Reply of Mr. Michael McDowell to Civil Partnership Bill 2004 Second Stage Debate

Reply by Minister for Justice, Equality and Law Reform to Senator David Norris’s Second Stage Speech during the Second Stage Debate on Civil Partnership Bill 2004 held on Wednesday the 16th of February 2005

Minister for Justice, Equality and Law Reform (Mr. M. McDowell): I pay tribute to Senator Norris for the work he has done in the past, and continues to do in this Bill, on the rights of cohabiting couples. This Bill, and the debate last May on the rights of non-marital and one-parent families, are valuable contributions to the development of policy in this important area.
I do not agree with Senator Ross's point that this is a simple matter and should be waved through. That is superficial and glib. Senator Terry's scriptwriter betrayed her by introducing a shallow and somewhat unfair note accusing people on this side of the House of being homophobic, hesitant and indecisive in the matter. We must be careful on this subject. Knowing Senator Terry as I do, I realise that her scriptwriter's vindictiveness is at fault not her own view in making a charge of homophobia.

Ms Terry: The views I expressed are mine.

Mr. M. McDowell: I regret that the Senator should charge anybody in this House with homophobia.

Ms Terry: I did not charge anyone, I questioned motives.

Mr. M. McDowell: I could say the same about Senator Terry and question her on the same point but it would be equally unjustified.
I acknowledge on behalf of the Government that the position before the law of same sex couples, and others in caring relationships, including extending State recognition to civil partnerships between such persons, needs to be addressed. We cannot walk away from, ignore or postpone this issue.
Society has changed greatly over recent decades and the law must be kept up to date with the needs of society while at the same time preserving all that is of value in what we have, and respecting the Constitution by which we all are bound. Anybody who sees a constitutional dimension in this issue should participate in the All-party Committee on the Constitution and not pretend that this issue can be dealt with on a non-constitutional level.
Senator Kett rightly identified two aspects of this Bill which cause difficulty. I agree with Senator Terry in that the analysis available to the Government is that section 6 is contrary to the Constitution and would be struck down by the courts. I acknowledge that, as Senator Norris says, the Law Reform Commission takes a different view but the advisers to Senator Terry and to the Government take the view that on a detailed analysis the proposal in this section is contrary to the Constitution.
Senator Kett's second point, with which I agree, is that this proposed legislation is restricted to "conjugal relations". Therefore two friends, or sisters, or any two people who have spent their lives together caring for one another and sharing their home are excluded by the language in section 3.
In the context of sexuality are two people who have a non-sexual relationship to be substantially discriminated against because theirs is a non-sexual relationship? If not, the definition of a civil partnership in section 3, which makes a sexual conjugal relationship a necessary precondition for a civil partnership, is discriminatory. We must consider this carefully. These are two points of principle and not of conservatism. They have a significant import. Are we creating a new set of relationships based on a sexual underpinning or are we willing to accord civil partnership status to people who have no sexual relationship?

Mr. Norris: Sexual and conjugal are not coterminous.

Mr. M. McDowell: I do not know what the term "conjugal" means in that context if it is not designed to mean something akin to sexual in nature. I do not think two elderly bachelors living in a farmhouse in County Kerry would regard their relationship as conjugal, even if they were fully committed to looking after each other.

Mr. Norris: If they were in Kerry they certainly would.

Mr. Coghlan: God forbid that they would split up.

Mr. M. McDowell: In these two sections, which are not simply details but central issues in the Bill, there are major constitutional, philosophical and discriminatory issues to be addressed.
Irish law already takes into account in a number of ways non-marital relationships. As referred to earlier, capital acquisitions tax has been changed. The Guardianship of Infants Act, as amended, provides for the appointment of unmarried fathers as guardians of their children in certain circumstances. The Domestic Violence Act 1996 also covers non-marital relationships.
The needs of cohabiting couples, many of whom want to share property, home life, income, and perhaps deferred income in the form of pensions, and those who want to care for each other and be cared for in that context in a next-of-kin hospital situation and so on, require legal protection and are imminently suitable for legal reform. As a society, we must give thorough consideration to what course we can and should follow in this very sensitive area. We must decide what we are trying to achieve. For example, do we want to focus on particular rights of importance to cohabiting couples, which should be given the protection of law or do we want to give cohabiting couples a status equivalent to marriage, as proposed in section 6 of the Bill? Extending some State recognition to partnerships between persons who decide to create a relationship of mutual dependence, care and love between themselves, whether the relationship is heterosexual, homosexual or non-sexual, is qualitatively different from the alternative course, which is providing a status equivalent to, and attracting the same rights and entitlements as conventional marriage which is up to now a status based on a male-female monogamous relationship for the duration of the life of the marriage.
Heterosexual couples currently have the option of marriage open to them. We must ask ourselves what it is about marriage that is causing many heterosexual couples to say "No thanks". Why will they not avail of all these extra rights in terms of pension, property, tax and social welfare? What is holding these people back from saying "no" in this regard? While I am not in a position to offer a comprehensive answer to that question now, it must be addressed. It might raise the question that there are obligations going with marriage, which they are reluctant to undertake. Senator Terry put her finger on the point when she criticised the Bill - even though it is a criticism I would not share in regard to civil partnerships - on the basis that the dissolution provisions are a good deal more lenient than those which currently apply to marriage. If a civil partnership, which has all the attendant rights of marriage, has a let out of six weeks or whatever while marriage under the Constitution cannot be dissolved except under the four year provision, if one is talking about heterosexual cohabitants, one must ask whether it is marriage life that is on offer here, identical in terms of all the rights but different in terms of the fundamental obligations and duties. This is a question which will not go away. I am making that point because we must be honest with each other. I note that section 6 does not mention duties except, by inference, mutual duties. If one is suggesting a relationship which has all the entitlements and rights, but none of the obligations, except in so far as they are bound up in mutual rights, then one is clearly in danger of infringing the constitutional provisions for the protection of marriage. This is giving everyone all the advantages of marriage while discouraging them from undertaking any of the onerous responsibilities.
Heterosexual couples have the option of marriage open to them. If we are to offer them something with all the rights and entitlements of a valid marriage, it should also have the same duties attaching to it. I am one of the few politicians who is prepared to say that in this rights culture in which we live, no right is worth a damn without a co-relative duty. That was taught to me by a former Member of this and the other House, the late John Maurice Kelly, in jurisprudence classes in UCD. Rights without duties are meaningless. They are the stuff of which Soviet constitutions are made but they are nothing unless there are attendant duties.

Mr. Dardis: Even the Jesuits and Dominicans can agree on that.

Mr. M. McDowell: Someone must accord the corresponding duty to every right. The point I am making in regard to this issue is that marriage as envisaged by the Constitution is not simply a basket of rights. It is in explicit terms stated to be a relationship which carries with it profound duties.
Section 6, in effect, would mean marriage, albeit by another name. It is doubtful whether there are any advantages to providing in law for an institution for heterosexual couples which mirrors marriage to that extent. I agree that the situation is different for homosexual couples, for whom marriage is prohibited at the moment. I want to take this opportunity to put it on the record of this House that the Government is unequivocally in favour of treating gay people as fully equal citizens in our society. That is why the Government parties, and all parties in the House, concurred on the decriminalisation of homosexuality. We passed other equality legislation on sexual orientation to ensure that people cannot be discriminated against on the basis of their sexuality.
Many same-sex couples may not want an institution which gives them all the rights, entitlements and duties of marriage. They may want a form of civil partnership which protects certain rights of importance to them. People may not want to enter into a life-long relationship but something short of that. It is worthwhile remembering that there are people who simply have a platonic relationship, to which there is no sexual dimension, who may want their home, pension, tax, welfare, inheritance rights, rights of next-of-kin in regard to each other in the case of illness and the like, capable of some form of recognition.
In November 2004, the Taoiseach, in response to a question concerning gay marriage, emphasised the importance of dealing with the situation of same-sex couples and of rational debate on the issue. He said that we should not get the question of marriage mixed up with the many inequalities and unfairness - he used the phrase "we are making their situation fairer" - such people face. He advocated trying to deal with these issues on the basis of what people have to surmount in their daily lives.
Dr. Diarmuid Martin, the Catholic Archbishop of Dublin, to whom Senator Norris paid tribute, stated:
I recognise that there are many different kinds of caring relationship and these often create dependencies for those involved. The State may feel, in justice, that the rights of people in these relationships need to be protected.
There is no huge difference between us philosophically on this issue.
We need also to consider the position of people whose relationship has no sexual element and who may need legal protection and recognition for what is de facto a relationship based on a community of property or income, which flows from a caring relationship between them.

[Mr. McDowell]
All of these needs must be considered. The Government believes that if significant social change is to take place, and it is taking place - the Government does not like King Canute stop social change - it must have a fairly broad measure of support across society.
I compliment Senator Norris on including heterosexual couples as well as homosexual couples in the scope of this Bill because it makes sense from the perspective of fairness and equality to expand the debate to include others in caring relationships. I go one stage further and say we should also deal with non-sexual people in a relationship of caring and dependency.
A major problem arises in section 6. I made the point that Article 41.3.1o of the Constitution provides that the State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack. The advices available to me are that this article precludes the State from doing what section 6 purports to do, namely, equating the institution of marriage with other forms of relationship or partnership which do not carry the attendant obligations.
There are also problems of a legal and technical nature, of which the following are examples. The Bill does not contain an explicit list of rights and entitlements. Any Bill creating a new civil partnership institution would have to include a list of those rights and entitlements. The rights of parties to a valid marriage are complex and are not contained or to be found in any single instrument. They derive from the Constitution at one level, from statute law and from common law as interpreted by the courts. The question is precisely what is meant by the reference to the Family Law Act of 1995. This question is fundamentally important because the Act of 1995 does not, for example, extend to the validity of a marriage, neither does it provide for the types of rights referred to in the explanatory memorandum to this Bill.
The Bill also lacks provision in regard to duties. In this context, it must be borne in mind that marriage is not simply a series of rights, although it may seem that way, I fully acknowledge, to people who are kept out of it and who feel they are being denied those rights. Marriage - the same would have to apply to any new institution which would mirror it - is a complex of duties. Married people owe each other many judicially enforceable duties such as a duty of maintenance and a special duty in respect of a home used by them. If two people in a marriage use a place as their home, it becomes subject automatically and by operation of law to the Family Home Protection Act. Married people owe each other many other judicially enforceable duties such as the question of bigamy and competence as a witness. A married person is not competent to testify against a spouse. There are other issues such as privilege, divorce, judicial competence over capital assets and dividing up the assets of the persons. A few years ago this was not a matter of great importance but now it is. In family law cases major decisions can be made involving millions of euro being divided this way and that between the parties by the courts. This Bill is silent on these matters. Section 6 states that civil partners shall be regarded as having the same rights as parties to a marriage.
From a liberal perspective, it is not liberal to say that the only basis on which gay couples or a non-sexual couple can make arrangements for their next-of-kin status and the like is if they agree to a relationship which has all the incidents of marriage. We should think of this in a more long-term way and from a liberal perspective and ask ourselves whether this Bill would be fair to those who simply want to make some arrangements for their lives without making all the arrangements which marriage carries in its train.
In pointing out these matters, it is my intention, on behalf of the Government, to be helpful rather than negative. I hope Senator Norris accepts that. These are complex issues. If, as it appears, the Bill is an attempt to be comprehensive, it is not achieving its purpose. If it is an exercise in liberalism, and I know the Senator would regard it as such, it is not liberal if it indicates to couples who want to avail of a civil partnership that the only basis on which they can do that is by undertaking all the rights and incidents of marriage under our Constitution, statute law and common law.
The Bill does not deal with children's issues adequately, with which Senator Terry agrees. Sections 13 and 14 on foreign civil partnerships is generous but probably not in accordance with the Constitution and does not address issues such as the potential for fraud or the wide disparity between the laws of foreign jurisdictions.
The proposals in the Bill would have extensive implications for tax, welfare and civil legislation. Tax accruing to the State in the area of income tax, capital acquisitions tax and the like would be affected. I agree with Senator Norris that the mere fact that something can cost money to the Exchequer is not a reason, as we know today from consideration of the Article 26 reference, for putting into our law something which is unfair or for keeping it there. However, we have to think long and hard about whether our tax system could survive if generalisation of its provisions extended to everyone in society including two elderly farmers in Kerry who, because they care for each other, are entitled to be regarded as a family and to get double tax allowances. We have to think long and hard about that as a proposition and we might find the result would be that we would have to dismantle the present tax system, which is remarkably pro-family.
Notwithstanding the shortcomings of the Bill, I wish to make a final point because I am aware I am trespassing on the House's time. It is most emphatically not the case, as Senator Terry seemed to suggest, that those on this side of the House decided to try to derail this Bill today. I record that in the days leading up to this debate every means was sought to avoid voting down this Bill. I am glad Senator Norris, the Leader of the House and other Senators have come to an agreement whereby that will not be the outcome of this evening's proceedings. It was most emphatically not the purpose of the Government to vote down this Bill, sabotage or derail it, or to say that the issues covered in it are too complex to merit early consideration. That is emphatically not the Government's position.
We must emphatically reject the simplistic argument offered to us by Senator Ross that the merit of this Bill is so blindingly obvious that there should not even be a debate on it and that it should be nodded through. In the name of all that is good, that remark simply does not stand up to even a ten second scrutiny. I am sorry to say that in the absence of Senator Ross; I would have preferred to say it to his face. This Bill is not something which should be nodded through. It is not self-evidently so compelling in its terms as to merit no further debate; the exact opposite is the case. This Bill is a legitimate effort to counter unfairness and hurt for many people in Irish society and I accept it in that spirit.
The Bill is not something which could be pushed through on the nod or accepted uncritically; it must be teased out. Of course it is of interest whether the Supreme Court rules that two gay people who are married abroad can have their marriage recognised here, as is now being ventilated in the courts. If the courts decide that is the case, many of the issues in terms of the Law Reform Commission's view of the world and the one shared by my legal advisers and Senator Terry would disappear.
It is relevant whether we are content in future to have family rights restricted under the Constitution to unit groups in society based on matrimony, which is the issue being decided on currently by the All-Party Committee on the Constitution. It is also right that we should wait for the Law Reform Commission to report on its consultative paper on the rights and duties of cohabitants. It uses the horrible phrase "cohabitees" and I do not know from where they got that phrase; "cohabitants" is the one I would use. We should wait and see what some of these issues are. The Law Reform Commission, when it gets wind of the contrary legal advice of at least two parties in this House, might take a second look at this and acknowledge there is perhaps more to this than meets the eye.
I have great pleasure in saying it is not true that the Government panicked and tried to derail this process. The Government set out, and I am sure the Leader will confirm this in her contribution, that our definite priority in this matter was not to divide the House but to come to some arrangement that would accommodate this Bill as a meritorious assay in this area without defeating it because of the issues that I have raised. Therefore, I am grateful to Members of the House for allowing me to participate in this debate. This Bill is very important and the areas it covers cannot be deferred for another generation or another Parliament to consider. This is an issue for us to consider now, but that does not mean that we can commit the sin dangled in front of our noses by Senator Ross of nodding through something as important as this without looking around at least a few corners.