In this Bill I seek to remove the outright ban on divorce in the Constitution. In its place I would substitute a provision for divorce in circumstances defined in the Marriage Bill, 1985, with a mechanism for popular consultation in the event that future change is desired by the Legislature. There are two aspects to this popular consultation requirement. The first is the practical one, that my proposals on popular consultation correspond more nearly with what we know are the people's wishes and it follows that, in any referendum, success is more likely where continuing consultation is assured to the people. Of equal importance to this practical element is the importance of the principle itself, the principle of consultation with the people. The marriage law is of such central importance in people's lives that they are entitled to a guarantee of continued democratic consultation if any reforms are contemplated by the Legislature.
I seek a partnership between the Dáil and the people for such legislation. That partnership is already acknowledged in Article 47 of the Constitution. The consultation therein envisaged has never been invoked. On appropriate occasions, when matters of fundamental importance which stand outside, or should stand outside, party controversy are to be decided, the people must be acknowledged as responsible partners in the legislative process rather than passive recipients of party plans at election time. This is not to distrust the Legislature. It is a fuller version of democratic decision making than the Westminster model.
It has been suggested that it is legally impossible to have The Tenth Amendment of the Constitution Bill, 1985, and the Marriage Bill, 1985, decided on by the people on the same day. I do not agree. I accept that it may be that simple enabling legislation as happened in 1937 in the enactment of our present Constitution may be necessary. Alternatively, it might be considered more simple that the provisions of Article 47 of the Constitution which allow for reference of Bills to the people need to be invoked. Whilst in principle it is not essential that the process of popular consultation and the power to consult the people should be dealt with on the same day, for maximum clarity the people should know the terms of divorce legislation as they are asked to abolish the outright ban on divorce.
Whether enabling legislation or amendment of The Tenth Amendment of the Constitution Bill to include a reference to the Article 47 procedure is required, I can see no insuperable difficulty in regard to the concept of popular consultation. These points would be issues in the course of events, for a Second Stage debate.
I commend the response of the Labour Party. The weakness of what they propose is the lack of a mechanism for continuing popular consultation. The guarantees they propose in relation to the grounds for dissolution of marriage are so vague that they would permit virtually any legislation in their wake.