SPEECH BY BRENDAN HOWLIN ON CIVIL
PARTNERSHIP BILL
This day has been a long time coming. The recent
chronology of key events leading up to it has been
published in a GLEN document. In recent years, we have
quickly come to this conclusion. It is heartening to
have a large consensus on what needs to be done on these
important social issues.
Tonight’s debate and the Bill
comprise an important milestone on the road to equality,
but they are not the journey’s end. Article 1 of the
Universal Declaration of Human Rights 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.
This basic and simple concept has
consistently proven to be one of the most difficult
principles to put into practice. It was proclaimed by
the UN’s General Assembly on 10 December 1948. As
various debates in the House this week have indicated,
we are still struggling as a republic to make that
simple and fundamental declaration a reality.
The Labour Party welcomes the
Bill. It is not the end of the journey, but it is a long
way down the path. It clearly does not go as far as the
Labour Party’s Civil Unions Bill, which I twice had
the honour of introducing into the House, once in the
previous Dáil and once in this Dáil. The first time,
it was cynically kicked to touch, but I believe it
formed a basis for a consensus that has led to tonight.
I am proud of my party’s role in this regard.
While the Bill before the House
does not achieve equality, it gives same sex couples
rights that are long overdue. It gives legal protection
and recognition to same sex couples, as well as other
non-traditional families. I refer to citizens of our
Republic whose essence we have ignored and denied for
far too long. The Bill does not provide for same sex
marriage, as the Minister has said, nor could it under
the Constitution, as it is currently interpreted by the
courts. We are not legislating for true equality in this
important measure. It is worth reflecting on the words
of the Honourable Justice Michael Kirby, of the
Australian high court, in his foreword to a report on
this Bill produced by the Irish Council of Civil
Liberties. He stated:
Marriage is a civil status, created and defined by
the law. To it many legal consequences and some benefits
attach. Civil partnership is a status, separate but
equal, which goes part of the way, but risks leaving
neither side very happy. The same-sex partners are then
denied true equality which they know is now recognised
in other civilised jurisdictions. The conservative
traditionalists complain that civil partnership
“mimics” marriage and therefore, in a mysterious but
unexplained way, damages that institution for
heterosexual couples who are now staying away from it in
droves.
The argument against equality is
a strange one. How can the extension of the right to
marry, to more of our citizens who want to bond
themselves with another human being in a loving
relationship that is recognised by law, be said to
undermine marriage? I assume those who believe that
allowing same sex couples to marry would undermine the
institution of marriage would not suggest that
homosexual citizens of this nation should reconcile
themselves to marriage as we understand it under the
Constitution today. That would be absurd. Do such people
believe that to offer marriage to same sex couples would
somehow lure heterosexual people away from marriage?
That would be a ludicrous suggestion. The fundamental
debate on taking the final step can wait for another
day. It is important to point out that this legislation
is a step on that journey, rather than the end of the
journey.
Given that there is such
agreement across the House, I do not want to sound any
note of discordance. This Bill has been produced two and
a half years into the coalition between Fianna Fáil and
the Green Party. I would like to remind Members of what
Deputy Cuffe said on 21 February 2007, during the debate
on the Labour Party’s Civil Unions Bill 2006. I agree
with his suggestion that “to relegate same-sex couples
to some marriage-like institution is to deny them their
human rights, dignity and rights as citizens of the
State”. It is probable that we could build a consensus
to take the final step. I do not think it should be too
far away. I am sorry that legislation to provide for the
option of taking the final step, even if it meant a
constitutional amendment, is not before the House
tonight. I do not want to sound discordant, as I have
said, because the Bill before the House, which is of
profound importance to thousands of our fellow citizens,
should be recognised, applauded and celebrated.
The stated purpose of this
legislative measure is to establish a statutory civil
partnership registration scheme for same-sex couples. It
sets out a range of rights, obligations and protections
that are consequent on registration. It prescribes the
manner in which civil partnerships may be dissolved and
the conditions that may apply. The Bill also establishes
a redress scheme for opposite-sex and same-sex
cohabiting couples who are neither married nor
registered in a civil partnership, as the case may be.
The proposed redress scheme has far more limited
provisions than the civil partnership provisions, or
marriage as we know it. The scheme focuses primarily on
addressing a number of areas in which cohabiting couples
are vulnerable, such as the protection of residential
tenancies and maintenance rights. In general terms, the
Labour Party supports these provisions, as detailed in
the Bill. It is obvious that the Labour Party will table
amendments in this respect on Committee Stage. I agree
with some of the points Deputy Charles Flanagan made
about the lack of clarity with regard to these
provisions of the Bill.
8 o’clock
I would like to signal two particular issues that I
will pursue during the Committee Stage debate. There is
a need for retrospective recognition of foreign civil
partnerships if one partner dies before the provisions
of section 5 of this Bill become operable. We can debate
and tease out the extent to which it should be
retrospective — how far back we should go — on
Committee Stage. Many same-sex couples who live in this
jurisdiction have obtained civil partnerships in
Northern Ireland
since 2005, when such a legal provision was first
afforded in that jurisdiction. If one party to a
relationship that is legally recognised on one part of
this island dies before the provisions of this Bill
become law, the surviving partner may be disadvantaged
for the purposes of inheritance tax, for example, or may
be made ineligible for the survivors’ pension.
Particular examples have been brought to my attention. I
understand that dozens of same-sex couples who live in
the Republic have obtained civil partnerships in
Northern Ireland
. A case in which the older person in a civil
partnership has advanced cancer, and could die before
the date on which the Minister for Justice, Equality and
Law Reform signs this provision into law and thereby
makes the partnership legally binding in the Republic,
has been brought to the attention of the Human Rights
Commission of Ireland and the Northern Ireland Human
Rights Commission. If this legislation does not become
law before the person in question dies, the partnership
will not be recognised and the surviving partner will
have no legal rights. That would be a disturbing and
unfortunate consequence of our efforts. We should seek
to make provision for such cases before we conclude our
deliberations.
The second issue to which I would
like to alert the House is a potential implication of
section 4(2) of this legislation. The Bill as it stands
requires at least one of the civil partners hoping to
enter into a civil partnership to be domiciled in the
State on the date of application. This may exclude some
couples from the right to take a court action in this
jurisdiction. I am advised that this residency
requirement may affect couples who reside in
Northern Ireland
— they may have moved from this jurisdiction to
formally legalise their relationship under the 2005
provisions there. If, after this measure has been
enacted, they wish to argue for the recognition of their
foreign partnership — the
Northern Ireland
partnership, in this case — they may wish to have
recourse to the courts in this jurisdiction. These are
technical matters we can debate in some detail on
Committee Stage.
I am advised that section 2 of
the Marriage Act 1972 provides retrospective recognition
by the State of 33 services of blessing, namely,
non-civil marriages performed in the département des
Hautes-Pyrenées in France — so-called “Lourdes
marriages” — between citizens of Ireland which were
solemnised at Lourdes between 1953 and 1960 only.
By the provisions of the 1972
Act, these non-civil marriages were deemed always to
have been valid marriages and have been recognised as if
they had been performed and solemnised in this State. If
we can do that for a blessing at
Lourdes
I believe we can provide legal measures within our own
jurisdiction to recognise legally binding civil
partnerships entered into by Irish citizens in other
jurisdictions where, up to now, those partnerships have
been recognised.
I should mention another possible
difficulty with section 5 that, again, was pointed out
in the submission from the Irish Council for Civil
Liberties. In most equivalent foreign recognition
provisions, there is a general provision of recognition.
For example, the
UK
legislation expressly provides that same-sex marriages
celebrated elsewhere will be recognised as civil
partnerships in the
United Kingdom
. Section 5 of the measure before the House leaves it to
the Minister to make that determination, stating: “The
Minister may, by order, declare that a class of legal
relationship, entered into by two parties of the same
sex, is entitled to be recognised as a civil partnership
if under the law of the jurisdiction in which that legal
relationship was entered into”. It enumerates a number
of conditions. The essential point, however, is the
first sentence, namely ,the Minister “may” recognise
such civil partners. It is important we should have
clarity about the exercise of the authority we will
divest to the Minister after the enactment of these
provisions.
I will seek to address these
issues on Committee Stage. I will address one major
argument which Deputy Flanagan touched upon that is in
circulation concerning the Bill. This is a matter
concerning which most of us received more e-mails than
any other. They seem to have been generated because many
of them were standardised. The argument was that the
Civil Partnership Bill, if enacted, will introduce a law
by which those whose religious convictions may prohibit
them from being involved in a same-sex partnership will
somehow be compelled, under duress of law or for fear of
being sued, to aid or assist in a ceremony to which they
have a genuine conscientious objection.
People may have regard again to
the Labour Party’s Bill. In that Bill we sought to
create a formal civil union which, in virtually every
respect, mirrored marriage. We proposed that a
solemniser would perform that union in the same way that
a marriage would be solemnised. For that reason, in
section 3(2) of our Bill, we included an opt-out clause
that stated: “Nothing in this Act requires a
registered solemniser who is not registered to solemnise
a civil union if the religious body of which he or she
is a member has no recognised form of ceremony for the
purpose of which he or she has a conscientious objection
from so doing”.
The Bill the Minister presented
to the House today is quite different in context. It is
different in a very significant respect. Under this
Bill, a civil partnership can be entered into only in
front of a civil registrar. Even if he or she wanted to,
a registered solemniser, for example, a priest or
minister of religion, would have no competence and no
capacity to preside over or register a civil partnership
as envisaged in this proposal. Therefore the question of
inserting a conscience clause is moot. It does not
arise. That point has been made clear and abundant.
The point was raised by Deputy
Flanagan whether those who will be charged with
presiding over civil partnerships, namely, officers of
the HSE or old officers of the health boards who are
registrars should be allowed opt out. My answer is
“Certainly not”. We are not going to have a
situation where officers of the State can determine they
will perform this function but not that one. It would be
like saying that nurses and doctors could no longer give
blood transfusions if they became Jehovah’s Witnesses.
That is not the way a republic operates. Laws are
enacted and officers of the State, paid for by the
State, carry out the legislation as enacted by this
House. I do not see this as being an issue. As Deputy
Flanagan rightly pointed out, other issues, for example,
the re-marriage of divorced persons which is now the
civil law of the land, have not been such that people
may opt out from them in the future.
There is one other issue in
respect of that plethora of odd e-mails we received,
namely, whether we should provide a conscience opt-out
for florists, bakers or candlestickmakers or anybody
else who might be offended. In these challenging
financial times I do not feel there will be a
conscientious impediment among florists or anybody else
who provides their wares or services.
For clarity in this respect, we
enacted laws as far back as 2000 to protect against
discrimination with regard to orientation. In this Bill,
the Minister seeks only to replicate those laws. I see
no argument or basis for suggesting that florists,
photographers, printers or providers of any service can
be allowed to discriminate against any citizen in
respect of his or her sexual orientation. I do not see
any scope for that point.
I wish to move to one major
deficiency, as I see it, in this Bill. Again, Deputy
Flanagan properly raised this point, namely, that the
Bill is largely silent on the rights of children. It
does not address in a clear or comprehensive way the
rights of children who live with a couple who, in the
future, will be civil partners. Of course, a child has
full rights in respect of a person who is his or her
biological parent. However, the child’s right to the
continuing parenting of the civil partner of his or
parent is not enshrined in this measure. The very
compelling, real and specific human case outlined to the
House by Deputy Flanagan underscores the importance of
addressing this deficiency. It cannot be that we will
allow a Bill to be enacted that is silent on this
critical issue, particularly that a child in such a
relationship will not be able to seek maintenance from
the non-biological parent and will have no succession
rights if the civil partner of the child’s biological
parent dies. The civil partner will not be able to adopt
the child jointly. It seems to me a ludicrous notion
that under our current adoption law a single person can
apply to adopt but a couple, even legal partners
recognised by law, will not be in a position after the
enactment of this provision to adopt jointly a child,
even a biological child of one of the couple. That is a
major deficiency.
The Joint Committee on the
Constitutional Amendment on Children has focused on a
number of issues concerning the safety, well-being and
best interests of children. The Minister has attended
many of the meetings. It has been a very important
learning process on how the Oireachtas can shape better
laws to advance the rights of children. God knows that,
in light of the reports published this year, and
previously in the Ferns diocese in my part of the
country, we need far more robust protection of children.
The committee sought all-party
consensus on recalibrating rights so the well-being and
best interest of the child would be at the core of
policy. Nobody has the right to adopt a child but a
child has the right to be in the best place for himself
or herself. That was the core of the Labour Party’s
Bill. We determined we could not bring legislation to
this House without addressing the issue of children. The
way we did so was simply to recognise that the best
interest of the child should be the only criterion, such
that one would not give a right to anybody to adopt but
give a right to the child to be in the best place for
himself or herself, be that with biological parents,
grandparents, foster parents of long standing or a same
sex couple who would serve as loving parents to the
child. The decision should be made without regard to
anything other than the best interest of the child. That
is what the Labour Party proposed.
With regard to dependent
children, our Civil Unions Bill proposed, “the rights
and obligations of parties to a civil union with respect
to a dependent child are the same, mutatis mutandis,
as those of a married couple with respect to such a
child”. A dependent child, according to our
definition, was a child adopted by both parties or in
relation to whom both spouses are in local parentis,
or a child of either party or adopted by either party or
in relation to whom either party is in loco parentis
where the other party has treated the child as a member
of the family where the child is under 18. The
legislation also included children above that age in
full-time education with a mental or physical disability
“to such extent that it is not reasonably possible for
the child to maintain himself or herself”
independently.
A child-centred approach that
mirrors the developing conclusions of the all-party
committee is the right approach. I will be interested in
hearing the response of the Minister to the debate to
learn whether he is open to determining whether we can
craft, by consensus, a provision for children in this
regard.
I have spoken almost exclusively
on same-sex couples but now want to discuss the part of
the Bill that deals with cohabitants. The duration
proposed for the legislative provisions to have effect
is three years, or two if a child has resulted from the
relationship. I welcome the provisions in section 171 of
the Bill. Qualifying cohabitants may apply to court for
a range of orders — for example, property adjustments,
maintenance and pension adjustments — where the
applicant is financially dependent on the other
cohabitant and complies with a range of other specified
requirements, as set out. This was recommended by the
last All-Party Oireachtas Committee on the Constitution
in the report it produced in January 2006. There may be
some tweaking to be done to ensure we recognise a legal
starting point for cohabitation and to ensure there is
no confusion in the courts.
In truth, there are many
relationships that do not involve standard marriage. We
need to provide some form of support when they break
down or when one of the cohabitees dies. The provisions
are, by and large, good in respect of this issue. One
wonders whether it is proper to enshrine them in this
legislation rather than address them in conjunction with
the issue Deputy Charles Flanagan raised.
Conjugal relationships are
unique. It upsets and annoys me when people blur the
distinction between a loving conjugal relationship and
that of any pair of people living together for
convenience or mutual support. It denies the essence of
the relationship, which is fundamental. We should be
very clear and not obfuscate on that absolute point.
We have come to an important
point in the legislative process. As speedily as we can,
we should enact this measure. We will crawl ever slowly
to be faithful to the first article of the Universal
Declaration of Human Rights which recognises the essence
of the equality of every individual. We should move to
Committee Stage speedily. I hope we will address
consensually the issues that have been addressed on this
side of the House and provide a basis for acknowledging
the fundamental worth of every citizen of this Republic.
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