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Dáil Éireann debate -
Wednesday, 11 Oct 1995

Vol. 456 No. 7

An Bille um an gCúigiú Leasú Déag ar an mBunreacht (Uimh. 2) An Tuarascáil agus an Chéim Dhéireadh. Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Report and Final Stages.

Tairgim leasú Uimh. 1:

AN SCEIDEAL

I leathnach 7, línte 1 go 32 a scriosadh agus an méid seo a leanas a chur ina n-ionad:

"AN SCEIDEAL

CUID I

2º D'ainneoin aon fhorála eile den bhunreacht seo, féadfaidh Cúirt a bheidh ainmnithe le dlí scaoileadh ar phósadh a thabhairt sa chás gur deimhin léi go gcomhlíontar na coinníollacha go léir a bheidh forordaithe le dlí.

CUID II

2º Notwithstanding any other provision of this Constitution, a Court designated by law may grant a dissolution of marriage where it is satisfied that all the conditions prescribed by law are complied with.".

I move amendment No. 1:

SCHEDULE

In page 6, to delete lines 1 to 32 and substitute the following:

"SCHEDULE

PART I

2º D'ainneoin aon fhorála eile den bhunreacht seo, féadfaidh Cúirt a bheidh ainmnithe le dlí scaoileadh ar phósadh a thabhairt sa chás gur deimhin léi go gcomhlíontar na coinníollacha go léir a bheidh forordaithe le dlí.

PART II

2º Notwithstanding any other provision of this Constitution, a Court designated by law may grant a dissolution of marriage where it is satisfied that all the conditions prescribed by law are complied with.".

Following the Minister's decision not to accept my Committee Stage amendment I considered some of the difficulties he had with it and put down an improved amendment. Everyone is aware of the many arguments we have had about the wording of the Bill and my Committee Stage amendment. It is essential that our views are on the record so that we can prove we are consistent in what we say. I have come across an attitude — not shared by the Minister or Deputy Woods — that the legislation should be passed on a sort of nod and wink basis. This would not be appropriate as it deals with a very important matter.

The amendment seeks to differentiate between our approach and that of other parties. It is my firm belief that divorce should be available and people should have the right to remarry. That view has been articulated by my party over the past ten years. In saying this we believe that the Constitution should set out in broad terms the fundamental laws of the State. It is the job of politicians to legislate and notwithstanding our belief that people should have the right to remarry — we are ad idem with the Government on this point — we fundamentally disagree with the tactics and approach adopted by the Minister in this regard.

The Constitution should claim the allegiance of all people. It is important to point out that many people hold the same views as we do. In its submission to the Forum for Peace and Reconciliation the Church of Ireland stated that the Constitution is not a suitable vehicle for dealing with detailed social legislation. Unfortunately this is what we will end up with if the Minister includes his proposed wording in the Constitution. Difficulties arose in 1986 because the necessary legislation was not in place. However, we have not learnt from that experience, the later amendments to the Constitution or the débâcle in the X case. An amendment must be made to the Constitution but we, as legislators, should put the question to the people in the full confidence that they will allow us to legislate. We should ask them about the principle and then apply the detail to it. That is the most appropriate direction to take.

The amendment states "Notwithstanding any other provision of this Constitution,...". I am not one of the constitutional lawyers in our party but many people, particularly those in family law, are extremely concerned that the amendment tabled by the Minister will have to be read in conjunction with other provisions of the constitution. A cursory glance at the Constitution reveals that difficulties may arise in that regard. I am not convinced that the Minister's strategy is appropriate because his method of seeking to reassure people is unnecessary and inappropriate. I know what he is trying to do and understand the reasoning behind it but it is fundamentally flawed. People who will vote "no" in the forthcoming referendum will not care one iota about any reassurance the Minister seeks to provide by means of constitutional amendment. I do not believe he should have embarked on this course.

During the Committee Stage debate I was distressed to hear the reason he went down this path. We are all aware of Deputy Woods' position on this issue. He stated that the Minister had accepted the criteria in this regard set down by Fianna Fáil. I do not agree that accepting the criteria laid down by a particular party is the right way to go about amending our Constitution. We should listen to the views of various groups. The Minister is aware that I am voicing an opinion held not only by my party but by many Members of the House. I believe it was Deputy O'Keeffe who said on Committee Stage that he was sympathetic towards my view but did not believe it was the correct path to follow. A number of other Deputies expressed that view publicly at that forum and privately at that time. That view is held by minority groups such as the Church of Ireland and by not only constitutional lawyers but, more importantly, by lawyers directly involved in family law cases who are concerned about the constitutional imperative contained in the Minister's amendment.

The amendment I tabled today is simple, straightforward, easy to comprehend and, if accepted, there would be complete understanding that the laws of the land would set out the provisions for divorce. Notwithstanding the Minister's view regarding reassurance and so on, which I appreciate, I believe it is fundamentally wrong. There are other ways of reassuring people. Unfortunately, the fact that the Minister is saying that we must reassure people by enshrining something in the Constitution rather than saying we will legislate properly, is sending out the wrong signals about ourselves. Unfortunately, he is saying we do not trust ourselves and we do not believe that the public trust us either, and that is not appropriate.

Another reason I tabled this amendment, although it is not the main one, is that I would be concerned if there were a two minute debate on this issue. Members should put their views on this issue on the record of the House. Even at this eleventh hour I appeal to the Minister to accept the many arguments made about the approach to amending the Constitution and to accept my bona fides that there is a genuine case for changing the approach to this issue.

We do not support the amendment tabled by the Progressive Democrats for the same reasons we outlined in respect of the amendment it tabled on Committee Stage. There is no question of these issues being glossed over. They have been considered seriously and genuinely by Members on this side of the House and members of my party. We have had discussions, parliamentary party meetings, taken soundings of people's views on the issues involved and expressed them at some length on Second Stage and again on Committee Stage. A number of my party colleagues and Deputies from both sides of the House spoke on Committee Stage. There is no question of a decision on this issue being slipped through as suggested by Deputy Keogh.

As Deputy Keogh said, one is always a little concerned about being repetitive when discussing an amendment different from one tabled on an earlier Stage. The Minister said that amendment was not appropriate, would have led to more problems than the proposed wording and, consequently, we could not support it. The amendment contained a clause that if a judge found that there was just cause for a dissolution of marriage, it could be dissolved. The term "a just clause" is very open and the Minister has gone to great lengths to specify the conditions and terms under which divorce could apply if the people support a "yes" vote in the forthcoming referendum. I will not delay the House by repeating the debate on the issue. We set out our reasons for supporting the Bill on Second and Committee Stages. Deputy Keogh said that a Constitution should set out broad terms and I agree. It represents people's aspirations and it should be concerned about the broad guidelines for legislation. We are concerned that there would be a broad guideline to ensure that there would not be quickie divorces; hence, we want a reasonable time period to elapse between the breakdown of a marriage and a divorce. That is a broad guideline. Legislation can be introduced within that broad guideline but one of the parameters which we considered important is that there should be a reasonable time gap between those two events. That would allow time for reconciliation, counselling, arrangements and mediation. In the studies on children we undertook we found that the time gap was particularly important to facilitate the making of a variety of arrangements and to provide for a period of adjustment. Perhaps the proposed guideline is not such a bad one.

Many people in our party from throughout the country have said there must be some gap and that we cannot fall into the same trap into which Britain and other countries fell when "quickie" divorce was introduced. Such divorce in these countries caused so much difficulty that they are now trying to move back from what are effectively divorces after three months. This is one of the guidelines we saw as being important and which we wish to see included.

I am happy the Minister has included these guidelines as important criteria. We are satisfied he has made an honest, sincere and good attempt to introduce an appropriate amendment which embodies general guidelines and leaves the detail to be decided by legislation. People do not want "quickie" divorces and they want this view enshrined in the Constitution. This has been our understanding from an early stage and we would ignore the sincere views of people, including members of our party, if we did not seek to have such a broad term included.

The other major area we wish to see covered in the constitutional amendment is protection for children. The greatest concerns of people with regard to divorce and the proposal to remove the ban on divorce from the Constitution are the care, custody and maintenance of children and the psychological effects on them, not only of marriage breakdown and separation but also of the extra problems which may arise from removing the ban and providing for divorce. Because we are proposing to take away the absolute safeguard of the complete ban on divorce, we strongly feel that protection for children must be clearly stated in the Constitution. We must not just say that there might or might not be such protection and that it will depend on how a vote goes and so on.

These are the parameters we want to see enshrined in the Constitution. We want it to provide broad protection. The protection proposed in the constitutional amendment is not absolute or detailed but it provides an umbrella under which legislation can operate and under which we as public representatives can design legislation. We can be sure that if this protection is not in the Constitution somebody such as a barrister or a Member of the House will quickly make this clear.

We are concerned in broad terms about children and "quickie" divorces. Many people have said they would be far less concerned about the removal of the ban if it were not for their concern about children. They want to see in the Constitution a reflection of their concern about the way children will be treated if the amendment is passed.

Some will say that this kind of clause is included so that extra support can be won. Much has been made of this in the media and the House. As far as I am concerned, this matter is straightforward and simple and has nothing to do with winning support. We either support, protect and care about children and are sensitive to their needs or we do not.

There is nothing wrong with winning support.

I agree there is nothing wrong with winning support but we should be clear that our duty is to try to include in the Constitution the right parameters and broad terms which will protect children. Deputy Keogh wants things said on the record so that she can refer to them. Her lawyers have presumably advised her to ask people to say things on the record so that they can be criticised in future. I can only say what I believe and know to be the case. I speak not as a lawyer and an expert but as a person who is perhaps an expert about people, as most Members are. Politicians are experts in knowing what people want, understanding their needs and representing them. The legal experts are there to find solutions and to devise the methodology of meeting the broad aspirations of people.

We believe the Minister has dealt with this challenge close to rightly. We cannot be certain that every word is watertight but we know he has the assurances and legal support of the Attorney General in putting forward this constitutional amendment.

Our concern is that there should be protection for children and this will be important in any legislation which is subsequently introduced. My experience as Minister for Social Welfare warns me that if such protection is not included in the Constitution a Minister who argues at the Cabinet for changes which invlove money will not be able to rely on any constitutional protection or umbrella. Views on these matters change from time to time and it is important to have broad guidelines in place. The constitutional amendment proposed by the Minister appears reasonable and it covers the principal elements which are important for people when such a major change is proposed.

We cannot support the amendment tabled by the Progressive Democrats. It contains the words "notwithstanding any other provision of this Constitution". The intention, presumably, is to set aside the other provisions of the Constitution. This contrasts substantially with what the Minister is doing. He is placing the proposed constitutional amendment within the Article of the Constitution on the family and the proposed entitlements will be part of that Article. These entitlements will be contained in that section which also stresses the position of the family in society. Obviously, if there is a "yes" vote these changes will have to be taken within the context of the very high regard which we have always had for the family and which is enshrined in our Constitution. These changes take place in that context. The broad parameters are broad parameters within the family. That may be inconvenient for lawyers who might like something very simple, such as, notwithstanding anything else in the Constitution, we can do all the things we want to do here. Clinically, from a lawyer's point of view that could be much neater. If lawyers were asked how they would deal with it, they would say to leave it to them and to very simple legislation and that they would deal with it in that context. That is an understandable reaction.

Life might be simpler for everyone if, like Britain, we did not have a written Constitution and we had the same flexibility as in Britain. My experience shows that as far as the ordinary citizen in this country is concerned, our Constitution — and the records in the courts show that again and again — is one of the best things the man or woman in the street has going for them. It is my belief that the Constitution is important, practical and has effect, which has been shown time and again. It is a stay on the Executive and the Government of the day. They must have regard to what is in the Constitution. It is particularly important for ordinary citizens and we are all ordinary citizens. These are some of the reasons I feel we are adopting the right approach. There must be broad parameters to cover these areas and if they were in the Constitution there would be flexibility and opportunity to develop legislation in relation to divorce. In fact, the Minister has already put the draft Bill before the House. It allows for considerable flexibility and if the people decide in favour of this amendment it will allow for the introduction of divorce under these broad terms. It is a major change for us and one which we support, not just in relation to putting the issue before the people but the principle of the change of removing the ban on divorce. In supporting that principle we want safeguards. We believe the Minister's amendment is probably as right as anybody can get it at this time. That is why we will not support the amendment put forward by the Progressive Democrats.

My sympathy for the spirit of the Progressive Democrats' approach does not permit me to give support to the letter of the amendment as proposed. My view is that the ban on divorce should never have been in the Constitution. At the foundation of the State the founding fathers, in their wisdom, did not include the constitutional ban on divorce and it was only in 1937 that such a prohibition was introduced. Yet we have to be cognisant in discussing this issue of the need to get the support of the people to ensure the referendum is passed. It seems clear from all the available research that the majority of the people would prefer to retain some of the conditions in the Constitution. In that situation I set aside my own views in relation to the supremacy of parliamentary democracy when dealing with matters that should best be dealt with by legislation only. I have never been one to pander to populism. I am a strong believer in parliamentary democracy but I have to accept the practical situation.

There is a job to be done. It is absolutely wrong, considering the extent of marital breakdown in Ireland, that the ban on divorce and the prohibition on the right to remarry should continue; 75,000 people in Ireland are separated and, unfortunately, because of the extent of marital breakdown, that figure is increasing year by year. Will we condemn these people to remain in a constitutional limbo where they either have to refrain from second relationships or, if they do involve themselves in second relationships, they have no proper legal or constitutional cover? It would be utterly wrong of us to ignore that problem. It is our job as legislators to ensure that the right to remarry, which is available in every other civilised country, is available here. If it is more likely that the people will accept that proposal by having restrictions in the Constitution then let us go that route.

We could lose sight of the overall objective in the debate on the technical approach. It is important to go back to first base when we are discussing this issue — the need to deal with the unfortunate victims of broken marriages. Certainly we must have compassion for them and we must take the necessary steps to try to do what we can from a legislative point of view and, in particular, to give them the right to remarry.

We also have to take into account the broader considerations of society and those affecting the whole island. I have no doubt, even though it is not the primary reason for movement on this front, that a negative decision on this issue would not be helpful to the peace process or to the way in which the Republic would be viewed by our friends and neighbours in Northern Ireland. It is important from that point of view that there is a positive decision in this referendum and that we show we are a modern pluralist State, that we are not just paying lip service, that we are taking the necessary steps to ensure that we are and can be fully regarded by all as a modern pluralist State.

Insufficient attention has been paid to the question of whether the right to remarry is a civil right. I confess to being a little embarrassed by the comments of the Chinese Deputy Prime Minister — who visited this country during the week — when he was rightly asked by Government Ministers, the Taoiseach and the media about human rights in China. He was able to suggest that, in effect, people in glasshouses should not throw stones. There is no way one can equate the most awful things that happen in China with the fact that there is not a civil right of remarriage here. He was able to do it and to say that the matters which were raised were internal as far as the Government of China was concerned and that the question of human rights was not one for us to raise. In effect, he turned the argument around and said that we have our own difficulties here from the point of view of civil rights in that we do not even have the right of divorce and remarriage. From the international point of view, it is just another aspect that has to be considered when we compare ourselves with other countries, We cannot be like ostriches and bury our heads in the sand.

The Minister's proposal seems to have the best chance of attracting the broadest level of support. It is quite clear that virtually all the parties in the Dáil support it. I am sure Deputy Keogh will not disagree that in broad terms the Progressive Democrats Party supports that approach although it would prefer from the tactical point of view to have it presented in a somewhat different way. In broad terms the Progressive Democrats Party wants to have divorce and the right to remarry made available as do the rest of us. From the point of view of the overall objective of securing a positive vote in the referendum we have to give credit to the Minister for coming up with a balanced proposal that is not 100 per cent acceptable to everybody but has the best chance of being accepted by the people. I support that.

The referendum campaign so far has been reasonably balanced and I hope that will continue. There is a very good chance that the balanced proposal from the Oireachtas will be accepted and I intend to do what I can to ensure that. In spite of the fact that the Progressive Democrats approach has not been adopted, I hope the party will do the same. Taking the practicalities into account, I fully support the approach adopted by the Minister and cannot support this amendment.

I propose to deal with this amendment in a general way in terms of its approach to constitutional change in the key area of dissolution of marriage. Clearly that approach is at odds with the route chosen by the Government, a route which, as evidenced by the response to the Progressive Democrats amendment on Second Stage, commands widespread support among the broad spectrum of political opinion. I know there are differing views as to the desirability of putting detailed criteria into the Constitution, particularly where social matters are concerned. Nevertheless, we have to face up to the fact that there are genuine fears in our community concerning the adverse effects which might be attendant on the introduction of divorce, particularly in so far as dependent spouses and children are concerned. There is also apprehension that a divorce regime might mirror the regime in other jurisdictions where divorce is readily available even after a very short period of marriage and only on the most tenuous evidence of marriage breakdown. We may feel these fears and apprehensions are groundless but as legislators we cannot ignore them. We must deal with them in some way. The way the Government has chosen to deal with these matters is by way of the specific provisions which are the subject of the Fifteenth Amendment of the Constitution (No. 2) Bill, 1995. This Government is deeply committed to ensuring that couples whose marriages break down will have a right to remarry.

For them to have this right it is necessary that the divorce referendum be passed and that is the essential issue on which we should focus. It is not an abrogation of legislative responsibility to accept that on some issues the decision of the people must take precedence over our authority. It is not legislative cowardice to accept that many people might reject the introduction of divorce here if primary legislation rather than a constitutional provision is to be the main instrument of the change. The amendment proposal put forward by the Government is comparatively brief but encapsulates the essential requirements that would have to be fulfilled before a valid divorce could be granted. This is a reassurance to the many members of our society who have strong views on the type of divorce regime most suitable for Ireland. It is the ultimate guarantee that what they vote for is what they get. If the provision is to be changed in the future, it is the people who will change it.

Deputy Keogh's amendment is purely an enabling measure designed to permit the Oireachtas to prescribe the conditions under which a divorce will be granted. This approach is not capable of obtaining majority support at this moment. It lacks precision and does not offer the security evident in the Government's proposal. The Deputy will not be surprised therefore if I say with regret that I am not in a position to accept her amendment.

As the Minister quite rightly says I am not surprised that he is unwilling to accept this amendment.

I understand where the Minister is coming from and the reasoning which prompted him to adopt the approach he has taken. He wants to be practical and have the measure go through. I want the ban on divorce to go and that is fundamental to my arguments. The Minister will accuse me of being impractical if I say I do not honestly think a great number of people believe it is necessary or right to put this measure into the Constitution. When we consider something as fundamental as amending our Constitution what should guide our approach is what is right, not what is expedient. I am not condemning the Minister for this because he believes this is the only way to have this measure passed. That belies the maturity of the electorate who can understand the arguments. I believe we will have a successful outcome to the proposed amendment because Irish people are compassionate, and understand the necessity for thousands of people to regularise their situations and be given the right to remarry. That is why people will vote "yes" and not because of the constitutional imperative to look after children and so on. I agree wholeheartedly that we should have protection for children and that we should not have quickie divorces. I do not have any problems with the arguments made on the type of divorce regime we should have. The removal of the ban on divorce will not result in a divorce culture. Our children have a fundamental right to be protected whether or not we have divorce, and it should not be necessary to enshrine in the Constitution a provision to safeguard them, as if such provision were some type of quid pro quo. That would be almost to say children will be messed up if divorce is introduced and that we must, through the Constitution, make sure they will be looked after. Marriage breakdown exists. They are unhappy families and children who are at risk. Every time we open our newspapers we see reports of abuse of children. As a society we need to safeguard our children by ensuring that we have the legislative framework to do so, and that should be fundamental to our society, not just tagged on to divorce legislation. We should protect children not just in the context of divorce but in the wider context.

I appreciate Deputy O'Keeffe's concern to get the support of the people for the amendment to the Constitution, and the way to do that is by persuasion and reassurance. It is not necessary to enshrine the detailed provisions in the Constitution. From the time this legislation passes until the referendum is put to the people it behoves the Government to campaign energetically for the amendment and to explain what legislation has been put in place since the last divorce referendum. That is the kind of reassurance people need.

The Minister intends to do everything he can to get this amendment through, and he knows I will campaign for the deletion of the ban on divorce. I am unhappy with the approach taken and I have expressed my views as well as I can, unfortunately to no effect as far as having my amendments accepted is concerned. Ironically, despite my disagreement with the Minister's approach, I am determined that the Progressive Democrats will campaign to give people a second chance, to give them the right to remarry. I do not want my disagreement with the tactical approach of the Minister to be misunderstood or taken as a reason for not voting "yes" in the upcoming referendum. I am disappointed with the Minister's approach which I think is wrong and will result in future difficulties. However, I agree with the view of many who have campaigned for divorce for many years that half a loaf is better than no bread. I hope that despite misgivings regarding the provisions put before us by the Minister people will vote wholeheartedly in favour of the right to remarry. What we are talking about is a civil or human right. Although I am disappointed with the Minister's approach, I have to accept the view of people in this House. In trying to deal with people's fears the Minister is unnecessarily using a sledgehammer and has not listened to my views. However, it is very important that these views be expressed on the record of this House.

Cuireadh agus Aontaíodh an Cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh."

Faisnéiseadh go rabhthas tar éis diúltú don leasú.

Question: "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
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