Thirty-ninth Amendment of the Constitution (The Family) Bill 2023: Second Stage

Minister for Children, Equality, Disability, Integration and Youth (Deputy Roderic O'Gorman)

Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

Today, I am bringing before the House two Bills the aim of which is to update our Constitution to reflect the values of a modern, inclusive Ireland. Words are important. As the fundamental law of Ireland, the words in our Constitution are particularly important. They have real legal meaning. They speak to our values as a country, and right now, the words of Article 41 of the Constitution do not match our values. Those words mean the exclusion of thousands of families from the recognition and protection of the Constitution, solely because those families are not based on marriage. Those words seek to contain women in a singular role, a role completely divorced from the reality of women's lives and their careers across our country today. They fail to recognise that care in a family, be it the care of young children, a sibling with a disability, or an elderly parent, is a role for everybody, irrespective of their gender.

In the two referendums being proposed, we have the opportunity to change those words, the chance to build on previous reforms to our Constitution, such as children's rights and marriage equality, and reflect the continuation of our journey towards a more compassionate, inclusive and equal society.

The first of the Bills is the Thirty-ninth Amendment of the Constitution (The Family) Bill. The primary purpose of this Bill is to amend Article 41 of the Constitution to provide for a wider concept of family. The proposed amendment reaffirms the family as the fundamental unit of society. It does this in a way that recognises families beyond those based on marriage, including lone-parent families and couples who choose not to marry, whether or not they have children.

This amendment is not merely symbolic. It will ensure that the constitutional protections for the family will extend to those families. It will give to those families the right to manage decisions within their own families, giving them the protections that currently apply only to the marital family. There is, however, something deeply meaningful about this proposal that transcends its practical impact. The Constitution was written at a time when society only recognised and respected one kind of family. Families which fell outside that single ideal were stigmatised and spurned.

In the past, non-marital families, and single mothers and their children in particular, were discriminated against and made to feel they were not a full part of our society. They were denied constitutional recognition as families. Through our shameful legacy of mother and baby institutions thousands, they were also denied the opportunity to live together as a family. Thankfully, these outdated views no longer hold sway. In addition, the recognition that families exist beyond the marital family is already reflected in statute, through legislation such as the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. In this way, society and statute have already moved ahead of our Constitution in terms of the reality of the modern family. Until our Constitution recognises those families which are founded on committed and enduring relationships other than marriage, however, we cannot say that as both a State and a society we have fully faced this aspect of our past and rejected the discrimination which was experienced. This referendum presents an opportunity to put things right. It is our chance to say to the one-parent families or unmarried couples of the past and the present that they are just as fundamental to our society as any other family.

The reality is that the marital family is not the only kind of family that exists in Ireland, and it never was. There are women in Ireland today, maybe they are grannies or great-grandparents now, who built stable and loving homes alone, nurturing their children while all the time working to support those children. In many cases, society openly regarded those women as being lesser. The women in question are in my mind today as I bring forward this proposed amendment to the Constitution. I do not believe they will see it as a mere gesture. I do not think their children will see this as a mere gesture, those children who grew up in the shadow of that egregious term "illegitimacy". I do not believe they will see what we are proposing to do as a mere gesture. This amendment matters.

A great amount of consideration and time has been given to this proposed amendment. The Citizens’ Assembly on Gender Equality was crucially important in progressing this work, so I take this opportunity to thank all those citizens who gave of their time during the pandemic to consider and provide thoughtful proposals for constitutional change in this area. I also thank the assembly's chairperson, Catherine Day. I hope that some of them are watching this debate and seeing their recommendations potentially become reality. In its report the assembly noted that there have been calls for many years for the references to family in the Constitution to be expanded beyond the marital family. A number of public submissions to the assembly argued that the limitation to the marital family discriminates against other family forms and is not in line with current international best practice and norms or even certain aspects of Irish legislation and policy.

In taking forward the recommendations from the citizens’ assembly, the special Joint Oireachtas Committee on Gender Equality also gave this detailed consideration. The committee held some 23 public meetings and considered more than 60 written submissions. The committee’s proposals around constitutional reform gave us the building blocks to progress this proposed amendment. I sincerely thank the committee chairperson, Deputy Bacik, who is here today, and the other members of the committee for their work in compiling the report and recommendations.

In March, the Taoiseach and I announced plans to hold referendums to give effect to the recommendations of the citizens’ assembly and the Oireachtas committee. I know there has been some frustration that it has taken us a number of months to finalise the wording on the proposals, but constitutional change should not be taken lightly, and intensive work was needed to ensure we landed on the right formula of words. The interdepartmental group which dealt with this matter was chaired by my Department and included representatives from all Departments and the Office of the Attorney General. It undertook extensive scoping work and supported the development of policy proposals which were then deliberated and decided upon by the Government. The Government took its deliberations on these proposals very seriously.

As already stated, the current language of Article 41 does not reflect the reality of life in Ireland today. What constitutes a family is not defined in the Constitution outside of the reference to it being founded on marriage. This amendment will make it clear in our Constitution that the family extends beyond the marital family. The amendment aims to bring our Constitution in line with what is now the norm in Irish society by recognising and affording long-awaited constitutional status and protection to families founded on committed, durable relationships other than marriage.

The proposed amendment does not seek to define the family in Article 41, nor would it be appropriate for it to do so. It simply recognises that the concept of the family outlined in Article 41 is no longer limited to the marital family and also encompasses other durable, committed relationships, including one-parent families and cohabiting couples and their children. In terms of the Constitution as it stands, the family continues to be described as the fundamental unit group of society. There are no proposed changes to this element of the existing Article 41.

We considered various options for the wording and where it should be located within the Constitution. The proposed amendment recognises the more inclusive concept of family in a positive, upfront manner within Article 41 rather than solely in Article 41.3.1° which is centred on marriage. In this regard it is important to note that the proposed amendment does not remove the special and unique status of marriage within the Constitution. The proposal removes the words "on which the family is founded" from Article 41.3.1°. However, the State’s pledge within the Constitution to guard with special care the institution of marriage and to protect it against attack will remain in place. The marriage equality referendum affirmed that marriage has a special position and it would not be appropriate to remove that affirmation by the people with this proposal. In addition, the amendment will not impact on the ability of any government to provide for taxation arrangements and other entitlements which may be linked to marriage.

I will now outline the key elements of the Bill as initiated. The Bill consists of two sections and a Schedule.

Section 1 provides for the amendment of Article 41 of the Constitution by the insertion of the words "whether founded on marriage or other durable relationships" after “the Family” in the English text of Article 41.1.1°, and "bíodh sé bunaithe ar an bpósadh nó ar chóngais bhuanfasacha eile", after “an Teaghlach” in the Irish text. This section also makes provision for the substitution of the text contained in the Schedule in both the English and Irish text. This is simply allowing for the removal of the words “on which the Family is founded” from Article 41.3.1°. The section allows for the renumbering of relevant sections, depending on the passing and enactment of the Fortieth Amendment of the Constitution (Care) Bill 2023.

Section 2 is the citation provision and sets out that the constitutional amendment shall be called the Thirty-ninth Amendment of the Constitution. This section also provides for the Act to be cited as the Thirty-ninth Amendment of the Constitution (The Family) Act 2023.

The Schedule contains the wording "The State pledges itself to guard with special care the institution of Marriage and to protect it against attack" in both English and Irish. This is to allow it to be substituted to the relevant section, subject to the passing of the Bill and the passing of the Fortieth Amendment of the Constitution (Care) Bill 2023.

The aim of this proposed amendment is to allow for long-awaited constitutional recognition of families outside of the marital family. The amendment will mean that our Constitution recognises families which are not based on marriage, but it will retain the special protection for marriage. The proposed constitutional change is consistent with the reality of diverse family formation in Ireland today and it will allow us to bring our Constitution in line with what is already the norm in Irish society. It will afford families, be they based on marriage or on other durable relationships, the same constitutional protection. This change will mark an important step forward for our Constitution and help us to reinforce the family values that our society holds dear.

I commend this Bill to the House.

Deputy Sorca Clarke

I thank the Minister. I did not intend to make reference to his opening statement when I came in today. As somebody who was raised in a single-parent household, however, I feel compelled to do so. We need to congratulate, acknowledge and celebrate those women, the grannies - and in my case soon-to-be great-granny - for the work they have done in building those stable homes and nurturing their children, some of whom still benefit from such nurturing. I acknowledge and thank all of those who gave so freely of their time to engage with the Citizens' Assembly on Gender Equality and the subsequent Special Oireachtas Committee on Gender Equality. Their time, dedication and work are appreciated and acknowledged deeply for bringing us to this point. These are important referendums. Sinn Féin wants to see them pass and will continue to engage with stakeholders over the Christmas period with a view to bringing forward potential amendments in the new year.

There are, however, pertinent questions to be asked and answered. Why has the Government moved so far from the recommendations of the citizens' assembly and the Joint Committee on Gender Equality? I am concerned by some of the language proposed in the amendment. As the Minister stated, words matter. My concerns include the reference to "durable relationships". Why was that language chosen? It is language identified in a Bill briefing prepared by the Oireachtas Library and Research Service as a legal concept found in European law but not previously recommended by the Citizens' Assembly or the committee. The word "durable" is peculiarly odd and vague in a constitution. Why were the words "interdependent" or "codependent" not chosen? The language that has been chosen risks being unnecessarily vague and open to very different interpretations. We need assurances that this language will not cause legal issues or loopholes. Ambiguity is not much use. We should have clear and defined wording. I ask the Minister to consider this language carefully and thoroughly to ensure we get this right. This can be resolved by the Government if it is listens to the well-founded concerns of the Opposition and stakeholders.

For example, a scenario put to me is that of three lifelong friends who have lived together for many years, rent a property together, share expenses and responsibilities and support each other through all of life's challenges. These individuals are not romantically involved but their bond is strong, resembling that of a family in many respects. None of them have immediate blood relatives and they have come to rely on each other through the years for emotional support in practical matters, such as healthcare decisions. Will the reference in the proposed amendment to a durable relationship mean these friends will potentially be considered a family unit under law? If so, does this raise questions in respect of healthcare rights, property and inheritance rights and assets?

Deputy Réada Cronin

I am glad to speak on the Bill. It and the Fortieth Amendment of the Constitution (Care) Bill 2023, Second Stage of which is also being taken today, are very much interconnected and reflect the changed and changing State and society in which we live. We have come a long way in the past 40 years in particular, and these referendums will be important markers on the next stage of our journey. They will be a chance for the people to have their say on the family, what and who constitute the family, the institution of marriage and its protection, and the administration and responsibility of care in the family and the home.

Family based on marriage has always been fundamental and sacrosanct in this State, but the rise in cohabitation, the number of people choosing to have and to rear children on their own and, indeed, the number of grandparents rearing their grandchildren alone present a broader idea and presentation of family well beyond the usual religious and traditional basis of marriage. We must have acknowledgement, recognition and protections for the way we live today in our families and, by extension, in society.

I thank the citizens' assembly for its work in this regard, as well as the plethora of NGOs that appeared before the committee and were so open in their views and generous with their time. That is real civil engagement at its best. At this time last year, we were finalising our report. It is good to get it to the point at which we find ourselves today. The proposals of the citizens' assembly gave us a chance to reflect on family in the 21st century. I am fully in favour of protecting marriage and the institution of marriage as something of real and deep value in society. On the matter of family, whether founded in marriage or durable relationships, the proposed wording requires clarification and strengthening. The word "durable" is strange and weak in this context. It is more suited to describing a battery than to complex and sensitive human relationships, never mind Bunreacht na hÉireann. It is far too nebulous. It is open to a multiplicity of interpretations and, therefore, has no place in the Constitution, where language should be precise. There is a shallowness in how it has been presented.

I will broaden my remarks to speak briefly on actual support for families that goes beyond a definition. I am talking about the basics of good government, which is to provide good public services, be they decent and affordable housing, access to affordable childcare, a school place for every child or a seat on the school bus for those who need it. There are children in north Kildare who do not have a school place. It is 2023 and some of the children in my constituency are receiving six hours of home tuition. It beggars belief. Local TDs have to try to help parents who do not have school places for their children for next year. Every family, be it through marriage or on the questionable basis of a durable relationship, needs these services. I would much prefer if we, as legislators, were waiting to discuss today how we can nail down and set in stone for all families access to all the public services to which I referred, and for that to be done on the basis of guaranteed rights, rather than luck or political favour.

For now, I am afraid the word "durable" is not durable constitutionally. It has an optics-driven shallowness to it that is unworthy of families or Bunreacht na hÉireann.

Deputy Ruairí Ó Murchú

I wish the Leas-Cheann Comhairle, the Ceann Comhairle and all the Oireachtas staff, including the ushers and the many others whom I put under pressure from time to time, a happy Christmas. It has been said to me-----

An Leas-Cheann Comhairle

The time is still running.

Deputy Ruairí Ó Murchú

I do not always see the time constraints as applying to me. I may have occasionally stretched past adhering to the boundaries of the subject under discussion. I have heard that said, but I am not sure I would accept it. I thank everyone and hope they have a good and safe Christmas. In addition, I remember the family of Private Seán Rooney. I remember the sacrifice he made and the ongoing struggle for his family. That is in all our minds today.

As regards the Bill, we must congratulate the citizens' assembly on its work. The Bill addresses aspects of our past into which we do not all like to delve, such as in the context of that did not fit into a particular concept or criteria. All present know that women in particular were treated as second-class citizens at many stages through the years.

While we welcome the fact that we are heading in the right direction, my colleagues have identified specific issues, particularly in respect of the word "durable". We need to ensure the Government, the Minister and the Opposition get around to dealing with some of those questions. If we are to address an issue that has been left unaddressed for considerable time, we need to do so properly. If we are being serious, no matter what language we come up with in the context of delivering for families and wider society, we must be clear that there are many families that are under severe pressure. All Members know the issues that exist, such as the housing and cost-of-living crises. Even beyond that, there are those on the periphery of society who do not feel they have any connection to wider society. They feel far removed from the establishment. There is a requirement for the State and its resources to make very early interventions. This is not the first time I have raised this issue with the Minister. We are all aware of projects that are doing very good work, whether through NGOs, special needs assistants or specific State services, but a large number of these services do not have the capacity to deliver sufficiently to meet the want and need that exists. In many cases, such as disability or mental health services, additional resources are required. Often, the resources are not being delivered at an early stage. We often talk about early interventions but we all know, as constituency TDs, that we cannot always engage a service for the people who come to us.

I find it an element of failure when somebody comes to a TD to try to rectify an issue, whether it is with regard to disability services or not. I do not know how many times we have all been in this Chamber talking about the huge issues that exist with regard to waiting on assessments of needs but then, beyond that, awaiting therapies. People think it is going to be rectified and sometimes, even in that case, they accept that there will be a two-year waiting list. On that basis, they nearly believe a knight in shining armour is going to come and provide them with a solution within two years. Generally, however, situations and circumstances do not improve in those particular issues.

Even in the last week, I have been dealing with a number of issues of people who are in need and who have issues from a mental health point of view and other particular circumstances and who find that their families cannot get the services that are required. We have made huge strides with regard to a human rights ethos that did not always exist.

We know the huge issues that existed with regard to institutional care, but there are times and places when we need to be able to deal with people who present, who are dangerous to themselves and sometimes others and who are in real trauma. We need to find a better means of dealing with it. If we are talking about families across the board, we need to be able to provide them with all that is realistic and reasonable. We are talking about everything from healthcare right through to mental health and disability services.

We all have people who come to us, and more will come, with regard to trying to get kids a place. When we talk about autism units, even where they have been planned in schools, sometimes there is a delay, but that delay will impact on families. We need to find a better way of communicating. We need to find a better way that we can actually provide these services. We have to have real conversations.

We will talk about occupational therapy, speech and language therapy and psychology and we accept we have many positions that are not filled. We know it will take a huge amount of work to fill those positions. However, if we get workforce planning correct with regard to those particular positions, we are probably still talking three, four or possibly five years before we can deliver on what is necessary. Therefore, in that time, we need to have a real conversation about what the need is, what we can provide and anything we can do, whether we are talking about technical means using online capacity or whatever else, to provide some element of service. It will be different at times. I understand that, when we are talking about children and adults and their needs, it is all very different. We absolutely have to have a real conversation about what the absolute best is that we can provide and how we can almost, for want of an absolutely terrible term, provide the best bang for buck. At times, we do not have that. We still have silo circumstances. That is accepting that I have seen some of the work that is being done with regard to having a single point of entry and triage systems. However, the unfortunate word that is nearly always used is "pilot". We really need to get beyond that. Whatever the issues as regards dealing with the wording we are going to have in these particular referendums, we have to get real regarding what we are going to provide for people.

It goes without saying that even if we get that piece of work correct with regard to added resources, early interventions and all the rest of it, we really cannot have numbers of 13,000 people and up on homeless lists in emergency accommodation. We cannot have the length of time it takes for people waiting on local authority housing lists. We cannot have those people who find themselves unable to afford rent or who cannot even find places at unaffordable rents, and people who in other circumstances, over many other years working the same jobs, would have been quite able to attain mortgages and homes. We really have a significant amount of work to do to provide something that is definitely better and deliver for our families.

In fairness, the Minister and I have spoken before about the absolute necessity to make sure we provide for equality legislation for the very changed Ireland this is for all those families and relationships and all the ways in which people live in this day and age. We must make sure we have that solidly in law and that we push back against those who sometimes are facilitated by big tech. We have seen it online. It is sometimes called the far right. I believe that sometimes provides greater credibility to these people than they deserve. At times, there is an element of lunacy out there that needs to be called out for what it is. There are a number of things we have do and that we have to get a grip on.

I believe I may have overstretched even my remit at this point. A huge piece of work has been done, particularly by the citizens' assembly. We are heading in the right direction, but there is a need to look at some of this language because we really need to get this right. We have an opportunity to do it right. We should just take the time. The Minister should work alongside the Opposition and all the other stakeholders from a point of view of delivering that.

An Leas-Cheann Comhairle

Is the Deputy voluntarily giving up two minutes and 42 seconds?

Deputy Ruairí Ó Murchú

It is Christmas.

An Leas-Cheann Comhairle

That is very good.

Deputy Ruairí Ó Murchú

I may have got a kick.

Deputy Ivana Bacik

I am glad to speak for the Labour Party on this important Bill, the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023. My colleague Deputy Sherlock will speak for the Labour Party later on the second of the two referendum Bills, the Fortieth Amendment of the Constitution (Care) Bill 2023. I will make some reference to that Bill in my own contribution since the two referendums are to be held on the same date, arise from a common process and each would seek to amend the same article of the Constitution, that is, the family article. Indeed, the text in the thirty-ninth amendment Bill refers and is in some ways contingent upon the text in the fortieth amendment Bill.

I am glad we have finally got to this point. It has been a long journey to get here. I, personally, have been very closely involved with this process for a long time. As Chairperson of the Oireachtas Special Committee on Gender Equality and previously as a practising and academic lawyer, I have researched and engaged extensively with the text that is now under scrutiny and which the Government is proposing to amend. I thank the Minister for his acknowledgment of the work we did in the committee. Indeed, Deputies Clarke and Cronin, who are in the Chamber, were also members of that committee along with others on a cross-party basis across the House. It is because of my long involvement with the process that I am so deeply concerned about the text we have been provided with in these Bills today. It is a real disappointment that the wording now proposed does not follow the recommendations of the citizens’ assembly or the Oireachtas committee. It will beg the question, particularly from the citizens and those many stakeholders who engaged with us, as to what all the engagement was for, if indeed the text was to depart so significantly from that which we and the citizens' assembly before us recommended. We heard from so many witnesses, including stakeholders, experts and persons with lived experience of inequality. The citizens' assembly before us had also done so. The citizens delivered clear recommendations and we delivered a clear action plan building on those recommendations. It is exactly one year ago this month that the committee produced a draft wording of the proposed constitutional amendment text, which had cross-party support and civil society buy-in. It is, therefore, deeply disappointing that the wording proposed today has departed so significantly from those recommendations. It could be described as a missed opportunity. Indeed, this is not just my view. I refer to the views expressed by so many more. Dr. Laura Cahillane pointed out, when the wording was announced, that the Government had "fudged an opportunity to do something [more] positive". Other commentators have been critical of some of the language used, particularly on the care referendum but also some of the language in this thirty-ninth amendment Bill.

I will speak briefly about the process that has led us to this point by way of setting a context before turning to the wording in the Bill. As I said, we published our report one year ago. Our committee had been tasked with examining the report of the citizens' assembly. That assembly, chaired by Dr. Catherine Day, met during Covid pandemic times between January 2020 and April 2021. In 2021, it produced a final report setting out a total of 45 recommendations for wide-ranging change and a really clear pathway to achieving gender equality.

The largest group of recommendations, numbered 4 to 19, related to care and social protection, which is a measure of how significantly the assembly viewed these issues and of how gendered both care and social protection are.

Members of the assembly told me and others that because their deliberations had taken place during Covid, this had particularly emphasised the central role that care plays in all our communities. Like others, I want to pay tribute to the citizens who took such time and gave such commitment to their deliberations in producing their recommendations.

Their first three recommendations provide a clear framework for amending the text of the Constitution. It should be said that they proposed an amendment to Article 40.1 – the equality guarantee. They asked us to change that to refer explicitly to gender equality and non-discrimination. Just to note, it is a matter of some regret that the Government has simply ruled out acting upon that recommendation. Both the assembly and our committee considered that Article 40.1 should be amended, but that, I accept, is for another day. We are faced now with the two recommendations of the assembly related to Article 41.

They asked us to amend Article 41 to protect private and family life, with the protection afforded to the family not to be limited to the marital family. The text in the Bill is within that context. They also asked us to delete the gender-specific language in Article 41.2 of the Constitution and replace it with an obligation on the State to take reasonable measures to support care within the home and wider community.

Our committee took the view, when we were set up following the assembly report, that our mandate was to provide proposals on the most effective way to implement the assembly’s recommendations. We produced what we called a "blueprint" or "action plan" for implementation. We called our report "Unfinished Democracy", because we believed that until we achieved a truly gender equal society, our democracy in Ireland would remain unfinished.

We endorsed the need for the constitutional changes proposed by the assembly, and even went so far as to draft and provide the Government with precise wording for replacement text to give effect to the changes proposed to Article 41. We called on the Minister and on the Government to move swiftly to hold the necessary referendum before the end of 2023. As the Minister has acknowledged, there has been, it must be said, a somewhat unexplained delay over the months since then. It is regrettable that it was only, in fact, last week, in early December, that we finally had sight of the wording, having initially been promised the referendum would take place in November of this year.

The wording is disappointing. The timeframe is of concern. We have only 85 days between now and 8 March.

There can, however, be no doubt that we need to amend Article 41. I absolutely agree with the Minister's words. The Minister spoke powerfully about the shameful legacy within this State, our treatment of women, our treatment of single-parent families and our treatment of all those families who did not conform to that constitutional model of family based upon marriage.

It is widely agreed that the restrictive nature of the language used to define "Family" in Article 41 does not reflect the real diversity of modern family life and wonderful diversity of family forms in Ireland. It is also widely agreed that the language used in Article 41.2 referring to women and mothers is sexist, outdated and anachronistic.

Article 41.3.1, on the family, currently 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." Thus, only those families based on marriage are offered constitutional protection. As we know, this restrictive definition has had a really severe impact upon families and has reinforced discrimination. I refer to the particular tragic case of Johnny O’Meara, with which the Minister will be familiar. Mr. O'Meara is a father of three from Nenagh, County Tipperary, whose partner, Michelle Batey, sadly died from cancer in 2021. They had been together for 20 years. Like over 150,000 other couples across Ireland, they were cohabiting and had not married. Both were working, paying PRSI and contributing to the system, but Johnny was not legally entitled to the support of the widower's pension upon Michelle's death, because they were not married. This legal position, this lack of entitlement, was reinforced by the constitutionally restrictive definition of family. It is particularly unfair, of course, because the State recognises cohabitation in other realms within the social welfare support. Johnny O’Meara courageously took his case to the High Court. He lost there in October 2022. Looking at the judgment, in the words of Mr. Justice Heslin, the State had made a "legitimate decision ... to support, not families, but those who made the choice to enter ... the marriage contract". Johnny appealed that decision to the Supreme Court where legal argument was heard there, most recently, as we know, in October. The judgment is awaited in that case, but it illustrates the practical impact of laws which discriminate against those who are not married who are cohabiting. I and my Labour colleagues, in particular, Deputy Alan Kelly, have long championed Johnny O'Meara's case and called out the lack of welfare supports for unmarried couples as a stain on Irish society. We need to address the situation to provide equality for all families. One important way to do this is through amending the "Family" definition in Article 41, but how this is done is important. We are all agreed on the need for change.

I will return to Chapter 1 of our committee report where we set out the three considerations that guided us in devising this wording that we drafted. Most unusually, and, I think, uniquely in an Oireachtas committee process, we prepared wording. We were mindful of the need to take account of the views of stakeholders, civil society groups, experts and campaigners, and we did so. We also were mindful of the need to ensure that only those changes necessary to give effect to the citizens' assembly recommendations would be proposed. We wanted to be minimalist. We did not want to put in any extraneous language. Of course, we wanted to ensure that, as far as possible, the existing substance, language and text of the relevant constitutional provisions should be retained. We were trying to build on what is in the text. In keeping with these clear guidelines, we prepared what we described as a simple wording to amend Article 41.3.

We did not see a need to amend Article 41.1 and I am interested that the Government has chosen this route. The Minister referred to that in his speech. I might ask for a little more clarity on that. I have concerns about the phrase used to limit the definition of family in the proposed new text for Article 41.1 that the Minister has proposed, namely the family "whether founded on marriage or on other durable relationships." Others have spoken on that phrase, "durable relationships", which does jump out. Unlike the language our committee used, the concept of "durable relationships" is new to the Constitution. I think I am right in saying it is new to constitutional jurisprudence in this country. Therefore, the Government has not followed the criteria we set. We devised those criteria, but I am interested to know why that particular consideration I have referred to was not embraced - the need to ensure that, as far as possible, the existing substance, language and text should be retained.

Nor do I see how it is necessary to insert the phrase into Article 41.1 at all when, instead, the approach we took was to insert the more expansive text in Article 41.3.1°, where we proposed a text saying, "The State pledges itself to guard with special care the Family, including but not limited to the marital family." That Article 41.3.1°, therefore, makes clear that the "Family" protected in Article 41.1 is to be defined in this more expansive way without the need for a separate amending text to Article 41.1.

Some members of the committee thought that introducing the phrase "marital family" might itself be problematic and we thought that was a worthy point. We proffered an alternative, even more straightforward approach - merely to delete the phrase "on which the Family is founded" from the existing text of Article 41.3.1° - to remove that provision related to marriage.

Taking either of those approaches, in our view, would enable recognition of the more expansive definition of family, no longer limited to the family based on marriage. It would also potentially remove a key justification upon which a discriminatory approach by the State against cohabiting couples, such as Johnny O’Meara and Michelle Batey, might be based. We wanted, therefore, to take the minimalist approach to amending the Constitution to ensure that more expansive definition of family would be possible.

My questions are as follows. First, why the need to make changes to both Article 41.1 and 41.3.1°? Second, why use this more complex text, referring to durable relationships? Why introduce that new phrase when a more straightforward approach, in our view, could have been chosen? Crucially, can we be sure that the text offered by the Government would provide protection for those who may find themselves in the awful situation faced by Johnny O’Meara and his three children?

In Labour, we are not convinced that the wording the Minister has proposed is the preferable one, and we are concerned about the text that is being used. We are currently considering the prospect of bringing amendments on Committee Stage to this Bill - I think others are too - to better reflect the wishes of the citizens’ assembly, its recommendations and, indeed, the wording agreed by the gender equality committee. Furthermore, we reserve the right to take a position on the referendum campaign itself once we have concluded that Oireachtas scrutiny of this Bill and, indeed, the care Bill.

Deputy Sherlock will speak in more detail on our view on the Fortieth Amendment of the Constitution (Care) Bill 2023, but the same points can be made. We have real concerns about how the text proposed in that Bill departs from the text that we had proffered at the committee hearings, a text which in our view closely reflected the recommendations of the citizens' assembly.

Our text would have replaced the sexist language in 41.2, which we all know is based on outdated gender stereotypes and should have no place in a contemporary constitutional text. We are all agreed on that, which is very welcome. Our text would have gone further in recognising care than the proposed text in the Government Bill.

The wording which we had proposed would replace the current article 41.2 with two clauses, the first saying that: "The State recognises that care within and outside the home and Family gives to the State a support without which the common good cannot be achieved." and paragraph 2 saying: "The State shall, therefore, take reasonable measures to support care within and outside the home and Family."

As with the 39th amendment and the family provision, we took the view that, as far as possible, we will stick to the text in the Constitution. That is why we used that phrase "within and outside the home and family". We did not use the phrase "wider community". We had originally proposed that in our interim report in July 2022 but we got feedback and spoke with experts and stakeholders. The feedback we received suggested that the phrase "wider community" lacked a precise or established legal definition and that the spirit of the recommendation could be implement more effectively by reference to care both within and outside the home and family. It was expansive but not prescriptive. It is the same principle, I would argue, that arises when we look at the phrase "durable relationship" in the 39th amendment Bill. It is not a phrase which has that precise and established legal meaning which I think we need.

We are also very conscious of the need to ensure that the word "care" would be used to encompass consideration of the rights both of those being cared for and of those providing care so that we do not set up a hierarchy where carers rights are protected above the rights of those seeking care.

We are concerned that the Government's proposed text on care is far more restrictive. It would confine constitutionally recognised care to that provided by members of a family to one another by reason of the bonds that exist among them. Of course this is family with a small "f" and is so different and presumably more expansive than "family" in 40.1.1.

The Government’s proposed text has received at best lukewarm support from civil society groups, which might have been expected to show an enthusiastic welcome for this announcement. The National Women’s Council said it is "consulting its members" which is not exactly a resounding endorsement of a text. The trade unions might have been expected to support a text which creates a more inclusive recognition of care both within and outside the home and family. We do not hear resounding support from the trade union movement. We had achieved a buy-in and support from across civil society and the trade union movement with the text in our report. We are really concerned that many people will be excluded from this constitutional provision as a result of a more restrictive approach.

The definition which the Government has provided will exclude not only those who work for for-profit caring agencies, which it will exclude, but it will also exclude those who work for charities, voluntary organisations and carers like home helps or Meals on Wheels volunteers. I do not see how the bonds definition can include carers who are friends, for example. I know that we have discussed in other settings the sorts of relationships that might be encompassed by the new 42B. Time and again, however, during the course of our committee hearings we heard older people, disabled persons and people who receive support and care from a whole range of different carers, both within and outside of the family, friends and volunteers, those who work for charities, for church groups and for others, and the concern is that an exclusionary definition of care will serve to emphasise and undervalue that care which is provided.

We are very keen to work with the Minister on this. He has said that he would support care outside the home in other ways if this referendum is passed but we need to hear more about how that is going to be done because of we all know the shortfalls and shortcomings in care provision in so many ways, for children with special needs, for older persons and for people with disabilities. We are concerned that having this more restrictive definition of care will simply not meet the needs of those who came before our committee and I just want to be fair to them and to the citizens' assembly.

Finally, I want to deal with the issue of a serious technical flaw in the wording for 42B. When read aloud, in particular, it becomes grammatically problematic. There is a flaw. The wording is cumbersome and there is an issue with that.

Others have spoken in other settings about the separation of powers and, indeed, the Tánaiste referred to that earlier in talking about the referendum. We were very clear that the phrase we used: "The State [will] ... take reasonable measures to support care within and outside the home and Family" is not prescriptive and does not tie the hands of the Executive, or cede decision-making on the resource allocation to the courts. Again that was something the Tánaiste referred to earlier. I want to address that. Neither the wording we proposed on 41.3 or 41.2 would in any way obstruct or undermine the separation of powers. It is clearly leaving to the Executive the crucial decision on resource allocation. "Reasonable measures to support care" is in our view a measured phrase that has a resonance within constitutional jurisprudence but that does not tie the hands of the Executive. For all of these reasons, and wanting to stay true to the process that has led us thus far, through the citizens' assembly and through the Oireachtas committee, we want to indicate that the Labour Party is looking at amendments to put down to both Bills, the 39th and the 40th amendment Bills, and we are looking at how we can better reflect the consensual wording which was achieved, building on the spirit of the citizens' assembly recommendations. We are trying to ensure that we genuinely come to a constitutional change which really reflects the wonderful diversity of family life in Ireland today and the wonderful diversity of care provision in Ireland today also.

Minister of State at the Department of Finance (Deputy Jennifer Carroll MacNeill)

I am very glad to have the opportunity to speak on this Bill and possibly on the one later on the proposed amendment to the Constitution on families, gender and care. I was very proud to be part of the Oireachtas committee which took on the work of the citizens' assembly. I first of all want to thank all of the citizens who contributed to that excellent piece of work and who gave up their time through Covid. I have met a number of them subsequently as part of the committee and I know that they also got a lot from the process, as well as having given so much to the State in their effort.

I also thank Deputy Bacik for chairing the committee which we all engaged in over a period. It was a very important piece of work and we managed to do a great deal of work on domestic violence, on equality and on care principles more broadly. It was a very constructive piece of work.

Without wishing to go through the committee working again I always, from the outset, expressed a more reserved view of what was possible by way of constitutional drafting. That, of course, was built on my experience of the children's committee back in 2008, 2009, 2010 and the subsequent process to try to draft the amendment for Article 42A. This committee is not the first which produced constitutional wording. The all-party Oireachtas committee on children did the same and it has been my view from the outset that having gone through that committee process with former Deputy Alan Shatter into the Attorney General's office with the then Minister, Frances Fitzgerald, who took it forward, that these wordings were very different constructs and what would come out of the Attorney General's office would ultimately have a different lens to what we agreed at committee. Our best options at committee were to get the principles which we wanted there together with the strongest language we could agree on. The House will recall that in private I expressed concern again and again on different words.

In particular, I expressed concern with on the concept of care in the community, not because I am against it in any sense, but because of how it was defined constitutionally and understood. What I see here between the two referendums, as I go through them, is that I look for the principles which I want to see in society and how they might be expressed in the Constitution and I ask myself who does this deliver for and what are we going to achieve by the people of Ireland passing this referendum. I look at it and I think the combination of the two referendums delivers for families not based on marriage where in a way they have been systematically excluded because of the constitutional position. That would no longer be the case. To my mind, the asking of that question and the getting of a positive answer from the people is a good thing. It will have a practical impact for those families which I see as desirable and so I completely support that approach. We may talk about the wording and the different ways of coming to it. The House will recall that we try to have the most minimalist approach possible. Okay, that is fine, but at the end of the day I ask myself if this is going to deliver for different forms of families which are not based on marriage, and I believe it will.

I then ask myself if it will deliver for women and if it is a genuine step forward for women.

To my mind, if the outdated sexist language that places me in the home, as a constitutional concept, is to be deleted, that is good and something I want to vote for. I want the people of Ireland, not just the women of Ireland, to vote for it. I have spent time in the home as a family carer and I have spent time in universities and the Oireachtas. I, like so many others, have multiple experiences from different stages in life, but the Constitution identifies me, Deputy Bacik and other Deputies across from me, with all our experience, as having a position in the home when clearly we are here doing something very different. It is important that the constitutional measure go. That would be an important statement on behalf of the women of Ireland. I hope the question is both asked and answered in the positive. The change would not diminish the position of women or remove them. It would do no such thing. Arguments to that effect are red herrings that may come up in a referendum campaign. We will deal with them at the time, but it is important to make this point at the outset.

The concept of care, which I might come back to when we debate the fortieth amendment, comprises the hardest part. To go back to first principles and temporarily forget about our dialogue to date, we should ask ourselves whether the new expression of care in the Constitution is good or bad. To my mind, it is good. Would we have liked to go further and say other things that I have always said were not constitutional concepts? I will come back to constitutional concepts. I always said the concepts in question were not constitutional and I just did not understand how they could be expressed constitutionally in the way we were describing them. Is the expression of care a good thing for an evolving society expressing compassion towards its people? I believe it is. It is very positive and is a reflection of our values – our very much evolving values. It is an expression of our compassion. It is really beautiful to reflect the care people show for each other in families and more broadly, in the same way that we reflect the idea of education. We do not necessarily refer to teachers in the Constitution but do refer to the premise of education and to education being a thing that we do in families and more broadly. These are good concepts that are very important to reflect.

On the other constitutional concepts, the first word that jumped out at me was "durability", as I suspect it did at Deputy Bacik. It is not a constitutional concept that I have ever seen. I questioned what it meant. It is really important that we tease this through now because it is naturally going to be a question later. What is durability? Is it about commitment or enduring? What is the difference between a durable relationship between adults and an enduring relationship? I could be in a durable intimate personal relationship with somebody that lasts for ten or 20 years, and I could have an enduring friendship with somebody that lasts for 40 or 50 years. These are different relationships. There is something to be thought about in respect of the horizontal nature of adult–adult relationships. I do not believe this includes what Deputy Clarke said about people living together for a period and being in support networks. We can talk through this further on Committee Stage. I refer to a much stronger concept in respect of durability. Even the way the concept is phrased, referring to a foundation on marriage or other durable relationships, links it to intimacy and permanence.

There is also the question of the vertical nature of relationships, including the parent–child relationship. Nobody would say the latter is anything other than durable, whether it involves a mother and child or an unmarried father and a child. There is permanence and durability to such relationships that cannot be described as committed or in any other way. It is really important that we tease this out now and question what we really mean by durable rather than simply criticising the term and saying that, because we have never seen it before, it is bad. What are we trying to achieve? We are trying to achieve something that is related to marriage or something akin to marriage. I am referring to something – I do not want to use the word "durable" again – that has a measure of permanence, is stable and is a concept that is grounded and not to be unpicked easily. The best expression of that is the vertical parent–child relationship and what is around that.

The question of where grandparents come in does not even come into it because the State can step in and say in a care situation that the grandparent is not the correct carer and that there is not sufficient durability, because the State has another lever to intervene in that way. It is important that we talk and think this out. We may have the right word but I am not sure we have gone through this process enough.

Deputy Ivana Bacik

True.

Deputy Jennifer Carroll MacNeill

It is exciting to tease it out and determine what we mean and do not mean.

Deputy Holly Cairns

The Constitution's current definition of a family is a relic of the past. Many who do not know about it would be so shocked to hear it is included. It does not reflect the reality of society today, nor does it recognise or protect a huge proportion of families. The Constitution is the fundamental legal document of our State and it is a living document. As the principles of the Constitution guide our society, our society must also guide our Constitution. Marriage does not make a family; it is the relationships, actions, love and care between people that form a family.

This referendum has been a long time coming. In 1996, the Constitution Review Group recommended that the definition of the family be reformed to remove the link with marriage. Article 41 had never represented all families in the State. Certainly over recent decades, the gap between the constitutional definition and reality has grown wider and wider. There are hundreds of thousands of Irish people in committed relationships with and without children who would be surprised to learn they are not recognised as a family simply because they are not married.

All of these families are currently excluded from the protection of Article 41 of the Constitution, mine included. The current wording should never have made its way into the Constitution in the first place. It is high time that it was changed. We all know that the definition has to change, but, as with all referendums to the Constitution, the wording must be well considered and, crucially, absolutely clear in its meaning.

I was disappointed to see that this Bill and the Bill on care will not be subject to pre-legislative scrutiny. Pre-legislative scrutiny was introduced for a reason. It is an essential step in our legislative process for teasing out issues at an early stage. The Government can set out its rationale and the relevant committee can make recommendations to strengthen a Bill before it reaches Second Stage. Instead, we are debating an amendment to our Constitution – the first of two such debates today – and we do not know the Government's rationale for choosing the wording it has presented to us. We have no certainty on the legal ramifications of the wording. To make matters worse, the Government initially wanted to limit the Second Stage debate before this was opposed at the Business Committee. That is not good enough.

This is a chance to change the Constitution. The Bill may be short but, arguably, it would have a more lasting impact on the State than many of the Bills we pass in this House. It requires serious scrutiny as a result.

I ask the Minister to commit today to ensuring that Committee Stage will be taken by the sectoral committee, with as much time as is needed, and that Report Stage will not be guillotined. The report of the Joint Committee on Gender Equality presented several options for the wording of the amendment, as did the citizens' assembly. All attempted in various ways to expand the definition of the family to include those not previously represented, including lone parents, unmarried parents and unmarried couples. Can the Minister outline why he has landed on the wording of this Bill and why the suggestions presented by the citizens' assembly were refused?

The explanatory memorandum provided to us gives absolutely no detail on the rationale for the wording chosen, or the intended implications of the changes to the law on the policy going forward. We cannot do our jobs in this House without that information. Certainly, we cannot be expected to make amendments on Committee Stage without clarity on what the wording is trying to achieve.

The expansion of the constitutional definition of a family to include those founded on other durable relationships seems to cover most who were previously offered no protection under the Constitution. However, to be certain, can the Minister confirm on the record that the definition of family proposed to be inserted into the Constitution and the term "durable relationships" is being interpreted as including lone parents and single-parent families? What exactly is being defined as a durable relationship under the law? For example, at what point does a couple in a relationship come under the protection of Article 41? What are the implications for the application of taxation policy, social welfare payments, joint income assessments, succession, family law and mortgages, to name just a few areas?

I also ask the Minister to explain how this ties in with the review of equality legislation being undertaken by his Department. Of course, the courts will ultimately decide on their interpretation of the wording and its implications but it is essential that the Government identifies and communicates any changes to law and policy that are expected to come out of this change so that we can better scrutinise this legislation and so that voters know exactly what they will be voting on next March. Usually we would have that information by now when debating legislation. I would like to receive that detail as soon as possible.

If people are confused about what they are voting on, the Government runs a real risk of low turnout and a small vote margin as was the case with the referendum on children's rights. That referendum did ultimately pass but was damaged by an almost complete lack of legislative scrutiny and debate. Unfortunately, since then we have not seen the progress on children's rights that we would have hoped for. Ultimately, we all want this amendment to result in every family in Ireland in every shape and size being represented and protected by its Constitution. We want the practical implications of this amendment to be as clear as possible to voters ahead of the referendum debate.

Deputy Jennifer Murnane O'Connor

It is important that we have this debate today. I thank the citizens' assembly for its work. The language of Article 41 of the Constitution serves to limit the concept of the family to the marital family and does not reflect the reality of modern society. The proposed amendment aims to update our Constitution in this regard so that it reflects and recognises families in Ireland in a more inclusive way. In doing so, it responds to the recommendations of the citizens' assembly and the joint committee.

The proposed inclusion of the wording "whether founded on marriage or on other durable relationships" aims to make it clear in our Constitution that the family extends beyond the marital family to include other lasting and committed relationships such as one-parent families and cohabiting couples and their children. We need to reflect modern Ireland and modern families and this is one way we can do so.

I believe the proposed amendment builds on previous reforms to our Constitution such as that relating to children's rights and marriage equality and reflects our journey towards a more compassionate, inclusive and equal society. We are in a changing world. Men and women are equal and rightly so. The Constitution is a journey towards a compassionate, inclusive and equal society and if we can get this right, and I believe we will, this will bring about huge changes for the women of Ireland, which is so important.

A proper communications campaign with proper information needs to be looked at. Over the years, there were times where we did not communicate enough so I would ask that this be done. I welcome this but it is important to highlight the need for information around the practical effects of the proposed family amendment. These may have significant implications for law and policy in a number of areas. I would like some answers on that. Perhaps that could be looked at. Again, I welcome this. Anything we do to have a more equal society is really important and I believe this is a good way forward.

Deputy Bríd Smith

I will not try to compete with legal experts that dominate this House. Between Deputy Bacik and the Minister of State, Deputy Carroll MacNeill, I do not know what they are talking about half of the time but I do want to put across a perspective that is important for the vast majority of ordinary people because what this is about is removing a very offensive piece of wording in the Constitution. I will read it out for the benefit of anybody listening in. It states:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

The Constitution, which was brought in with the commitment of the Catholic Church behind it, led to very tough lives for women, particularly my mother's generation. Many of them could not get married and stay in their jobs. This did not change until way into the 1970s. The archaic view of a woman's place being in the home meant that it was natural, normal and accepted that women were barefoot, pregnant and tied to the kitchen sink for most of their lives and did not have access to contraception or economic independence so it is very good that it is being removed.

However, we should insist that we find ways of explaining that to the public because there are malicious and dangerous elements in Irish society that will want to portray this as somehow an attack on women and that the removal of the word "woman" from the Constitution is an attack on women. They are already lurking in on social media and phony television stations they have created trying to come across as defending women and saying that this attempt to change the Constitution is all about giving transgender rights and undermining women, a woman's body, a woman's sex and a woman's right to do this, that and the other. We must find simple and clear messages in demolishing that idea because otherwise the Government risks losing this referendum so it is important to get the wording right.

I will not engage in a big legal debate about the type of wording but the sentiment is very important. This is why when it comes to the next session, when we talk about the proposed new Article 42B, the Minister is making a big mistake in not giving a guarantee to people that care will be recognised in the home. The nonsense about "strive to" means nothing in real terms. Any future Government could say "well we strove but we failed". That is just nonsense. Why do we have a Constitution if we do not put parameters and obligations on governments to do things that are at the very basic level essential for society? On the one hand, we are changing the Constitution to recognise the family and give it inalienable and imprescriptible rights - all of the language that is already in there - and just restating it but on the other, we are saying that when they look after each other when they are frail and have disabilities and long-term illness, we will strive to recognise that - not that we will do it. It is full of contradictions.

I am not here just to give out to the Government. I genuinely believe it is pretty bad to hand us the wording one week and the following week say we will have this Second Stage debate on the last day of the Dáil before Christmas. It is really sloppy and is unfair. It is unfair to Deputies and the public. I think the reason given to us for the big rush and why we need to fit it in is because the Government wants this referendum to take place on International Women's Day. As Deputy Cairns said this morning, the Government does not have patronise women by holding a referendum to remove that offensive language on International Women's Day. We celebrate International Women's Day anyway, regardless of whether there is a referendum. It is more important that we get it right and do not give opportunities to hate-fuelled organisations to have a go at LGBT rights or the rights of trans people.

These are my few observations. If I had my way, the alternative wording would be that a woman's place is in the revolution. You might say "Bríd would say that". Take "the home" out and stick in "the revolution", and we might get real change in this country. Deputy Bacik made the point that we had the long process of discourse at the citizens' assembly with questions put to it. It took it very seriously and was very genuine about it. It came back with recommendations and to be honest, they were just ignored. If I was one of those 99 citizens, I would be really annoyed. "Annoyed" is a polite parliamentarian word but I would be in that sort of humour. As a member of the joint committee, I am also pretty annoyed about the wording we laboured and sweated over. Again, I am an innocent when it comes to legal terms but I really trusted and got what others were saying and the advice that was given to us by experts.

It took us ages to come up with a set of words we thought were correct. It was cross-party, it was genuine, we worked hard and it is not even recognised. On many levels, therefore, this has been something of an offensive process. I hope that when it comes to the next phase of dealing with it, we will get a chance to amend it and the Government will be open and decent about accepting amendments that come from Opposition Members, who, I reiterate, worked very hard to achieve a wording that would work.

Later, I will come back to talk about the provision of care.

Deputy Mick Barry

This amendment seeks to widen the definition of "the Family" in the Constitution to marriage or another durable relationship. This is a step away from the rigid definition of family in the 1937 Constitution. It is clearly more in line with the reality of Ireland in 2023, a society with 150,000 cohabiting couples, half of whom have children. One child in three is born to parents who are not married to each other. One child in five is part of a one-parent household. I have to disagree, however, with points that were raised earlier in the debate which would give one the impression that these are all totally new things, as though we did not have lone parents in the 1930s and the 1940s. Of course we did, and the Constitution and this provision in the Constitution was used to discriminate against them in a serious and vicious fashion.

It is a bit difficult to concentrate with the noise going on.

Deputy Sean Sherlock

I apologise to Deputy Barry.

Deputy Mick Barry

Not a bother.

An Leas-Cheann Comhairle

Apology accepted.

Deputy Mick Barry

Potentially, this change would allow a Government to extend rights and benefits to all family forms. Those rights are not currently extended. An unmarried couple, for example, will not have access to widow's or widower's pension entitlements. A cohabiting couple are not able to avail of various tax benefits. Many pension schemes discriminate against non-married couples, and the providers of those schemes are legally entitled to do so. I could go on with many other examples.

The Government does not propose with this Bill to end these injustices. It does not propose to delete reference in the Constitution to the family being "the natural primary and fundamental unit group of Society". It does not propose to delete Article 41.3.1°, which pledges that the State will "guard with special care the institution of Marriage ... and protect it against attack". This article allows the State to discriminate against families which are other than married families. It could be argued that this article obliges the State to discriminate against families that are other than married families. Mr. Justice Séamus Henchy said in the 1966 case of the State (Nicolaou) v. An Bord Uchtála:

For the State to award equal constitutional protection to the family founded on marriage and the "family" [his inverted commas, not mine] founded on an extra-marital union would in effect be a disregard of the pledge which the State gives in Article 41, 3, 1, to guard with special care the institution of marriage.

On that basis, this constitutional amendment might be passed by the people but discrimination against lone parents, cohabiting couples and others might continue.

In the past decade, this country has witnessed a feminist wave that has challenged the archaic, sexist and patriarchal structures of our society. The Government has decided to move on this issue in response to that wave, but what a half-hearted response it is. That does not surprise me given that it comes from Fianna Fáil or Fine Gael, nor does it surprise me, though it is very disappointing, that it also comes from the Green Party. Here is an opportunity to say that all family forms are valued and equal and that there will be no more discrimination. This wording will need to be amended on Committee Stage in the new year.

Deputy Emer Higgins

When I look around my local area, and even when I look around this Chamber, I can see clearly that the family of 1937, when the Constitution was originally written, has changed and that the Ireland of 1937 is no more. We have come a really long way in those recent years. Our small island has become increasingly more tolerant and more welcoming of all sexualities, gender identities and family structures. We are better at celebrating one another and better at acknowledging when we are wrong and when we need to change. Our Constitution has undergone recent changes to include children's rights and marriage equality, showing our progress towards a fairer and kinder society. We have introduced abortion legislation to stop young and vulnerable women from having to travel abroad for terminations. We have legalised same-sex marriage, recognising the equality of commitment and love of LGBTQI families. We have introduced the Child and Family Relationships Bill, which expanded pathways to parentage of donor-conceived children. Just this week, we got the assisted human reproduction Bill changes approved by Cabinet to safeguard surrogacy rights.

This is a really important debate and shows how far we have come from a political standpoint and a societal standpoint. It shows our dedication to a modern Ireland, an Ireland that is equal, caring and inclusive, and I absolutely welcome that.

Today, we will also debate the fortieth amendment to the Constitution to change the status of women in the home. This debate and the later debate and these referendums are fundamental stepping stones to making sure Ireland remains welcoming and progressive and that it evolves.

I have heard many people ask whether this referendum is rushed. I come at it from the other angle: I wonder why it has taken so long. For the past 30 years, since the constitutional review of 1996, there have been many suggestions and many requests to remove outdated, stereotypical language. International organisations have also urged Ireland to do exactly that. The UN, in its 2017 concluding observations on Ireland under the Convention on the Elimination of All Forms of Discrimination against Women; the Citizens' Assembly on Gender Equality; and the special Oireachtas Joint Committee on Gender Equality all recommended referendums. Updating our language follows the recommendations of those expert groups.

In 2010, Mr. Justice Hogan stated in the High Court:

The fact that marriage was (and, of course, is) regarded as the bedrock of the family contemplated by the Constitution does not mean that other close relatives could not, at least under certain circumstances, come within the scope of Article 41.

That was 14 years ago. The family is the core issue of this debate and this referendum. By updating the Constitution's language, we are rejecting the unfair treatment single parents, unmarried couples and others have experienced in the past. Back then, they were made to feel excluded from society, and that is not in line with the modern reality in Ireland.

The thirty-ninth amendment to the Constitution proposes to amend Article 41.1.1° by inserting the words "whether founded on marriage or on other durable relationships" and to remove the words "in which the Family is founded" from Article 41.3.1°. For too long our legal framework has narrowly defined the family as an entity based solely on the institution of marriage and religion. As recent CSO figures show, however, the realities of family life in our modern society are far more diverse and far more complex. The latest CSO statistics show us that our population is growing and diversifying and that the number of families has increased by 59% in the past 30 years. There are over 1 million families in Ireland today.

This represents an increase of more than 60,000 since 2016. Families are getting smaller. Almost 220,000 family households are headed by one parent. That includes 33,509 families in which the father is the single parent. The number of same-sex couples has increased to 10,393, which is up 72% since 2016 and a whopping 157% since 2011. There are 1,853 children living in a household with same-sex couples, which is up 86% since 2016. That is modern Ireland and that needs to be reflected in our Constitution. The proposed amendment to Article 41.1.1° is a necessary step towards inclusivity and the recognition of diversity in Ireland.

By deleting the words "on which the Family is founded", the Government is showing the importance of family life does not solely hinge on marriage. By inserting the words "whether founded on marriage or on other durable relationships", we are acknowledging that families are not just bound by marriage. They are bound by loving mothers, loving fathers and loving parents. These referendums are a powerful message from Ireland, because if they pass, which we cannot take for granted, we will be among the first countries to recognise the value of family care in our nation's founding document. For families that lack clarity and legal recognition, this will have a big impact. It signifies our understanding that families are the bedrock of our society and deserving of equal respect and protection irrespective of how they are constituted.

I would like to congratulate the Government and the Department on the work they have done to prepare for the referendum on this matter. The main purpose of the Bill is to update our Constitution in order that it matches our values of equality for the important role that both men and women have in an all areas of public and private life and, ultimately, to keep pace with a changing Ireland. I am delighted that there is cross-party support for this and I look forward to canvassing for a "Yes" vote in the referendum in March.

Deputy Verona Murphy

The Constitution currently recognises only the marital family as the family. This referendum is intended to recognise and give constitutional status and protection to families beyond the marital family, including cohabiting couples and one-parent families. The special and unique status of marriage in the Constitution will not be altered by this. In order to do this, the Government proposes to amend Article 41.1.1° to insert the words "whether founded on marriage or on other durable relationships". The approach will also require the deletion of the words "on which the Family is founded" from Article 41.3.1° to remove the link between the family and marriage in that provision.

When it comes to family, the Ireland of today is very different, when it comes to attitudes, from what it was when the Constitution was ratified by the people in 1937. We have already seen changes to the Constitution on related matters. The divorce referendum in 1996 provided a constitutional acknowledgement that married people may legally divorce and thus enter new family situations. The definition of the family in Article 41 was not amended to reflect this change and the inevitable changes to family structures. Many of the new forms of family have become commonplace to an extent which probably could not have been imagined at the time when the original Constitution was drafted. For example, if someone used the term "blended family" in 1937, it would have caused a lot of confusion. Now, such family types are quite common. We also have the relatively new provision which allows people of the same sex to marry and has created more new types of family situations, which is quite different from what would have been envisaged in 1930s Ireland, when homosexuality was still illegal.

The most common alternative to family type other than the marital family is the one-parent family. I am a member of such a family. Information from the 2016 census showed that the number of one-parent families stood at 218,817, of which 189,112 were mothers and 29,705 were fathers. The majority, 125,840, had just one child. The statistics also show that the most common reason for single fatherhood was widowhood, whereas only one in five of the single mothers was widowed. We heard earlier from Deputy Bacik that the actual issue this leaves for a father who is widowed is that he is not entitled to the widow's pension if he is not married, and, similarly, nor is a mother.

Skipping forward to 2022, we see the census figures show there was a marginal decrease in the number of one-parent families with mothers with children, which is down by 1%, compared with a rise recorded among one-parent families with fathers with children, which is up by 13%. That means a large number of children are being brought up in situations where they see far more of one parent over another or may indeed not see the other parent at all. We also see in the census figures of 2022 that there has been a significant increase in the number of families defined as a couple without children or a one-parent unit with one or more children, but a continued reduction in the number of children per family. It is important that those single parents and their children are recognised as a family by the Constitution. The removal of the link in the Constitution between the family and marriage also recognises that people can have a strong, happy and supportive family without the involvement of marriage. Many couples are now choosing simply not to marry for a variety of reasons but are perfectly loving parents.

There is one area of possible concern that I want to highlight. The proposed amendment to the Constitution includes the words "durable relationships". Marriage is a legal contract that is clearly defined and easy to understand. Therefore, we refer to marriage in the Constitution and it is legally clear what is being referred to. However, the phrase "durable relationships" is open to interpretation, whomever you discuss it with. Is it a good idea to insert a clause in the Constitution which contains a very subjective term? I just spoke to someone on the phone before I came into the debate. His exact words were that he thought he was in a durable relationship until it went wrong. In that case, if people were married, they would most likely get divorced, but if they are in a durable relationship and they are not married, do we know what the consequences are? I would be concerned on that basis that the wording of this as it stands is not wording that I would be able to support, because I feel we would probably cause legal wrangles all over the place.

If the Minister is going to propose a definition of what is meant by "durable relationship", it has to be done of certainty. Whatever about being able to argue legally in courts and so on, this is our Constitution. It requires certainty and definitiveness. The words "durable relationship" can mean many things to many people. I ask the Minister to reconsider the use of those words. I do not think what constitutes such a relationship can be defined. I called a number of people to ask them and they all had different interpretations. As I said, this is the Constitution. We need definitiveness.

Deputy Joe Flaherty

I support the Bill, the purpose of which is to amend Article 41.1.1°. The later Bill, which I also support, will delete Article 41.2 and replace it with a new Article 42B.

The Citizens' Assembly on Gender Equality published its final report in June 2021. It made a total of 45 recommendations across a range of topics. Arising from these deliberations, the Government has proposed amendments to Articles 41.1 and 41.2. The Taoiseach has announced the Government's intention to hold referendums to amend the Constitution as recommended by the Citizens' Assembly on Gender Equality and the special Joint Committee on Gender Equality.

I commend the work of the interdepartmental group that was established to assist in scoping and developing policy proposals for consideration by the Government. That group is chaired by the Department of Children, Equality, Disability, Integration and Youth and includes representatives from all Departments and from the Office of the Attorney General. It has met on a total of 15 occasions from March to November this year and has considered in great depth and detail each of the three recommendations outlined in the two referendums.

The Cabinet committee on social policy and public services met on six occasions to discuss the proposed referendums and considered detailed policy papers prepared by the interdepartmental group, IDG, and extensive legal advice provided by the Office of the Attorney General. The proposed amendments build on previous reforms to our Constitution, such as on children's rights and marriage equality, and reflect the continuation of our journey towards a more compassionate, inclusive and equal society. I am satisfied that the proposals have been developed through detailed consideration of the policy and legal implication.

Currently, the Constitution recognises that only the marital family is "the family". This referendum is intended to recognise and give constitutional status and protection to families beyond the marital family, including cohabiting couples and one-parent families. The special and unique status of marriage in the Constitution will not be altered by this. In order to do this, the Government proposes to amend Article 41.1.1 and to insert the words "whether founded on marriage or founded on other durable relationships". It also proposes to delete the words "on which the family is founded" from Article 41.3.1 to remove the link between the family and marriage in that provision. It will also remove the contentious term "women" from the section about home and recognising care. To this end, the Government proposes to insert a new Article 42B into the Constitution, which will recognise the value of family care. Effectively, this removes the contentious term "women" from the section on the home and recognises the value of care. The new Article 42B is intended to replace the existing Article 41.2, which provides for the place of women in the home, while still recognising the care family members provide to each another, both men and women. The amendment ensures that we maintain and elevate the importance of care for our society, enshrining it as a strict and explicit value in our Constitution, while ensuring we have a Constitution that reflects our modern world.

Extensive work has been in done in advance of the two referendums. I commend the Minister and Minister of State who are present on the work they have put into it. It is a key part of our programme for Government. It is important we deliver them within the lifetime of the Government. I will happily and enthusiastically support them.

Minister for Justice (Deputy Helen McEntee)

I fully support the proposal to amend the Constitution to provide for a more inclusive concept of family in Article 41. The realities of family life in Ireland in 2023 are vastly different to those in 1937 when Irish law and our society only recognised the traditional model of the family based on marriage. The results of census 2022 clearly demonstrate how family life changed in the 20th and 21st centuries. I will mention some of the main findings. There were almost 1,280,000 families in the State on census night of 2022. Among those families, the average number of children was 1.34. Almost 220,000 family households or 17% of the total were headed by one parent. This includes more than 186,000 one-parent families headed by a mother and more than 33,500 one-parent families headed by a father. The number of same-sex couples was nearly 10,400.

There have been some significant reforms to Article 41 of the Constitution relating to the family, as a result of amendments that have been approved by the people in the past 30 years. The first major change was the 15th amendment to the Constitution in 1995, that removed the constitutional prohibition on the enactment of legislation to provide for divorce. The minimum living-apart period was removed from the Constitution in 2019 with the 38th amendment and the living-apart period under the Family Law (Divorce) Act 1996 was reduced to two years by the Family Law Act 2019. When our Constitution came into effect in 1937, the idea of two people of the same sex being permitted to marry was almost unthinkable. At that time, sexual activity between consenting male adults was a criminal offence and this regrettable situation remained until the enactment of the Criminal Law (Sexual Offences) Act 1993. Even then, the concept of marriage equality was a long way from social or political acceptance in Ireland. Progress was made with the introduction of civil partnerships for same-sex couples in 2010. In May 2015, I am delighted to say the Irish people voted by a substantial margin to amend Article 41 to provide that marriage may be contracted in accordance with law by two persons without distinction as to their sex.

While all these reforms have made substantial improvements to our constitutional framework relating to family life in a modern, diverse Ireland, Article 41 continues to afford protection only to the marital family. It does not take account of other durable family relationships which are also so deserving of recognition and protection. The amendments to Article 41 proposed in this Bill will build on the constitutional reforms and the really positive progress that has been made in recent years by recognising and affording constitutional status and protection to families beyond the marital family. While the amendments seek to extend the protection of Article 41 to encompass other durable and committed relationships, they will of course not remove the special protection for marriage. The amendments will instead ensure the Constitution recognises families beyond those based on marriage. These amendments, together with the Care Referendum Bill which proposes to delete Article 41.2 relating to the role of women and to insert a new Article 42B to recognise family care, reflect our ongoing work towards a more compassionate, more inclusive and more equal Ireland. I wholeheartedly support and welcome this referendum. I hope we have a positive outcome.

Minister of State at the Department of Justice (Deputy James Browne)

Bunreacht na hÉireann is the bedrock body of law that governs our society. As such, it should reflect our values and be representative of our society. The provisions in the Constitution on the family are not a reflection of the broad range of families and compositions that make up families in daily Irish life. In recent years, we have amended our foundational document to reflect a more modern Ireland, including by enshrining children's rights, removing the offence of blasphemy, allowing the Oireachtas to legislate in respect of pregnancy and permitting marriage equality regardless of gender. The passage of these amendments reflected the desire of the Irish people to have a Constitution that represents a more compassionate, equal and inclusive society. If the public supports the 39th amendment of the Constitution, it will provide for a more inclusive concept of family.

At present, the concept of the family in the Constitution is limited to the marital family. The aim of this amendment is to recognise and afford constitutional status and protection to families beyond the marital family, including cohabiting couples and one-parent families. The amendment would broaden the reference to the constitutionally protected family so that it is not solely limited to the marital family, but also encompasses durable and committed relationships. With the consent of the people, we would insert into Article 41.1.1 the words "whether founded on marriage or other durable relationships". The approach would also require the deletion of the words "on which the family is founded" from Article 41.3.1 to remove the link between the family and marriage in that provision. I want to say clearly that this does not remove the special protection of marriage from the Constitution, rather the amendments would reaffirm the family as the fundamental unit of society in a way that recognises families beyond those based on marriage. The amendments would also reject any discrimination which one-parent families, couples who choose not to marry and others may have felt or faced in the past. The amendment will not affect the wider definition of the family in Article 41 which is referred to as a fundamental unit group of society. From a legal perspective, the protection given to the family under Article 41 strongly limits the State from interfering in the establishment and the internal workings of a family. In other words, the State does not interfere with what might be considered home-based decisions in daily family life and that is the protection that would be extended to a broader cohort of families.

I look forward to discussing the proposed amendment with my constituents and voters around the country. I encourage everyone to register to vote, to visit checktheregister.ie and familiarise themselves with the official documentation as the campaign gets under way in the new year. Referendum campaigns often take on a life of their own and sometimes stray into areas that are not at the core of the decision the Irish people are being asked to make. I hope this campaign will be respectful and remain grounded in factual debate.

Deputy Catherine Connolly

Fáiltim roimh an deis cúpla focal a rá faoin leasú seo don Bhunreacht. Ceapaim go bhfuil sé tábhachtach agus aontaím leis ach tá mé buartha faoin míniú atá ann agus faoin gcumarsáid maidir le durability. Tiocfaidh mé ar ais go dtí sin. I agree with the Minister who said that the constitutional position remains that Article 41 does not apply to unmarried couples. That is a dreadful situation and I totally agree with the Minister on that.

It is something we have to change and must change.

Regarding the manner in which this is being done and the limited time involved, I agree with Deputy Bríd Smith. It smacks of seizing the opportunity on International Women's Day, which we will celebrate anyway. I would prefer to get the wording right. I fully support the Minister on the need to change Article 41 to broaden the definition of family to reflect the complexity of our society. Irish society was always complex. However, we gave no recognition to that and anyone who fitted outside the norm was locked up. The phrase of Professor Smith in regard to the mother and baby homes and Magdalen laundries keeps coming to mind, when he referred to the architecture of institution. That is what women mostly lived with. In one sense, it is not that life has become more complex. It was always complex, but we chose not to recognise that and anyone who stood outside of that was locked up in a mother and baby home, Magdalen laundry or industrial school.

Within the Constitution, we enshrined restrictive language that the family was based on marriage, but the Constitution went on to give protection to that marriage. I agree with that. Marriage should be protected. However, the definition of marriage needs to be broadened.

Unfortunately, pre-legislative scrutiny was waived, which it should not have been, to fit into a time span so that the Government could get its moment in the sun on International Women's Day. I do not agree with that. The definition needs to be teased out. We need to examine how we include as many people as possible. I do not think the wording in the Bill captures that. I have read about the mother and baby homes and the number of children born outside of marriage. I do not have the figures to hand, but I wish I had because they were always quite high. Again, we chose to ignore them.

More recent figures copper-fasten how life has changed and how many children are born within what is a protected marriage under the Constitution compared with other relationships which have varying protection under the Constitution. There were a total of 23,173 opposite and same-sex marriages, which is huge progress, in 2022, compared with only 17,217 in 2021. The figures on how many children are born outside of the protected constitutional provision are significant. The number of families with no children saw an increase of 11% since 2016. There was an increase of 14% compared with 2011. That gives us a taste of the complexity of different families with and without children and children born outside marriage. The number of same-sex couples increased by 157% compared with 2011. In 2022, the figure stood at 10,393. Since 2016, the number of cohabiting couples without children living in private households went up by 17%, more than twice the growth rate of married couples. We are not giving enough protection to cohabiting couples. There are discriminatory systems ranging from social welfare to inheritance.

Children within marriage is still the most common type of family unit. The number of married couples with children rose by only 2%, but the number of cohabiting couples with children increased by nearly 13% in the same period. All of this is set out in the digest given to us by the library and research service, which I thank. It works under awful pressure and produces digests to give us a background to what is going on. I recommend it to every TD because it provides good background information.

There were 57,540 births registered last year, 57% within marriage or civil partnerships and 24,754 outside of marriage. That shows a trend regarding the increasing complexity of Irish life. I am uncomfortable saying that because, as I have said, there was always complexity. The recognition in a positive way of the complexity in Irish life is what is progress.

I welcome the amendment but not the limited time within which to discuss it. We are describing a relationship outside of marriage, which requires a lot more debate in respect of the word "durable". I do not mean to be facetious or argumentative, but I have the greatest difficulty with the word "durable". If I take it on a personal basis in my own experience, I might apply the term "durable" to one particular relationship and not another that was much longer than a shorter relationship. I do not know about that word. It needs to be teased out. It should have been teased out at the pre-legislative scrutiny stage, but it was not and this will now be dealt with on Committee Stage. That is not really the place to do it.

I sat as Leas-Cheann Comhairle last night and watched amendment after amendment come before the House. I am not crossing boundaries into my other role; I am simply talking as a TD in regard to the number of amendments that come forward on Committee and Report Stage which make it absolutely impossible for democracy to work or for TDs to do their job. This Bill is a perfect example. It is a very short Bill involving a very brief change to the Constitution, but we have the term "durable".

I could quote many cases, but there is a recent Supreme Court judgment regarding a case I will not go into. Ms Justice Baker, speaking on the term "durable", said it does not mean permanent and a test that requires permanence in that sense would be an impossible burdensome hurdle and would not be in accordance with any modern understanding of intimate relationships.

Deputy Roderic O'Gorman

It is a different context.

Deputy Catherine Connolly

It is a different context but it is looking at the word "durable".

Deputy Roderic O'Gorman

That is different legislation.

Deputy Catherine Connolly

We will come back to that. It is worth looking at the word "durable" and the issues raised by the Supreme Court. Ms Justice Baker stated, in respect of that term, that the relationship be one which has continued for some time. Again, that is very vague language. She went on to say it is one in which the parties are committed, which is slightly better, with an intent that the commitment continues. I could have an intent that I am going to continue my relationship, but I might change that intent tomorrow. The judgment goes into all of that.

Paragraph 75 states that duration, therefore, is an important factor but not always an essential one and that durability is not measured only, or even always, by durability. The court states that should the proposal to amend the Constitution be approved by the people, it would be for the Legislature and the courts to decide. I am quoting selectively and the judgment relates to a different context, but I want to illustrate that the word "durable" will lead to serious difficulties in interpretation.

I welcome the change to the definition of family and that we are broadening the concept of what a family means because that is the most basic thing we might do in a republic in the 21st century. What does it encompass? Does it encompass single mothers? The Minister is nodding, but I have looked at enough case law to know about interpretations of law. I am no expert, but I have read enough to know that different words lead to different interpretations. The restrictive definition of the family in the Constitution has led to lots of judgments I disagree with, one of which has already been mentioned, namely, an adoption case involving An Bord Uchtála, where a very strict interpretation was given to the term "family".

It is too late to say we should stop the ridiculous timeline of 8 March on International Women's Day. I am on the Minister's side and I agree with him that the Constitution should be changed. I agree that the definition should be broadened. I have difficulty with the word "durable". I would appeal to the Minister to allow sufficient time for that issue to be teased out, including the implications, bearing in mind the court cases on the interpretation of legislation.

Minister for Children, Equality, Disability, Integration and Youth (Deputy Roderic O'Gorman)

I thank all the Deputies for their very valuable contributions to our discussion this afternoon. An amendment to the Constitution is not something to be taken lightly and any amendment can and will have an impact. The amendment proposed here will have the effect of granting the protections currently available to marital families to a wider cohort of family arrangements such as single parents and their children and unmarried cohabiting couples. It will mean the Constitution of the State will no longer draw an outdated distinction between families. I think there was a common theme across the speeches today that there is agreement across the House that that change needs to be made.

I will begin by talking about what the legal changes of including a relationship within the definition of the family mean and the value of more families being defined within the constitutional family. From the legal perspective, the protection given to the family under Article 41 strongly limits the State from interfering in the establishing of a family - in a family's constitution - and the internal workings of that family - its authority. By being defined as a constitutional family, the State does not interfere with what might be described as the internal workings of a family or home-life decisions such as what religion the family adheres to or how and where children receive their education. Right now, the protection in the internal decision-making is limited only to marital families. The proposed amendment would extend this protection to non-marital families.

Many other issues related to the challenges non-marital families face in society were raised in the debate, including taxation and succession. Many of those issues can and will be dealt with in statute law, but it is important to understand what the extension of the definition of the family means to the families we hope to include within it.

I thank the Oireachtas special committee and the citizens’ assembly for the work they did, and progressing wording that is different from theirs is in no way a slight on their work. Regarding the amendment we did not go forward with concerning Article 40.1 there was a sense, backed up by the legal advice we have received, that what was proposed would have been a narrowing of the meaning of Article 40.1. I understand fully that was not the intention of the committee but we needed to scrutinise what was being proposed under each of the headings. We have given strong scrutiny on the wording around the family, as we are discussing now, and why we went with the approach that was adopted. The wording as advanced by the special committee on the family would have removed that special protection for marriage. It would have been special protection for the family – all families – but it would have removed the special protection for marriage. Deputy Bacik, who indicated she had to leave, argued the special committee was taking a minimalist approach. I would disagree on that point that removing the special protection of marriage would have been a minimalist approach. The Minister of State, Deputy Carroll MacNeill, spoke about the risk that this debate would see red herrings raised. It was the Government’s concern that proposing wording that removed the special protection of marriage or dissolved it into a special protection of families would have been taken and used and there would be Facebook ads telling people that voting "Yes" was voting "Yes" to getting rid of marriage and so on. It is unfortunate we have to think in that way but that is the world we live in. We are facing a vote in a number of months, and for that reason we felt we should take a more minimalist approach. We could have gone with an approach on the family article where we could have deleted the words in Article 41.3 to break that link between marriage and the family. However we also wanted to be affirmative and positive. We want to be clear that we are recognising families beyond the marital family and not doing a little deletion that would have resulted in that. We wanted to put them front and centre within Article 41.1 and that is what we have done by putting in the idea of other durable relationships and in so doing, including cohabitees and one-parent families.

I do not believe we are including the living scenario which Deputy Clarke set out where three people are living together as friends. That is certainly not the policy intention and I do not think that would be the interpretation. Article 41 already contains language that lawyers use, which is the word “guardrails”, for how we understand and define the family. I will read the article: "The State recognises the Family [and then there is the element we may or may not amend] as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law." When the Supreme Court comes to interpret the term “durable relationships”, it will be looking at the entirety of that article and whether the relationship is a natural, primary and fundamental unit group of society. In that context, I do not think the relationship Deputy Clarke spoke about constitutes that and it is certainly not the intent of the Government.

What are we talking about with the term? It is the relationship between cohabitants and parent-child relationships. The intention is to capture those committed relationships that exist over a period of time between couples and between a parent and children. It is not intended to capture shorter term fleeting relationships. I think that is right. The constitutional family is an important status and I do not think any one of us wants a very short-term relationship included there. There has to be language used to try and define that. Deputies Clarke and Cronin raised the use of the term “durable” in EU law. They are correct. It is used in the EU citizenship directive and has a meaning. It is used in connection with relationships. It is important to say there are many words used in EU and Irish law that have different meanings. For example, in EU law a regulation is one of its strongest legal tools where in Irish law a regulation is quite low down the pecking order. The definition of "durable" that we are seeking to put into the Irish Constitution is not influenced by the EU law definition of "durable".

Deputy Sorca Clarke

It is durable relationship, with respect. The library and research service highlighted that it was not mentioned by the Oireachtas committee or the citizens’ assembly but it is used in European law.

Deputy Roderic O'Gorman

There is that term "durable" in European law but Irish constitutional law can have a different meaning. Most importantly, the wording in the citizenship directive only refers to cohabitee relationships. We are very clear, when we are amending our Constitution to include durable relationships, that we are talking about cohabitee relationships and one-parent family relationships as well. We are very clear on that. Looking at the term "the family" in other constitutional articles, particularly Article 42, which is the article on the family, it is very clear that the term "family" includes children. I thank the Deputy for raising those points. I hope I have been able to bring an element of clarity to them.

Deputies Verona Murphy and Connolly spoke about constitutional interpretation. Deputy Murphy spoke about precision and exactitude in our Constitution. Our Constitution is a broad-brush document. That is the nature of constitutions; they are higher level. Words and phrases of the Constitution do get interpreted. That is a feature of our legal system. The courts and, finally, the Supreme Court will give interpretations of language and the Supreme Court will interpret any changes we make. Right now, family is not actually defined in our Constitution other than by its link to marriage. There is no constitutional expression that clearly says what is or is not a family other than marriage. We are maintaining the understanding of the family but we are also broadening it to include durable relationships. It is important we give those guardrails or directions to the court in terms of the type of relationships we are seeking to protect while, at the same time, not being so prescriptive in the Constitution that certain families, where there may be an intensely durable relationship, may end up being left outside.

If we put a very prescriptive and detailed definition into the Constitution, there will be families left out. We are giving guidance to the courts but the courts can ultimately decide in individual cases, does a relationship represent a durable relationship and therefore constitute protection for the family.

An Ceann Comhairle

I thank the Minister.

Minister for Children, Equality, Disability, Integration and Youth (Deputy Roderic O'Gorman)

I thank the Ceann Comhairle and would appreciate his latitude so that I can end on one point.

A number of speakers spoke about the issue of stakeholders and that there is a wide range of interest in this. After I spoke with Deputies in terms of the Government announcement I engaged with stakeholders and let them know of the proposals being made. I committed very openly to further engagement. I have engaged with one organisation already. I understand it is taking this language away to consider it. I think that is valuable and I do not see that as a criticism. These are significant changes. They warrant consideration. I have no problem with any party saying it wants to give this consideration as well. That is entirely valuable. I look forward to continuing the discussion on the changes in the family when we come back in the new year.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.

Dáil Éireann debate - Thursday, 14 Dec 2023

Thirty-ninth Amendment of the Constitution (The Family) Bill 2023: Second Stage

Dáil Éireann debate -
Thursday, 14 Dec 2023