Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009
Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009: Second Stage
Senator Ivana Bacik: It gives me great pleasure to be here on behalf of the Labour Party to welcome the introduction of this ground-breaking Bill. I am proud to be here to represent the party with a proud tradition on gay rights and the first political party to bring before either House legislation recognising the status of gay couples in law.
In 2004, my dear friend and colleague, Senator Norris, a pioneer on gay rights, was the first person to bring forward legislation. His Civil Partnership Bill was debated in this House in 2005 and 2008. However, the Labour Party introduced a Civil Union Bill in the Dáil in 2006 and again in 2007, which Deputy Howlin proposed. That Bill would have gone a great deal further than this one does. We have a proud record on gay rights and I am proud to be here to say we will support this Bill.
However, we have reservations. In the party’s view and in mine, this Bill does not go far enough. It does not represent equality for gay couples. It does not provide for recognition of gay marriage and it has a most glaring omission in that it has only a very minimal reference to protection for the children of families involving two parents of the same sex. It lacks protection for children of gay parents and this is a major flaw which we and Senator Norris will attempt to address through a series of amendments.
While we support this Bill as a step forward, an advance in the rights of gay people, we do not see it as being an ending post. As the Irish Council for Civil Liberties said, this is a staging post and not a milestone. It is only a step on the way to true equality.
Moreover, I do not see why we could not have gone further in this Bill. A great deal of time has already passed in which this Bill has been campaigned for. This Bill has not come about easily. I pay tribute to the great work of groups like GLEN and the NLGF, Senator Norris and many other courageous individuals, some of whom are in the Visitors Gallery and whose work has brought about this Bill and a situation in which all the political parties have signed up to this. We could have gone further given the long genesis of this Bill and the long road we have all travelled to get here.
I should declare an interest here. I am junior counsel in the Zappone-Gilligan case, which is awaiting a trial date before the Supreme Court. A wonderful couple, Katherine Zappone and Ann Louise Gilligan, are seeking recognition not only of their Canadian marriage but of their right to marry in
I will address this point further after the suspension, but may I make a final point? There is still a small number of people who object even to civil partnership and who have put their objections to marriage on the record. However, it is extraordinary that they have never explained how recognition of gay marriage would impact adversely on the rights of any existing married couples or individuals. They have never said what harm it would do. In the absence of that, we know it will not do harm. It will not dilute the rights of any other people, as Senator McDonald has said. There is no need to oppose either civil partnership or full marriage rights for gay couples.
Senator Ivana Bacik: I welcome the Minister of State, Deputy Calleary. Before the suspension, I was speaking of the major problem that we in the Labour Party see with this Bill, namely, that it does not go far enough. It does not provide for full equality for gay couples because it does not recognise within it the right to marry. I want to emphasise that arguing for a more inclusive definition of marriage is not an attack upon marriage. It has been misinterpreted in that way but it is far from it, because expanding the categories of those entitled to marry in law gives even greater support and protection to the institution of marriage.
One must remember that our definition of marriage has changed over time. Until 1995 in
That day has already come in a host of other jurisdictions. It is not as if this is something that is a radical or far-fetched proposition. We have seen it in
Public opinion has moved on. As I said earlier, and others on this side of the House, notably Senator Regan, have already quoted opinion polls that show the majority of people favour legal recognition for same-sex couples and the recognition of marriage. The vast majority of submissions to the Joint Committee on Justice, Equality, Defence and Women’s Rights, of which I am a member, argued that the Bill did not go far enough. We should take a lead from other countries and recognise in our legislation not only partnership but also marriage. We are supporting an amendment from Senator Norris which would give some effect to that. As I said, Senator Norris has led the way on this issue for many years. He introduced the first civil partnership Bill in either House in 2004 and it was debated in 2005, a Bill on which I worked with him and which was drafted in a way that was far more inclusive and far-reaching than the current Bill.
Why does all of this matter? There will be those, such as the Minister in his remarks before the break, who say that civil partnership is enough. There are those who say the name of the institution may not matter but it does matter. There are two key reasons for this. First, it matters in law. It amounts to second class citizenship not to permit gay couples to marry. Even in the
Second, the difference between marriage and civil partnership matters greatly in practice. It is not the same in reality. What we have is a very different model to the
The lack of legislative recognition for the children currently living in gay families in
“. . . the Bill does not adequately address the rights and needs of children . . . it is unclear why [the consideration of children] resulted in a Bill that did not prioritise the rights and interests of children. Although the situation of same-sex couples will be improved considerably by the enactment of the . . . Bill, the situation of children with same-sex parents will remain largely as it is at present . . . It should be borne in mind that this is not a hypothetical problem. 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.”
It is a very robust critique of the Bill and we would absolutely share that view.
In fact, there are two references to children when one considers the Bill very carefully. There is a very welcome amendment in section 73 on succession rights to allow the children of a civil partner to succeed to their parents’ estate but there is no right of succession if the parent who has died is not their birth or adoptive parent. In section 129, there is some broader reference on the dissolution of a civil partnership where the court may have regard to a child to whom either civil partner owes an obligation of support. While that is welcome, it does not go far enough and we have put forward amendments to try to address this.
I put forward various amendments of the sort the Ombudsman for Children has proposed, as did Senator Norris, when we debated the Adoption Bill. I put forward an amendment on special guardianship and both Senator Norris and I proposed amendments explicitly permitting gay couples to adopt. The Minister, Deputy Andrews, at that point said these amendments were not appropriate in that Bill and he explicitly referenced the introduction of the civil partnership Bill. Now, with the civil partnership Bill, we see the Minister, Deputy Dermot Ahern, saying a comprehensive review is underway of the rights of children and it will all be dealt with later. When are we going to deal with it? We need an answer to that question. It is simply not good enough for the many children who are currently existing in what Senator Norris has described as a legal limbo and whose rights vis-à-vis their non-birth parents are simply not being recognised.
There has been a good deal of talk from those opposed to this Bill more generally about the need for the preservation of marriage as exclusively opposite-sex because that is better for children. Again, I have not seen any evidence to support the contention that extending marriage rights or civil partnership rights to gay parents or gay partners in any way impacts adversely upon children — nothing has been produced to show that. All the available research shows it is the quality of parenting that matters, not whether the parents are gay or straight.
Many of the studies cited by the other side, including the infamous Fourth National Incidence Study of Child Abuse and Neglect produced by the US Government this year, do not look at all at gay parenting as against straight parenting and have different research criteria. That
Other studies have also been done, including a recent Spanish study of 214 families of various types, including same-sex parents and families with married parents, etc. It found that young children and adolescents generally benefited from attention received by two engaged, caring parents of the same gender. Gay parents were as good if not better at raising healthy, well adjusted children than the heterosexual counterparts.
The point made in the study was that often studies touted by the other side do not address same-sex couples and their children. Instead they tend to examine the differential effect on children of being raised by single parents rather than two parents. It is an important point. In this jurisdiction marriage equality has presented some experiences from children of gay couples and those who are adults have expressed their own view that the only discrimination experienced was from other people, and they were otherwise brought up in a healthy and loving environment.
As legislators we must deal with the reality that there are gay couples in
There are other flaws in the Bill and areas where it falls far short of anything close to marriage. This is notable in the area of immigration law and the recognition of foreign marriages. Gay couples who have married abroad will see their relationship only given the status of a civil partnership in our law. In the dissolution of a civil partnership there is a differential treatment, and a couple may only seek dissolution where they have lived apart for two of the previous three years. A longer period is required for couples seeking divorce from a marriage at four to five years.
There is a lack of specific protection in the Bill relating to equality in social welfare and taxation. We are told other legislation is necessary to bring those changes into effect. I was glad to hear the Minister, Deputy Dermot Ahern, say those changes are being drafted to be included in finance and social welfare Bills, but I would like clarification on when we can expect to see those in place. I presume the full effect of this Bill will not be seen until that is done, but I would like confirmation in this regard.
Many people in
Senator David Norris: Hear, hear.
Senator Ivana Bacik: The majority of us on both sides of this and the Lower House look forward greatly to seeing civil partnership ceremonies conducted here. This is a Bill that is long overdue as it has had a long genesis. It does not go far enough for us but we recognise the historic nature of this day.
We will support the Bill and we will also support the protection for cohabitees which has been provided. It is relatively limited and does not amount to unwarranted State intrusion on the lives of couples who have chosen not to get married or enter into civil partnership. It will resolve the real injustice which has occurred where a cohabitant is financially dependent on a partner and who until now has had to endure a very unwieldy legal process to get any form of redress.
We support the major elements of the Bill as a stepping stone. In the words of an Iarnród Éireann advertising campaign, we are not there yet but we are getting there. It is an important step which we welcome.
Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009: Committee Stage
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 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 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 samesex 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
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 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.
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 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 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 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
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
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.
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.
Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009: Committee Stage
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 us 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 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 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 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 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.
An Cathaoirleach: The vote will now proceed.
Question put:
The Seanad divided: Tá, 48; Níl, 4.
Senator Ivana Bacik: I add my voice to the voices of others very much welcoming the passage of the Bill. I thank the Minister and his officials who have worked so hard on the Bill. I ask the Minister not to get too used to such a big majority; it may not last. However, it was nice to be part of such a genuine consensus on the issue. I also thank the many non-governmental organisations and individuals, some of whom are in the Gallery now, who have worked for so many years to make this happen. It has been a long road to introduce this legislation. It is 17 years since the decriminalisation of homosexuality. Senator Norris and others have been working for many years on this legislation. A tribute must be paid to Senator Norris who introduced the first legislation on civil partnership, followed closely, of course, by the Labour Party with the two Bills introduced in the Dáil by Deputy Howlin in 2006 and 2007. All parties rightly support this legislation. It is a great day to see that we all support it.
Of course, the Labour Party has been critical of the legislation. We said it does not go far enough. In particular we were critical of the major omission of children and children’s rights from the Bill. However, I was very heartened by what the Minister said last night in proposing a comprehensive review of children’s rights in other legislation to come. We very much look forward to that. We are also very heartened by such a major shift in public opinion and such a vast majority in favour of the legislation as shown by the very small minority who sought to oppose it.
This is a day for celebration. We all look forward very much to the first civil partnership ceremony taking place in this jurisdiction and we see it very much as a stepping stone and a step forward towards true equality for gay people and all of us in society.
