given rights to us. It is fair to say that our human rights in the main flow from those Christian values.
We are proposing to delete the paragraph that defines civil status. We feel that putting civil status in is creating the equivalence between marital status and civil partnership status, to which we object. We have replaced it with what we think is a reasonable amendment, which replaces it with marital status and civil partnership status. I do not want to anticipate the Minister’s response, but I hope we will not be reducing the importance of marital status to society down to an issue of administrative convenience.
The child focus of marriage is the main reason — perhaps the only reason — it enjoys the unique constitutional protection that is specified therein. It puts an onus on the State to protect it in unique ways and to give it the necessary financial and other supports in order to maintain it as the priority that it has for society. It follows obviously from this that the State must respect marriage.
We are of the view that this particular amendment, and the change in the wording, is inconsequential for the thrust of the intent of the Bill to bring benefits to civil partnership between people in same sex relationships who commit to each other. However, we think it is very important for the signal that society gets from the Minister, the Government and these legislative Houses. For that reason, we think it is important. It is also fair to say this signal is also being sent to adolescents and we see an importance in that.
I ask that the Minister concede this particular amendment, which does not cause any particular difficulties from the point of view of a genuine distinction, if the intent of this Bill is to recognise clearly the distinction between the marital status and the civil partnership status, and that they are not all left under the same heading of civil status, which insinuates the equivalence we will not and cannot support for reasons I have already outlined.
Senator Labhrás Ó Murchú: This amendment goes right to the core of what people who have been endeavouring to put forward a counter balance to the debate on this Bill have been saying for a long time. The Minister has been saying the same thing. In other words, the civil partnership Bill is not marriage. The reason for that is that marriage as we understand it is protected within the Constitution. If we were to conflict with that, it is evident we would require a referendum. If we had a referendum, there really would be a full and comprehensive public debate on this Bill and its import.
At the same time, we are sending a message to the people that we are talking about civil status. It is important we differentiate between marital status and civil partnership status in the legislation. I cannot understand how anyone who supports this Bill, on the basis the Minister put it to us, could disagree with this amendment. In many ways, it would remove much of the confusion and misunderstanding that exists.
I am also surprised that it takes an amendment to highlight these issues. Considering the matters we have been discussing in regard to the Constitution, one would have thought we would have embraced those very same points within the legislation when it came to us. For that reason, I support this amendment. I hope that even at this late stage, it will be possible for the Minister to understand the reason we have tabled this amendment and how it would help to clarify any misunderstanding among the public.
Senator John Hanafin: Along with my two colleagues, I support the amendment which would clearly define the difference between civil partnership and marriage. That is the crux of the issue we wish to put forward.
Senator Rónán Mullen: Feicim go bhfuil Ceannaire an tSeanaid tagtha isteach inár measc. Níl a fhios agam an bhfuil sé chun an fheadóg a shéideadh. Más ea, bheadh an-bhrón orm. D’fhéadfainn a rá leis níos luaithe go bhféadfaimís roinnt den díospóireacht a chur ar ceal agus bua na Spáinne a fheiscint. Ní mar sin a tharla.
Senator Jerry Buttimer: On the amendment.
Senator David Norris: Football at this time of the night.
Senator Rónán Mullen: I compliment Senators Walsh, Ó Murchú and Hanafin on tabling their amendment. Senator Quinn and I have tabled an amendment along similar lines. It appears for the first time at the definition stage. We propose that on page 16, line 37, we delete the words “civil status” and substitute them with the phrase “marital or civil status” which would encompass the range of possibilities, including single, married, separated, divorced and so on and that elsewhere in the Bill, where the words “civil status” appear and in the Acts to be amended by this Bill, the phrase “marital or civil status” would appear.
Recently, I took part in a debate on the constitutional referendum on children. One of the points I made was that the opening line in the proposed amendment that came from the Oireachtas joint committee was that the State would cherish all the children of the State equally. I regarded that as being rather sloppily drafted and rather uncertain in its meaning, both now and in the context of future interpretation by the courts.
One can say that sometimes when one starts out with a change of terminology or phrase in important legislation or in constitutional provisions, it is a bit like a ship changing course ever so slightly. It does not seem to make much difference at the outset of the journey but it can make a hell of a difference at the point of destination.
This amendment may look like it is symbolic. In many ways, it is in the sense that it does not touch on the fundamental definition of civil partnership or the question of whether we should generously encompass other caring dependent relationships or whether we should provide for people’s legitimate disagreements and conscience around certain issues. It does not deal with any of those practical and portentous issues which surface in the Bill but, none the less, it could have a huge impact in terms of the ongoing shaping of our culture, of which all our legislation is part.
Everyone has a marital status, whether single, divorced, separated, married or whatever. The point is that in the future, they will not have a marital status but a civil status. That may not seem to make a whole pile of difference to many people. I accept that, at some level, it may seem to be a symbolic change. However, the whole underlying approach to the drafting and shaping of this Bill has sought to insist at all times that marriage continues to be special, different and privileged by our Constitution and respected in our laws in harmony with the Constitution. The logic of that is that we should not change people’s marital status to the civil status simpliciter. If anything, the phrase “marital or civil status” envisages a certain compromise in that it recognises that there is now for the first time a new kind of State-sponsored, State-recognised partnership between people.
For example, one could argue that civil partnership is a marital status of the non-marital kind of partnership but it makes some sense to maintain the special nature of marriage in the house and at front of house. This is one of those front of house amendments. It is about what we call things, how we name things and, ultimately, how we see things. For that reason, we should keep marriage and the concept of marriage as a cherished institution in our society — I suppose it is the most cherished of all — front and centre at all times. Therefore, our language and that of our Constitution, legislation and forms, whether applications for goods or services, should reflect the special status we give to marriage. It is on that basis I propose these amendments but I will listen with interest to what the Minister has to say about my colleagues’ alternative amendments.
Senator Feargal Quinn: I spoke earlier on Second Stage and said the reason I supported this Bill, subject I hope to certain amendments, was because of the loneliness of those who had been left behind by our legislation in the past. The fact we did not have divorce, contraceptive legislation or legislation in regard to homosexuality meant there were some very lonely people. I believe that loneliness very often led to suicide and we did not have steps to protect us from that. I mention that because it is important we pass legislation which closes those gaps in society. We have closed most of those gaps in recent years, or perhaps opened them might be the word. I want to give that opportunity to those who have been left behind by what I would call the legislation which put a stigma on homosexuality.
Given the answer these Houses found, namely, civil partnership which was acceptable to all sides, I felt the legislation was certainly going in the right direction. These amendments pinpoint very clearly that the intention of this legislation is to have civil partnership and not a full marriage. All these amendments do is ensure and emphasise that is the intention. They are worthy of consideration and should be accepted.
Senator David Norris: I listened with great interest to five speeches all on the same side and, for a little bit of balance, I would like to say a few words. I regret that I had no idea my colleague on these benches, Senator Quinn, was so extraordinarily insensitive that he is not aware of how patronising his remarks were. He said we are lonely and left behind. For God’s sake, it reminds me of Jimmy Saville at 2 a.m. on the BBC and shut-ins. I am not a shut-in. I am not the slightest bit lonely. I think I know as much about this as Senator Quinn because I have been working in this area. At one stage, there was a proposal in the Hirschfeld Centre, which was very well meant, to have a group called the lonely gay society. I thought, that will really copperfasten our lousy self-image. I do not like it. I do not like this nasty thing of trying to rub our noses in it and downgrade us. That is what Senator Quinn was doing and that is why I find it very difficult to entertain the warm feelings I previously did towards him. I say this in all honesty and with regret. However, that is a fact. I very strongly object to being patronised. If that is offensive, it is not half as offensive as what has been said in the House by various people.
This matter has been discussed already. It was discussed in the Title and I made my feelings clear on that. I hope we can dispose of it quickly and get rid of it.
Senator Eugene Regan: These amendments have no merit. The term “civil status” is defined as being “single, married, separated, divorced or widowed”. It is not a great extension of that term to include a civil status for a former partner in a civil partnership that has ended. The amendments would make a nonsense of the proposed legislation.
Senator Norris is right. We have discussed this in the context of the Title of the Bill. The amendments should be rejected out of hand.
Senator Jerry Buttimer: I understand where Senator Quinn is coming from and I disagree profoundly with my good friend, Senator Norris. In fairness to Senator Quinn, his comments are fair and balanced, unlike the amendments. They have no merit.
Senator Ó Murchú spoke about the import of the Bill and Senators Walsh and Hanafin spoke about the crux of their opposition to the Bill. Herein lies the crux as I understand from them. The Bill is about civil partnership and the tenet of it is civil status. That is what the Bill is about. It is about creating a civil partnership and recognising that partnership. I have a profound difficulty with the amendments. I have listened to the debate on this section of the Bill and I cannot understand where the amendments are coming from. They are the beginning of an attack on what the Bill is about.
Senator David Norris: Sure, that’s why they’ve opposed 64 sections. Sixty four sections. Is that constructive?
Senator Jerry Buttimer: Are we to be true democrats and true republicans? I understand the bona fides of all people in this Chamber on both sides of the argument and my speech on Second Stage reflected that.
An Leas-Chathaoirleach: We cannot have a Second Stage speech now. We are discussing amendments.
Senator Jerry Buttimer: I appreciate that, a Leas-Chathaoirligh. I am on the amendments. I understand you have a difficult job to do. We must not shirk our responsibility. We must not stand and allow people to use their own views to jettison a Bill or to hijack people who want recognition for their partnerships. That is what these amendments are about. We either stand up and be counted or we do not. I genuinely understand Senator Quinn’s comments. He is not wrong. He is not wrong, but we cannot have it both ways. We are either for civil partnership and recognition of unions or we are not.
I ask the people who proposed the amendments what is wrong with the wording of the Bill. What is so clearly wrong with what Senator Regan said the definition of civil status is? It does not mean there will be no change in status between single and married. It does not mean that at all. Senator Mullen should stop peddling nonsense.
Senator Rónán Mullen: Whose speech was Senator Buttimer listening to? Had he headphones on?
Senator Jerry Buttimer: The Bill gives legitimacy to same sex couples and to heterosexual couples in cohabitation relationships.
Senator Rónán Mullen: Senator Buttimer must not have been listening to what I said.
Senator Jerry Buttimer: I have been listening to him all day, with respect. This is important. I hope the Minister, in his reply, will make it crystal clear. This is not an attack on marriage or on anybody. It is enhancing and enriching and is creating a better world for our fellow citizens, irrespective of creed or beliefs.
Senator Ivana Bacik: On my behalf and on behalf of the Labour Party, I oppose these amendments. We have already discussed the same concept in amendment No. 1.
An Leas-Chathaoirleach: One of your amendments is being discussed in this group.
Senator Ivana Bacik: I do not see how that could be. Apologies, a Leas-Chathaoirligh. I do not see one of my amendments in the group.
Senator David Norris: Which amendment do you have in mind, a Leas-Chathaoirligh?
Senator Ivana Bacik: Amendment No. 76 is mine. It is not in this group.
An Leas-Chathaoirleach: I apologise. You are correct.
Senator Ivana Bacik: There are none of mine in the group. These amendments are all aimed at doing the same thing, which is, essentially, undermining the thrust of the legislation. We oppose that. I have already put on record my objection to them. To make the proposed amendments would be to downgrade the status of civil partnership. They are illogical because the provisions they are attempting to amend are simply technical provisions amending the Civil Registration Act 2004 to include within it the necessary references to civil partnership brought about as a result of this legislation. I do not see what the proposers are attempting to do, short of undermining, in a mean minded way, the concept of civil partnership and trying to downgrade it as much as possible. I object to these amendments.
Senator David Norris: My colleagues say they do this in a constructive manner. They say they are approaching the Bill in a constructive manner and welcome it. I find this a very curious use of the word “constructive” when they have opposed no fewer than 64 sections of the Bill.
Senator Rónán Mullen: Senator Norris did make that point earlier.
An Leas-Chathaoirleach: Senator Norris, we are discussing this group of amendments.
Senator David Norris: I am commenting upon the idea that this kind of opposition is constructive or is not constructive.
Senator Rónán Mullen: Here we go all over again.
Senator David Norris: This is clearly not constructive. Could I seek a ruling, a Leas-Chathaoirligh? My eyesight is not as good as it was. Are you in the Chair or is Senator Mullen in the Chair, because I am receiving instructions from both.
An Leas-Chathaoirleach: Senator Norris, that is an attack on the Chair.
Senator David Norris: It is not at all. I have great difficulty hearing.
An Leas-Chathaoirleach: We are discussing a group of amendments I outlined at the beginning. This is your second time to speak before the Minister replies. You must speak to the amendments.
Senator David Norris: Okay. Fine.
An Leas-Chathaoirleach: I call Senator Mullen.
Senator David Norris: It is his second time too.
Senator Rónán Mullen: I am sorry to have been interjecting, because I know Senator Norris never, ever does it. I should be ashamed of myself.
Senator David Norris: He has discovered irony.
Senator Rónán Mullen: Is that irony? Senator Feargal Quinn has the esteem and affection of almost everyone in the House. Insensitive is the last word any of us would use about him.
It comes down to this. People have a profound difficulty with aspects of this Bill. What would one expect from them but substantial and numerous attempts to change it. It is not about being obstructive in some blind illogical fashion. It is about looking at the things in the Bill we believe are not pursuant to the common good, are not in the best interests of our society, do not advance a culture of fairness and give preferential treatment to some over and above others, and about targeting those for changes.
An Leas-Chathaoirleach: Senator Mullen, that is a Second Stage speech.
Senator Rónán Mullen: Senator Buttimer was right to defend my colleague’s honour but he did something many people have done in the House today. He has argued against points that were not made. I heard people making arguments about the Catholic Church’s teaching, for example, as though people opposing the Bill wanted to enshrine the Catholic Church’s teaching in the law.
It is a fact that marriage under our Constitution is regarded as special and to be protected in a particular way. It flows from this that one would seek that any legislation touching on marriage or other relationships would maintain the centrality of marriage as the preferred social norm. That is, if one likes, the elephant in the room — the underlying constitutional position. It is a position which the Government is not ready to deny, at least not yet.
12 midnight
Senator Buttimer makes the mistake in that he thinks in some way, by our suggesting any references to “civil status” be changed to “marital or civil status”, we would be undermining the essential provisions of the Bill, when nothing could be further from the truth. It does not undermine any of what the Bill actually provides for but it selects a kind of nomenclature that sends out a cultural and social message about the centrality of marriage. It says more about other people’s willingness to undermine marriage that they would have a difficulty with what is being proposed here and that they seem to resent the idea that marital status would be kept in a central way. What Senator Buttimer does not seem to have recognised or realised, or what his comments did not recognise, is that this is not just about what is in this Bill. The Bill amends many other Acts and it therefore has implications for existing laws and for existing references in those laws——
An Leas-Chathaoirleach: The Senator will have to speak to the amendments.
Senator Rónán Mullen: I am speaking to the amendment. I am explaining why it is necessary to maintain the concept of marital or civil status so that, for example, in the equal status legislation we will not be just changing the prohibited ground of discrimination of marital status to civil status——
An Leas-Chathaoirleach: The Senator is being repetitive. He has said this already.
Senator Jim Walsh: On a point of order, we put down these amendments and we did not do so lightly. Senator Mullen has put down amendments which relate to these amendments and he should be given the opportunity to make his point.
An Leas-Chathaoirleach: The Senator is being repetitive.
Senator Rónán Mullen: Nílim. Táimid ag dul i dtreo an mheánoíche anois agus séard atá i gceist agam ná tuilleadh scagtha a dhéanamh ar an mhéid atá faoi chaibidil.
An Leas-Chathaoirleach: We cannot have Second Stage speeches on Committee Stage.
Senator Rónán Mullen: Nuair a dhéanann an Seanadóir Buttimer botún, is gá domsa dul isteach le míniú eile le go mbeidh mé in ann an rud a shoiléiriú dhó agus do dhaoine eile le go mbeidh tuiscint níos fearr againn.
Senator Jerry Buttimer: Níl an ceart agat.
Senator Rónán Mullen: Chomh fada agus is eol domsa, níl aon teorann ar an mhéid ama ina bhfuil cead ag daoine labhairt ar an Chéim seo de phlé an Bhille. I ask the Leas-Chathaoirleach to bear in mind we are not limited for time. It was necessary for me to bring in some clarification because Senator Buttimer clearly misunderstood——
Senator Jerry Buttimer: I did not misunderstand.
Senator Rónán Mullen: As George Bush would say, he perhaps misunderestimated our tenacity but he clearly misunderstood the effect of the change from marital status to civil status throughout the Bill, and he clearly misunderstood the intended effect of our amendments.
Deputy Dermot Ahern: I have said many times since the Bill began in this House and the other House that the Government and the Oireachtas are constrained in how far we can go because of the Constitution. I said many times that there are detailed and distinct differences between what is being proposed in this Bill, namely, civil partnership, and marriage, as Senator Mullen said. While I cannot recall his exact words, the Senator begrudgingly, I think, states that the Government acknowledges this is in the Constitution. It is clear that everything we have done in this regard, and Senator Walsh accepted this, was done in order to craft this legislation to show a clear distinction between marriage and civil partnership. As I said, that may not satisfy people who want full marriage for same-sex couples and it may not satisfy others who feel we are nearly going too far and equating civil partnership with marriage in some instances. That is a matter of opinion. I have on previous occasions and I can again during the discussion on this Bill clearly indicate at least ten if not more clear distinctions between marriage and civil partnership. I do not say that in any victorious way or in any way in which I would suggest that marriage is higher than civil partnership, but obviously it has to be because that is what the Constitution states.
What we are dealing with here is terminology. To date, the discussion has revolved around the change from using the term “marital status” to the overarching term “civil status”. This does not in any way constitute a downgrading of marriage in any sense, nor could it, because of the very views we have expressed in regard to the special status of marriage as per the Constitution. As has previously been said, “civil status” means single, married, separated, divorced, widowed, in a civil partnership or being a former civil partner in a civil partnership that has ended by death or being dissolved. Again, I point out it is an overarching term which includes both marital and civil partnership status.
The distinction the Senator is trying to get at is totally unnecessary in that the definition of “civil partnership” includes all of those terms. The Bill extends protection from discrimination to take account of the civil partnership we are creating here — no more, no less. The term “civil status” is being substituted for “marital status” throughout the Employment Equality Act 1998 and the Equal Status Act 2000 so that the statutory obligation not to discriminate against a person on the ground that the person is single, married, separated, divorced or widowed is now being extended to prohibit discrimination against a person based on that person being in a registered civil partnership or formally in a registered civil partnership which is being dissolved. While some may quibble with the terminology, I hope they accept it is important if we pass this legislation that we include civil partnership and those other aspects of it in the existing legislation about non-discrimination from an equality point of view. Perhaps Members could clarify this point if it is otherwise.
The term “civil partnership” is substituted for “marital status” throughout the Civil Registration Act 2004 and in that context the change is made for primarily administrative reasons. The separate recording on forms of marital status and civil partnership status would otherwise inevitably lead to the collection of incomplete and misleading information. For example, if we pass this Bill civil partners could be obliged to record themselves on a census form as single under the marital status designation, if we accept the Senator’s suggestion, and as civil partners under the civil partnership status. Therefore, they would be designated on the same form as having both states. Should single people record themselves under both states or only under one status which conforms to their particular sexual orientation? While I understand what the Senator is suggesting, if it is merely to try to emphasise the distinction between marriage and civil partnership, that is fair enough, but if it is going to the heart of this issue, which is the extension of discrimination against civil partners if we pass this legislation, I would like to hear that.
A criticism has been levelled that this substitution reduces the status of marriage to one of a list of possibilities. This is not valid since in some places where the term civil status is now proposed to be used, being married is already one of the list of possibilities. Marital status in the relevant enactments includes at least five separate possibilities — single, married, separated, divorced or widowed. For completeness the further categories of being a civil partner or being a former civil partner whose relationship has ended on death or dissolution are being added.
I am not saying Senator Walsh accepts the bona fides of the Government, but he should accept its confirmation that this legislation has been moulded in such a way that we must acknowledge the existing constitutional protections for the family. I have said time and again that until that is changed, we are obliged, as legislators, to comply with the constitutional imperative. I suggest to Senators that they accept the Government statement that any change we are making in this respect is purely for administrative purposes in order to ensure that there will be no duplication and confusion when people are signing forms after the passage of this legislation.
Senator Rónán Mullen: The Minister seemed to seek clarification. If I understand him correctly, he is asking if it is the intent of the amendments to detract from the protections against discrimination on the grounds of civil status under equal status legislation.
Deputy Dermot Ahern: Yes. It relates to the Equality Act.
Senator Rónán Mullen: Clearly, this would be just a change of phraseology in that wherever there is a reference to civil status, there would be a reference to marital or civil status. That would apply to the proposed equality legislation also. In other words, the new prohibitive ground would be marital or civil status.
There is a separate amendment which I hope the Minister has studied in great detail and to which I hope he will respond in the affirmative. It is proposed that difficulties of conscience be specifically catered for and that there be a limitation of the scope.
Deputy Dermot Ahern: I saw that and that is why I asked the question.
Senator Rónán Mullen: There are two discrete issues. I hope the Minister will consider the amendment on its merits.
Deputy Dermot Ahern: Absolutely, although I accept what the Senator says, that he is merely trying to emphasise that there is a distinction between civil status and marriage.
Senator Rónán Mullen: Correct.
Deputy Dermot Ahern: It is necessary for the Senator to say this publicly because it could be construed from what is being suggested in the amendments that there is an effort to restrict——
An Leas-Chathaoirleach: There is another Senator offering.
Senator Rónán Mullen: With the best will in the world, I do not think what the Minister suggests could be construed from the way the amendment and related amendments are worded. It could have no impact other than at the level of nomenclature, if that is the correct word to use. It is at that symbolic, cultural and messaging level the amendment would operate.
The Minister has indicated he perceives a deficiency in what has been proposed because he suggestesit might to lead to confusion. For example, people might give one answer under the heading of marital status and another under the heading of civil status. I have just heard the Minister’s comments and do not know if that is a valid criticism of what Senator Walsh is concerned with. Does the Minister accept he cannot make that criticism of what I have proposed, that we substitute one phrase with another throughout the Bill? I do not see how the particular objection raised by him could possibly apply to the amendments I have proposed.
Senator Jim Walsh: I am not happy with the Minister’s response and there is no point in saying otherwise. On Second Stage I mentioned issues which motivated us in these amendments. On marriage breakdown, divorce and cohabitation, the graph is moving upwards. There is both a social and an economic cost, about which every Member of the House should have concerns. The amendment would not advance the issue to any great extent, but it is essential that we send a message to society that marriage is the institution on which the fabric of society is soundly based. I make no apology for saying this because of the child-centred nature of marriage. I have already conceded that if this was not the case, marriage would be the same as all other relationships, particularly those of a sexual nature. In this instance we must ensure the message is sent loud and clear. The Minister and Members such as Senators Buttimer and Bacik should know the amendment would not have any consequences for the rights being granted in the Bill to civil partnerships.
Senator Norris made some critical comments about Senator Quinn. There is no more measured or considerate person in this House than Senator Quinn.
An Leas-Chathaoirleach: The Senator should speak to the amendments.
Senator Jim Walsh: Senator Norris has raised the issue of suicide many times in the House.
An Leas-Chathaoirleach: The Senator should stick to the amendments.
Senator Jim Walsh: I am sticking to them.
An Leas-Chathaoirleach: What the Senator is speaking about has nothing to do with the amendments.
Senator Jim Walsh: With respect, it has been the pattern in the House——-
An Leas-Chathaoirleach: It has been the pattern in the House to stick to the amendments proposed.
Senator Jim Walsh: ——that we respond to the comments made by others on Committee Stage. That is what I am doing.
An Leas-Chathaoirleach: The Senator should stick to the amendments.
Senator Jim Walsh: It has been suggested there is an administrative difficulty with the amendment. I see no potential difficulty in filling in forms. One should merely have a box to tick indicating whether one is married, divorced, single or in a civil partnership. We have left in the phrases “civil partnership” and “marital status” specifically because we want to retain the phrase “marital status” in the Employment Act, the Equal Status Act, the Pension Act and the Social Welfare Act.
Apart from the signals sent to society, we have a further concern which has engaged me since the middle of 2000 when we had a debate within the parliamentary party.
An Leas-Chathaoirleach: We will not discuss at 12.20 a.m. debates in the Fianna Fáil parliamentary party.
Senator Jim Walsh: I asked a question——
Senator Paul Coghlan: Is this relevant to the amendments?
Senator Jerry Buttimer: What was in the newspaper yesterday or this morning?
Senator Ivana Bacik: On a point of order, how is this relevant to the amendments we are dealing with?
Senator Jim Walsh: If I am allowed to continue, the Senator will see how it is relevant.
An Leas-Chathaoirleach: The Senator should comment on the amendments before us.
Senator Jim Walsh: Absolutely. The removal of the phrase “marital status” is the source of concern, as I indicated to the Minister in writing in December 2008. My specific inquiry concerned the implications of removing that phrase, given that the European Court of Justice had a remit to consider anti-discrimination measures. Therefore, as a result of what we were doing in this Bill, we could be landed in a position where the European Court of Justice would give us a direction. I asked for clarification but have not received it. The letter is dated 19 December 2008.
An Leas-Chathaoirleach: That has nothing to do with the amendments.
Senator Jim Walsh: It relates specifically to a concerns which has motivated us in tabling the amendments before us and show why we feel so strongly about the issue. We are concerned about the implications of removing the phrase “marital status” in the Acts mentioned, particularly the Equal Status Act. I have not received clarification in that respect. My second point relates to the importance of marriage and the signal being sent to society in that regard. These beliefs are genuinely held. We did not table the amendments lightly.
Senator Lisa McDonald: I am glad Senator Walsh went into more detail, despite the late hour, because he gave us a broader understanding of where he is coming from. I fundamentally disagree with him in much of what he said. I still believe what the Minister is saying is correct. There is absolutely no need for the amendments because as a society we have come to the position of civil status. To suggest that there are married couples who, through no fault of their own, cannot conceive——
Senator Jim Walsh: With respect, I did not suggest that.
Senator Lisa McDonald: The Senator did suggest it.
Senator Jim Walsh: I never made that suggestion.
An Leas-Chathaoirleach: Senator McDonald, without interruption.
Senator Rónán Mullen: I do not know from where Senator McDonald got that idea.
Senator Lisa McDonald: Senator Walsh stated that if there is no procreation in a marriage, it is like any other relationship.
Senator Jim Walsh: I never said that. What the Senator is stating is a misrepresentation of what I said.
Senator Lisa McDonald: We must be honest.
Senator Jim Walsh: By all means, let us be absolutely honest. In such circumstances, the Senator should not misrepresent what I said.
An Leas-Chathaoirleach: Senator McDonald, without interruption.
Senator Jim Walsh: I do not want to be misrepresented. I have had enough of that in respect of this issue from Members on this side and on the other side of the House.
An Leas-Chathaoirleach: The record will show what the Senator said. Senator McDonald should be allowed to continue, without interruption.
Senator Lisa McDonald: That was my understanding of what Senator Walsh said.
Senator Jim Walsh: The Senator got it wrong; she misunderstood what I said.
Senator Lisa McDonald: I did not get it wrong.
An Leas-Chathaoirleach: Senator McDonald should address her remarks through the Chair.
Senator Lisa McDonald: I apologise to the Leas-Chathaoirleach for not addressing my remarks through the Chair. We must try to remain in the position we have reached as a society. Putting another tick in a box would be to discriminate rather than prevent discrimination. I do not believe the amendment is worthy of acceptance.
Senator Alex White: Hear, hear.
Senator Jerry Buttimer: Senator Walsh appeared to state that the Bill is not about placing a tick in a box. If that is the motivation behind the amendment before the House, then each of us should review where we stand. This matter is not about placing a tick in a box. I support Senator McDonald in respect of this issue. She was correct in stating that there is no need for the amendment. I am glad the Minister agrees with Members on this side of the House. This Bill is not designed to undermine the institution of marriage. As the Minister indicated, the Constitution protects that institution. Under the Bill, marriage will not be diminished; it will, in fact, be given even further protection. Marriage is enshrined within the Constitution of this land. In such circumstances, the amendment makes no sense.
Senator Labhrás Ó Murchú: It is getting late and people are becoming tired. However, I must admit that some terribly mixed messages are coming across in this debate at present. Senator Walsh made a comment on an administrative issue which he understood to have been raised by the Minister. That was where the box was ticked. The matter in question had nothing to do with the overall debate. Regardless of whether the Senator made his point at midnight or 4 a.m., that fact was quite clear to me. In fairness to Senator Walsh, that must be highlighted.
On the question of procreation and the family, I heard what the Senator had to say. I do not believe these are fundamental issues. There are many amendments remaining and if the debate is going to come down to a particular level, then I am of the view that we will miss the opportunity, not to change the Bill — which is not going to happen — but to ensure every issue relating to it is teased out in a democratic and proper manner.
Senator Frances Fitzgerald: That is precisely what is happening.
Senator Labhrás Ó Murchú: On the Order of Business each morning——
An Leas-Chathaoirleach: The Senator should confine himself to the debate on the amendments.
Senator Labhrás Ó Murchú: I am doing so. On the Order of Business each morning——
An Leas-Chathaoirleach: That matter has nothing to do with the amendments.
Senator Labhrás Ó Murchú: I am coming to the point. As I understand it, I am entitled to make points of this nature.
An Leas-Chathaoirleach: That is correct. I am not stopping the Senator from making his points but they must be relevant to the amendments under discussion.
Senator Labhrás Ó Murchú: We are dealing with the amendments and I am going to make my point in respect of them.
An Leas-Chathaoirleach: The Senator should make his point in respect of the amendments.
Senator Labhrás Ó Murchú: My point is clear. On the Order of Business each morning, Members refer to the importance of Seanad Éireann in the context of scrutinising every item of legislation that comes to it.
An Leas-Chathaoirleach: That has nothing to do with the amendments under discussion.
Senator Labhrás Ó Murchú: That is precisely what we hope to do.
An Leas-Chathaoirleach: Senator Ó Murchú should confine himself to discussing the amendments.
Senator Labhrás Ó Murchú: At present, the debate on this Bill is sinking to a very low level.
Deputy Dermot Ahern: I cannot put it any more succinctly than what is stated in the Bill, namely, that civil status means being single, married, separated, divorced, widowed, in a civil partnership, etc. In my opinion, this does not in any way downgrade the institution of marriage.
Senator Ivana Bacik: Hear, hear.
Deputy Dermot Ahern: I do not wish to be antagonistic. However, I am disappointed that the people who tabled this amendment do not appear to accept my bona fides when I state that the legal advice the Government received from the Attorney General is such that it cannot cross the line in respect of the distinction between marriage and civil partnership. This is either a debate about semantics or it is about something else entirely.
Senator Jim Walsh: What about the issues I raised in the letter I sent to the Minister?
Deputy Dermot Ahern: That is why I put a question to Senator Mullen on whether an effort is being made to in some way exclude those who may at present be included under the Bill and in respect of whom provision is made in the equal status and employment Acts.
Senator Rónán Mullen: The Minister’s question in that regard was not very logical.
Deputy Dermot Ahern: There appears to be a suggestion that these people will be excluded or will be deemed to be separate from what is already recognised in existing legislation.
Senator Rónán Mullen: The Minister should stick to the words used and should not impute motivations.
Deputy Dermot Ahern: There also appears to be a suggestion that a distinction is being made in respect of persons who are civil partners as opposed to those who are single, separate, married or divorced.
Senator Rónán Mullen: That was not contained in the paper. We can only refer to the words that were used.
Deputy Dermot Ahern: It is important to re-emphasise that an overarching phrase which contains two words is being provided to try to deal holistically with different types of status. If the legislation is passed, those in civil partnerships will be contemplated within those different types of status.
Senator Jim Walsh: I am not questioning the Minister’s bona fides. He knows me well enough to know that I am a straight talker. We tabled an amendment which, despite what anyone might say, is inconsequential to the interests of people who are in same-sex relationships who want to enter civil partnerships. There is no way the amendment could denigrate the position in this regard. However, the amendment constitutes a litmus test. In that context, I ask the Minister to address the genuine concerns that I raised in my letter to him dated 19 September——
An Leas-Chathaoirleach: We are not discussing the Senator’s letter.
Senator Jim Walsh: Just one second.
An Leas-Chathaoirleach: The Senator cannot discuss his letter. We are discussing the amendments in this group.
Senator Jim Walsh: I want the Minister to clarify the position in respect of this matter and indicate whether we have moved beyond the issue of family law, with regard to which the European Court of Justice had no jurisdiction. What will be the effect of this section on the Equal Status Act as a result of the removal of marital status? This is a matter of genuine concern.
Deputy Dermot Ahern: I can outline the position in very blunt terms. The advice is that there are no implications whatsoever in that regard.
Question proposed: “That the words proposed to be deleted stand.”
Question put:
The Committee divided: Tá, 48; Níl, 5.
Tá
Bacik, Ivana.
Boyle, Dan.
Brady, Martin.
Burke, Paddy.
Butler, Larry.
Buttimer, Jerry.
Cannon, Ciaran.
Carroll, James.
Carty, John.
Cassidy, Donie.
Coffey, Paudie.
Coghlan, Paul.
Corrigan, Maria.
Cummins, Maurice.
Daly, Mark.
Dearey, Mark.
Doherty, Pearse.
Donohoe, Paschal.
Ellis, John.
Feeney, Geraldine.
Fitzgerald, Frances.
Glynn, Camillus.
Hannigan, Dominic.
Healy Eames, Fidelma.
Keaveney, Cecilia.
Leyden, Terry.
MacSharry, Marc.
McCarthy, Michael.
McDonald, Lisa.
McFadden, Nicky.
Mooney, Paschal.
Norris, David.
Ó Brolcháin, Niall.
Ó Domhnaill, Brian.
O’Brien, Francis.
O’Donovan, Denis.
O’Malley, Fiona.
O’Reilly, Joe.
O’Sullivan, Ned.
O’Toole, Joe.
Ormonde, Ann.
Prendergast, Phil.
Regan, Eugene.
Ross, Shane.
Ryan, Brendan.
White, Alex.
White, Mary M.
Wilson, Diarmuid.
Níl
Hanafin, John.
Mullen, Rónán.
Ó Murchú, Labhrás.
Quinn, Feargal.
Walsh, Jim.
Tellers: Tá, Senators Niall Ó Brolcháin and Diarmuid Wilson; Níl, Senators Rónán Mullen and Feargal Quinn.
Question declared carried
Amendment declared lost.
An Cathaoirleach: Amendment No. 10 cannot be moved.
Amendment No. 10 not moved.
Section 7 agreed to.
Sections 8 to 13, inclusive, agreed to.
SECTION 14
Senator Jim Walsh: I move amendment No. 11:
In page 19, line 26, to delete “ “civil status” for “marital status” and substitute the following:
“ “marital status and civil partnership status” for “marital status””.
Question put: “That the words proposed to be deleted stand”.
Question put:
The Committee divided: Tá, 48; Níl, 5.
Tá
Bacik, Ivana.
Boyle, Dan.
Brady, Martin.
Burke, Paddy.
Butler, Larry.
Buttimer, Jerry.
Cannon, Ciaran.
Carroll, James.
Carty, John.
Cassidy, Donie.
Coffey, Paudie.
Coghlan, Paul.
Corrigan, Maria.
Cummins, Maurice.
Daly, Mark.
Dearey, Mark.
Doherty, Pearse.
Donohoe, Paschal.
Ellis, John.
Feeney, Geraldine.
Fitzgerald, Frances.
Glynn, Camillus.
Hannigan, Dominic.
Healy Eames, Fidelma.
Keaveney, Cecilia.
Leyden, Terry.
MacSharry, Marc.
McCarthy, Michael.
McDonald, Lisa.
McFadden, Nicky.
Mooney, Paschal.
Norris, David.
Ó Brolcháin, Niall.
Ó Domhnaill, Brian.
O’Brien, Francis.
O’Donovan, Denis.
O’Malley, Fiona.
O’Reilly, Joe.
O’Sullivan, Ned.
O’Toole, Joe.
Ormonde, Ann.
Prendergast, Phil.
Regan, Eugene.
Ross, Shane.
Ryan, Brendan.
White, Alex.
White, Mary M.
Wilson, Diarmuid.
Níl
Hanafin, John.
Mullen, Rónán.
Ó Murchú, Labhrás.
Quinn, Feargal.
Walsh, Jim.
Tellers: Tá, Senators Niall Ó Brolcháin and Diarmuid Wilson; Níl, Senators John Hanafin and Labhrás Ó Murchú.
Question declared carried
Amendment declared lost.
An Cathaoirleach: Amendment No. 12 in the name of Senators Mullen and Quinn cannot be moved.
Amendment No. 12 not moved.
Section 14 agreed to.
Section 15 agreed to.
SECTION 16
Senator Rónán Mullen: I move amendment No. 13:
In page 21, line 11, to delete “civil status” and substitute “marital or civil status”.
Question put: “That the words proposed to be deleted stand.”
Question put:
The Committee divided: Tá, 48; Níl, 5.
Tá
Bacik, Ivana.
Boyle, Dan.
Brady, Martin.
Burke, Paddy.
Butler, Larry.
Buttimer, Jerry.
Cannon, Ciaran.
Carroll, James.
Carty, John.
Cassidy, Donie.
Coffey, Paudie.
Coghlan, Paul.
Corrigan, Maria.
Cummins, Maurice.
Daly, Mark.
Dearey, Mark.
Doherty, Pearse.
Donohoe, Paschal.
Ellis, John.
Feeney, Geraldine.
Fitzgerald, Frances.
Glynn, Camillus.
Hannigan, Dominic.
Healy Eames, Fidelma.
Keaveney, Cecilia.
Leyden, Terry.
MacSharry, Marc.
McCarthy, Michael.
McDonald, Lisa.
McFadden, Nicky.
Mooney, Paschal.
Norris, David.
Ó Brolcháin, Niall.
Ó Domhnaill, Brian.
O’Brien, Francis.
O’Donovan, Denis.
O’Malley, Fiona.
O’Reilly, Joe.
O’Sullivan, Ned.
O’Toole, Joe.
Ormonde, Ann.
Prendergast, Phil.
Regan, Eugene.
Ross, Shane.
Ryan, Brendan.
White, Alex.
White, Mary M.
Wilson, Diarmuid.
Níl
Hanafin, John.
Mullen, Rónán.
Ó Murchú, Labhrás.
Quinn, Feargal.
Walsh, Jim.
Tellers: Tá, Senators Niall Ó Brolcháin and Diarmuid Wilson; Níl, Senators Rónán Mullen and Feargal Quinn.
Question declared carried
Amendment declared lost.
Senator Donie Cassidy: I thank all Members and move the adjournment of the House until 10.30 a.m.
Progress reported; committee to sit again.
The Seanad adjourned at 1 a.m. until 10.30 a.m. on Thursday, 8 July 2010.
Senator David Norris: I move amendment No. 14:
In page 23, line 39, after “specify.” to insert the following:
“Any recognised religious denomination such as the Unitarian Church which celebrates the marriage of same sex couples may if the incumbent of such of their church buildings is agreeable have it regarded automatically as a proper and appropriate place for the registration of the civil partnership.”.
I welcome the Minister back to the House after a late sitting last night. I am sure I speak for all of us when I say we greatly appreciate that he is taking this serious matter himself and is not delegating it to a junior Minister in his Department because that signifies the importance of the debate.
I will not spend a long time pushing amendments because we have discussed most of the substantive issues. This issue relates to freedom of religion, freedom of conscience and respect for religious identity. In the United kingdom, the Unitarian Church, in particular, has had its position recognised. The reason I tabled this amendment is that I have been lobbied by prominent members of the Unitarian Church, including Chris Hudson, who was the leading light of the peace train which ran between Dublin and Northern Ireland. He is now the pastor of the Unitarian Church in Belfast, although a Dubliner and a very prominent trade unionist. He believes, and I agree with him, that it would be appropriate for a church, such as the Unitarian Church, which performs religious marriages of same sex-couples, to conduct these marriages. The only such ceremony I attended was the marriage of a very old friend of mine to his partner in that church on St. Stephen’s Green. It would seem extraordinary not to recognise the right of a church to conduct these marriages and to be regarded as an appropriate place to do so.
I say this although I believe completely in the separation of church and state. It would be far better if we had the French system where those, like myself, of a religious disposition could receive the blessing of the church in what is regarded as a sacrament but that the church kept its hands clean of officiating at what is, in fact, very largely a distribution of property and assets and the legal arrangements surrounding that.
It is inappropriate for the church to be involved in the registration process but if it happens in one church or in a series of churches, it should happen in all churches and in all circumstances where these institutions are recognised. I look forward with great interest to the Minister’s response.
Senator Ivana Bacik: We support this amendment. We had a substantial debate last night on some of the very significant issues in the Bill and on some of the omissions from it, which we believe are important. We do not intend to duplicate any of that debate today. This amendment could be read along with amendment No. 18 which seeks to include the Humanist Association of Ireland in the Civil Registration Act.
Senator David Norris: I would support that also.
Senator Rónán Mullen: Senator Norris was correct in what he said about the French system. There is much to be said for it. I have always understood the separation of church and state as being about protecting the zones of the state and the church to carry on their business and not to be interfered with. There is much to be said for the French system where there are separate ceremonies for church and state.
However, I disagree with Senator Norris’s characterisation of the state marriage as being largely about property and such arrangements. The state has an interest in marriage as an institution and it is very much linked with children, encouraging people to bond in lifelong unions and to found families. That is not just about property and so on. It would be wrong to think the only people interested in the common good in that sense are religious and church bodies. The state has a particular view. As an entity, it acts on behalf of the community and represents its shared vision of the importance of marriage. If there was no such thing as church marriage, although marriage originated as a church ceremony before the State put rules around it, there would be a need for the State to have a vision of marriage as being for the good of society.
On the amendment, I am inclined to think it would be better to avoid any possible misunderstanding that there is a furthering of an undue interconnection between church and State in this zone.
It is not inappropriate to refer to a particular church. We did this in the Charities Bill with regard to mass cards, when we provided that those selling them could only do so in conjunction with a recognised religious authority which was identified as a Catholic religious authority. To avoid prosecution, the onus was placed on retailers to show that they had such a connection. Such a reference can be legitimate, although during that debate I received correspondence from people who felt there were dangers for churches in bringing in the State as a regulator of what churches might or might not do. Of course, in the context of the sale of mass cards, the regulation was introduced to avoid a practice that was being abused and facilitating a fraud upon members of the public who thought they were getting a certain thing when, in fact, they were getting something very different. The common good was served by legislation intervening at that point.
I am not sure if the singling out of the Unitarian Church is best practice, from a drafting point of view. I also have concerns about the use of the word “incumbent”. Who is an incumbent in this instance? Is it the person who holds tenure or has immediate responsibility for a church building or parish? If this were to be included in the legislation, could some renegade priest within the Catholic Church or the Church of Ireland claim to be the incumbent of a parish and allow the use of his or her church building for same-sex civil partnerships? Might the church then seek to exercise its prerogative to restore the status quo ante and the so-called renegade invoke this legislation in support of what he or she was doing?
While the amendment appeals to certain liberal instincts because it recognises the right of people to provide, according to their ideas and values, for the recognition of same-sex partnerships or otherwise, it is, possibly, problematic, for the reasons I have given.
Deputy Dermot Ahern: Section 16 inserts a detailed provision relating to the registration of civil partnership in the Civil Registration Act 2004. The inserted section 59E makes provision for places and times for civil partnership registration. Subsection (1) specifies that if the place is not the office of the registrar, it must, save in limited circumstances of an exception on the grounds of ill health, be approved by the HSE by reference to matters which the Minister for Social Protection may specify.
The effect of the amendment would be to give automatic recognition as a place where civil partnership registration may take place to the churches of certain denominations which celebrate the marriages of same-sex couples. Any organisation may, if it so wishes, apply under the inserted section 59E(1) for the approval by the HSE of its venues as places for the registration of civil partnerships.
12 o’clock
With respect to the analogous provisions for civil marriage, the Minister for Health and Children published guidelines in 2007 relating to civil marriage. These expressly provide that “the venue must have no recent or continuing connection with any religion, religious practice or religious persuasion which would be incompatible with the use of the venue for the solemnisation of civil marriages”. I expect similar guidelines to be made with respect to civil partnership registration venues in order that any venue with a recent or continuing connection with a religion or denomination would be unlikely to be approved.
There is also a major difficulty with the amendment’s reference to marriages of same-sex couples. Since same-sex marriage is not legally recognised in Ireland, this renders the amendment unworkable.
I would also like to add a clarification. Approval of a place, whether automatically or by the HSE, is separate and distinct from allowing a celebrant of the given denomination to carry out civil partnership registration. The Bill provides that only a registrar may register a civil partnership.
Senator David Norris: The Minister’s response is, as usual, enlightening in its way. He says the use of the word “marriage” invalidates the entire amendment. I had a discussion earlier today with my colleague, Senator O’Toole, who pointed out to me that in amendment No. 15 the word “marriage” was used. I assume that will render that amendment invalid, if the Minister’s argument is to be sustained.
With regard to renegade clergy, I am not sure if such loaded language is appropriate, but I leave it to the House to decide. I have been contacted by a bishop of the Roman Catholic Church, perhaps not one who meets with the entire approval of the established church, but let us put that to one side. He experienced extreme difficulty in having correspondence even acknowledged by the registrar at the time. As a public representative, I had to make an appointment to see the registrar and, more or less, smuggle the bishop into the meeting.
The Unitarian Church is referred to specifically in the amendment because I was so lobbied. We could parse and analyse the amendment to death. I do not expect it to be accepted and anticipated that this would be the Minister’s response.
I am interested in hearing the views of those who express themselves as strong devotées of freedom of conscience, free voting and all the rest. It seems there is a conflict. It might cause difficulties if these so-called renegade priests, bishops, incumbents, rectors, vicars or pastors decided to celebrate marriages for people normally pushed firmly outside the fold. If they wished to use their premises, I would have thought that was a classic example of people voting freely, having a conscience and acting on it. Perhaps I take a more expansive view of freedom of conscience and free voting than some of my colleagues.
Senator Rónán Mullen: The problem is with the use of the word — the possessive adjective — “their”. Is it their premises? If it was, one would have to take the view that they were entitled to act accordingly. The State, of course, would still have its view on whether it was causing more problems than it was solving. When we come to discuss freedom of conscience in the context of the provision of services, it will be clear that it is the rights of people who have ownership of and responsibility for certain premises which are at stake.
Senator David Norris: I think I can solve the Senator’s grammatical problem. It is governed by the major clause at the beginning of the sentence; therefore, it is the property of the church.
Senator Rónán Mullen: I knew I would receive an informed response.
Senator Geraldine Feeney: There would not be an issue for the church in any shape or form.
I am interested in hearing the views of those who express themselves as strong devotées of freedom of conscience, free voting and all the rest of it. There appears to be a slight conflict there. It might cause some difficulties if these, so called, renegade priests, bishops, incumbents, rectors, vicars or pastor
Same-sex couples who are going out to celebrate a very special day would not go to a venue that is hostile to how they want to live their life. I feel we are having a debate around an issue that is never likely to arise. I could not envisage people in a same-sex union ever seeking to use a church or go to Ely Place or wherever else it is held as a sacrament to a certain person. I could not see that happen in my wildest dreams.
Senator David Norris: Unless the church itself, like the Unitarians, wanted it.
Senator Geraldine Feeney: Absolutely, although that is very different. I am amused and amazed at what Senator Mullen is calling a conscience clause. I am elected to Seanad Éireann as a nominee on the labour panel.
An Leas-Chathaoirleach: We are not discussing election to the Seanad; we are discussing amendment No. 14.
Senator Geraldine Feeney: We are. The point I want to make is that ICTU, which represents the majority of public workers in this country, is totally supportive of the Bill in its entirety.
An Leas-Chathaoirleach: That has nothing to do with this amendment, which is specific.
Senator Eugene Regan: It is for the next amendment.
Senator Geraldine Feeney: I am speaking to the amendment. I will come in again on a further amendment Senator Mullen has put forward. However, we are wasting time. The people I know who want to celebrate a special day as same-sex couples would never in their wildest dreams be going to a church hall or anywhere like it.
Deputy Dermot Ahern: The amendment is a specific one which endeavours to give an automatic recognition to a place of a particular religion. I made the point in regard to marriages and same-sex couples. As I said previously, section 59E makes clear that this is a positive request from a church to be recognised as such. I made the point earlier that if the guidelines in regard to marriage venues as per the Civil Registration Act 2004 and the regulations made thereunder by the Minister for Health and Children, and now the Minister for Social Protection, are to be replicated and the same terms as relate to marriages are to be replicated in regard to civil partnerships, then the venue must have no recent or continuing connection with any religion, religious practice or religious persuasion which would be incompatible with the use of the venue for the solemnisation of civil marriages. If they are to extend the logic and practice as per those guidelines, it would be unlikely that these churches would be approved as a venue unless it came under the very limited circumstances.
Generally in this regard, there has been some misunderstanding about churches being forced to use their property against their wishes. Section 59 clearly indicates that the only property that can be used other than the registrar’s office, if an application is made to the HSE——
Senator David Norris: Will the Minister direct us to that section of the Bill?
Deputy Dermot Ahern: Yes, it is at page 23. 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 other place] shall be determined by the Executive by reference to the matters that the Minister may specify.” I have excluded one of the limited exceptions in reading out that section. In other words, this has to happen on application by the organisation, whether it is a church or otherwise, to have its premises used. Therefore, there is no forcing of any church to have its property used against its wishes.
Senator David Norris: I would not want to do that.
Deputy Dermot Ahern: Similarly, there have been suggestions that celebrants of marriages under religion would be forced to be part of the civil registration process.
Senator David Norris: That would be intolerable.
Deputy Dermot Ahern: No celebrant empowered to conduct a marriage ceremony existing under the Civil Registration Act may register a civil partnership unless he or she is a registrar in the employment of the HSE. There is absolutely no possibility that any celebrant who is not a registrar could be required against his or her wishes to register a civil partnership. I can put it no clearer than that.
An Leas-Chathaoirleach: Is the amendment being pressed?
Senator David Norris: I want to make a final comment. I believe the Minister is slightly over-simplifying certain matters but I will leave that aside. Why would it be incompatible and what would the nature of the incompatibility be? If the congregation, the officiating priest and the parties to the marriage were all in agreement, in what sense could it be incompatible? Is there something about the nature of a church, the Unitarian Church in particular or the fact this man was willing in conscience to celebrate the union that makes it incompatible? I see no incompatibility whatever — I just do not understand it.
As I understand it and although I think it regrettable, in a religious service of marriage the partners, having been married, usually retire to the vestry to sign the register, and that is part of the legal confirmation of the existence of the marriage. Therefore, it does exist in that sense and the church, as the building, is held to be perfectly compatible. I do not see any reason that, for example, a Unitarian minister in the St. Stephen’s Green church should not apply to be regarded as a registrar for this purpose. The Minister is indicating this would not be granted. I believe that if this did happen, the Unitarian Church would probably take the matter to court. I would certainly support it in this and I believe many people of right mind, as I would say, would also support it, including some quite surprising people.
Senator Rónán Mullen: What Senator Feeney had to say was very interesting. It is an argument I have heard before. It is probably an argument——
An Leas-Chathaoirleach: We are not discussing what Senator Feeney said. We are dealing with amendment No. 14.
Senator Rónán Mullen: It relates to the next amendment.
An Leas-Chathaoirleach: We are not discussing the next amendment. The Senator should speak on amendment No. 14.
Senator Rónán Mullen: I seek clarification from the Minister. He has just said, and also said yesterday, that there would be no circumstances in which a church premises would be required by law to conduct a civil partnership ceremony, nor would any religious official. As one who has been thinking closely about this issue and has tabled certain amendments, I would never have made that claim or expressed that concern. Strangely, I do not know of anyone else who has. It would be very useful if the Minister could indicate the sources of the particular claim that the legislation might act in this way. I am sure there are such sources and it would be no harm if they were put on the record. Who exactly has been claiming that for the purposes of a civil partnership registration ceremony, in particular, sacred spaces, so to speak, might be required to be used? I would be interested to know who has been making that claim; it was certainly not myself.
Senator David Norris: The Senator could read the newspapers or the debates of the House.
Deputy Dermot Ahern: We have had written representations from various people in this regard.
Senator Rónán Mullen: Will the Minister put some of those on record? I do not believe they represent any official bodies. Would that be fair to say?
Deputy Dermot Ahern: They are letters to the Department, as they always would be. If anyone wants to receive them, they can get them under FOI.
With regard to Senator Norris’s point, the change in regard to the venues for registration of civil marriages was done a number of years ago and it was opened up to allow other premises to be used. Those regulations were framed in such a way that there would be a certain aura around the ceremony of civil marriage so it would not be in the centre circle of a football stadium, for example. It would be on reasonably honourable premises fit for the celebration of a marriage.
If we pass this legislation, civil partnership registrations will become part of this process and the legislation states it must be in the office of the registrar, unless it is under the suggested exception of a place approved by the HSE. It is then up to the HSE to determine what is a suitable venue. It is not my area of responsibility and I will not have to make a decision on it. I expect the executive to replicate the guidelines for civil marriages in the case of civil partnerships, where it is indicated there should be no recent or continuing connection with any religion or religious practice. There may be a different view on the issue. I expect anybody who queries the matter will have the right to appeal the decision to a higher authority.
Senator David Norris: To answer a question I see forming on the lips of the Leas-Chathaoirleach, I will not be pressing the amendment. I will comment on the idea of the sacred aura surrounding these various places. One always respects the choices of individuals and I may have been misled by newspaper reports but I clearly recall reading that civil marriages have been performed in public houses and fields.
Senator Rónán Mullen: They have been performed on top of Croagh Patrick.
Senator David Norris: Yes. On one occasion a ceremony took place in a fairy fort in the south of the country. The interpretation is pretty wide and it would be rather a pity if it did not include a willing church that wished to be included. I expect that they will apply. I note the Minister’s urbane response to the matter and I will not push the amendment because it is silly to push these amendments to a vote when I already know what will be the outcome.
Senator Labhrás Ó Murchú: Senator Norris has opened up an interesting point, although it may be peripheral to the amendment. If same-sex partners want a religious ceremony, I do not see why they should not have it. We have indicated it is a matter for each church. I agree with Senator Norris in making the point on the registration of a ceremony that if it were possible to include somebody in a church who wanted to be part of a ceremony, it could be registered on the day. We should have had more debate on this, although it may be peripheral to the amendment. There is a bigger and broader issue to be considered.
It is wrong to assume people who are entering a gay partnership would not want to go to a church hall. The only issue involved is that it should be a matter for the owners of the hall. I am certain there are some churches and religious bodies who would want to accommodate that particular type of ceremony. It would be wrong to assume that once the legislation is enacted, some people would not want to go down that road. It is a big assumption on our part.
Amendment, by leave, withdrawn.
Sections 16 to 21, inclusive, agreed to.
SECTION 22
Senator Rónán Mullen: I move amendment No. 15:
In page 29, lines 6 to 12, to delete paragraph (b) and substitute the following:
“(b) by inserting the following subsections after subsection (9):
“(9A) A registrar who, without reasonable cause, fails or refuses to give a civil partnership registration form to one of the parties to an intended civil partnership in respect of which he or she has received a notification under section 59B(1)(a), or a copy of an exemption order under section 59B(2), commits an offence.
(9B) For the purpose of subsections (4), (9), (9A) and (9C) of this section, a registrar shall be deemed to have reasonable cause where—
(a) The registrar’s refusal or failure to act is based on a conscientious objection to the registration of the marriage or civil partnership grounded in a sincerely held religious or ethical belief, and
(b) The objection is not based on any of the discriminatory grounds identified in section 3, subsection (2), paragraphs (a), (c), (e), (f), (g), (h), (i) of the Equal Status Act, 2000, and
(c) The registrar has given notice in writing to his or her Superintendent Registrar of the said objection and its grounds within one week of appointment as registrar or at least 1 month prior to any refusal or failure to act in reliance on the said objection;
Unless the Superintendent Registrar, having taken all reasonable steps in the management, control and administration of the Civil Registration Service to ensure that the registrar’s objection is respected and accommodated, concludes that it is necessary in all the circumstances of a given case for the registrar to register a marriage or civil partnership or give a marriage or civil partnership registration form to one of the parties to an intended marriage or civil partnership in order to avoid undue delay in the provision of the said registration services.
(9C) A registrar who, with reasonable cause, fails or refuses to register a marriage or civil partnership or to give a marriage or civil partnership registration form shall not be taken to discriminate against a person for the purposes of the Equal Status Act 2000.”.”.
We come to an issue that is of major concern to many people of goodwill. This is one of three amendments which I have proposed, the purpose of which is to protect freedom of conscience in various issues. This amendment concerns the role of a civil registrar. The law currently provides that a registrar who, without reasonable cause, fails or refuses to provide a marriage registration form or conduct a civil marriage commits an offence. We are aware that in Northern Ireland a person who would commit such an offence might lose their job but in this jurisdiction, under the law as it stands, people are subject to the full rigours of the law and prosecution.
Following on from that logic, this legislation seeks to amend the Civil Registration Act 2004 by providing for similar outcomes for a registrar who, without reasonable cause, fails or refuses to give a civil partnership registration form to one of the parties to an intended civil partnership in respect of which he or she has received a notification under section 59B(1)(a) or a copy of an exemption order under section 59B(2). In such cases, that person commits an offence.
I am starting from the perspective that there is a balance of rights to be struck in this case. The State has the right to implement a model of civil partnership if that is the will of the majority in the Oireachtas, and at the behest of the Government such a model of civil partnership is created and goes through the Oireachtas. I disagree with substantial parts of this legislation, which perpetuates new forms of injustice and discrimination. Even if I am wrong in that, as a democrat I am quite happy to accept the decision of the Oireachtas as to what our laws on marriage, family and same-sex partnership will be, subject to the Constitution.
A completely separate issue arises because in accepting the majority decision on this — at least the majority of the Oireachtas — a separate question arises for people who in good conscience and not just for religious reasons have difficulties with civil partnership for same-sex couples. There are people who have a profound religious objection to public State recognition of same-sex partnerships, and this does not make them homophobic, as has been claimed in some quarters. In many cases they are people with no problem with people’s right to a private life and who would have supported the decriminalisation of homosexual acts between men in 1993.
Such people may subscribe to a different moral view and would not like to be implicated in any way in the facilitation of a contrary moral position repugnant to their own. The question is whether the State has a duty or right to impose this view. I will confine my comments to the position of a State official as separate arguments will be made on the discrete amendments proposed regarding religious or community institutions with a different ethos, or individuals involved in the provision of services. Does the State have the right to oblige such an official to do his or her job in all circumstances, regardless of how repugnant to his or her conscience carrying out his or her job might prove to be? If this matter was the subject of an opinion poll — the trouble with such polls is that the outcome always depends on how one frames the question — most people would agree that there were circumstances in which provision should be made for individual conscience, even in the case of those employed by the State. In the context of the fraught issue of abortion, it would be interesting to examine the laws that obtain in other countries in order to consider whether and how people in the employ of the State might be facilitated in some way in circumstances where they were asked to do something that ran contrary to their own deep personal sense of right and wrong, justice, what constituted good conduct, etc. It is important to bear this in mind.
Much of the debate in the past 24 to 36 hours has tended to denigrate the expression of conscience. I was particularly disappointed by the comments made by Senator Harris who seems to be of the opinion that conscientious objection emanates from some form of twisted religious tradition, according to which people do not think for themselves, hold no moral views of their own, are infantilised by a greater religious authority that tells them what to think and do and are not, in their own right, moral agents who possess a well thought out approach to life.
Acting Chairman (Senator Fiona O’Malley): I ask the Senator to confine his comments to the amendment. We have a long list of speakers and many other amendments with which we must deal. I ask all Members to be brief and concise in their contributions in order that we might have a to and fro debate during which we can deal with the substance of the matter. I ask the Senator for his co-operation.
Senator Rónán Mullen: I will return to the issue of the balance that must be struck. The reason I asked the Minister about who had been claiming that religious officials or premises might be required under this legislation for the carrying out of civil partnership ceremonies was that I had not heard that argument being made by any creditable or reputable sources. As far as I am aware, none of the official church bodies which have commented on this matter raised this issue, allthough I am open to correction in that regard. However, if they did raise it, the comments gained little traction in the public debate. Just as last evening the Minister asked me to clarify my intentions, I have been asking him to clarify for the avoidance of doubt that he is not choosing to answer questions he has not been asked to avoid replying to those questions which have been posed.
Acting Chairman (Senator Fiona O’Malley): The Senator should ask a direct question.
Senator Rónán Mullen: As stated, the issue that arises relates to the balance which must be struck between the State’s right to get the job done in the context of implementing a model of civil partnership and the need to recognise that people may sometimes have a conscientious objection in respect of the matter under discussion. The manner in which I have approached this has been to take the existing legislation which makes provision for registrars who, without reasonable cause, fail in certain ways. It is this failure which provides the circumstances in which a registrar may commit an offence. In amendment No. 15 I provide a definition of what constitutes reasonable cause.
In reply to any possible objections from the Minister or others to the effect that there is already in place legislation which caters for the civil registration of marriages and provides that it is an offence for a civil registrar to fail to comply, I am defining reasonable cause in such a way that it may apply not only to a person who has a conscientious objection in the context of a civil partnership but also to those who may harbour such objections in general as a result of their particular beliefs about marriage and its importance to society. The reason I have framed the amendment in this way is it is important to stress that it is not just for religious reasons, per se, that many have strong feelings about the importance of marriage to society and, therefore, concerns about facilitating marriages, in the context of divorce, or relationships, in the context of civil partnership.
It is in the context of a person’s intellectually arrived at sense of the common good in many cases that he or she might harbour a conscientious objection. I am reserving my position on whether I would harbour such an objection in that situation. It does not necessarily follow that because a person might be a practising Catholic, Muslim or member of the Church of Ireland he or she would have a problem, per se, with the provisions of the legislation. It is the job of the House to legislate prospectively. Senator Feeney stated gay couples would not want to visit Ely Place and the Minister has stated no representations have been made to him to date by any of the bodies representing public officials.
Senator David Norris: The building in Ely Place to which Senator Feeney referred is a very fine house. It belonged to my great grandfather’s cousin.
Senator Rónán Mullen: I hope Senator Norris is not obliged to pay an admission fee when he visits it. The least those who are responsible for it could do is recognise the Senator’s noble antecedents.
Acting Chairman (Senator Fiona O’Malley): Senator Mullen should speak to the amendment.
Senator Rónán Mullen: Our job is to legislate prospectively for what might happen in the future. It is also our job to legislate for the tiny minority who might not dare to express their views to either their trade unions or representative bodies or who might have a difficulty in expressing these views in the light of the overwhelming media consensus on this issue.
What is interesting about liberalism and facilitating freedom of conscience is that, in some ways, the smaller the group involved the greater the care that we must take not to trample on individuals who might possess an alternative point of view.
Senator David Norris: As exemplified, perhaps, by the Iona Institute.
Senator Rónán Mullen: I would answer that heckle if there was any quality to it.
Acting Chairman (Senator Fiona O’Malley): The Senator should not seek to answer it. We are engaging in a debate on the amendment.
Senator Rónán Mullen: However, as there was no quality to it. I will not be distracted.
Acting Chairman (Senator Fiona O’Malley): The Senator has made the point about a person’s objections not necessarily being based on religious grounds on two occasions.
Senator Rónán Mullen: I am glad the Acting Chairman has been listening to my contribution.
Acting Chairman (Senator Fiona O’Malley): I have indulged the Senator who is entitled to make his comments, but he is trying my patience to a degree.
Senator Rónán Mullen: I do not intend to do so.
Acting Chairman (Senator Fiona O’Malley): Good. Shall we proceed with the debate?
Senator Rónán Mullen: However, in the best tradition of the barrister before the court, I will not be diverted from setting out, fully and properly, the background to and context of the amendment——
Acting Chairman (Senator Fiona O’Malley): I have no intention of diverting the Senator.
Senator Rónán Mullen: ——even if it takes a good while longer for me to do so. The Acting Chairman has been warned. There is important material with which we must deal.
Acting Chairman (Senator Fiona O’Malley): I accept that. However, I ask the Senator to be brief and concise in his comments.
Senator Rónán Mullen: Brevity is a recipe for legislation that is not well thought out.
Acting Chairman (Senator Fiona O’Malley): The word “concise” is appropriate.
Senator Rónán Mullen: It is sometimes necessary to go into the detail.
Acting Chairman (Senator Fiona O’Malley): I ask the Senator to proceed in a concise manner.
Senator Rónán Mullen: I cannot argue against the need to be concise.
The issue relates to the balance which needs to be struck. The amendment proposes to strike that balance by defining what should constitute reasonable cause. The first requirement is that the refusal or failure to act should be based on a conscientious objection to the registration of the marriage or civil partnership and that such an objection must be grounded in a sincerely held religious or ethical belief. That is the first test they must satisfy.
The second test a registrar must satisfy is that his or her objection cannot be based on any of a range of discriminatory grounds provided for in the Equal Status Act. These grounds include discriminating on grounds of race or membership of the Traveller community. A registrar can harbour a conscientious objection based on grounds relating to marital status or sexual orientation is because there are legitimate and fundamental differences between people’s viewpoints on these issues. If ours is to be a genuinely pluralist society, we must take account of this fact. The third hurdle the conscientious objector will have to meet is that he or she will have to give “notice in writing to his or her Superintendent Registrar of the said objection and its grounds within one week of [his or her] appointment as registrar or at least 1 month prior to any refusal or failure to act in reliance on the said objection”. In addition, such a person cannot avail of the conscientious objection “Unless the Superintendent Registrar, having taken all reasonable steps ... to ensure that the registrar’s objection is respected and accommodated, concludes” it is not necessary “in all the circumstances of a given case for the registrar” to carry out the job anyway. In other words, the objector will not be facilitated if that would lead to “undue delay in the provision of the said registration services”.
The last part of amendment No. 15 ensures not only that an objector will not be reached by the criminal law under the 2004 Act but also that a person in such circumstances, having been facilitated by the superintendent registrar, will not be reached by the provisions of the Equal Status Act 2000 either. This part of the amendment has been included for the sake of completeness.
This amendment proposes to put in place a set of hurdles. This provision will be confined to circumstances in which the person can be facilitated without causing undue delay, in which the person has flagged his or her objection in due time, in which the objection is based on “a sincerely held religious or ethical belief”, and in which that position is not based on any of a range of prohibited grounds of discrimination.
It is important that we make this change. Yesterday, Senator Dan Boyle pooh-poohed the concept of conscience. At the core of this proposal is an understanding of the value to any civilised society of respect for conscience. Senator Boyle quoted from “Hamlet” the line “Thus conscience does make cowards of us all”. It has been a long time since I heard in this House a quote so taken out of context. It is taken from Hamlet’s soliloquy in which he contemplates taking his own life.
Senator David Norris: Really? One would never have guessed.
Senator Rónán Mullen: It is the same soliloquy in which Hamlet says: “To sleep, perchance to dream”.
Senator David Norris: We are about to do that.
Senator Rónán Mullen: It continues:
Ay, there’s the rub,
For in that sleep of death what dreams may come,
When we have shuffled off this mortal coil.
Acting Chairman (Senator Fiona O’Malley): I hope there is a point to this quotation and that it is relevant.
Senator Rónán Mullen: It continues:
And makes us rather bear those ills we have
Than fly to others that we know not of.
Senator Eugene Regan: I like this soliloquy.
Senator Rónán Mullen: It is in that context——
Acting Chairman (Senator Fiona O’Malley): I hope we are coming to the end of the Senator’s soliloquy.
Senators: Hear, hear.
Senator Rónán Mullen: I would love to give the Chair some reassurance on that point. It is in the context of that soliloquy that Hamlet says “conscience does make cowards of us all”. Shakespeare is suggesting that our awareness of the consequences of what we do is what makes “cowards of us all”. We become cowards when we realise what the possible outcomes of what we do may be. That is why Senator Boyle’s quotation is highly relevant, albeit unintentionally. If we, as a Legislature, fail to make proper provision for people of conscience, who may no longer have the majority view in our society——
Senator Joe O’Toole: On a point of order, it is a convention of the House that Members speak through the Chair.
Senator Rónán Mullen: I was just straightening——
Senator Joe O’Toole: No.
Senator Rónán Mullen: My back muscles were temporarily out of kilter.
Senator Joe O’Toole: The Senator seemed to be speaking to the audience behind him.
Acting Chairman (Senator Fiona O’Malley): Senator Mullen’s points have been well made.
Senator Rónán Mullen: It is for people who have a different moral position to assess, in their own hearts and minds, where their truth is. That is why Senator Boyle’s quotation was a most unhelpful one. It was also unhelpful of Senator McDonald to say yesterday that a conscience opt-out would be a form of “bigotry”.
Senator Lisa McDonald: I said it would be “dressed up bigotry”.
Senator Rónán Mullen: I accept that amendment.
Senator Eugene Regan: It is not an amendment; it is a clarification.
Deputy Dermot Ahern: That is what she said.
Senator Rónán Mullen: I have said I will accept her amendment.
Deputy Dermot Ahern: It was a memorable phrase.
Senator Rónán Mullen: It does not improve the situation one iota.
Senator Lisa McDonald: I am not amending what I said; I am reminding the Senator that the term I used was “dressed up bigotry”.
Senator Rónán Mullen: I accept the Senator’s correction.
Deputy Dermot Ahern: It stuck in my mind in the context of this debate.
Senator Rónán Mullen: It does not improve her position one iota.
Senator Joe O’Toole: I would be more inclined to worry about Senator Mullen’s position.
Senator David Norris: Bravo.
Senator Rónán Mullen: I assure Senator O’Toole I am happy with my position.
Acting Chairman (Senator Fiona O’Malley): Senator Mullen has laid out his amendment. Perhaps it is time to open out the debate.
Senator Rónán Mullen: No, this is important.
Senator Eugene Regan: If the Senator says so.
Senator Rónán Mullen: Senator McDonald said that such a provision would be a form of “dressed up bigotry”. At the same time she claimed, without any sense of irony or contradiction that “tolerance is about [allowing others] to make choices” with which one might not agree. There has been a lack of refined thinking in this forum about the meaning of conscience and its precise limitations. The Chair will be delighted to hear I am withholding my response to Senator Harris’s regrettable comments until the debate on a later amendment. Instead, I will put on the record the contents of a letter I received from two people who——
Acting Chairman (Senator Fiona O’Malley): I will not allow that unless the letter is relevant to amendment No. 15.
Senator Rónán Mullen: It is entirely relevant.
Acting Chairman (Senator Fiona O’Malley): The Senator has been speaking for 20 minutes. No one else has been able to make a contribution.
Senator Rónán Mullen: There is no time limit.
Acting Chairman (Senator Fiona O’Malley): I know there is not.
Senator Rónán Mullen: I ask the Chair not to try to——
Acting Chairman (Senator Fiona O’Malley): The Senator must observe relevance to the amendment.
Senator Rónán Mullen: I assure the Chair that this is relevant.
Senator Geraldine Feeney: In the Senator’s opinion.
Senator Rónán Mullen: The letter in question, which was written by Mr. Patrick Ryan and Mr. David Nelson, states:
We respectfully request that before passing this bill you consider a number of possibly unintended consequences, and accept amendments being proposed to rectify them.
Senator David Norris: On a point of order, it is a tradition in this House — it may be one of the rules of the House — that people outside the House should not be named because they are not in a position to defend themselves. The Senator has done this most unscrupulously. I would like to know whether he has permission to name these people and to quote from their letter. Even if he has such permission, it is outside the tradition of this House and the rulings of the Chair for people to be named in this fashion.
Acting Chairman (Senator Fiona O’Malley): It is as if butter would not melt in the Senator’s mouth. Has he ever broken that rule?
Senator David Norris: Only with the greatest of refinement.
Acting Chairman (Senator Fiona O’Malley): The Senator is correct to say it is not customary to mention people’s names.
Senator Rónán Mullen: I would be grateful if their names were removed from the record. However, I propose to put on the record the contents of their letter, in which their concerns are expressed. That is what I am paid to do as a legislator. The letter continues:
The right of conscientious objection is a matter for each individual in a matter which he considers serious enough to exercise his conscience. An example is a conscientious objection to the killing of animals in blood sports but not to their killing in abattoirs, without any inconsistency to his general moral position. The Minister’s contention that a registrar might use such a conscientious objection clause to discriminate on the basis of colour, fat or thin, young or old is insulting to a registrar’s sense of moral proportion. This attitude would trivialise same sex unions and regard them as matters of little moral concern.
Acting Chairman (Senator Fiona O’Malley): I am going to ask the Senator to pause there. This letter is not relevant. He can quote letters from five other people who have corresponded with him
Senator Rónán Mullen: Excuse me, a Chathaoirligh Ghníomhach. It is relevant.
Acting Chairman (Senator Fiona O’Malley): I do not see its relevance to the amendment before the House.
Senator Rónán Mullen: The Chair should listen to the next paragraph of the letter.
Acting Chairman (Senator Fiona O’Malley): The Senator should cut it short.
Senator Rónán Mullen: It states:
With regard to the punishment proposed to registrars [How is that not relevant?] for refusing in conscience to carry out same sex unions we consider this to be totally against the right of conscience particularly as same sex unions involve not trivial considerations of conscience but a very serious one.
I think that is relevant. The letter continues:
A specific provision could be included in the bill supporting the right of conscience objection on the part of registrars specifically and only in respect of same sex unions. We would also like to protect the rights of religious organisations.
I will hold off on that because it is not relevant. I have read the relevant part of the letter. I would like to mention something else that is relevant. The Preamble to the UN Declaration of Human Rights states:
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.
Article 1 of the declaration states:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 18 states:
Everyone has the right——
Senator Ivana Bacik: On a point of order, how is this relevant to amendment No. 15? The Senator has quoted extensively——
Acting Chairman (Senator Fiona O’Malley): I was about to——
Senator Ivana Bacik: This is just a filibuster.
Acting Chairman (Senator Fiona O’Malley): Yes, it is.
Senator Dominic Hannigan: It is making a mockery of the House.
Senator Ivana Bacik: Many other Members wish to speak concisely on this amendment.
Acting Chairman (Senator Fiona O’Malley): Yes.
Senator Ivana Bacik: Many of us on both sides of the House feel strongly about this amendment.
Senator David Norris: Absolutely.
Senator Ivana Bacik: If we are to be fair, we should give others a chance to speak on it. Senator Mullen is filibustering now.
Acting Chairman (Senator Fiona O’Malley): I take Senator Bacik’s point. Senator Mullen has spoken for in excess——
Senator Labhrás Ó Murchú: On a point of order——
Acting Chairman (Senator Fiona O’Malley): Just a moment, please. The Chair is speaking. Senator Mullen has spoken for in excess of 23 minutes. This is a debating forum. I have consistently asked him to try to be concise in his contributions. He rightly said that as there is no time limit on Committee Stage, I cannot curtail his speaking time. I am asking him to have consideration for the other Members of this House, who are equally important as legislators as he is.
Senator Rónán Mullen: I have a higher duty——
Acting Chairman (Senator Fiona O’Malley): Senator Mullen should allow them to contribute.
Senator Rónán Mullen: ——to show consideration to people who might be put in prison as a result of this iniquitous provision.
Senator Geraldine Feeney: The Senator should respect the Chair.
Acting Chairman (Senator Fiona O’Malley): It is not necessarily in order for the Senator to quote from four or five letters from ten or 20 people. That gives those people direct access to the debate in this Chamber.
Senator Rónán Mullen: Yes.
Acting Chairman (Senator Fiona O’Malley): There are people elected to this Chamber who have higher authority to be here. I ask the Senator to have consideration.
Senator Rónán Mullen: That is a very dangerous and elitist position to adopt, on which I ask the Acting Chairman to reflect. It does not reflect the spirit of this institution that Members in this Chamber somehow have higher privilege than those they represent.
Acting Chairman (Senator Fiona O’Malley): People elected to this Chamber have authority to speak and be heard.
Senator David Norris: If Senator Mullen does not understand that, he should resign and give back——
Acting Chairman (Senator Fiona O’Malley): I will not argue with Senator Mullen.
Senator Rónán Mullen: People elected to this Chamber have a right of audience.
Acting Chairman (Senator Fiona O’Malley): Senator Ó Murchú wishes to raise a point of order.
Senator Labhrás Ó Murchú: On a point of order, I would like the Acting Chairman to help us in this regard because it is evident the debate will continue for some hours and the issue she mentions will impact on the remainder of the debate. As I understand it, Senator Mullen’s main point relates to conscience. Everything I have heard from him so far is related; in fairness, he is doing the House a service by providing us with the information.
Senator Ivana Bacik: By quoting Hamlet.
Senator Labhrás Ó Murchú: If I am wrong about this, the Acting Chairman might tell me because it will impact on the remainder of the debate.
Acting Chairman (Senator Fiona O’Malley): One could speak all day on the issue of conscience. Senator Mullen may talk and, as Senator Bacik said, he may filibuster, if he so chooses——
Senator Rónán Mullen: That is not what I choose to do.
Acting Chairman (Senator Fiona O’Malley): I hope not.
Senator Rónán Mullen: What is more, I resent the fact that the Acting Chairman is taking the side of Senator Bacik by going to the heart of my motivation——
Acting Chairman (Senator Fiona O’Malley): Senator, please. I am speaking——
Senator Rónán Mullen: ——and accusing me of filibustering. In my honest——
Acting Chairman (Senator Fiona O’Malley): May I make a point?
Senator Geraldine Feeney: Senator Mullen has no respect for the Chair.
Senator Rónán Mullen: I have every respect for the Chair. I just wish it was——
Acting Chairman (Senator Fiona O’Malley): This is a debating chamber. Senator Mullen, you finally went through the amendment, which is what a Member is asked to do. I now ask you to desist, out of consideration for other Members. This is not the only opportunity you will have to speak on the amendment. It is in the interests of everybody that the opinions of others are heard also. Our responsibility is to allow debate, which means we should hear more than one voice. I ask you to wrap up and give the next speaker, Senator Doherty, an opportunity to make his contribution.
Senator Rónán Mullen: I am sorry. What the Acting Chairman said would make sense if there was a time limit. I am prepared to hear in full everybody’s opinion. What is at issue is the willingness of the Acting Chairman and certain other Members to hear in full my opinions. This is a serious issue. We are talking about people going to jail. Let us not be so mindless as to pretend that we can dispose of these issues neatly——
Acting Chairman (Senator Fiona O’Malley): We need to bring everything else into the debate. We can speak on the subject concisely.
Senator Rónán Mullen: ——to allow politicians to return home or their constituencies by 5 p.m.
Acting Chairman (Senator Fiona O’Malley): Senator, I ask you to continue with the debate on the amendment.
Senator Rónán Mullen: However, that is not my concern. Senators can take a coffee break if they wish and read the blacks later, but I will state what is important and I am not——
Acting Chairman (Senator Fiona O’Malley): Senator, you are not being relevant.
Senator David Norris: I find this extraordinarily patronising and insulting. It is not appropriate to the House.
Senator Rónán Mullen: I am not filibustering.
Senator Geraldine Feeney: Senator Mullen, you are being a bully in this Chamber.
Senator Rónán Mullen: Really.
Acting Chairman (Senator Fiona O’Malley): Senator Feeney, please——
Senator Geraldine Feeney: You are outrageous.
Senator Rónán Mullen: I am not seeking to filbuster.
Senator Geraldine Feeney: Yes, you are.
Acting Chairman (Senator Fiona O’Malley): Senator Mullen, please resume your contribution and make it concise and relevant.
Senator Rónán Mullen: This is all about a majority oppressing a minority. How appropriate.
Senator Geraldine Feeney: You said on RTE that you would delay proceedings and that is exactly what you are doing.
Acting Chairman (Senator Fiona O’Malley): Senator Feeney, please.
Senator Rónán Mullen: Parties which would not even allow their members a free vote are now seeking to gang up on one Member
Acting Chairman (Senator Fiona O’Malley): Senator Mullen, I have asked you to be relevant.
Senator Rónán Mullen: ——who has a mandate to go to the heart of the issue.
Senator Geraldine Feeney: What my party does with its members is of no relevance to you, a non-party Member.
Acting Chairman (Senator Fiona O’Malley): Senator Feeney should speak through the Chair, please.
Senator Rónán Mullen: Whether Senator Feeney likes it, I am sticking by Standing Orders. As I said, Article 18 correctly provides that everybody has the right to freedom of thought, conscience and religion. This includes freedom to change religion and belief, either alone or in community with others, and, in public and private, to manifest his or her religion or belief in teaching, practice, worship and observance. In other words, a person does not only exercise conscience in the buildings of whatever religious organisation he or she happens to be a member; he or she may wish to exercise it without being a member of any religious tradition. Conscience is——
Acting Chairman (Senator Fiona O’Malley): The Senator is repeating himself.
Senator Rónán Mullen: Conscience is about standing up for what one believes in. The Chair will be glad to hear that I will conclude shortly, but before I do I will mention why it is so necessary for us to discuss this issue in detail. The reason is that there have been problems in other jurisdictions. I will not mention New Jersey, but in the United Kingdom, for example, Catholic adoption agencies have been forced to close because they would not accept same-sex couples as prospective adoptive parents. The diocese of San Francisco was forced to alter its pension scheme to recognise the partners of employees.
There is another problem in that the Minister has sought to claim there would be many undesirable and unintended consequences if one were to make the slightest provision for the conscience of a State official. I have been critical of him because he has not been willing to meet critics of the Bill outside this forum. We could have ironed out this problem by showing just how possible it was to write narrow amendments that would not give comfort to bigots, wife-beaters and so on. For example, the Minister stated a court clerk might refuse to issue divorce orders because of a religious belief. He said a fundamentalist Christian garda might refuse to arrest a person who had breached a safety order on the basis that a husband was entitled to chastise his wife. He said a judge might refuse to register a power of attorney in favour of a person’s civil partner. In his most Islamophobic moment he said a Muslim — or a Mormon — accident and emergency doctor might refuse to treat a person for alcohol poisoning. He said a social welfare official might refuse to pay carer’s allowance to a person’s civil partner and that a probate officer might refuse to issue a grant of administration to a deceased person’s civil partner. Of course, these are the lines people wrote for the Minister, the convenient rhetorical points which take no account of legal possibilities to arrive at something much more nuanced.
Acting Chairman (Senator Fiona O’Malley): Senator Mullen, in accordance with Standing Order 48, your contribution has concluded. I call the next speaker, Senator Doherty.
Senator Rónán Mullen: May I have 30 seconds?
Acting Chairman (Senator Fiona O’Malley): No.
Senator Rónán Mullen: I am sorry. Will the Chair please quote the relevant Standing Order to me?
Acting Chairman (Senator Fiona O’Malley): Standing Order 48 states a Senator who persists in irrelevance or repetition in a debate, or who, in the opinion of the Cathaoirleach, is speaking for the purpose of obstructing business, may be directed by the Cathaoirleach to discontinue his speech after the attention of the Seanad and-or the committee has been called to his conduct.
Senator Rónán Mullen: Is the Chair saying——
Acting Chairman (Senator Fiona O’Malley): I call Senator Doherty.
Senator Rónán Mullen: Excuse me. On a point of order, is the Chair ruling that what I have just said is somehow irrelevant?
Acting Chairman (Senator Fiona O’Malley): No. What I am bringing to your attention is the fact that you have spoken for in excess of 32 minutes, during which I repeatedly asked you to stop repeating yourself and moving away from the point of the amendment to irrelevancies.
Senator Rónán Mullen: Now that I am on a relevant point——
Acting Chairman (Senator Fiona O’Malley): I have ruled on the matter. I call Senator Doherty.
Senator Rónán Mullen: On a further point of order, will the Chair allow me to speak further on the amendment?
Acting Chairman (Senator Fiona O’Malley): You are entitled to speak further on it.
Senator Rónán Mullen: On that basis, I will resume my seat.
Acting Chairman (Senator Fiona O’Malley): Thank you.
Senator Pearse Doherty: I have no problem with Senator Mullen speaking on the amendment for the rest of the day, regardless of how difficult it is to listen to the words coming from his mouth. The amendment goes to the heart of the legislation. The Senator acted the same way yesterday and will continue in the same way today, with support from others, nitpicking and turning the legislation on its head.
Yesterday I stated my party and I supported the Bill because of our commitment to equality. The Bill does not go far enough, but if this amendment were to be accepted, the incremental advances we have achieved in the legislation would be rolled back. We are being asked to carve out an exception for those civil registrars who do not believe in the principle of non-discrimination so far as gays and lesbians are concerned. This would defeat the entire purpose of anti-discrimination laws. The amendment is worded in such a way as to avoid a precedent being set. It would not allow those who have not come to terms with the increasing diversity of Irish society to refuse to serve mixed race couples. Clearly, this is being done for the sake of expediency because there is no logic to the argument that one form of conscientious objection is wrong and another is not, nor is it the case, as Senator Mullen has argued, that there is universal agreement on the issue. Let us not forget that only last year a judge in the state of Louisiana refused to marry an inter-racial couple. No doubt there are still those who believe that Protestants and Catholics should not marry. There are many in the Six Counties who particularly hold that view.
(Interruptions).
Senator Pearse Doherty: With respect to Senator Mullen, I said I would have no problem listening to him speak on this amendment for the rest of day and I did not interrupt him. It is a reality that people still hold a strong view based on the religious beliefs that Protestants and Catholics should not marry. Many of those who hold that view are in the Six Counties. I ask Members to imagine the reaction of Senator Ó Murchú or Senator Walsh if registrars in the Six Counties were given the right to refuse to carry out ceremonies in such cases. We would lambaste that type of discrimination and it is right that we would do so, but that type of discrimination and what is being proposed here are two sides of the same coin.
The amendment’s proposers have evoked the Constitution’s guarantees of freedoms — freedom of conscience and free exercise of religion, but the Bill as proposed would do nothing to limit those freedoms. They are, a letter in today’s edition of The Irish Times notes, freedoms granted to the citizen. A civil registrar acting in the course of his or her duties is acting on behalf the State. Registrars remain free to discriminate, if they must, in their personal lives but nothing in the Constitution entitles them to subject a person who comes to them, seeking a service of this State, to differential treatment based on their own personal morality. As the amendment would undermine the limited degree of equality provided by this Bill, I and my party will oppose it.
Senator Mullen mentioned a list of issues which the Minister gave as examples if we were to apply the conscientious clause across the board. I agree with the Minister in this regard. I will examine how this would apply if we were to expand it to members of the gardaí without talking account of workers in the health service, Muslims or mixed race marriages. I will give the example of a member of the gardaí who was to investigate abuse in a gay relationship and who refused to investigate it because of his or her principled stance on this issue.
Senator David Norris: That has happened.
Senator Pearse Doherty: It is ridiculous that members of the gardaí who are employed by the State can discriminate in this way. The proposed amendment is disgusting——
Senator David Norris: Hear, hear.
Senator Pearse Doherty: ——and it should be rejected outright by this House.
Senator David Norris: Senator Doherty has put the matter extremely well. He has gone right to the heart of the matter. A registrar acts on behalf of the State, on behalf of the people, and he or she must implement the law. Once the law is passed, that must happen.
Senator Mullen made me feel young again. I thought I was in a kindergarten being instructed laboriously by an inexperienced teacher. I found his analysis of Shakespeare wrong-headed but intriguing. I would have referred rather to Dickens. Uriah Heep comes to my mind immediately.
Senator Rónán Mullen: The Senator is not very humble, that is for sure.
Senator David Norris: Moving on to the principal points I wish to make, I endorse 100% what Senator Doherty said with great dignity and, unlike myself, never having interrupted, although he was churlishly interrupted.
As I understand it, no single registrar in this State has made any formal objection to this legislation. Therefore, Senator Mullen, having colonised my feelings and having interpreted Shakespeare’s mind, now represents the registrars as well. There seems to be a slight touch of megalomania there.
Acting Chairman (Senator Fiona O’Malley): I ask the Senator to speak to the amendment.
Senator David Norris: I am speaking to the amendment. I am talking about the fact that no registrar and no trade union has raised this matter. Therefore, it seems to be unrealistic.
I agree with the Senator on one point. It would not be at all appropriate for a registrar in these circumstances to go to jail. There are a large number of matters on which it is inappropriate for people to go to jail. I deplore the building of extra jails and I believe the number of them should be reduced. I submitted a proposal to the effect that it is idiotic to put women — or anyone for that matter, but I was thinking of the case of a person who did not pay a television licence — in jail and then the taxpayer then had to pay——
Acting Chairman (Senator Fiona O’Malley): That is not relevant to the amendment.
Senator David Norris: I want to make this point, and I am coming to it, but I accept the Acting Chairman’s ruling, of course.
Senator Rónán Mullen: I do not mind if it is not relevant. I am enjoying the Senator.
Acting Chairman (Senator Fiona O’Malley): This is not for the Senator’s entertainment.
Senator David Norris: It would be wrong to penalise the taxpayer by having to pay for the jailing of a registrar, if this were true, who did not abide by this legislation. If a registrar refuses to do this by his or her stated intention of refusing to implement the law, he or she has automatically ruled himself or herself out.
Another point is that the Senator used a nasty way to make a smear, and I did not like it. I do not at all find it appropriate that the celebration of either a marriage or a civil union should be compared, as Senator Mullen has done, to an abortion. I respectfully ask him to withdraw that phrase immediately from the record of the House.
The tests that he gave were sincerity of belief. I have no idea how Senator Mullen or anyone charged with operating these tests would know whether someone’s belief is sincerely held . It seems to be an absurd and hypothetical matter.
Senator Mullen and his colleague, and they include, sadly, another Member of the Independent benches who poses as having great concern for the——
Acting Chairman (Senator Fiona O’Malley): I ask the Senator to speak to the amendment. He does not need to comment on what people are doing.
Senator David Norris: No, I am making a very clear point and then I will sit down.
Acting Chairman (Senator Fiona O’Malley): Thank you.
Senator David Norris: The very same people insisted on the inclusion in equality legislation of an exemption for the churches so that teachers could potentially be fired. There is no difficulty with the firing of teachers simply because they are gay, but, on the other hand, we cannot ensure a registrar fulfils the job for which he or she was paid.
Can the Acting Chairman tell me how many minutes I spoke and how many minutes Senator Mullen spoke?
Acting Chairman (Senator Fiona O’Malley): Time is not normally observed, but I know, and it was less than five minutes.
Senator David Norris: Thank you. There is a time limit for this debate. Every time we exceed our time allocation, we take time from other Members.
Acting Chairman (Senator Fiona O’Malley): The Senator has concluded.
Senator Rónán Mullen: There is no time limit.
Senator David Norris: The debate is to conclude by 5.30 p.m.
Senator Rónán Mullen: No it is not.
Senator Pearse Doherty: It is to adjourn at that time.
Senator Geraldine Feeney: I can assure the Acting Chairman that I will be taking fewer than five minutes.
Acting Chairman (Senator Fiona O’Malley): The Senator should speak to the amendment.
Senator Geraldine Feeney: I will. I do not mean to get on the right side of the Acting Chairman——
Acting Chairman (Senator Fiona O’Malley): I am sure the Senator means the wrong side.
Senator Geraldine Feeney: I compliment the Acting Chairman on the wonderful way she is chairing the debate. She has been very fair and very firm-handed and I compliment her on that.
Senator Jerry Buttimer: The Senator would not be biased.
1 o’clock
Senator Geraldine Feeney: I would like, as Senator Norris has done, to put on record the importance of the fact that no trade union has sought an opt-out clause. If trade unions are not seeking an opt-out clause and they represent the majority of public sector workers, we should not be even talking about an opt-out clause. The Acting Chairman was not in the Chair at the time but I got confused as to what amendment I was speaking to a few minutes ago and I thought I was speaking to this amendment when I explained I am a nominee of the labour panel, as is Senator Hanafin. We are well aware of the workings of the trade unions——
Senator Rónán Mullen: The Senator seems to be in danger of being repetitive. I have no objection.
Acting Chairman (Senator Fiona O’Malley): Allow Senator Feeney to continue without interruption.
Senator Geraldine Feeney: ——and the respect trade unions attach to the area of equality. I will go further and say I am well aware because I have been contacted by members of trade unions who have asked me to speak on this amendment and to say that if they wanted an opt-out clause, they would have gone through the proper channels and lobbied the Minister for appropriate amendments. They have not done do. I repeat they represent the majority of public sector workers in this country.
The opt-out clause is not emanating from workers, rather it is emanating from a small minority of Independent Senators in this Chamber. I heard Independent Senator Mullen on “Today with Pat Kenny” a number of mornings ago. When Pat Kenny put it to him that he could do nothing to bring down the Bill he agreed, but he threw in a lovely remark with a laugh in his tone when he said, “But we can delay it”. I am sad to be part——
Senator Rónán Mullen: On a point of order, Senator Feeney is completely misrepresenting what I said on that programme. I was explaining the position of the Seanad which is that the most we can do is delay legislation.
Senator Alex White: That is not a point of order.
Acting Chairman (Senator Fiona O’Malley): That is not a point of order. Senator Feeney, resume your contribution. Senator Mullen, sit down.
Senator Geraldine Feeney: I thank Senator Alex White.
Senator Rónán Mullen: I meant a point of clarification. I got my terminology wrong.
Senator Alex White: Read Standing Orders.
Acting Chairman (Senator Fiona O’Malley): I thank the Senator but I will Chair the meeting.
Senator Geraldine Feeney: We had such wonderful Second Stage speeches here yesterday and everybody got an opportunity to say what they said. Not one person supporting this Bill did not recognise the hard work and craftsmanship which went into bringing the Bill to its current form. Everybody said what an important Bill it was. It saddens me that we are now being almost preached and dictated to by people who feel——
Acting Chairman (Senator Fiona O’Malley): I ask the Senator to speak to the amendment.
Senator Geraldine Feeney: ——-that they have a higher moral ground than anybody else. The majority of Senators support the Bill. As we saw from the votes yesterday there were 46 or 48 votes to five.
Acting Chairman (Senator Fiona O’Malley): Senator, on the amendment please.
Senator Geraldine Feeney: It is hard not to conclude that this amendment, tabled by Senator Mullen and other Independent Senators, is being used as pretext——
Senator Eugene Regan: There are Government Senators, not Independent Senators.
Senator Geraldine Feeney: ——for opposition to the entire Bill.
Senator Rónán Mullen: Shame on you.
Senator Geraldine Feeney: They are mainly Independent Senators.
Senator Eugene Regan: They are mainly Fianna Fáil Senators.
Acting Chairman (Senator Fiona O’Malley): Senator, please.
Senator Geraldine Feeney: They are Independent. They are no longer under the Fianna Fáil Whip.
Acting Chairman (Senator Fiona O’Malley): Senator Feeney, on the amendment.
Senator Geraldine Feeney: The current equality legislation, which we have spoken about often enough in this House, I am glad to say has stood the test of time. There is no evidence to say that a pub, bar or hotel has been disadvantaged in any way by treating all its customers with the same level of respect and dignity. I ask the Senators who have opposing views to the majority of Senators to bear that respect in mind and exercise a little of it.
Acting Chairman (Senator Fiona O’Malley): For the record, there are two Independent Senators who sponsored this amendment.
Senator Eugene Regan: I agree with Senator Doherty. It is helpful that Senator Mullen spoke at length to this amendment because I found the more he spoke and grasped different arguments and straws to support his argument it so obviously became threadbare. It is hard to know what is the purpose of the exercise. I am trying to examine the basis of why he and other Senators tabled this amendment. It boils down to a hostility towards gay people.
Senator Rónán Mullen: That is outrageous. On a point of order, I ask the Senator to withdraw that remark.
Senator Alex White: It is not a point of order.
Acting Chairman (Senator Fiona O’Malley): That is not a point of order, Senator.
Senator Rónán Mullen: I think it is——
Acting Chairman (Senator Fiona O’Malley): It must relate to procedure. This is nothing to do with——
Senator Rónán Mullen: I ask the Acting Chairman to take advice from——
Acting Chairman (Senator Fiona O’Malley): Senator, I am tired of shouting over you. When I am speaking I ask you to allow me to be heard. That is not a point of order.
Senator Rónán Mullen: I heard you.
Acting Chairman (Senator Fiona O’Malley): I do not think you did because I am sick of being interrupted by you. A point of order relates to procedure. The Senator in possession has merely offered an opinion. I ask the Senator to please be seated. I ask the Senator in possession to resume his contribution.
Senator Rónán Mullen: May I ask for a clarification on whether it is appropriate for one of my colleagues to accuse another Member of hostility towards a group in our society?
Acting Chairman (Senator Fiona O’Malley): Please be seated.
Senator Eugene Regan: I said that because I want to know what is so distasteful about a civil partnership registration that it can give rise to a crisis of conscience. It is one thing for our conscience to guide our behaviour but it is another matter when we seek to impose our extreme views on others. That is what is at the heart of this.
Senator Mullen is a lawyer and I will quote the law to him. There is a case in the United Kingdom, Islington Borough Council v. Ladele:
The claimant, a registrar of births, marriages and deaths, was required by the respondent council to conduct civil partnerships between persons of the same sex in accordance with the Civil Partnership Act 2004. She refused on the ground that such unions were contrary to her Christian beliefs, and she was subjected to a disciplinary hearing on the ground that her refusal was contrary to the council’s equality and diversity policy. She made a claim to an employment tribunal that she had been discriminated against, directly and indirectly, on the ground of her religion.
The position of the court and the logic adopted there is instructive in this matter. She lost her case. The Employment Appeals Tribunal held:
[T]hat the view that the requirement that all registrars perform civil partnership functions was a proportionate means of achieving a legitimate aim and that the council was entitled to adopt as a legitimate objective an unambiguous commitment to the non-discriminatory provisions of services by all staff and it followed that they were entitled to require all registrars to perform the full range of services. The tribunal held that the claimant could not pick and chose what duties she would perform depending on whether they accorded with her religious views. At least where her personal stance involved discrimination on the grounds of sexual orientation which was inconsistent with the council’s non-discriminatory objectives, accordingly the council’s refusal to accommodate the claimant’s religious belief did not involve indirect discrimination. The tribunal held that the freedom to manifest religious beliefs under Article 9 of the European Convention on Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act, did not apply where it involved discriminating on groups Parliament had provided were unlawful, such as the right of same sex partners to have their partnerships recognised by law.
That is jurisprudence which is equally applicable in Ireland.
Senator Mullen has undermined his own case. He said what is at issue is that there is a right to pass legalisation which is necessary “To get the job done”.
Senator Rónán Mullen: Correct.
Senator Eugene Regan: Parliament is deciding that it is appropriate to have legislation to acknowledge, recognise and have a system of registration of civil partnership. It is a legitimate objective. The question is whether the means to achieve that objective are reasonable and proportionate. That is the decision we are making and in the debate to date we have considered it is legitimate and proportionate to have the means to achieve the objective that people who are in the public employ are obliged to register civil partnership unions. That is the objective and the means to achieve it. It is appropriate that the Bill makes provisions to ensure that it is done. On principle and law the Senator is wrong and I urge that the House reject the amendment.
Senator Ivana Bacik: I and my party have a fundamental objection to this amendment and Senator Alex White put our objections very forcefully yesterday in his Second Stage speech. We believe the so-called freedom of conscience clause amounts to a rather obvious attempt to undermine the purpose of the Bill. Senator McDonald correctly described it as dressed up bigotry. It is a fig leaf to cover what would otherwise be blatant prejudice. Other speakers have made the point that it would be a mandate to discriminate under the guise of so-called genuinely held religious or ethical beliefs. Senator Doherty outlined some of the scenarios that might arise if we allowed this precedent to come into effect. Another example that springs to mind is of State officials refusing to register children born to cohabiting couples. The sort of law contemplated in the amendment would be appropriate in a theocracy but not in a republic which holds the separation of church and state to be a fundamental principle. I am glad that the Minister is setting his face against the amendment. Most of use agree that we should leave our views of religion at the door when we legislate.
The registrars have not requested this amendment. Their ears must be burning when they hear others purporting to speak for them. I am reminded of the apocryphal story that de Valera looked into his heart to know what others were thinking. It is all very well to look into one’s heart to know what registrars may be thinking but it also belittles and demeans them. Registrars are impeccable public servants——
Senator David Norris: Hear, hear.
Senator Ivana Bacik: ——and there has been no indication that they are seeking this sort of opt-out clause. As Senator Regan has pointed out, there is no issue.
In regard to the technical import of the amendment and what it purports to amend, Part 7 of the Civil Registration Act 2004, which deals with marriage, allows registered solemnisers from different churches to solemnise marriages. The Bill before us sets out a different means of registering civil partnerships through a new Part 7A to be inserted by section 16 and new sections 59A to 59I. These rules are rather different from those pertaining to the registration of marriage in that only a registrar may register a civil partnership. There is no question of persons other than public registrars employed by the HSE being involved. Under section 59E, the venue would have to be agreed by the registrar if it is other than his or her office.
A number of Senators have spoken about criminalisation of registrars but section 22 simply adds a provision to section 69 of the 2004 Act, which is the general section providing for offences. The 2004 Act already provides that it is an offence for a registrar to delete or alter information contained in a register or index contrary to the Act or to refuse or fail to register a birth, still birth, marriage or death without reasonable cause. The Bill simply expands this category of offences to include omissions or failures to register civil partnerships. It is entirely appropriate that we would see these sorts of offence and penalties, which are standard for minor offences, set out in section 70 in respect of public officials who are privy to all sorts of sensitive information on individuals who seek to register births, marriages and civil partnerships. No one objected to those offences being included in the 2004 Act and there can be no valid objection to the extension of these offences and penalties to include civil partnerships.
Section 37 of the Employment Equality Act 1998 already provides opt-outs for religious run schools and hospitals. Many of us strenuously object to these opt-outs because they provide a mandate to discriminate against persons who offend an institution’s ethos. This principle is wrong and we certainly should not extend it in any way. Catholic run, State funded schools already impose an obligation on teachers to teach Catholic religious doctrine. This should no longer prevail in a secular republic but it is an argument for another day.
This amendment is an attempt to undermine and destabilise the legislation dressed up in the language of freedom of conscience. We should look forward to celebrating the first civil partnership ceremonies conducted by professional registrars in the employment of the State. These red herrings should not be discussed because they simply are not an issue.
Senator Dominic Hannigan: I completely agree with Senator Bacik. The amendment raises a number of questions, one of which is the motivation behind it. Having listened at length to certain Senators over the past 24 hours, it is clear from the explanation for this amendment that a different agenda is being pursued.
I commend the Minister on the strength of his argument in regard to public servants. This is not an issue for church or canon law. These are public servants who are employed by the State. They are required to uphold and implement the law and they can have no excuse for not doing so. I am in complete agreement with the Minister and he needs to face down the critics.
The proposed amendment states: “The registrar’s refusal or failure to act is based on a conscientious objection to the registration of the marriage or civil partnership grounded in a sincerely held religious or ethical belief”. I ask how one can prove that an ethical belief is sincerely held. I have come across many people who claimed to hold sincere held beliefs against homosexuality of same-sex couples. They may regard their beliefs as sincerely held but others would simply regard them as homophobia. While I do not think any registrar is of that ilk, this amendment would put into law the potential to discriminate.
I note Senator Mullen’s argument that the legislation perpetuates new forms of injustice and discrimination. I have not received a single submission from the more than 100 registrars employed in this country. The Minister has stated that he has not received correspondence. I am not sure whether any Member has received correspondence from a registrar on this issue.
Clearly, some Senators are looking into their own hearts and seeing things that do not exist. I cannot accept that the amendment is being put forward for any purpose other than to wreck this Bill or to diminish the rights it would afford to same-sex couples.
Senator David Norris: Hear, hear.
Senator Dominic Hannigan: We certainly will not be supporting it.
Senator Lisa McDonald: I totally object to this amendment. It is badly worded, stating: “A registrar who, without reasonable cause, fails or refuses to give a civil partnership registration form to one of the parties to an intended civil partnership ... commits an offence”, whereas “A registrar who, with reasonable cause, fails or refuses to register a marriage or civil partnership or to give a marriage or civil partnership registration form shall not be taken to discriminate against a person for the purposes of the Equal Status Act 2000.” It attempts to make an exemption under the 2000 Act in respect of civil partnership ceremonies but, as I stated yesterday, that is nothing but dressed up bigotry.
I also stated yesterday that we would create a moral hazard were we to allow officials to pick and choose what they want to do. We would run into chaos. Many people in this country have heartfelt views on Travellers, ageism or even women. They are entitled to these views but they should keep them in their own minds. The process of acting on such thoughts is called discrimination. The State and its Legislature do not allow that.
Senators spoke about Hamlet.
Acting Chairman (Senator Geraldine Feeney): The Senator should speak to the amendment.
Senator Lisa McDonald: I am speaking to the amendment. I am responding to Senator Mullen’s description of my comments on tolerance as lacking refined thinking. I believe Hamlet also said Hell hath no fury like a woman scorned.
Senator Rónán Mullen: While they were not the words of Hamlet, they are certainly true.
Senator Lisa McDonald: On the subject of Hamlet, he was not a great family man and appeared to be confused in respect of family principles. As I stated, the proposal is not acceptable in a democracy such as this and we cannot support it.
Senator Jim Walsh: I will refrain from engaging in soliloquies and such like. This is a most important issue which goes to the heart of the republic we want to create, namely, one that is inclusive, non-discriminatory and tolerant. As a result of some of the comments made today, the debate today does not reflect the quality of debate yesterday.
Acting Chairman (Senator Fiona O’Malley): I ask the Senator to speak to the amendment.
Senator Jim Walsh: If I am seeking tolerance in a republic, I must practice restraint. For this reason, I will not respond to the pejorative remarks made by other speakers.
Acting Chairman (Senator Fiona O’Malley): The Senator should speak to the amendment.
Senator Jim Walsh: I received advice from GLEN that pejorative words such as “bigoted” and “homophobic” would be levelled at us, but we should have the courage to speak our minds on these matters. May I contrast the debate on this issue——
Acting Chairman (Senator Fiona O’Malley): The Senator may do so provided it is relevant to the amendment.
Senator Jim Walsh: If the Acting Chairman allows me to continue, it will become clear that this matter is closely related to the amendment. I will contrast the debate in the Houses of Parliament in Britain which was held within the past six months with the debate in this House. During the debate in the Britain the former head of the judiciary in England and Wales, Lord Mackay, stated equality laws should not force people to provide goods and services in a way that conflicted with their conscience. Tabling an amendment to the Equality Bill which he subsequently withdrew before a vote could be taken, he argued that current laws should be more flexible to accommodate differing points of view. He cited the example of printers, both from the point of view of same-sex printers being forced to print matter alien to their views and——
Senator David Norris: What is a same-sex printer? I am confused.
Senator Jim Walsh: He also noted that the British Government’s argument on the law did not provide sufficient flexibility for conscience. The contrast between the debate in the Britain and the views expressed by Senators who disagree with the proposal before us is clear because those arguing against Lord Mackay’s amendment agreed that greater flexibility was needed to accommodate conscience.
I direct the following remarks to the Minister. The Minister sponsoring the UK legislation, Baroness Thornton, suggested employers could take practical measures to respect the private views of their staff. She cited specifically the example of a registrar — this is pertinent to this debate — stating that “if an individual registrar does not want to conduct civil partnership ceremonies because of their religious beliefs, a local authority could arrange for a different registrar to conduct the ceremony if there is one available.” Senator Regan referred to the Ladelle case which was also referred to in the debate in the House of Lords when a Lord stated the relevant local authority was not prepared to work in the manner described by Baroness Thornton. This matter should be addressed in the context of labour relations.
While we have been challenged on this matter, we have had the benefit of a meeting with the Minister and his officials, at which we examined this issue. We can see both sides of the argument and do not want people who have prejudiced views to be in a position to use the veil of conscience to engage in discriminatory actions against people who are gay or, for that matter, any minorities. We will discuss later an amendment we have tabled proposing a conscience clause in relation to religious ethos and on which we take a different view from the view we hold in this case. We were reinforced in our belief by the unreasonable attitude taken by a group of people outside the Houses last week who were criticised from all sides. Its intolerant approach, whether directed at Members of the House or minorities, was unacceptable and I have no truck with it.
Senator Jerry Buttimer: Well said.
Senator Jim Walsh: I propose briefly to discuss one further interesting example.
Acting Chairman (Senator Fiona O’Malley): It must be relevant to the amendment.
Senator Jim Walsh: It is very relevant. Senator Regan referred to developing jurisprudence on the neighbouring island in respect of the Ladelle case and its Employment Appeals Tribunal. A very interesting case arose in which a person who had strong beliefs on climate change took serious issue with the chief executive of his company and lost his job as a consequence. When the Employment Appeals Tribunal found against him, he took an appeal to the courts which ruled that, as a result of his genuine beliefs on climate change, the plaintiff should be afforded the same protection as that afforded to religious belief in British law. Christian groups have objected to the ruling and I do not make a case for it. I am merely highlighting the developing views on this matter which needs to be examined.
To clarify our position, we believe there are conflicting priorities between freedom of conscience and the absolute entitlement not to be discriminated against. As a consequence, we did not table the amendment and while we will not support it, we will not oppose it because the issue needs to be addressed in a manner that gives reassurance and protection to people of conscience, regardless of whether they provide individual services or work for the State. We will oppose the criminalisation of such persons through the sanctions included in the Bill.
Senator David Norris: On a point of clarification, virtually the entire executive and founding members of GLEN are in the Visitors Gallery and they have no notion or knowledge of the statement——
Acting Chairman (Senator Fiona O’Malley): There is no point of clarification procedure. I ask the Senator to resume his seat.
Senator Jerry Buttimer: I promise to be brief and confine my remarks to the amendment. I concur with Senator Walsh that the amendment goes to the heart of the republic we want to create. If we were to pass it, we would create a homophobic, intolerant and discriminatory state. The fundamental question the amendment raises is what do the proposers have against gay people.
Senator Rónán Mullen: Nothing.
Senator Jerry Buttimer: Senator Walsh described a previous amendment as addressing the crux of the matter. The Senators have a right to hold a view on this matter, although I disagree with them. Are they seriously arguing that we row back on the advances achieved in recent years on the issue of equality? I did not hear any voices of conscience when funding for the Equality Authority was substantially reduced.
Senator David Norris: I spoke out on the issue.
Senator Jerry Buttimer: Senator Norris spoke out from a different perspective. Every Member of the House has a conscience. I act in conscience every day and did so throughout the years I taught in a classroom. Was I to stop teaching a student who had failed to secure an A grade in an examination?
Acting Chairman (Senator Fiona O’Malley): I ask the Senator to speak to the amendment.
Senator Jerry Buttimer: I am discussing the issue of discrimination. The subtext of the amendment appears to be a lack of respect. I am a practising Catholic. While the God in whom I believe does not discriminate, the church of which I am a member does. If we allow freedom of conscience on this issue, will we allow publicans to ignore equality legislation and bar all Travellers from their premises or will we extend it to encompass marriages between black people, Asians and Caucasians? Senator Doherty was right. If this happened in Belfast or Derry there would a revolution down here and we would be almost unanimous in giving out. Republicanism is about equality. I support the Minister in what he is doing and I heard what he said earlier. How many civil registrars have objected to divorce and then performed marriages involving divorcees? As with Senator Hannigan, I have not heard one complaint from a registrar. The opposite is the case. This amendment questions the public servant who does a very good job. It is about creating exemptions and is about discrimination. I hope we stand firm and do not allow it. The final paragraph of the amendment states: “(9C) A registrar who, with reasonable cause, fails or refuses to register a marriage or civil partnership or to give a marriage or civil partnership registration form shall not be taken to discriminate”. What is it if not discrimination?
Senator Joe O’Toole: Debates such as this allow people to pick and choose and make their arguments one after another. Lord Mackay may sound like a very innocent Member of the British House of Lords, a doddery old man etc. I just checked his voting record there. He has been violently and completely anti-gay rights all the time in the British House of Lords. Let us not speak from the point of view of being in favour of gay rights and then use examples of people who are bitterly opposed to gay rights, which is where Lord Mackay of Clashfern is coming from.
Senator Mullen raised the issue of the UN Universal Declaration of Human Rights. It is important to consider some of the other articles, including Article 16, which states:
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
I know Senator Mullen, as a lawyer, will say it mentions men and women and it is implied that it is men marrying women. That is not what the article states, which is as I just put on the record.
Senator Rónán Mullen: We had an interesting discussion the other day.
Acting Chairman (Fiona O’Malley): Senator O’Toole without interruption.
Senator Joe O’Toole: If we are getting our ducks in a row, let us put all the things down there together. I do not want to undermine the force of the Senator’s argument, but I thought it lacked some passion and that he was just going through the procedures.
I wish to confirm for the House the position of the trade union movement on the matter. I sat in Government Buildings during many negotiations on national partnership agreements when this issue was put forward and governments were urged by the trade union movement, employers and other groups to move towards having civil partnership. It subsequently became part of the programme for Government. There has been no objection from trade union members about this issue in any way cutting across them. The view of the trade union movement is completely supportive. It might feel the Bill might have gone further, but it supports the Minister in what he is doing.
I believe my colleagues sat down to ascertain how they could undermine the legislation and this is one of the devices they used.
Senator Rónán Mullen: No, we did not.
Senator Joe O’Toole: I know, but I am entitled to my view as to how I see it. You may not speak for your other six people either. People have different views.
Acting Chairman (Fiona O’Malley): I ask Senator O’Toole to address the Chair, please.
Senator Rónán Mullen: I have answered that one.
Senator Joe O’Toole: People regularly vote against proposals for all sorts of different reasons. They might be bitterly opposed to each other. My interpretation is that people were opposed to the idea of civil partnership and found this particular one. The proposed amendment allows registrars to have a conscientious objection not just to civil partnerships, but also to marriage. In that regard alone it undermines the entire case put by previous speakers in its favour. It means we could go back now and say they may not take that particular point of view.
We have a long history of conscientious objection in this country. I have dealt with the issue myself. I made passing reference last night to the teaching of religion in schools. Very often during the appointments procedure a prospective teacher will be asked if he or she objects to teaching religion in order that he or she is sewn into that particular commitment. Alternatively they might not be asked, but it is part of the school programme although not part of the national programme. People might genuinely lapse or evolve, whichever on prefers, to atheism or agnosticism and find themselves in a position with which they are uncomfortable and might have a conscientious objection to the teaching of religion. In these cases people tend to take a practical view that it is part of what happens in the school and needs to be taught.
I was a primary school principal and whereas I would not have subscribed to the religious knowledge, I would have insisted as school principal that as we were there in loco parentis all children went through the programme and knew their stuff as well as anybody would expect them to do. I did not find that in any way cynical or ironic. It is part of a job. One gets in, does it, gets on with it and moves on. It is no big deal. We should recognise that every day hundreds of teachers teach a religious education programme to which they would be fundamentally opposed, to which they do not subscribe or in which they do not participate. However, they do it because the parents and school management would like it to be done. The teachers take the view that they are paid to do a job and should get on and do it. It is mathematics now and religious education next; get on and do it, if that is the way it is. People might not like that and people like to think it comes from the heart in all cases; it does not. It does in some cases and it does not in others.
In Irish history we have dealt with this before. I will make a particular reference to the Fianna Fáil Party and its founder. I want to make particular reference to the Catholic Church. At one stage Senator Mullen worked with an eminent cardinal and Archbishop of Dublin, who found himself in difficulty at times. His way of dealing with it, as he described to the entire world, was by establishing a mental reservation. He could do what he wanted without committing himself to what he was doing. It was a mental reservation. This has been done by the Catholic Church; it does not seem to cause a problem. I found it problematic. I say to my friends coming from the Catholic background that they might advise any registrars they know to have a difficulty that they can use that little device. It works and exists, I understand. Theology and Canon Law support it. The Pope in Rome does not have a difficulty with it. Who am I to give out about it?
Senator Rónán Mullen: The Senator has class; I will give him that.
Senator Joe O’Toole: Let us explain to them how we should do it and perhaps Senator Mullen might explain in more detail how it works when he gets to reply later.
I recommend that good friends on the other side should look at the situation of their party’s eminent founder, Eamon de Valera, who found himself in a somewhat awkward position in 1927.
Senator Niall Ó Brolcháin: There are a few exceptions to that. Eamon de Valera was not my man.
Senator Joe O’Toole: Eamon de Valera was the founder member of the larger party on the other side.
Acting Chairman (Fiona O’Malley): The Senator should direct his comments through the Chair and keep them relevant.
Senator Joe O’Toole: In 1927 he found himself faced with taking an oath of allegiance to the Crown which caused him some concerns. However, he knew if he did not take it he could not get in the door to establish the privilege our friends mentioned earlier. I am explaining this to my Fianna Fáil colleagues as a device they could also use. They could say:
I asked myself what my duty was and anything that was not wrong I was prepared to do. I would not have felt justified in committing perjury or doing anything equivalent to perjury. The party opposite, the Cosgrave-ites, told the people that this was not an oath at all. I believe that the words “I swear” mean an oath. But the Deputies opposite thought differently. They said it was a formality and that anyone could take it. I asked myself whether in a crisis like that I would be justified in staying outside when this was a mere formality.
Eamon de Valera listened to Fine Gael who convinced him that this was a mere formality and he moved on. He then said: “When I came to take the so-called oath I presented to the officer in charge [an English chap I think]”.
He presented a document to the officer in charge which contained the republican declaration that they did not regard the oath of allegiance as a binding oath. He told him that was their attitude and that they were not prepared to take the oath. He produced a written document in pencil as Gaeilge which contained the statement made to the officer who was supposed to administer the oath and said he was not prepared to take the oath. He just took it. He put down the words, signed up to it and went on to describe it as an empty formula.
I am proposing to my Fianna Fáil colleagues that they see these words as an empty formula. They should not get carried away with it. They should just get down and make it happen. It is an empty formula and is a process well established throughout the history of the Senators’ own party. I will actually support them in getting——
Senator David Norris: It is their ex-party.
Senator Joe O’Toole: I understand that the three Senators are still members of the Fianna Fáil Party.
Senator David Norris: Oh dear.
Acting Chairman (Senator Cecilia Keaveney): Can we stick to the amendment please?
Senator Joe O’Toole: I just want to make sure that the record is absolutely correct. These are three members of the Fianna Fáil Party who are not taking the Fianna Fáil Whip at the moment.
Senator Geraldine Feeney: Would the Senator call them independent Fianna Fáil?
Senator Joe O’Toole: They fully understand the processes, procedures and history of their own party and there is a device within that to suit their occasion.
Those of my colleagues who come from a Catholic background and who are worried about that have the mental reservation device. Those from the Fianna Fáil background should listen to the Cosgraveites on this side and get on with it. They should not be upset. They should do what their founder did and simply say that this is an empty formula. Why can they not do that?
The reality is that this amendment is a bottle of smoke. It does not meet any particular needs of any group of which I am aware. It is rare for us to find an issue of pressing concern to a group of people being articulated by their public representatives but which has never been articulated by the group itself. Who are we talking about? Public servants are there to do a job. They sign up, they take the shilling and they follow the flag. They do their job as it is set out for them. In most work places, if people find they have a difficulty in doing some aspects of their job, they find ways around that. People work together and tend not to steamroll each other into doing what they will not do. If somebody has a difficulty then they might be sick on the day they are supposed to do it. They can take a day’s holiday or a day’s pay cut or whatever. We deal with that all the time. We had to meet this morning trying to find a man.
Senator Eugene Regan: So that is how it works.
Senator Joe O’Toole: There is no difficulty in dealing with the perceived problem. I do not believe it is a real problem. The registrars have never articulated a problem. I can give much more evidence as we go along of the other ways in which we have dealt with this kind of thing before. This is not new. I do not want Members to think this is a major issue of importance. It is a huge argument about nothing. It is an issue that does not concern anybody outside the few Members in here who raised it. They raised it for their own reasons. I have given one of my views. I am happy to be contradicted on it, but I still hold my view.
As parliamentarians, we must recognise where this legislation is going. Were this amendment to be accepted, it would undermine the spirit and the operation of the legislation. It would also create moral hazard because it would allow, encourage and reward people for not doing their jobs. It would force extra work on other people who would have to pick up the slack from those who claim to have a conscientious objection. If this lead to a situation where somebody was jailed for these acts, then that would be ridiculous. There are certainly better ways of dealing with it, but that is not to be for or against anything. It is a kind of a scare tactic that was raised to add a bit of credence to an argument that was pretty threadbare. It was long and interesting, but it added little to the overall argument. I have not found a scintilla of argument or evidence put forward in the last two or three hours that would change my view on this amendment. We should just dispose of it and vote on it shortly. I do not think I am entitled to put the question under Standing Orders, but somebody can.
Acting Chairman (Senator Cecilia Keaveney): Everybody should be as brief as possible so the vote can be called quickly.
Senator Labhrás Ó Murchú: On the Order of Business this morning, the Leader complimented the Seanad on the standard of debate which we had in the House yesterday. Several Senators spoke exactly along the same lines. While I did not speak, I certainly agreed. The Minister made exactly the same point. He said that in his 26 or 27 years here, the discussion he had on Second Stage, which he may have slightly corrected on Committee Stage——
Acting Chairman (Senator Cecilia Keaveney): We are speaking about the amendment now, so try to confine your comments to that.
Senator Labhrás Ó Murchú: I appreciated what he said and I have huge admiration for the man. I am not saying that in a patronising way. I genuinely have great admiration for him, especially due to his accessibility to us when we wanted to meet him and his officials.
Acting Chairman (Senator Cecilia Keaveney): We are on the amendment now.
Senator Labhrás Ó Murchú: I have listened to a lecture from Senator O’Toole as to what we should do, having been put out of Fianna Fáil. I did not hear any interjection, and I congratulate the Senator on what he said. I may discuss the formula with him. I notice that when those of us who hold a certain view get up, we are told it is not relevant. In fact, it will show itself to be relevant when I am finished. I just wonder why the interjection comes so quickly when it has not come when other Senators were speaking.
Acting Chairman (Senator Cecilia Keaveney): I have taken over the Chair from somebody else, so I do not know what interruptions occurred until now.
Senator Labhrás Ó Murchú: If you wish, I will not make the contribution. If that is what you want, I will sit down because I just get the feeling——
Acting Chairman (Senator Cecilia Keaveney): There is no point in getting into a huff about it at this stage.
Senator Labhrás Ó Murchú: It is alright. I will not make the point that I was prepared to make.
Acting Chairman (Senator Cecilia Keaveney): I am not trying to stop anybody from speaking, but they must speak to the amendment.
Senator Labhrás Ó Murchú: It would be nice if we got exactly the same innings as everybody else. If you feel that we do not deserve that, I will sit down.
Acting Chairman (Senator Cecilia Keaveney): When Senator O’Toole was moving away from the point, I asked him to speak to the amendment. You started complimenting the Minister, but we want to talk about the amendment. It has been going on for quite some time.
Senator Labhrás Ó Murchú: I understand that, but I have sat here for the last two hours and I have listened. The clock has nothing to do with my views.
Acting Chairman (Senator Cecilia Keaveney): No, but if you want to speak to the amendment, there is no problem with that. However, you are not speaking to the amendment.
Senator Labhrás Ó Murchú: I had not even started to make my views.
Acting Chairman (Senator Cecilia Keaveney): That is the point.
Senator Jim Walsh: On a point of order, if the House is not prepared to listen to reasoned views from Members, but prepared to allow pejorative views that are personal, then I suggest you close down the debate and you move to pass the Bill.
Acting Chairman (Senator Cecilia Keaveney): Senator, resume your seat.
Senator Jim Walsh: If that is the attitude of the House, then I suggest you do that.
Senator David Norris: Is Senator Walsh proposing a vote on the amendment? I support his position on this.
Acting Chairman (Senator Cecilia Keaveney): Senator Norris, you have not been called. Senator Ó Murchú, you were asked to speak to this particular amendment. All I have heard is a commentary about the Minister. If you can speak to the amendment, there is no problem. When other people did not speak to the amendment, I pulled them up. I am not that long in the Chair and I cannot say what happened before that, so I am not casting aspersions on anybody.
Senator Labhrás Ó Murchú: I have heard so many comments in the last few hours which had absolutely nothing to do with the amendment but dealt with us as individuals who had a separate view. Are you saying to us that we cannot go back on those views and explain our opposition to the amendment?
Acting Chairman (Senator Cecilia Keaveney): You can speak on anything that is relevant to the amendment.
Senator Labhrás Ó Murchú: Exactly. I would like to continue and if you feel that you are not able to abide what I am doing, I will sit down. It would be for the good of this House to have fair comment across the board.
What the Minister said was correct. There has been an exceptionally good debate in this House. Several other Senators made exactly the same point. My name is not to this amendment, but I fully uphold the right of Senator Mullen and Senator Quinn to put down that amendment. I also uphold the right of every Senator to oppose that amendment. My view on it has been informed by the debate that I have heard here. This has been one of the most learned debates ever in this House. I compliment all those who have brought professional expertise with them to the House and who have made it known to us. That is precisely what we are doing.
For those outside the House looking in, those we represent, the Seanad has been done a service today by the opposing views being put in such a generous and open-minded way. That all relates to the amendment because it is important I put it into context.
Like Senator O’Toole, I have been a lifelong trade unionist but I do not accept it is vital that the trade union movement must make a comment or interact with us, as legislators, to have a view. Whether one is Independent or a member of a party, one is still entitled to have a view. That is in response to a comment made.
Whether it is 46 votes to five or 46 votes to one, the numerical strength of the vote has nothing to do with democracy because if we follow that concept, someone may presume that on the basis that only a minority is putting forward a point of view, it should not put it forward at all. If we follow that concept, it is a negation of democracy itself.
We have some new converts to brevity today, and so be it. I wish to make a point, on which Senator Norris touched. My hearing is not as acute as it should be and I did not have the earphone on my ear.
Senator David Norris: I do not believe I referred to anything the Senator has with hearing.
Acting Chairman (Senator Cecilia Keaveney): The Senator does not need to interrupt.
Senator Labhrás Ó Murchú: I did not say that. I was coming to Senator O’Toole. I did not know whether to include him in the following point. The only point I have made on this issue at all Stages was in regard to the imprisonment of a registrar for six months. I made a contribution on the Order of Business on this issue and I have been misquoted. I have made this point three times. I said I do not want to find myself in a situation of having to stand up in the Seanad in defence of a prisoner of conscience under this particular section in legislation, of which I will have been seen to be part. I was anxious to pre-empt what might be said subsequently and deal only with that focused issue.
I make that same point again. I do not believe imprisonment is necessary as a deterrent in this case. We are using a sledge-hammer in the wrong way and it is undermining much of the goodwill and debate which has taken place heretofore.
I refer to edges of the debate when it gets iffy or flippant. That is in order and I am not raising questions about that. We should not all stand on a butter box on issues such as that because I am sure we have all fallen into that trap at times. However, in the course of that iffy part of the debate, I always feel disappointed that when we are discussing a specific issue, a blanket is thrown over us all as if, in this case, we are opposed to gays and lesbians.
I ask Members to read the record of the House. When we were allowed to make statements, I made very definitive, strong and supportive statements. I will not use words because, at times, Senator Norris feels people are being patronising even when we repeat perhaps some of what he has said. When I made points in a ten-minute statement, I laid out precisely my view on gays and lesbians. That is what this amendment is about.
Acting Chairman (Senator Cecilia Keaveney): It is more specific than that.
Senator Labhrás Ó Murchú: For someone, in the course of the debate on the amendment, to in some way throw a blanket over us all as if we were homophobic or whatever is wrong because that does not help the debate.
Senator Rónán Mullen: Hear, hear.
Senator Labhrás Ó Murchú: However, we are entitled, when considering the rights of same-sex couples, to discuss the impact of those rights on the rights of other people. We will discuss this in the context of other amendments.
For the rest of the debate, we should leave aside that blanket cover as if, in some way, we were anti-gay and anti-lesbian. I am not, never have been and never will be. I am supportive of them having their rights. Why should they not have rights? I have made this point before. This should not be used as an obstacle to developing the debate in order that we can find out precisely what is inherent in the legislation.
I genuinely learned much from Senator Mullen and I listened to him with great interest. I heard him refer to different sources but I did not hear any repetition in what he put forward. I accept that perhaps it was somewhat long in the context of the time but unless there is an order to indicate the time allowed, then we will have a difficulty in the future.
For years I have sat in this House when we were discussing Bills and I listened to what I did not think was, in any way, what we might consider rational debate. People used other words and terms. I listened to those debates but not once in my 13 years in the House did I make any reference to personalise that or, in some way, demonise the point being put forward. How often have we heard that being put forward in the debate on this amendment? For the remainder of the debate on the amendments, I genuinely hope we can all feel free to put forward our views on each amendment without personalising or demonising anyone else in doing so.
Acting Chairman (Senator Cecilia Keaveney): That is all we are asking. We are asking for comments on the amendments.
Senator Labhrás Ó Murchú: I find it an unusual concept for someone to say to me that if one feels something in one’s heart, one should leave it there. I find that strange. I do not believe anyone in this House would subscribe to that concept. It strikes me as not setting the right tone for this debate.
Senator David Norris: Who said that?
Senator Ivana Bacik: No one said that.
Senator Niall Ó Brolcháin: I wish to speak to the amendment.
Senator Eugene Regan: That would be a change.
Senator Niall Ó Brolcháin: I question whether this amendment deals with the issue. I am not quite clear what it is about. The amendment may have had some favour in the 1950s but it is extremely out of date and misinformed.
The notion that someone who works as a registrar on behalf of the State to provide a service would have a difficulty providing that service is strange. A registrar who, as a result of his or her conscience, is able to opt out of doing the basic job he or she is employed to do, which is to bring two people together in a partnership, should not be working as a registrar.
As Senator O’Toole pointed out, under this amendment, if a registrar had a difficulty with a particular heterosexual couple, he or she could opt out under the conscience clause. Why would someone work as a registrar if he or she would not do the job they have signed up to?
The law is the guidebook on how the registrar works. This is what a registrar is employed to do. I do not understand where this conscience clause comes into it. I made the important point yesterday that conscience certainly comes into spirituality and religion but it does not come into law. Law and conscience do not go together. We live in a civil society. We represent all the people.
Sitting suspended at 2 p.m. and resumed at 2.30 p.m.
Senator Niall Ó Brolcháin: This is not a worthy amendment and I hope it will not be approved by anyone other than its two proposers. It does not have a place in legislation. The idea that people can opt out of doing their job on the basis of conscience is not acceptable. We all carry prejudices and religious beliefs with us. Everyone who does a job has views unrelated to that job. The amendment is not related to the job of registrar. Conscience is a matter outside civil society. It is not a matter of law but of religion or spirituality. To insert conscience clauses in legislation would be regressive rather than progressive.
Deputy Dermot Ahern: I have listened very carefully to all of the arguments made. I thank Senator Mullen for making my argument by listing the various issues that show clearly how a freedom of conscience clause in legislation would allow public servants to take an à la carte approach to legislation passed by the Oireachtas on behalf of the people. The general public deserves to know that if we pass legislation on its behalf, it will be implemented without fear or favour on an equal basis. If we were to implement a freedom of conscience clause in relation to any of the exemptions I mentioned previously in the other House and that Senator Mullen has listed on my behalf, I could foresee future Members speaking on the Order of Business in the Dáil or Seanad and objecting to the fact that public servants were not implementing legislation passed by the Oireachtas. How could one run a country and how could the public service be expected to run a country if individuals were allowed to adopt a view contrary to the stated intention of the representatives of the people? That is the essence of democracy.
We have heard much about republicanism, including self-professed republicanism. We seem to refer frequently to our neighbouring island. I have not looked to see how our neighbouring island deals with this issue, as one would not be comparing like with like. We have a Constitution and an independent Judiciary, the members of which make their own decisions. Of course, we are subject to EU laws, but the Constitution is supreme on these issues. We have passed legislation to ensure equal treatment of the general public and it has stood the test of time.
I respect the views expressed by Senator Ó Murchú. He indicated that he would find it difficult to have it on his conscience if someone was sent to prison as a result of this legislation. I believe he was a Member of this House when it passed the Civil Registration Act 2004, but he may correct me if I am wrong. Section 17(4) of that Act states clearly that a “registrar shall have and perform ... functions conferred on him or her by or under this Act”. The word “shall” is used, not “may”. Section 70 contains the penalties for offences under the Act and there is provision for officials to be relieved of their duties if they do not perform the functions conferred on them. It states a person guilty of an offence shall be liable on summary conviction to six months imprisonment or a fine, or on indictment up to five years imprisonment. What we are doing in this instance is adding, as we are doing in a number of other areas, the issue of civil partnership to this legislation and the Civil Registration Act 2004.
When the issue of conscientious objection was originally raised, my officials made inquiries in this regard. Everything that has come back, anecdotally and otherwise, shows that registrars have no problem with and are looking forward to the implementation of this legislation. That begs the question: where is this coming from? I cannot answer that question.
I was asked what representations the Department or I had received on the use of church property. I can say there were representations from religious representatives who made out, incorrectly, that they would be forced to use their church property. We did not receive representations from any of the people supposedly affected by a freedom of conscience clause.
As a matter of public policy, there is no reason in any democratic society, when legislation is passed, circumstances would be allowed to obtain where it could not be implemented. I suggest to any legislator who says we should do this that it would leave the State open to a potential claim for substantial compensation on the basis that people who had not received the service to which they were entitled under the legislation would have an open and shut case for compensation because the law had not been implemented without fear or favour and on an equal basis. For public policy and also practical reasons, if we pass legislation, the least we can expect is that it will be implemented.
My officials have been dealing with this legislation for the past few months. They may very well have a conscientious objection to dealing with it, as officials in the Seanad may have with this or any other legislation. However, as elected Members, we cannot allow a situation where such persons, whether they have an issue, which is fair enough, will not do their jobs because that is what they have been appointed to do, as public servants.
Others have made the arguments and I fully agree with them. To be fair to Senator Walsh, I must acknowledge that at my meeting with him and his two colleagues they at least understood the argument I was making on behalf of the Government.
Senator Rónán Mullen: They did better than me.
Deputy Dermot Ahern: That is the benefit of being a member of a political party.
Senator Rónán Mullen: The Minister showed favouritism.
Deputy Dermot Ahern: That is something, of which Senators Walsh, Ó Murchú and Hanafin were well aware until yesterday. It is one of the reasons they find it very difficult to do what they are doing.
Senator Rónán Mullen: I will sign up for a skiing trip with the Minister in order that I can have his ear sometime.
Deputy Dermot Ahern: I listen to local radio and hear and understand what the Senator says about me.
Senator Rónán Mullen: Nothing was personalised.
Deputy Dermot Ahern: The Houses are the primary location at which the debate and the argument on these issues should take place, not the peddling, which I hope did not come from the Senator——
Senator Rónán Mullen: We would have fun on LMFM.
Deputy Dermot Ahern: I hope it was not Senator Mullen, whom Senator McDonald referred to as having said the Minister or somebody had been “got at”.
Senator Rónán Mullen: That might have been me.
Deputy Dermot Ahern: I was not got at by either side on this legislation. I do what I regard as my duty as an elected representative. I will deal primarily in this and the other House with the argumentation on issues I bring forward as a Minister. I will not apologise to anyone for not engaging on the public airwaves or otherwise.
Senator Rónán Mullen: The Minister is a public representative.
Deputy Dermot Ahern: As I said, I have not met any of the groups which were lobbying on this legislation other than the Oireachtas Members of my own political party. I engaged fully with my party, as Senator Walsh has indicated on many occasions.
An Leas-Chathaoirleach: We need to get back to the amendment.
Deputy Dermot Ahern: I do not accept there should be a free vote on the issue. I heard what was said about what Fine Gael had done. Of course, there may be people within a political party who hold a certain view that may not be in line with the majority view. Again, that is the democratic system that has worked very well for this country and I do not think we should change it. While I do not want to be pejorative in this regard, I wonder, when the very people who potentially would be affected by the amendment are not the ones calling for this change——
Senator Rónán Mullen: I will address that issue.
Deputy Dermot Ahern: ——why is it being suggested?
On the overall issue, it makes no sense in the running of a democratic state if a law is democratically passed through the Legislature for people to be allowed, in effect, to adopt an à la carte approach to its implementation. One would not be able to run a country or any of its public services, particularly given the society we now have, if that were to be the case. Twenty years ago this was a mono-ethnic, mono-cultural and virtually mono-religious society. Today, it is multicultural, multi-ethnic and multi-religious and includes those with no religion. That is why we, as legislators, cannot legislate for one concept of morality; we have to legislate for the common good as best we can. We will not always succeed because there will be people who will be adversely affected by the legislation we bring forward. However, when the vast majority of the elected Members of both Houses agree with the principles laid down in this legislation, I do not support the effort made to chip away at the principle of treating people with fairness and equality and implementing what is contained in the Constitution. It is our Constitution, not a British constitution. It does not concern what the British do in this regard; it dictates that we should treat everyone equally before the law. In this regard, it also gives special recognition to the family and marriage. It is that balance, whether we like it, that we must, as legislators, adhere to.
Senator Liam Twomey: I look at this issue from the point of view of my profession. As doctors, nurses or other allied health professionals, we could not begin to have issues of conscience. There are ethical questions such as abortion which are major for health care professionals. We should be very careful, as the Minister pointed out, in how we interpret “conscience”. It could make life absolutely impossible and people could take views which would have more to do with prejudice, which can be major or minor, than genuine ethical concerns about how they do their jobs.
Senator Rónán Mullen: By way of an opening response, I would never intentionally engage in a filibuster, as suggested earlier.
Senator Niall Ó Brolcháin: The Senator could have fooled us.
Senator Rónán Mullen: Long-winded on occasions I may be——
Senator Donie Cassidy: Absolutely.
Senator Rónán Mullen: ——but I do not lack respect for the procedures of the House. One of the Senators who contributed earlier mentioned to me that on a previous occasion he had spoken for two hours on an amendment, which it was generous to acknowledge. There are circumstances where people feel the need to air points.
Senator Donie Cassidy: Not in modern times.
Senator Rónán Mullen: There is much philosophy here. I apologise if I got people’s backs up or if they got the impression I am trying to filibuster. I am not doing so but unlike what I take from Senator Joe O’Toole’s comments, I believe there is a profound issue of genuine liberalism at stake here.
I said earlier that——
An Leas-Chathaoirleach: There is no need for the Senator to say again what he has said already. There is no great need to be repetitive.
Senator Niall Ó Brolcháin: What has this to do with the amendment?
Senator Rónán Mullen: I must be allowed to comment on certain remarks made about me earlier. I do not mind people seeking to ridicule, taking me on in arguments or suggesting that my amendments might have unintended consequences or might facilitate bad people in society. I am a big boy and am able to argue my case. I take issue with being accused of dressed up bigotry. In one case Senator McDonald suggested I might have issues with women but I would be happy to supply her with references from some of the exes.
Senator Dan Boyle: Why are they exes so?
Senator Rónán Mullen: Senator Norris compared me to Uriah Heep, and Senator Regan basically suggested homophobia is behind the amendment. That hurts and is unfair. The Labour Party suggested there were hidden agendas and the Minister made half a suggestion to that effect. There is no hidden agenda and the proposed amendment is not designed to set this entire Bill at naught. I have problems with aspects of the Bill but my problems with the civil partnership model being proposed in the Bill pale into insignificance with the concern I have for the protection of conscience in our society. It is a genuine concern and I would be grateful if people would attack me on the argument and not on my bona fides.
I do not normally talk about my personal life but I subscribe to a Christian world view, which suggests we should be ready to give our lives for each other. Whether a person is homosexual, a sister, brother or distant relative does not come into it. That is the standard I try to live by. There is no hatred or fear of homosexual persons in my heart and I do not believe it is in the heart of any of the others who have tabled amendments. It would be too bad if people trying to legislate for the common good were constantly having their motivation scrutinised and being accused of some quite ugly motivation when such motivation is absent.
I ask those people in the House who brought up the suggestions — they know who they are — to reflect genuinely and dispassionately on what they have said and consider whether they might withdraw them either on the record or privately to me. I would appreciate it if people would not second-guess the motivations of others. There is no hatred, distrust or dislike of homosexual persons in my heart but there are legitimate differences of moral opinion in our society, which is what I am trying to protect.
The Minister indicated I made his argument by going through the various categories, which I will not repeat. He gave examples such as bank officials refusing to open a joint account, doctors refusing to share information with a civil partner, Revenue officials refusing to consider civil partners as a couple or funeral directors refusing to handle a burial ceremony according to the deceased. If the Minister or Senator Pearse Doherty had considered my amendment, they would see it gave no comfort to any of those persons.
The reason this amendment is necessary is precisely because Ireland is becoming a multicultural society. Once upon a time people did not need to think about their consciences because they did what the church or the law indicated. We all accept that it is now wonderful that we are getting to a society where people think for themselves and will decide for or against what they hear from churches and other bodies.
I gave the example of the abortion Act in Britain which specifically provides for a conscientious objection to participation in treatment. I am glad Senator Twomey brought that up because it at least establishes the principle that it is sometimes necessary in a just and pluralistic society to allow people who have a genuine problem in their conscience to continue to function as State officials in certain positions while being allowed to go their own way and live out their ethos and morality. It is a delicate issue calling for a balance.
My argument to the Minister, which I did not hear him address in any detail or at all, is that my amendment offers that balance. It would not in any way give comfort to a racist or other motivation. It starts from the premise that there are different points of view in our society with regard to sexuality and recognition of same-sex partnerships. It offers some comfort to those who may have a conscientious objection by saying that provided it does not impact on the State, they can be accommodated. That is different from giving carte blanche to racists or homophobes to blithely claim a conscientious objection and gum up the works. That is impossible under my amendment and I would have been grateful if instead of attacking me personally, other Seanadóirí would have teased out what my amendment proposes. By all means they can attack any unintended consequences found.
It cannot be argued, as Senator Doherty and others have tried, that if conscientious objection is allowed in one case, the floodgates will be opened. It is our job as a Legislature to set out the circumstances in which we will allow for exceptions. In that regard I want to be very clear on the subject. Considering the existing equality legislation, it is replete with exceptions and anti-discrimination provisions have exceptions included designed to achieve the common good. I will not go through all of them but, for example, treating a person who has not attained the age of 18 more or less favourably than another shall not be regarded as discrimination. There are even provisions for discrimination in the treatment of a person on gender grounds with regard to services of an aesthetic, cosmetic or similar nature.
We all know about section 30 of the Employment Equality Act, which the Supreme Court said was necessary for employment equality legislation to be constitutional. That exception allows religious-run schools or hospitals to make decisions, where necessary, to prevent the undermining of their ethos. We have admitted the principle of conscientious objection into our law. Not only that, the Constitution has stood by it and indicated it is necessary.
It makes a mockery of legislative debate if the first time someone comes up with an exception that is carefully crafted, he or she is accused of ulterior motives. That is not in the best spirit of legislative debate.
Deputy Dermot Ahern: Will the Senator give way for a moment?
Senator Rónán Mullen: Of course.
Deputy Dermot Ahern: The Senator has instanced a number of cases where there are exceptions. There is no exception to the circumstance where a public servant, in the performance of statutory duty as laid down by legislation, is allowed to decide based on freedom of conscience. It is nowhere in existing legislation.
Senator Alex White: That is completely true.
Senator Rónán Mullen: It is true and I do not believe I said anything to gainsay that fact. In other cases, such as the British abortion Act, it has been deemed necessary to have such a provision.
Senator Donie Cassidy: We are talking about the Irish context.
Senator Rónán Mullen: There could very well be a public employee seeking to invoke such a provision. It is the first area in which British law might be relevant. The second issue was brought up by Senator Regan and is very telling. He mentioned the Islington borough council case, which as far as I know involved an evangelical Christian who did not want to be involved in the provision of civil partnership. In that case Senator Regan agrees with the eventual decision, which I understand was against that person.
It is very well for the Minister to say there has never been anyone who brought up this concern or that the trade unions have not yet expressed it. That may be true. In light of the reaction to that expression of concern by me, does the Minister think people would feel courageous enough to raise that concern? We can consider the reaction when I raised the possibility that someone might have that concern.
We must legislate prospectively because we are becoming a multicultural society. There may be a lady or gentleman who will mirror that British issue and indicate a conscience problem. I do not have any problem with the fact that our current equal status legislation, for example, prohibits discrimination on sexual orientation grounds. I have never opposed that idea. By legislating for the new model of civil partnership, new issues are being brought to light requiring us to look at the workings and implications of existing legislation and this Bill in particular.
The principle I am standing up for today is not necessarily a principle on which I would intend to rely. The fact that I worked for the church in the past is being allowed to muddy the debate because people are focusing on the idea that the exception comes from a particular quarter. The principle I am defending is the idea that a person with whom I may disagree——
An Leas-Chathaoirleach: The Senator is making a Second Stage speech.
Senator Rónán Mullen: Genuinely, I am not.
An Leas-Chathaoirleach: The Senator spoke for half an hour before this and has been on his feet for another ten minutes. The Senator should stick to the amendments.
Senator Rónán Mullen: I shall try. I assure Senators I am not in any sense trying to filibuster. A number of profound issues arise.
Senator Donie Cassidy: The Senator is making a Second Stage speech.
Senator Rónán Mullen: Senator O’Toole respectfully suggested that the amendment is tantamount to a bottle of smoke and that there is no real mischief which it seeks to remedy. It is my view that the amendment seeks to pre-empt a possible mischief that might arise. I offer the amendment in sincerity to the House and on the basis that we are moving into a multicultural society within which we must begin to contemplate issues of conscience. It is precisely as a result of the multicultural nature of our society that in the future people will hold views or whatever that will differ from the prevailing morality. That morality will probably be very secularised in nature.
3 o’clock
On the issue of sexual orientation and same-sex relationships, I am of the view that society does not have a settled opinion. For the foreseeable future, there will be a majority and a minority in respect of this matter. There are two roads which can be taken from the point. One can decide to impose the morality of the majority and state that anyone who dares to differ therefrom should not work in the Civil Service. On the other hand, one can try to tack with the changing circumstances that prevail to discover whether there is a means by which people of a different ethos can be accommodated. We must also ask whether we can allow people who hold a different ethos to function as respected members of society or as employees of the State without coercing them in some way and without frustrating the State’s ability to get the job done.
Senator Lisa McDonald: On a point of order, did the Senator not make this argument already?
An Leas-Chathaoirleach: Yes, he did.
Senator Lisa McDonald: The Senator is citing case law. As he is well aware, apart from anything else, hard cases make bad law. I am of the view that Senator Mullen is being repetitive.
An Leas-Chathaoirleach: The Senator is being repetitive.
Senator Lisa McDonald: The Chair should put the question.
An Leas-Chathaoirleach: I ask Senator Mullen to make his point to the Minister. There is no need for him to travel all over Europe to underpin his argument.
Senator Rónán Mullen: It is difficult for people to understand that there are some issues which are of profound importance to some members of society. Senators Ó Murchú and Walsh and I have received a great deal of correspondence in respect of this matter. Much of its was sent by people who do not understand from where we are coming and just as much came from those who are of the view that this is a civilisational issue that deserves careful attention, especially as it goes to the heart of the question whether we will allow freedom of opinion and conscience in our society.
Alexander Solzhenitsyn, who lived much of his life under a regime based on the denial of the authentic rights of conscience, once stated that those who clearly recognise the voice of their own conscience usually recognise also the voice of justice. I mention this because conscience is being denigrated in this debate as something that will allow narrow-minded people to be awkward. The history of conscience and conscientious objection is much more about people, such as Martin Luther King Jr., who stood against laws because of principles they ultimately believed to represent the common good. I sincerely believe that the common good is best served by allowing people with different values to function to the greatest extent possible, subject to the overriding need of the State to get the job done.
It is in that context that I ask Senator Regan, in particular, to at least consider that I may hold such a view without being a homophobic person. This really matters to me. To be accused of being homophobic when what one is trying to do is secure the common good for everyone in society is not acceptable. Nothing I am proposing would prevent civil partnership from working, particularly as it would be subject to the overriding ability of the civil registrar or superintendent to avoid delay.
Senator Alex White stated that my proposal emanates from a theocratic position. As I understand it, under a theocracy church leaders make the laws of the land. I am no theocrat. That is why I refer to religious and ethical concerns. We do not have a right to question from where people obtain their views and values. Nor do we have a right to assume that the only reason a person has a certain moral view is because some guy wearing a mitre has done his or her thinking for him or her. That is not the truth. The truth is that people form their own consciences according to the authorities they most respect and on the basis of the arguments they find most convincing. Let us forget notions of theocracy and say rather that there are people in our society who harbour different moral views. Let us try to facilitate these people to the greatest extent possible without frustrating our ability to get the job done. As I stated earlier, let us try to legislate prospectively.
We should not worry about the fact that the registrars have not, for whatever reason, been lobbying the Minister. The tenor of this debate is one good reason they would not do so, particularly in the context of the reaction they would receive. I am not criticising the Minister in this regard but the general tone of the debate has not been good.
Senator Donie Cassidy: What the Senator has just said is both appalling and unfair.
Senator Rónán Mullen: I do not believe that is the case.
An Leas-Chathaoirleach: Senator Mullen should confine himself to the amendment. If he does not do so, I will put the amendment.
Senator Rónán Mullen: I am about to conclude.
Senator Dan Boyle: It is a ten-minute conclusion.
Senator Rónán Mullen: Senator O’Toole raised the issue of conscience and the way in which Éamon de Valera dealt with it. In his book, The Begrudger’s Guide to Irish Politics, Breandán Ó hEithir characterised that whole incident in a chapter entitled——
An Leas-Chathaoirleach: This has absolutely nothing to do with the amendment. The Senator should confine his remarks to the amendment.
Senator Rónán Mullen: I solemnly swear——
An Leas-Chathaoirleach: The amendment relates solely to registrars.
Senator Fiona O’Malley: If this Chamber were a stage, Senator Mullen would be determined to remain on it.
Senator Geraldine Feeney: The Senator is repeating what everyone has said. We already know what has been said.
An Leas-Chathaoirleach: Senator Mullen, without interruption. The Senator should confine himself to the amendment.
Senator Rónán Mullen: We are approaching a stage where there are people in this House who will not even allow one to respond in respect of comments that have been made in respect of one.
An Leas-Chathaoirleach: Senator Mullen has had plenty of time to respond. He has been on his feet for 15 minutes and he spoke earlier for more than 30 minutes.
Senator Rónán Mullen: In a private conversation I had earlier with one of the officials, I indicated that people’s stress levels increase when matters of this nature are dealt with in an overly heavy-handed way. Almost everything I have said in the past 15 minutes has been relevant. I remained on point but I accept that I may not have been as concise in my arguments as could have been the case. However, that is the nature of the beast. If one is determined to set one’s face against detailed, reasoned argument, then one is on the road to dictatorship because one has given up one’s ability to value such an argument.
Senator Geraldine Feeney: The only dictator here is Senator Mullen.
An Cathaoirleach: Senator Mullen, without interruption. The Senator should confine his remarks to the amendment.
Senator Rónán Mullen: I do not ask colleagues to accept my arguments in an unthinking way. I merely request that they consider and reply to them without denigrating me and others.
In concluding, I ask the Minister to inform me how, in view of its tight scope, the amendment before the House could possibly offer carte blanche to the people on the list to which he referred. There is not a single item on that list which could be contemplated in the conscientious objection clause as I have drafted it. Why is it not the prerogative of the Oireachtas, as the State Legislature, to contemplate our new society and the issues which arise in respect of it? In view of the exemptions contained in the equality legislation, why should we not, in a tightly drawn way, facilitate one group in society — which may possibly be small or which may not, as yet, have manifested itself — without treating its members as bigots and while also ensuring the State can get the job done at the same time?
Senator Dan Boyle: Will the Leas-Chathaoirleach confirm that the Order of Business states that all Stages must conclude at 5.30 p.m.?
An Leas-Chathaoirleach: The Order of Business does not state that. It says that the proceedings shall be adjourned not later than 5.30 p.m. The debate is, therefore, open ended.
Senator Dan Boyle: We are dealing with No. 15 of 77 amendments. I had not intended to contribute to the debate on Committee Stage. What I had feared would happen, namely, the making of circular arguments, has come to pass.
An Leas-Chathaoirleach: The Senator should confine his remarks to the amendment.
Senator Dan Boyle: I am speaking about the process and I will address the amendment. This is the only occasion on which I have contributed to the debate on Committee Stage.
An Leas-Chathaoirleach: I am aware of that. However, we must confine ourselves to discussing the amendment.
Senator Dan Boyle: Certain other Members have spoken for 30 minutes at a time.
An Leas-Chathaoirleach: Changing the Order of Business is a matter for the Leader.
Senator Dan Boyle: As far as I and my party are concerned, if a motion is tabled to the effect that the question should be put, then that motion must be given active consideration. We cannot continue with this process for hours, days or weeks.
On amendment No. 15, the practicalities involved have been well argued by the Minister. I do not doubt the sincerity of those who moved the amendment. I am of the view that they genuinely believe in the veracity of the argument they are making. I wish to address the effect of that argument. There seems to be an implication that there are people with conscience and people without conscience. That might be too broad a generalisation but that it exists at all is offensive. Even in its narrowest sense, the implication is that there are those who possess a more developed sense or higher form of conscience and that this is better than the form of conscience possessed by others. That is offensive. The further implication is that there are people who want to apply their sense of conscience specifically to people with a certain lifestyle and sexual inclination and that this would salve their conscience, regardless of the effects on other members of the community. As the Minister said, the further implication is that public servants could address their public service roles in an àla carte manner without having to apply the law, as passed by this and the other House, directly and even-handedly. That is offensive, regardless of the sincerity with which the argument is made, how genuine those who believe in the argument are, how the argument is heard or represented. I suggest my speech will be well short of the average length of the contributions made on Committee Stage.
Senator Liam Twomey: Well short.
Senator Dan Boyle: The record of the House on Committee Stage will be grossly unrepresentative of the nature of the contributions made on Second Stage. I am confident, however, that we will win the eventual vote at the end of these proceedings which should finish this week. Any attempt to prolong the process or engage in the type of——
An Leas-Chathaoirleach: That has nothing to do with the amendment. It is a matter for the Leader of the House. We are on amendment No. 15.
Senator Dan Boyle: It is directly related to the amendment.
An Leas-Chathaoirleach: It is not.
Senator Dan Boyle: I will explain how it is related. We are addressing amendment No. 15, the debate on which has taken up most of the time of the House on Committee Stage.
An Leas-Chathaoirleach: Some 77 amendments have been proposed to the Bill which has over 200 sections. I ask the Senator to confine his remarks to amendment No. 15.
Senator Dan Boyle: I am addressing it particularly. I remind the Chair of the brevity of this contribution and that is the only time I will come in on the amendment. The disproportionate amount of time we have spent on it — we have spent more time on it than on any other — has eaten into the amount of time we will have to discuss the other amendments. If we were to list all of the remaining sections and amendments that have yet to be discussed, we would not reach the allocated time of 5.30 p.m. During the rest of this debate and in the light of the overwhelming willingness of the Members of this House to have the legislation passed we will need to give serious consideration to how we should make progress with this Bill.
An Leas-Chathaoirleach: That is a matter for the Members who may wish to speak.
Senator Alex White: I have a great deal of sympathy for what Senator Boyle said. Perhaps we will have to approach the issue in another fashion. On the amendment, I said on Second Stage that I thought the proposal to introduce a conscience clause was a contrivance.
Senator Ivana Bacik: Hear, hear.
Senator Alex White: I have not spoken this morning and will not detain my colleagues for very long. Nothing I have heard in the last three hours has persuaded me that what I said on Second Stage was wrong. This proposal is a complete contrivance because it is based on the perception that classes of people may require to exercise an objection. The point made by the Minister in his intervention ten or 15 minutes ago was bang on. We should consider his clear statement that “nowhere in existing legislation” have we provided for public officials to opt out from implementing the laws passed by these Houses. The point made by him in his timely intervention on our codes and laws is absolutely the case for very persuasive and compelling legal, constitutional and democratic reasons. Of course, it is true.
I accept the genuineness of what Senator Ó Murchú said about people having their views. He may not have meant it to come across as slightly patronising when he said he was prepared to let people have their views. However, there is a corollary to the holding of that position. One cannot say, “I do not mind if people are gay, or want to live in a particular way,” unless one is also prepared to include in law a means by which such persons can vindicate their right to live in such a manner; for example, with whoever they like. I heard an interview with Senator Mullen — I think it was on radio — in which he was pressed on this issue which has come up time and again in terms of motivation. He said he believed people who were homosexual absolutely had a right to their dignity.
Senator Rónán Mullen: I said they had their dignity.
Senator Alex White: He has said they have their dignity, as if that is something that requires to be conceded to them by him.
Senator Rónán Mullen: No. It is because people have been calling my motivation into question.
Senator Alex White: I will not be interrupted.
An Leas-Chathaoirleach: Senator White to continue without interruption on the amendment.
Senator Rónán Mullen: I ask Senator White not to misrepresent what I said.
Senator Alex White: I will not be interrupted.
Senator Rónán Mullen: The Senator is trying to demonise me.
Senator Alex White: There is no question——
Senator Rónán Mullen: He ought to be ashamed of himself.
Senator Alex White: ——of being prepared to concede——
Senator Rónán Mullen: He is just like his colleagues.
Senator Alex White: ——that people have their dignity——
An Leas-Chathaoirleach: Senator Mullen should allow Senator White to address the amendment.
Senator Alex White: ——without being prepared to include in law a means and a method by which their rights can be vindicated. That is the point I would like to make genuinely to Senator Ó Murchú. It is at the heart of this debate. One cannot have one without the other. In a democracy one cannot say in all fairness and honesty that it is fine for people to be gay and to want to live with somebody of the same sex without also providing for laws that allow that to occur. Senator McDonald made the same point eloquently earlier in this debate. That contradiction is at the heart of this proposal.
Senator Rónán Mullen: The Senator should read the amendment.
Senator Alex White: I will refer to the wording of the amendment. One of the provisions in the amendment is very telling. It refers to protecting registrars who raise an objection, as long as it “is not based on any of the discriminatory grounds identified in section 3, subsection (2), paragraphs (a), (c), (e), (f), (g), (h), (i) of the Equal Status Act, 2000”. That is the section of the Act that lists the prohibited grounds, including sexual orientation. How could the objection of a mythical registrar to registering a civil partnership not offend against the law that states there should be no discrimination against people of a particular sexual orientation? What else would the objection be based on? It could not be made on any other ground. Such an objection would constitute a direct form of discrimination. If I am wrong in that regard, I suggest it would certainly constitute indirect discrimination. How could it be otherwise?
As Senator McDonald said, this proposal would be a charter for discrimination. It does not stand up in any respect. This bogus notion is supposedly being proposed to accommodate those who hold a different moral position. In a democracy one debates what the laws governing state services should be, but one cannot play out the controversy every time the State delivers that service. The controversy should take place in Parliament and public when one is deciding what the solution is. One draws up a law on that basis. That law cannot be implemented, or not implemented as the case may be, on the basis of the views of a person providing the service. That is not how democracy works. One plays out the issues in public and Parliament and then one makes one’s decision. I think Senator Mullen understands this. I do not intend to stray into the area of questioning people’s motivation. Senator Mullen is intelligent enough to understand precisely what I am saying. I will set out the central contradiction. Perhaps “flaw” is too marginal or benign a word. The central dishonesty——
Senator Rónán Mullen: Come on.
Senator Alex White: ——is that it can be nothing other than an attempt to attack, undermine and set aside the basic objective of the legislation. It should be opposed absolutely. I thank the Minister for being so clear in his opposition to this provision which we should reject. If it is order to do so, I ask the Leas-Chathaoirleach to put the question now.
Deputy Dermot Ahern: I want to intervene on the same basis as Senator White. Before I do so, I genuinely do not believe Senator Mullen is homophobic. I accept that completely.
Senator Rónán Mullen: I thank the Minister.
Deputy Dermot Ahern: To a certain extent, this is a battle in which Senators are engaged on the issue of freedom of conscience, but there is a bigger battle to be fought on what are probably more difficult ethical issues that will come down the line in years to come.
Senator Rónán Mullen: That is partly true. There is a principle at stake.
Deputy Dermot Ahern: In his last intervention the Senator clearly indicated that he had foreseen that there would be difficulties in this respect. Most people would accept there might be issues coming down the line, in respect of which freedom of conscience may very well be examined. However, we are dealing with the issue of civil partnership which we all accept is a reality. The Senator’s amendment would for the first time set a precedent, whereby a public servant could discriminate on the grounds of sexual orientation. That is specifically stated in the amendment. Section 3(2)(d) of the Equal Status Act 2000 includes what is known as “the sexual orientation ground”. The Senator has gone even further, saying a refusal or objection on the grounds of sexual orientation or marital status would not be deemed to be discrimination.
Senator Rónán Mullen: Correct.
Deputy Dermot Ahern: I disagree with the Senator because clearly that would set up the possibility that a public servant could opt in or out as he or she so wished. I made the point that one could not run a country on that basis, that on issues such as this, particularly to do with sexual orientation or marital status, people would have the right to opt in or out as they so wished.
An Leas-Chathaoirleach: I am satisfied the amendment has been debated adequately in the House.
Senator Rónán Mullen: An issue was raised that needs a response.
An Leas-Chathaoirleach: Is the amendment being pressed?
Senator Rónán Mullen: May I respond briefly?
(Interruptions).
Senator Rónán Mullen: It would not be to the credit of the House——
Question, “That the words proposed to be deleted stand,” put and declared carried.
Amendment declared lost.
Senator Rónán Mullen: On a point of order——
An Leas-Chathaoirleach: Is section 22 agreed to?
Senator Rónán Mullen: I am pressing the amendment.
An Leas-Chathaoirleach: I put the question. The Senator is too late.
Senator Rónán Mullen: I was raising a point of order and not whispering.
An Leas-Chathaoirleach: After I have put the question, I cannot take a point of order.
Senator Rónán Mullen: I asked to raise a point of order before the Leas-Chathaoirleach put the question.
An Leas-Chathaoirleach: I put the question and it was dealt with.
Question put: “That section 22 stand part of the Bill.”
An Cathaoirleach: Will the Senators claiming a division please rise?
Senators Feargal Quinn, Rónán Mullen and Shane Ross rose.
An Cathaoirleach: As fewer than five Members have risen I declare the question carried. The Senators dissenting will be recorded in the Journal of Proceedings of the Seanad.
Question declared carried.
SECTION 23
Question proposed: “That section 23 stand part of the Bill.”
An Leas-Chathaoirleach: This section is opposed by Senators Hanafin, Ó Murchú and Walsh. I call Senator Walsh.
Senator Jim Walsh: I will be reasonably brief. I note from the explanatory memorandum that section 23 imposes a fine of €2,000 or imprisonment of up to six months on a registrar who is in breach in regard to registration. I do not know whether it goes further than applying to registrars.
There are three parts to the conscience issue. There are religious bodies, with which we will deal later as we have tabled an amendment in regard to them, registrars or the employees of the State and service providers. In regard to service providers, if I had a premises such as a hotel which provided a service and I was approached by a couple who wished to celebrate their civil partnership in it, I would have no difficulty allowing them to have their celebration there and I would gladly take their money. Balancing the anti-discrimination side with freedom of conscience is an important issue in this respect.
While I am taken with what has been said earlier, if an employee of the State in particular does not comply with the legislation, surely there is provision under industrial relations procedures to deal with that. I have concerns about criminalising such non-compliance in cases where people could have a very genuine conscientious objection. We must try to see if we can allow for that. I could not find a way as to how we might allow for it without there being a feeling of some form of discrimination. It was for that reason we thought that not criminalising it might be a better approach.
Senator John Hanafin: I agree with what Senator Walsh said. I am very conscious of the allowance that is made in the UK for nurses who, on conscientious grounds, will not perform or be involved in the performance of an abortion. How can we have a situation where we would criminalise people for genuinely conscientiously held reasons? It appears to be excessive and very wrong. The issue goes beyond the fine or term of imprisonment of six months. It is at the core of what Senator Labhrás Ó Murchú eloquently spoke on during the Order of Business on an occasion. The section imposes penal laws on people who have genuinely held beliefs. Such actions will not promote the liberal agenda. For the remainder of the debate it would be useful if people spoke on what we believed rather than what they think we believe.
Senator Labhrás Ó Murchú: I made my views on this issue known before the Bill was brought before the House and I still feel the same way. There are Senators in the House who may not necessarily take the same view as we do on some issues and who may have certain reservations about the Bill which I hope can be revisited. Criminalising somebody in this way would serve no purpose. It generally has a counter effect. In this case we would be as well off not to include such a provision in the Bill.
Senator Joe O’Toole: I am happy to take the opportunity to speak to the amendment which goes to the core of some of the arguments made, some of which have been disgraceful. It is pure scaremongering; the arguments made have no basis in fact or law. I went to the trouble of checking after I heard what Members had to say yesterday. The amendment would change the 2004 Act which deals with the issue of criminalisation. Under the Act, on summary conviction, a person is liable to a fine of up to €2,000 or a term of imprisonment of up to six months for deleting, altering or procuring the deletion or alteration of information on the register, keeping or procuring information on the register on a computer and changing it. There is a list of wrongdoings and actions specifically taken to corrupt the process of registration, in other words, there is a wilful act in breach of the law which covers all such eventualities.
The section being opposed adds a new offence and I would like the House to listen carefully. It deals with a registrar who refuses to registers a civil partnership. I would like Senator Walsh to listen to this. It reads: “A registrar who without reasonable cause either fails or refuses to give a civil partnership form shall be guilty of an offence”. Somebody has to say, therefore, that there was not reasonable cause. There can be a range of responses to the offence, but if one takes it that the range will have to be reflected in the judgment of the court — this would be the least serious of a series of offences — this is not something that should worry decent people; it is not something about which we need to worry. It does not mean somebody who fails to give a civil partnership form will be criminalised and thrown into jail. A person will first have to be asked why he or she did something. Perhaps that is why Senator Walsh asked why there was no provision for a human resources approach. There is. The first question to be asked is: “Why did you do it?” Somebody will then have to decide that there was not reasonable cause. This does mean somebody will be thrown into jail or fined €2,000. One could argue the provision is excessive, an argument to which I am prepared to listen but not agree with, as I can see the point of it. However, it is wrong to give the impression that somebody who fails to act on the basis of conscience or any other will suddenly winds up in jail. That is not the case.
Senator Liam Twomey: I do not want to be controversial in my remarks, but there is something inherently wrong with this debate when we compare the celebration of a same-sex union with a person’s objection to carrying out an abortion. When a person who puts them on the same level says he is not homophobic, there is an inherent contradiction. Much of the debate on the Bill has skewed completely from what it seems to be about. There is a need, therefore, for the Senators who oppose the Bill to tighten their arguments on what their objections are and not use emotive language while debating the issues involved and not make such a direct link. They should make their points on the ethos of a church or religious institution but stay away from making such comparisons.
Senator Ivana Bacik: We support section 23 which is very straightforward. The arguments in favour of it have been made. Senator Alex White has made the same point. The sanctions are included in section 20 of the 2004 Act and section 23 simply extends them to cover civil partnership registration and the work of a registrar in that regard. It is appropriate that we do this. I do not think we will ever see anyone being prosecuted or penalised for breaching the provisions of the section which has been in place since 2004 and there was no objection to it at the time. This is a red herring, a non-issue and an attempt to destabilise and undermine the Bill. It is time we moved on because the Bill has the broad support of the overwhelming majority of Senators.
Senator Alex White: Hear, hear.
Senator Shane Ross: I agree with the Bill and will be voting in favour of it. That does not mean we have to agree with every single point, part or section of it. I disagree with virtually everything that has been said about this clause on both sides of the House. An offender under the section can go jail and be fined an enormous amount of money. I have just read it and may be open to correction. The person concerned is being put in the category of a criminal, which is completely different from the offence which he or she has supposedly committed. The other offenders under the 2004 Act are all active who commit offences such a fraud which is obviously something which not only has to be discouraged but also punished. I understand in this case, based on what Senator O’Toole said, that when a person “without reasonable cause” — a very subjective judgment — fails to do something, he or she is committing an offence. It is when someone fails to do something which is part of his or her job that he or she is committing an offence. The idea that for not doing one’s job for whatever reason — I do not want to discuss the issue of conscience because I do believe there is a case to be made for conscientious objection which is impossible to define — a person can be put into jail is utterly wrong. There should even be such a possibility——
Senator Ivana Bacik: On a point of order, it is already included in the 2004 Act.
Senator Shane Ross: I do not care about that. It was wrong then and it is wrong now. That is the point. Just because it is included does not make it right. The Senator knows this perfectly well.
Senator Alex White: Propose an amendment.
Senator Shane Ross: It is obvious that this is an inappropriate punishment. The appropriate punishment in this case is simple: people should be dismissed from their jobs — end of the story. I do not know if people in the private sector are put in jail when they do not do their job. It only happens when they commit an offence such as theft, show disloyalty or do something which is against the law. We are creating a new offence of not doing one’s job which is utterly wrong. We hear a lot about others possibly being sent to jail, but that this will happen to people in the public service is unacceptable. To be told it is unlikely to happen is totally unconvincing. I agree it is unlikely to happen, but to suggest people should be locked up for not doing their job is extreme. On this issue only I am prepared to vote against the Government. I appeal to the Minister to consider amending this provision in a reasonable way because it is not convincing to say it is impossible for this to happen. It is possible; it is the law. Judges can make completely different decisions for different reasons. The idea that someone in the public service should go to jail because he or she has said, for whatever reason, that he or she will not do his or her job is utterly wrong. Let us fire them or leave them to be subject to the normal process of employment law. Let us not send him or her to jail.
Senator Rónán Mullen: By opposing section 23 I hope to achieve a similar goal to my previous amendment. Whereas I had attempted to define “reasonable cause” so as to leave the offence in place while giving a person room to avoid being deemed to have committed an offence, I oppose the section because the severe punishments it sets out are inappropriate in the context of registration of civil partnership. As far as I am aware, if an official fails to comply with the law in the North, he or she may lose his or her job but would not be liable for criminal prosecution.
Senator O’Toole argued there is no basis in fact or law for what is being claimed. I demur at the use of the word “disgraceful” to describe not only the issue but also by implication the motivation of the people who put forward the amendment. I dissent from such an approach to the argument. Senator O’Toole is incorrect to claim there is no basis in fact or law for what is being claimed by the proponents of this amendment. There is the possibility of an offence which covers a range of transgressions. Nothing in the legislation excludes a possible offence in this context from the most severe of the penalties. The Senator may have an arguable case that there is no basis in fact on the grounds that this area has not seen many prosecutions, although he appeared to be looking into the crystal ball when he suggested there never would be a basis in fact.
Senator Joe O’Toole: No, I am not. It is not there.
Senator Rónán Mullen: He is certainly wrong to say there is no basis in law because the law clearly provides for this possibility. It is no argument to say “trust us”, which is the essence of Senator Bacik’s intervention. We are here to legislate for situations that may not have occurred in the past but which might occur in the future. We must have an eye for the changing trends in society and possible future examples of intolerance on the secular side, just as there was in the past intolerance on the religious side. This is why we have to think out the future. To paraphrase G.K. Chesterton, let us not be so open minded that we let our brains fall out. We must predict what is going to happen.
The opponents of this section do not have to meet a high threshold. They merely have to show that, for the avoidance of doubt, it would be preferable to exclude the possibility that a person would face such severe sanctions for a transgression of this nature. To my mind, they have discharged that obligation persuasively and I will support them.
Senator David Norris: I was about to make a point that I have discussed with Senator O’Toole but I think he is the better person to make it.
Senator Eugene Regan: Senator Ross is totally wrong. This is not a simple question of someone not doing his or her job. The offence is unlawful discrimination and, worse still, it would be committed by a public servant acting in an official capacity. This is why sanctions are needed to prevent such discrimination.
Senator Mullen used the term “reasonable cause”, which is contained in the Act. If I understand him correctly, he is saying sexual orientation is reasonable cause to discriminate where the registration involves a gay or lesbian couple. This brings us back to the hostility against gay and lesbian couples which, as far as I can see, is inherent in this and other amendments.
Senator David Norris: Hear, hear. Well said.
Senator Lisa McDonald: I support this section. It is appropriate that jail is the ultimate sanction in our penal code. A person who threatens to kill somebody can be imprisoned for life but he or she would more commonly receive a suspended sentence or two years in jail. That is an example of the sliding scale and the evidentiary process. When a public official makes a mistake or discriminates against another individual in the course of his or her duties, he or she will be subjected to the rigours and fair process of the disciplinary system. In a worst case scenario, where the discrimination is so blatant and terrible that it warrants jail, that would have to be considered in the final analysis. Generally speaking, however, that road has never been followed.
I do not agree with Senator Ross’s assertion that people cannot go to jail for not doing their jobs. At issue here is an official who performs a public duty by marrying same-sex couples. It is not sufficient that discriminatory practices would merely result in the perpetrator losing his or her job and continuing these practices in a new position until, perhaps, the penny drops that he or she requires a conversion on the road to Damascus.
If one has a problem with same-sex couples getting married, one should not be a registrar but one should not discriminate.
Senator David Norris: Hear, hear.
Senator Lisa McDonald: In other jurisdictions around the world where minorities have suffered, tough legislation was needed to stop discrimination. Before the Equal Status Act came into force, Travellers were refused service in many bars. Now, however, they can go into bars and they behave themselves. I appreciate there are times when everything is not okay but if the sanction was not available we would never have taken that quantum leap. We must move away from the word “tolerance” and begin to accept all minorities in society.
We are debating a phantom minority which does not exist. We say minorities need to be protected because we are naval gazing or wondering what will happen in the future. We will deal with the future when it comes but, right now, we are dealing with a minority whose rights have been trampled on for decades and who were criminals in this country 16 years ago. We need to move on with this legislation and put the section to a vote. I accept Senator Walsh’s bona fides in opposing the section but it is my right to disagree with him. We need to move on to vindicate the rights of the minority we are here to protect.
Senator Geraldine Feeney: Like Senator McDonald, I do not agree with the opposition to the section. It is just a red herring or a pretext for the wider opposition to the Bill. Public officials, by their very nature, are good people who carry out their duties to the highest standard. Those who work in the public service do not and, I hope, would not seek the freedom to ignore State policy. This Bill is going to become State policy. If they had that freedom, the machinery of the State would grind to a halt and we would become a banana republic.
Job descriptions change from time to time. We have all taken on added responsibilities or covered new areas at some point in our working lives. ICTU or another source would have sought an amendment or protocol to the Bill if there were any such concerns about persons performing their duties. I agree with Senator McDonald that a person who is not capable, on the basis of conscience or otherwise, of treating everyone equally and with dignity and respect should not be a registrar.
4 o’clock
Senator Feargal Quinn: I have not spoken much on this topic. This issue has been simplified and speakers have not recognised that some people have real problems with the section. It has been argued that job descriptions change from time to time. When this occurs, people are disciplined or, as Senator McDonald stated, disciplinary procedures are pursued. If someone does not obey the outcome of a disciplinary procedure, he or she is usually sacked. Senator Ross is correct on that point. This matter is different, however, because we are creating law which will last. I am concerned about the use of terms such as “it is highly unlikely” or “generally speaking”. Relying on improbabilities or generalities does not make good law.
If we do not remove the section, a person who commits an offence because of a change in his or her job description could go to jail. While I accept that such a scenario is highly unlikely, I am not in favour of making laws which rely on generalities or improbables. As Senator Ross noted, the solution is to dismiss those who do not do the job they are supposed to do.
Senator John Hanafin: I concur with Senator Quinn. If a scenario is highly unlikely or does not feature on the agenda, why is it provided for in the Bill? It seems the purpose of the section is to be penal in the sense of penal law, in other words, vindictive. The approach appears to be one that those who do not agree with our view will be made to pay for it.
It appears I am not allowed to use an example unless it is pari passu. This does not happen at times but it accentuates the point. I ask the Minister to address two points. If it is acceptable in the United Kingdom for a nurse to be allowed to decline to perform her duty as prescribed by law, why is a similar scenario — a decision taken in conscience and not necessarily provided for in the Act — not acceptable? I have requested a schedule of cost for the legislation and ask the Minister to provide such a schedule to show the cost of the Bill over the next three to five years.
Senator Labhrás Ó Murchú: Apart from his preamble on the motives of people who hold a contrary view to his own, Senator O’Toole hit on something for which I felt like cheering him. On examination, however, I believe he is incorrect because having discussed this point with the Minister, we left the meeting believing there was a possibility that someone would go to jail in this context. I will be pleased if it transpires that I am wrong and Senator O’Toole is able to show this is not the case because this is the only aspect of the Bill on which I have spoken, whether on the Order of Business or at other times. I continue to make the same point on this section. If, as most people argue, the scenario provided for is unlikely, it is not necessary to include it in the legislation. Senator Hanafin went further and asked why the section is included in the Bill. If it does not serve a purpose and we are not trying to send out some type of message and wish to continue to implement legislation in the right spirit, it would be better not to have a provision of this nature in the Bill.
Senator Jim Walsh: I know lay people who are much more religious than I am and hold conscientious views on matters which they believe infringe on their beliefs and the teachings of their religion. I can envisage such persons being caught by this provision. I assumed — perhaps I was wrong — that the words “without reasonable cause” would not cover such persons. Perhaps the Minister will clarify this matter, on which there have been discussions among officialdom. If a person found himself or herself in the circumstances described, will it be possible to accommodate him or her to ensure he or she is not criminalised? I do not mind if a person is suspended for a week or transferred to another Department.
I do not disagree with anything Senator McDonald said about discrimination. What we are trying to do is reconcile two competing priorities, namely, the need to ensure people are not discriminated against and the need to accommodate genuine freedom of conscience. I know the latter is difficult to determine. If the Minister is able to give me any comfort on this matter, I would take a different view on opposing the section.
An Leas-Chathaoirleach: Senator Mullen is indicating.
Senator Joe O’Toole: The Senator has spoken since I lost spoke. I would like to respond to his comments as he challenged my views.
We need to examine what is happening here because it is a little like the invasion of Afghanistan when the Russians stated they were invited into the country. The group of people the amendment is rushing to protect does not want our protection. The individuals in question are doing their job, are aware of the issue given that it has been widely reported in the newspapers yet not one of them has said he or she needs our protection. Some of us are determined to give it to them in any case. We are rushing to help people who do not want to know. The last thing they want to see is a group of politicians rushing at them, as it were.
We need to consider this issue in real world terms. Important issues have been raised by a number of speakers, including Senator Quinn. To assist Senator Mullen and others, I will read again what is written in the section. It will apply to a registrar “who, without reasonable cause, fails or refuses to give a civil partnership registration form to one of the parties”. What happens before one reaches this point is the human relations aspect of the process to which Senator Walsh referred. If someone working in an office indicates to his or her boss that he or she is not prepared to carry out civil partnership functions or weddings, the boss then has a job to do, namely, find a local arrangement, transfer, sack or suspend the person or find another solution. We must bear in mind that a crime has not been committed and a human resources procedure is followed before one proceeds further. When someone refuses to carry out a function it must be dealt with locally. Sacking the person, as some Senators have suggested, could be much more costly than the maximum fine of €2,000 provided for in the section. The action taken will depend on the local arrangements in place. At that point, the civil registrar may simply refuse to carry out his or her function.
Why do we need the provisions of the section? It is not only a matter of scale, as a number of speakers suggested, but also one of aggravating circumstances. In many cases, a gay couple will not have a great deal of self-confidence in dealing with public matters of this nature. Not only could they be deprived of the civil partnership registration form, there could be aggravating circumstances, for instance, they could be led to believe that it is not possible for them to enter into a partnership or a form could be lost. The scale provided for is necessary to address such aggravating circumstances.
The issue is not one of a person refusing to hand over a piece of paper or sign a form but one of discrimination. I ask Senator Mullen or another opponent of the Bill to put a price on discrimination. At what point does a continuing contravention of the law by discriminating against a person fail to be important? If someone continues to hold an unlawful position, should we back off? While I do not envisage such a scenario, I am being forced to bring the hypothetical case to its conclusion. If there are aggravating circumstances, we must be able to measure them in terms of the response of the law. We are depriving a citizen of a legal right — rights we are putting in place with this legislation. Someone is being discriminated against. Someone is being deprived of his or her rights. Someone is not applying the law we are passing. Someone may not have dealt with this or agreed with any arrangement that was made previous to this in his or her office, whatever HR arrangements were there. This is all the background stuff. Things do not happen like that. As there is always a story behind a story, how would we get to it?
The other issue is moral hazard. The idea that we could put into legislation that someone can refuse to do an aspect of his or her job is inviting situations where people go forward. I am not talking about people with a conscientious objection; that may well be the case. I find it difficult to deal with that issue, but I am not talking about that. A parish priest described someone some time ago by saying “It’s not that he had lost his religion; he was just too lazy to get up to go to Mass.” I am talking about someone who is too lazy to do his or her job and claims to have a moral objection. That is a moral hazard. It would open issues which would make it impossible to control because someone could claim to have a conscientious objection. Someone who is lazy might not have any trouble telling lies or — I remind Senator Mullen about this — might have a mental reservation about it one way or another.
The serious point is that this is not something that happens like a bang. This is something that builds up. If someone working in an office or elsewhere, including in teaching, claims to have a difficulty about something or other, the boss needs to deal with it. If it cannot be dealt with, action needs to be taken. If action is not taken, it moves to a next step. If it is a minor thing that someone has refused to do his or her job, action should be taken about that.
Senator Jim Walsh: If they do not, they can end up in prison. That is the point.
Senator Joe O’Toole: We need to allow for aggravating circumstances. I will not hear anyone say that the refusal is simply refusing to hand out a form. I want to hear it said that this is discrimination and deprivation of a legal right we are putting in place. We need equality before the law. It is important we respond to it in that way. I do not want to and I do not believe I will ever see anyone go to jail as a result of this. However, I want people to know that we, in this House, value the rights of our citizens and will ensure they will be delivered for them. That is why it goes up that sliding scale. It is not as if someone makes a mistake and finishes up in jail. There are many steps in between.
Senator David Norris: Senator O’Toole has very adequately dealt with a number of points. I believe Senator Mullen indicated very honestly that this is, to a certain extent, a device for reopening the discussion that has been held already on——
Senator Rónán Mullen: I did not say that.
Senator David Norris: He said something very close to it.
Senator Rónán Mullen: No, a million miles away. I shall explain in a minute.
Senator David Norris: Something very close to that was said. I shall leave it at that.
The Minister has largely dealt with these problems. Taking into account that this is a device for reopening the discussion of the subject matter of amendment No. 15 and because the wording of that amendment also includes marriage, it opens up the floodgates of Islamophobia, etc. There may well be cranks who would not give a civil partnership to people who are Muslim. That is a much greater possibility than the possibility of someone going to jail. I do not believe that anyone would go to jail. I think it is highly unlikely that this clause will ever need to be invoked in terms of the provision of service. I have just returned from the barber’s shop. I have read reports in the newspapers that some people believe that hairdressers would be forced do weddings and civil partnerships. I asked in the barber’s shop whether there would be any objection and everyone there fell around the floor laughing. It is so bloody absurd.
This is not a victimless crime. It is not just someone claiming he or she does not want to shuffle a piece of paper around. Senators should imagine themselves in the situation of people who want to apply for a civil partnership, which they will be perfectly entitled to do under the law of this land, hopefully, after this evening, and are bluntly told: “No. Get lost. We’re not doing it.” What will their feelings be? This is a really poisonous situation.
Senator Hanafin and several others have deliberately dragged in the idea of abortion. I now call on them publicly to clarify that and to make it absolutely clear that they are not equating in the slightest sense or in any way the performing of a civil ceremony for same-sex couples with the performing of an abortion. That must be clarified. It is so easy to throw around the word “abortion”, which gets many people very steamed up. I want that issue to be clarified urgently.
I hope we will not have a repetition of what happened last night when on a series of amendments with exactly the same wording we were put through the necessity to vote.
An Leas-Chathaoirleach: That has nothing to do with the amendment.
Senator David Norris: The Cathaoirleach asked the people who called for the vote to stand up. People, who had never contributed once to the debate, came into the House and stood up to get the vote.
An Leas-Chathaoirleach: Senator Norris——
Senator David Norris: That is acceptable on one occasion, but not for the same amendment endlessly.
An Leas-Chathaoirleach: Senator Norris, that has nothing to do with this amendment.
Senator David Norris: I ask the Leas-Chathaoirleach to keep moving on and get the job done.
Progress reported; Committee to sit again.
Senator Donie Cassidy: We have listened attentively now for more than 18 hours. There is repetition and filibuster in my opinion.
Senator David Norris: Hear, hear.
Senator Donie Cassidy: I propose an amendment to the Order of Business. I propose that Committee Stage of the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009 shall conclude at 4.30 p.m.; that there shall be a sos from 4.30 p.m. until 5 p.m.; and that Report and Final Stages shall conclude not later than 6 p.m.
Senator Rónán Mullen: Outrageous. It is an attack on democracy.
Senator Eugene Regan: I understand the Leader’s motivations. I do not like the notion of guillotining any debate.
Senator Donie Cassidy: I have never guillotined before.
Senator Eugene Regan: This has become an exercise in absurdity. It has been suggested that this has been a wonderful debate. However, I think it has been awful, meaningless and futile. There has been repetition and arguments advanced which have not been explained, do not relate to amendments proposed and are entirely repetitive. We need to do something to curtail the debate and bring it to finality.
Senator David Norris: I would be very reluctant to support a guillotine. However, it should be possible to take out all the repetitive amendments and deal only with any contentious ones. I do not like to stifle debate. It is imperative that we get on with this. Let us consider the good faith or bad faith of some of the people on the other side. Senators Mullen and Quinn have opposed 64 sections of the Bill.
Senator Rónán Mullen: So what?
Senator David Norris: They are perfectly entitled to do so, but that——
An Leas-Chathaoirleach: That has nothing to do with the proposed change to the Order of Business.
Senator David Norris: ——does not suggest they want to get the Bill passed. The amendments they have tabled would stand the entire principle of the legislation on its head.
An Leas-Chathaoirleach: I ask Senator Norris to resume his seat. I call Senator Bacik.
Senator David Norris: Let us go ahead and discuss the essential issues and let us finish the job.
Senator Ivana Bacik: No one wants to stifle debate, including those of us in the Labour Party. We have genuine amendments tabled on which I was looking forward to engaging with the Minister. I believe we had a constructive debate on the very important amendments on children’s rights last night and on what we see as a major flaw in the Bill, the lack of recognition for children. However, we have not had genuine debate in the past four hours, but an attempt to disrupt and filibuster the passing of this important legislation——
Senator David Norris: Exactly.
Senator Rónán Mullen: That is not true.
Senator Ivana Bacik: —— on which the vast majority of Members of the House are agreed. That is what we have seen today.
Senator Rónán Mullen: This is a new low. I had planned to express regret that Senator Regan repeated the calumny that some of these amendments came from hostility to gay or lesbian couples. I am surprised that he could not get the basic point that there is a world of distinction between having opposition, hostility or disregard to gay and lesbian couples and having a moral view on public recognition for same-sex relationships——
Senator Eugene Regan: The Senator has not explained it.
Senator Rónán Mullen: ——and going further to have a moral view that other people are entitled to their moral view. It does not surprise me that he has spoken in support of the guillotine, particularly given that the leader of his party wants to abolish the Seanad. The Leader is contributing to the contempt in which the Seanad is held by so many members of the public.
(Interruptions).
Senator Rónán Mullen: When he does not like the arguments he is hearing, he seeks to close down the debate. The Labour Party and Fine Gael will be complicit with his attempt to close down the debate in the Senate.
Senator Alex White: That is some persecution complex.
Senator Rónán Mullen: It is a disgrace.
Senator John Hanafin: I am very disappointed that we are where we are. I think that some of the contributions could have been more concise——
Senator Ivana Bacik: That is an understatement.
Senator John Hanafin: ——but I am still disappointed there has to be a guillotine. We could have moved very quickly through some of the other sections. I accept that this is the reality. However, I wanted to mention that there is a possible constitutional difficulty in section 173.
An Leas-Chathaoirleach: We are not dealing with that. I cannot let you in on it.
Senator John Hanafin: I accept that, but the point is that I cannot get to speak about what I think is a constitutional difficulty for the right of existing children——
An Leas-Chathaoirleach: We are dealing with the change to the Order of Business. I call Senator Walsh.
Senator John Hanafin: I accept that, but we will not get to it.
Senator Jim Walsh: The reply from the Minister would certainly determine my views on this section. Would it be possible to re-enter amendments Nos. 32 and 59 on Report Stage if we finish with Committee Stage? I think amendment No.32 may have constitutional implications. It engages my mind about disadvantaging the family.
An Leas-Chathaoirleach: The only thing before me is a change to the Order of Business and there are many people who want to contribute. The only thing I can do is put the question. Is the change to the Order of Business agreed? Agreed.
Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009: Committee Stage (Resumed)
SECTION 23.
Question again proposed: “That section 23 stand part of the Bill.”
Minister for Justice and Law Reform (Deputy Dermot Ahern): I said at the end of Second Stage that I thought it had been an excellent debate, and it was. Unfortunately, as I predicted, the way in which Committee Stage has been dealt with has not done the Senate any service. I do not have to point the fingers in that respect.
I am implacably opposed to the deletion of this section for the simple reason that to do so would be discriminatory. It is purporting to create a situation whereby a registrar fails or refuses to give a form and does not suffer any sanction other than the disciplinary procedures that might be normal for any public servant.
Senator Hanafin and others asked why we should have a criminal sanction if it is not used. The criminal sanction has already been on the Statute Book since 2004 in respect of other offences and whether it has been used or not, the fact that it is there is a clear statement by the Oireachtas to those people who might, without reasonable cause, fail to do something they are required to do. It is clearly a dereliction of their duty and the Oireachtas should send out a strong signal that this is not something that can only be dealt with by a disciplinary tribunal or whatever. It must be dealt with if it is a very serious offence. As Senator Ross said, this is not a victimless crime.
Section 69 of the 2004 Act lists the offences a registrar might commit by not acting in accordance with the Act. It also includes a non-registrar, in other words, an ordinary person. A person who gives to the registrar particulars or information which he or she knows to be false or misleading is guilty of an offence. All of those offences are punishable, on summary conviction under section 70, by up to six months and a fine of up to €2,000, while there are much more serious penalties for conviction on indictment. All of those section 69 offences are punishable by that criminal sanction. What is being proposed here is clearly discriminatory in respect of a failure to give a form concerning civil partnership. The people who are proposing the deletion of this section are effectively proposing that in that instance, there should be no criminal sanction. I disagree because it is clearly discriminatory.
The term “without reasonable cause” is there as a defence if the person has good reason not to fulfil what he is required to do under the section. It is entirely up to that person to prove it in a defence of any prosecution that takes place. Therefore, there is an “out” in that respect. However, what is proposed is discriminatory because it is making a difference in the sanction purely and simply because it refers to a civil partnership registration.
Senator Labhrás Ó Murchú: We always welcome the Minister’s response. It is quite clear there are different views on this Bill and the Minister has to provide us with a focused view that we believe will enable us to endorse the legislation that is being brought forward. I spoke three times today and I do not think any of my contributions exceeded three minutes. I kept things very brief because I had hoped that throughout the debate, we would be able to categorise each argument, each point of view and each question for clarification.
If there was filibustering here — it has been suggested there was — there could be reasons for it, but I will not point fingers at any person. However, everyone will agree there were more people in favour of the Bill in its totality than those opposed to elements of it. For that reason, there will be many more voices being put forward.
An Cathaoirleach: We are on section 23.
Senator Labhrás Ó Murchú: I do not think we could have a guillotine this evening only for the fact there is near unanimity within the House. It is a black mark on us and I know the Leader will be very hurt about this because he has a very proud record. It means that instead of using Standing Orders to control the debate, we now find a big question mark in the public arena that because there were only a few who wanted to question this legislation, the only message that goes out is that for the first time in the life of this Seanad, we brought in a guillotine because we had near unanimity to do that. As a democrat, I am sorry to say that.
I accept the ruling and when the Bill is passed, I will accept that. However, we should make up our minds that whatever happens in the future, we may still come back and express our views. If others do not agree with those views, which we expect to happen, we should still be entitled to put them and those opposed should do likewise. It is sad day for me personally and I am sorry it has ended in that manner.
Senator Rónán Mullen: I believe there was a dangerous ambiguity.
Senator Donie Cassidy: I had proposed that we adjourn from 4.30 p.m. to 5 p.m.
An Cathaoirleach: I am in the Chair and I am watching the clock and it is not 4.30 p.m.
Senator Donie Cassidy: I apologise to the Cathaoirleach.
An Cathaoirleach: There is to be a sos at 4.30 p.m. I am obliged to call the next speaker when there is time available.
Senator Donie Cassidy: Okay.
Senator Rónán Mullen: There was a dangerous ambiguity in what the Minister said a few moments ago. He said there is no need to point the finger in regard to filibustering. I have already said that I certainly was not filibustering but I make no apologies——
(Interruptions).
Senator Rónán Mullen: When Senator Regan said that——
An Cathaoirleach: As it is now 4.30 p.m. I am required to put the following question in accordance with the amended order of the Seanad of this day: “That section 23 is hereby agreed to in committee, that in respect of each of the sections undisposed of, that the section is hereby agreed to in committee, that the Schedule and the Title are hereby agreed to in committee, and that Bill is accordingly reported to the House without amendment.”
Question put and agreed to.
Sitting suspended at 4.30 p.m. and resumed at 5 p.m.
Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009: Report Stage
An Cathaoirleach: Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment, who may reply to the discussion on the amendment. Also, on Report Stage each amendment must be seconded.
Senator Jim Walsh: I move amendment No. 1:
In page 49, to delete lines 21 to 26 and substitute the following:
“the estate shall be distributed in equal shares to the surviving civil partner and each of the children of the deceased civil partner”.
This amendment, tabled by Senators John Hanafin, Labhrás Ó Murchú and me, refers to section 73 and deals with intestacy. Section 73 inserts a new section after section 67 of the Succession Act 1965. The newly inserted subsection 67A(1) of the Succession Act will deal with a situation where a person dies intestate leaving a civil partner and no issue. It provides that the civil partner will take the entire estate. I recognise there is an element of equity in this provision and I do not have difficulty with it.
However, I have concerns about the newly inserted subsection 67A(2) and our amendment would change it. It states that if an intestate dies leaving a civil partner and children the surviving civil partner is entitled to two thirds of the estate and the remaining shall be distributed among the children.
I have had some slight discussion with the Minister on this matter. I ask Senators to picture a scenario where a husband dies, leaving his estate to his wife. He also leaves three children. The new family unit is a mother and three children. The mother subsequently enters into a civil partnership with another woman. Should she die, her children’s inheritance would be confined to a small proportion of their parents’ estate. We think this is inequitable.
We fully accept that the surviving civil partner is entitled to a proportion of the estate. However, the children of the deceased civil partner are not adequately catered for in the Bill, although I understand there is provision for them to go to court and seek a redistribution of the estate. Our preference is that the estate be divided in equal share to the surviving civil partner and each of the children of the deceased civil partner. In the example I gave, the civil partner would then get 25% of the estate and not two thirds, and each of the children would get 25% and not one third of one third, or approximately 10%. We think that is fairer and it is the motivation behind the amendment.
A second issue arises from this. The widow and her three children would be regarded, constitutionally, as a family unit. Once she enters a civil partnership that unit no longer exists. It looks to me as if there could be a constitutional issue here. The provisions of the Bill do not adequately address the surviving members of her family, her three children.
There are two issues to consider. One is the possible infringement of the constitutional regard for the family. The other is the more important issue of fairness to the children of the deceased member of a civil partnership. A surviving civil partner might well be self sufficient or quite wealthy whereas the children might have only a small proportion of their parents’ estate.
Senator Rónán Mullen: I second the amendment.
Senator Liam Twomey: I ask the Minister to clarify the following matter. If the father of three children died and the children were left in the care of their stepmother, who was their father’s second wife, the Succession Act would affect them similarly to the children in Senator Walsh’s example. They would be entitled to a share of one third of their father’s estate and their stepmother would be entitled to two thirds. The legislation would also have to be changed if the equity called for in the amendment were to apply to them. All succession legislation regarding how families work would need to be changed. I ask the Minister to clarify my query.
Senator Ivana Bacik: I oppose this amendment. On Committee Stage, Labour Senators tabled two other amendments to section 73, which we felt would have clarified the section. One of our amendments would have been to delete the phrase, “subject to subsections (3) to (7)” in subsection 67A(2)(a). The Law Society of Ireland had recommended that those words should be deleted to avoid litigation and uncertainty and to make it clear that the surviving civil partner would take two thirds of the estate of the intestate civil partner who had died. This would have put them on par with the surviving spouse of a marriage. We felt that would have been an improvement to the legislation. Unfortunately, due to the filibustering and obstruction that went on earlier, we did not have an opportunity to put that but——
Senator Rónán Mullen: What of the Senator’s collusion in the guillotine?
An Cathaoirleach: I will not tolerate any interruption.
Senator Ivana Bacik: I certainly could not support any dilution of the existing wording of section 73. This proposed amendment would dilute the rights of the surviving civil partner if it were passed. I oppose the amendment and say to the Minister it is a shame we did not have a chance to debate the amendments we had put down, which would have strengthened the position of the surviving civil partner.
Senator Lisa McDonald: I oppose the amendment for the simple reason that, as Senator Twomey said, we would have to examine the Succession Act in order to amend this matter. However, as a practitioner, I have seen many instances where the two thirds, one third rule on intestacy has put many people living in their family homes in jeopardy. I accept there is a point to the amendment but the only way around it is to write a will, a matter that has been quite readily advertised lately. Other than that, there is an issue we need to consider in the tenet of the amendment but I do not believe we can accept it on this occasion.
Senator Fiona O’Malley: Senator McDonald made a point that I wished to make, namely, there is an onus on us publicly to encourage people to make wills because much of the certainty that is lost in this area is because people have not left wills.
I oppose the amendment, the effect of which would be not to allow people to be treated equally. This would not at all be in accordance with equality before the law and, therefore, it should be opposed.
Senator Rónán Mullen: There is an air of unreality about our trying to contemplate a question such as this, which may have constitutional implications, in circumstances where a guillotine has been imposed. I want to put on record that Senator Bacik, the Fine Gael leadership and others have shown exactly what they think of free speech. When it is offensive to their ears, they close down the debate.
An Cathaoirleach: We are on amendment No. 1.
Senator Ivana Bacik: That has nothing to do with this.
Senator David Norris: It is a most offensive remark and I want it withdrawn.
Senator Ivana Bacik: It is certainly not relevant to this amendment.
An Cathaoirleach: Order, please. Senator Mullen should continue.
Senator Jerry Buttimer: Where is all his preaching about tolerance now?
Senator Rónán Mullen: The Senators are the only ones who have shown no tolerance for——
Senator Jerry Buttimer: I have listened to the Senator all day.
An Cathaoirleach: I ask Senator Mullen to abide by the rules of the House. We are on Report Stage, amendment No. 1, which was moved by Senator Walsh.
Senator Rónán Mullen: On the amendment, it is somewhat relevant to say that we simply do not have the time we need to scrutinise this issue thoroughly.
Senator Ivana Bacik: Thanks to the Senator.
Senator Rónán Mullen: That is not the fault of the people who sought to scrutinise this legislation earlier today. Back in 1998, county committees on agriculture were debated until 5 a.m. in this House, which speaks for itself.
An Cathaoirleach: That is not relevant to the amendments.
Senator Rónán Mullen: On the amendment, rules are being provided on intestacy to the effect that a civil partner would take two thirds of the estate over and above any issue of the person. When one considers that the Constitution supports the institution of marriage on which the family is founded, it seems that respect for the family should survive the death of a spouse. If, in the event of the death of a spouse, a person enters civil partnership — perhaps the Minister can correct me on this — it would seem bizarre that the rights of a subsequent civil partner could trump the issue of the marriage.
As the fellow would say, I have had no more than a glansory curse at this because of the guillotine but it does seem to raise constitutional issues. I do not see how we can in any credible way uphold the ability of the Seanad to discuss an issue as profound as this in circumstances where there is such a ridiculous guillotine.
Senator Frances Fitzgerald: This amendment has the merit that it refers to the children of the deceased civil partner. We have said that one of the gaps in the legislation is the fact children are not dealt with. However, the overall thrust of the amendment is to denigrate and discriminate further against those who are in civil partnership and to put them in a less advantageous position. For that reason, I do not believe it should be supported.
Deputy Dermot Ahern: Amendment No. 1 would have the effect of substantially altering the rules of distribution on intestacy for civil partners where the deceased had a child or children. The civil partner would be entitled to the same share of the deceased’s estate as each child of the deceased if this amendment was to be accepted. Section 73 states that if an intestate dies leaving a civil partner and issue, the civil partner shall be entitled to two thirds of the estate and the remainder shall be distributed among the issue, which equates to the issue in regard to a heterosexual family situation. This amendment, therefore, would substantially erode the rights of the deceased civil partner.
For example, in the case of an adult and three children, the adult civil partner would be entitled to two thirds of the estate and the remaining one third would be equally distributed among the children. However, under this proposal, the civil partner would only get one quarter of the estate and the children would each get one quarter. Such a distribution would be novel and would substantially erode the rights of a deceased civil partner.
We had some debate where it was suggested there was nothing in the Bill to look after children, which was not correct. Unfortunately, this was because of the type of debate we had, although I know there were Members even on my party’s side who were genuinely worried about the issue of children. There are several mechanisms contained in the Bill to protect the position of children explicitly, particularly children of a former heterosexual couple now in a civil partnership arrangement. There is ample further provision to allow civil partners to make greater provision for their children should they wish to do so. Section 73 protects a child’s position by allowing that the child can apply for enhanced provision from the estate of a deceased civil partner-parent on intestacy up to a maximum of the amount that the child would have received had the parent died intestate with no spouse or no civil partner.
It is also always available to the civil partner, as some Senators have suggested, to make a will providing a greater share or, indeed, no share of the estate to these children. Section 83 inserts a new section in the Succession Act which allows a civil partner in an ante civil partnership registration contract to renounce his or her legal right in the estate of the civil partner. Thus, a civil partner who wishes to make extensive provision for his or her children can arrange for such a contract to be made in advance of registering a civil partnership and can then make a will giving that enhanced provision to their children.
The rules on intestacy replicate those in regard to heterosexual couples save that — this is the protection for children of a prior arrangement — under the new section 67A:
The Court may, on the application by or on behalf of a child of an intestate who dies leaving a civil partner and one or more children, order that provision be made for that child out of the intestate’s estate only [this is the important part] if the court is of the opinion that it would be unjust not to make the order, after considering all the circumstances, including—
(a) the extent to which the intestate has made provision for that child...
(b) the age and reasonable financial requirements of that child,
(c) the intestate’s financial situation, and
(d) the intestate’s obligations to the civil partner.
I cannot accept the amendment, which would lead to a diminution of the rights of the civil partner on intestacy. It would lead to discrimination in the way they are treated vis-à-vis heterosexual couples.
Senator Jim Walsh: I thank the Minister for his reply. His latter comment accords with Senator Twomey’s comment that because our amendment would not mirror the marriage arrangement, it is in some way “diminishing” or eroding the rights of the surviving partner. I thought that until the civil partnership Bill is enacted, there are no rights prescribed in law and we are prescribing these rights today.
People have said this would discriminate against the civil partner and I appreciate the point made by Senator Twomey with regard to a step-parent etc. but we are discriminating against children. That is a matter of genuine concern to me and others who signed their name to the amendment. We must be particularly careful about the issue.
I am also mindful that the inheritance generated and distributed may well have been accumulated through the efforts of the father of a child who because of a premature death will not have a say because he left the inheritance to his wife. There are fairly fundamental issues in this going beyond just the rights of the civil partner. I note the reply to me and comments made by other people concern the rights of the adult and not the rights of children. This is a child-centred amendment and it should be considered. I also note the Minister did not make any reference to any constitutional implications in his reply.
An Cathaoirleach: I am using my discretion to allow the Minister give a brief reply to explain a point without anybody else coming back in.
Deputy Dermot Ahern: This applies equally to children of a deceased partner as well as children of a prior marriage so there is no discrimination of the children involved. For that reason it is a pro-children measure and seeks to protect children in circumstances where they may not gain any provision in a position of intestacy. We believe it will stand up to constitutional examination because it is endeavouring to deal with a position where there may be children of a prior marriage as part of the civil partnership arrangement.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
An Cathaoirleach: Amendment No. 2 arises from Committee proceedings and is related to amendment No. 3. The amendments may be discussed together by agreement. Is that agreed? Agreed.
Senator Labhrás Ó Murchú: I move amendment No. 2:
In page 56, between lines 19 and 20, to insert the following:
“(4) The Act of 2000 is amended by inserting:
“Nothing in this Act, or in the Acts amended by this Act, shall prohibit a religious, educational, social or community organisation, which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, from refusing to provide property, goods or services that assist or promote the solemnisation or celebration of any civil partnership or marriage, or provide counselling or other services that directly facilitate the perpetuation of any civil partnership or marriage, where such refusal is reasonably necessary to prevent the undermining of the religious ethos of the institution.”.”.
As Members know, we have always been very conscious of the ethos of the churches and religious organisations. We have generally endeavoured in legislation to accommodate the issue and one of the reasons the Minister has not included churches is precisely for that reason. He wishes to avoid any misunderstanding and he is right in that respect.
The same provision should have been extended to church property and religious organisations with a particular religious ethos and policy. This is different than people in private circumstances refusing to provide services. The mere fact that we have made a distinction for churches in this and other legislation shows we are particularly conscious of that need.
The Minister may have to some extent extended the view on the issue by indicating that if we are talking about a hall, it would also be used for other community purposes. Very often those other community purposes are related to church activities and therefore have a particular ethos attached. For that reason I ask the Minister to reconsider the issue, upon which I have had exceptionally strong views.
Somebody said he or she could not imagine a gay couple wishing to use the property of a church or religious organisation if there was an existing antipathy. That may be so but I would be sorry if people had to feel such a way in the context of antipathy or otherwise. Interestingly, commenting on what Senator Norris said earlier I asked that we tease out the possibility that where a religious organisation or church wishes to provide a service, and if the service included the registration of the ceremony, I would see reason in that case to debate the matter. For the same reason, if a difficulty is provided for the ethos and policy of a church, it is not enough to say a gay couple is most unlikely to use it.
Senator Feargal Quinn in another context stated that it is not good legislation to say a possibility does not arise. It should not be like that and in this case it is more than a legal issue that is involved. There is an element of symbolism that is important in this case also. The Minister might find it possible to extend the same view as has informed the legislation in regard to the church itself; if that could be extended to church property or religious organisations with a particular policy or position, it would be helpful in the acceptance of this legislation.
Senator Jim Walsh: I second the amendment. We take no credit for the drafting of the amendment, which we used because we were taken by the content coming from Christian church leaders who circulated it to all. It covers not only civil partnership but also marriage, or divorced marriage, which might be against the ethos of the church. That would exclude them from the issues.
Article 44.2.1° of our Constitution states “Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen”. Our amendment is specifically and exclusively directed at church bodies and organisations.
I noticed the Minister dismissed some of my earlier comments regarding comparisons with Britain. I hope he will follow through on that ethos and thinking by looking at the common law system we inherited from the British and look to introduce Napoleonic code structures into the system.
In Britain Catholic adoption agencies had to accept the equal status Act and terminated their service as a consequence. In the US, Connecticut and Vermont have provisions for a conscience clause and it takes in churches in regard to civil marriage in Vermont. The legal provisions indicate:
The civil marriage laws shall not be construed to affect the ability of a society to determine the admission of its members as provided in section 4464 of this title... and shall not require a society that has been established and is operating for charitable and educational purposes and which is operated, supervised, or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the society’s free exercise of religion, as guaranteed by the First Amendment to the Constitution of United States.
In respect of public accommodations it is stated:
Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodation, advantages, facilities, goods, or privileges to an individual if such request for such services [were to contravene their ethos] . . .
That is what we are trying to achieve in the amendment.
I listened carefully to the debate. We were challenged in respect of ensuring we did not discriminate against people or minorities, on the one hand, while ensuring people’s freedom of conscience would be protected, on the other. In this instance, the church does discriminate. In other very liberal states, however, provision is made for that type of exercise by the church of its own ethos. That is our strongly held, conscientious view on this matter.
Senator Eugene Regan: I do not support the amendments, particularly as they constitute another effort at discrimination. Amendment No. 2 deals with church property, while amendment No. 3 in the name of Senator Mullen goes further in the context of individuals being allowed to discriminate. The amendments are designed to derogate from the normal equal status and equality provisions contained in existing legislation in order to allow for discrimination on grounds of sexual orientation. That is why I oppose them. Like many of the other amendments tabled, they seek to undermine objective behind the Bill.
The Minister outlined the arrangements — information in this regard is also set out in the explanatory memorandum to the legislation — whereby church property or other property is used for the solemnisation or celebration of civil partnership or marriage. In that context, I do not believe amendment No. 2 is necessary. It comes down to a choice with regard to where civil registration is to occur and whether there is solemnisation or celebration of civil unions.
On amendment No. 3, in circumstances where one provides or supplies goods or services, there are protected grounds set down in existing legislation which prevent discrimination. Where buildings owned by religious bodies are rented out for non-religious purposes to the public generally or to a section of the public, the provisions to which I refer apply. Said provisions prohibit discrimination on the nine grounds set out in the relevant Acts. The Bill before the House adds civil partnership status to the protected grounds by replacing marital status with an extended civil status ground.
Where a church or religious institution operates in a commercial environment such as that relating to the leasing or renting of properties, it is bound by the Equal Status Act in respect of the supply of goods and services. I do not see why that should be changed. In addition, I do not understand how it could conceivably undermine the ethos of a church or religious institution — the matter to which amendment No. 3 in the name of Senator Mullen relates.
I do not see a basis for thee amendments, other than that they seek to maintain in our society discrimination on the grounds of sexual orientation. I urge, therefore, that they be rejected.
Senator Rónán Mullen: Senator Regan seems to be unaware — I know that this is not actually the case — of the many exceptions in our equality legislation which are designed to achieve the common good and protect people from capricious or unfair proceedings. Amendment No. 3 is the only amendment I have tabled on Report Stage. The rather delicate fig leaf of parliamentary scrutiny which obtained was ripped away by the decision to guillotine the debate on the Bill.
Amendment No. 3 would not undermine the objective behind the Bill in any way. It would, however, temper the effect of the Bill in some areas. While I wish those who will benefit from the legislation the very best — I am genuinely delighted for them — we should spare a thought for those whose freedoms will be curtailed by its enactment. As a result of what has happened here today, the Bill will leave the House tainted.
Amendment No. 3 is very much based on the existing section 37 of the Employment Equality Act 2000. It is interesting to note that the courts stated employment equality legislation would not have been constitutional were it not for the inclusion therein of section 37 which allows religious-run institutions to make employment decisions, where necessary, in order to prevent the undermining of their ethos. If that is the delicate balance required as a result of the provisions in the Constitution relating to freedom of conscience and religion, it should follow that the Bill before us which creates a new potential scenario because of the inclusion of civil status among the prohibited grounds of discrimination could lead to a curtailment of the freedom of religious institutions to act and operate fully on the basis of their ethos.
As with one of the amendments we discussed during the truncated Committee Stage debate, I have sought carefully to delimit the circumstances involved. It is not a question of allowing discrimination, rather it is a question of providing that certain situations shall not constitute discrimination. I have confined the amendment but enough scope is retained in order that “A religious institution or an educational, social or community organisation which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values” would not be taken to discriminate on the marital or civil status grounds or on the sexual orientation ground if it does not provide goods and services. I have further curtailed the provision by requiring that these entities would only enjoy such an exemption where it related to matters directly related to the occasion of such a solemnisation or registration or where it involved relationship counselling or adoption services. It would, therefore, be a clearly delimited ethos protection provision.
The reason I have brought forward this provision is, as stated on Committee Stage, there are different views and values within our society and the ethos of the religious institutions which have contributed so much to the life of this country for a long period differs from what is becoming the prevailing secular ethos. The question arises as to whether we should condemn them for this or whether we should find a way to accommodate them in order that the freedoms people enjoy will be balanced. That is what the amendment involves. It is not about discriminating against any section of the community, rather it is about following in the tradition of allowing certain exemptions to equality legislation. Such exemptions can be found at many locations for those who wish to seek them out.
Under the Bill before the House, there is a possibility that people’s right to live and act according to their ethos could be crushed. The protection offered under the proposal I have brought forward would come in two parts. The first relates to religious institutions and the second to private individuals, sole proprietors or small businesses. It cannot be stated amendment No. 3 relates to State officials, rather it relates to private providers of goods and services. Does the Minister want such people to be obliged to lie? If a photographer would rather not spend the day taking pictures at a civil partnership ceremony with which he or she has a moral problem, do we want him or her to lie about his or her reasons for not offering his or her services? Does the Minister wish it to be the case that it should be fair dinkum for the Equality Authority to pursue such individuals? Do we want people to be obliged to lie and say they are busy in order that they do not have to supply their services? If we want to be mature and accept that our society really does believe in pluralism — after today’s use of the guillotine I would be surprised if many actually did believe in it — we should try to find a way to accommodate the aspirations of others, even if we deplore them. Even if one deplores the aspirations or religious objections of others — I do not deplore them but there are others present who do — it does not follow that one should seek to crush them or discourage people from harbouring them, as was the case with religion in Soviet Russia.
Amendment No. 3 contains a narrow exemption which recognises that some have conscientious objections in this regard. The amendment would limit people’s right to go their own way in respect of the circumstances directly relating to the occasion of a solemnisation or registration. I would include a celebration in this regard because I do not want the Minister to raise the stock point relating to a sacred space. I am not interested in that matter and have never made the argument in respect of it. I am referring to parish halls, church halls, halls owned by the Knights of Columbanus and so on. I am not espousing my own views on this matter. I regard myself as a pragmatic person and I am not necessarily sure what decision I would take in the circumstances to which I refer. As a legislator, however, I wish to legislate for people whose views I do not believe should be regarded as being second class.
That is all I have to say on the matter. I recognise that no matter what I say, I will be treated to the same answer as previously.
Senator Ivana Bacik: We have already spent more than four hours today engaged in a sort of farcical debate, with so much obstruction etc.
An Cathaoirleach: I ask the Senator to speak about the amendment.
Senator Ivana Bacik: I will refer to a related point, which is the non-issue of the hypothetical homophobic registrar who might at some point wish not to register a civil partnership. These amendments go well beyond the point we have already debated. Senator Mullen has suggested they are narrowly drafted — far from it. This measure would involve an enormous new exemption to the equality legislation. I agree with him that there are existing exemptions to the equality legislation. We should not add to them by providing for a further mandate or charter to discriminate. Amendments Nos. 2 and 3 would allow religious-run community centres and the owners of hotels and small businesses to discriminate not only against civil partners but also against people entering a marriage if it for some reason offended the religious ethos or views of the proprietor of the business or the manager of the community centre. If a previously divorced couple are remarrying and wish to have their reception in a hotel, the hotel owner will be permitted to refuse them under this measure without being subject to the equal status legislation. It is clear that these amendments would provide for extra discrimination by the back door. They would drive a coach and horses through the new civil partnership legislation and the existing equality legislation. We live in a republic. This is not a theocracy. The only justification for introducing amendments of this nature would be a theocratic one, to the effect that laws should derive in some way from the Christian churches, which were behind the drafting of some of these amendments, apparently.
Senator Rónán Mullen: I should say, for the avoidance of doubt, that they were not behind my amendments.
Senator Ivana Bacik: Senator Walsh has acknowledged the help he received from a church leader in drafting his amendments.
Senator Rónán Mullen: We do not know who helped the Senator to write her amendments.
An Cathaoirleach: I will ask Members to leave if they continue to interrupt. I cannot allow it.
Senator Ivana Bacik: I have acknowledged the work of Dr. Fergus Ryan on another amendment. Many of us believe the Catholic Church in this country already has too much power.
Senator Jim Walsh: On a point of information, the assistance I received did not come from the Catholic Church.
Senator Ivana Bacik: I am not suggesting that it was the Catholic Church.
Senator Jim Walsh: It was a Protestant church.
An Cathaoirleach: I remind the House that many Members have already had an opportunity to speak and other Members will get such an opportunity.
Senator Ivana Bacik: I will conclude by saying we will strongly oppose these amendments because we believe their acceptance would compound existing discrimination and undermine greatly the civil partnership legislation and the equality legislation.
Senator Liam Twomey: Many Members of the House understand the ethos of this country’s churches and their members. These amendments seem to reflect the ethos of the churches in managing their affairs and the ethos of individuals in dealing with civil partnership unions. It is true that churches, like individuals, have rights. The people who are involved in civil partnerships have rights as well. The need to balance the rights of both groups is probably one of the reasons we have reflected on this legislation for so long. A forensic and detailed debate on this issue would have been very useful. I regret to say we have not had such a debate today, however. Senator Mullen has criticised Fine Gael Senators in this respect. When he gets an opportunity to read the transcript of the Committee Stage debate, he will see that it verged on the farcical. It did not deal with the core issues at all. It has destroyed the previous quality of the debate on this legislation.
Senator Rónán Mullen: That is ridiculous. What about the two hours Senator Regan took to deal with an amendment?
Senator Liam Twomey: That is the way I look at it. I would have loved to have heard a high quality debate on issues of this nature, such as the ethos of the churches in our society as it becomes more secular.
Senator Rónán Mullen: We were not even allowed five minutes for such a debate.
Senator Liam Twomey: If the Senator had been better at doing the debate, he would have had plenty of time to discuss the matter.
Senator Rónán Mullen: I refused to be completely intimidated.
Senator Liam Twomey: His approach of smirking down the back has done nothing for the three Members who have resigned the Fianna Fáil Whip or those who co-signed his amendments. He has made a farce of this debate.
An Cathaoirleach: I ask Senator Twomey to confine his remarks to the amendments.
Senator Liam Twomey: He tries to claim he upholds the standards of this House, but he has done huge damage to the quality of the debate in this House this afternoon.
Senator Rónán Mullen: That is a shameful remark. At least I was here.
Senator Liam Twomey: The Senator can examine the record. I was sitting here. I have sat through many debates in this House. I must say I was disappointed with the Committee Stage debate.
Senator Rónán Mullen: The Senator was not here.
Senator Liam Twomey: I respect some of the views that were expressed by other Senators who made good contributions. I respect them even if they do not necessarily share my point of view. That is the way it is. I would have loved a deeper debate on this issue. I would have loved to have heard the views of others who oppose certain aspects of this legislation. They might have suggested ways of overcoming those difficulties. We did not have time for that, unfortunately.
Senator Rónán Mullen: The Senator supported the guillotine.
Senator Liam Twomey: It is regrettable.
Senator David Norris: I am deeply appalled by these amendments. I am ashamed that Senators saw fit to table them on an Order Paper of this House. They have disgraced this Chamber. I accept that they have a fully democratic right to do so. I support that right. I retain a feeling of shame that my fellow citizens and Members of this House have behaved in such a way. If I heard Senator Walsh correctly, it appears that the wording of one of his amendments was supplied by a church.
Senator Jim Walsh: I was assisted by a Christian church.
Senator David Norris: I sincerely hope it was not a church with which I have any association.
Senator Jim Walsh: I do not know what religion the Senator is.
Senator David Norris: I consider it really appalling. I want to examine what the amendment actually means. I listened to Senator Quinn speak movingly about isolation and loneliness etc. I challenge him in that regard. Amendment No. 3 in his name proposes that people may be excluded by a “community organisation”. It seems that we are not to be part of community organisations at particular times.
Senator Rónán Mullen: No.
Senator David Norris: I ask the Senator to let me speak, if he does not mind.
Senator Rónán Mullen: The Senator is totally misrepresenting the amendment.
Senator David Norris: He has curtailed debate in this House quite enough.
Senator Rónán Mullen: The Senator voted for the guillotine.
An Cathaoirleach: I ask that Senator Norris be allowed to speak on the amendment without interruption.
Senator David Norris: Amendment No. 2 proposes that these organisations be allowed to refuse to “provide counselling”. The Senators want to prevent the provision of counselling. One of the worst aspects of the amendment is its reference to refusing to provide “services that directly facilitate the perpetuation” of the relationship. This measure has been proposed by the Senators who were talking about commitment and marriage. How dare they? Do they not feel ashamed? I should point out that some of these buildings may have been paid for by taxpayers’ money.
Senator Frances Fitzgerald: Yes.
Senator David Norris: The Senators in question, in the interests of a completely unelected body, presume to dictate how such facilities should be used. I do not care if the church that assisted with the compilation of this amendment is my church, although I would like to know if it is. If that is the case, I will contact the Archbishop of Dublin, Dr. Neill, tonight. I doubt he had anything to do with it because I know he is an honourable man.
I wish to speak on the rest of this disgusting tissue. It seeks to allow “any private individual, sole proprietor or small business” to refuse to provide goods and services. Are we to protect a shop that refuses to sell wedding trinkets or a bouquet of flowers? I cannot believe that gentle people I have respected for so long — Senators Ó Murchú and Quinn — have signed their names to such a proposal. If either of them is surprised, or expresses shock, that the gay community might feel antipathy towards a church, I suggest to them that the antipathy is coming entirely the other way, if it is the case that these proposals were drawn up by a church. I cannot believe that having heard the strong expression of my genuine feelings yesterday, Senator Quinn signed his name to this shocking piece of attempted or purported legislation.
Senator Ivana Bacik: Hear, hear.
Senator Fiona O’Malley: These amendments are not worthy of support due to their discriminatory nature, as outlined by Senator Regan. Senator Norris has highlighted how shameful they are and what it would mean if they were accepted. Senator Bacik alluded to the manner in which those who have proposed these amendments have sought comfort by referring to exemptions in other legislation. I agree with her that we should be providing for fewer exemptions rather than more. The last thing we should do is provide for more exemptions. When we draft legislation, we should always seek to provide for equality. The more exemptions we have, the less equal is the legislation. I do not think I share the same understanding of the word “discrimination” as others who have spoken about it, including Senator Mullen. He does not seem to think that exempting and listing people counts as discrimination. I agree with Senator Norris that when one examines what is being proposed, one would expect people to be ashamed to put their names to it. What we have lost sight of is a sense of the purpose of this legislation which is to provide a legal basis for people in a loving relationship——
Senators: Hear, hear.
Senator Fiona O’Malley: ——and provide comfort for that. We are bogged down now in all kinds of nonsense. As Senator Bacik said——
An Cathaoirleach: Speak to the amendment.
Senator Fio
