Select Committee on Legislation and Security debate

An Bille um an gCúigiú Leasú Deag ar an mBunreacht (Uimh2), 1995: (Céim an Choiste.

Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Committee Stage.

Chairman

I am pleased to welcome the Minister for Equality and Law Reform, Deputy Taylor, and his officials, Mr. Tom Lynch and Ms Regina Terry. This is important legislation which I know will attract a high level of participation from Members of the Committee. There are a number of procedural matters which I would like to deal with first.

As the substance of the debate relates to the wording of the proposed constitutional amendment in the Schedule to the Bill and since it would be appropriate to have the Schedule decided upon before section 1 which provides for its insertion into the Constitution, I suggest that we postpone consideration of sections 1 and 2 until the Schedule has been agreed. This is an accepted procedure which has been adopted by the Dáil in plenary session when dealing with the Committee Stages of previous Bills to amend the Constitution and which would lend itself to a more logically ordered debate. I understand there is general agreement to this proposal, as the convenors have discussed the matter. I therefore ask the Minister for Equality and Law Reform to formally move the motion in accordance with Standing Order No. 97.

Minister for Equality and Law Reform (Mr. Taylor)

I move:

That consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.

Question put and agreed to.

Chairman

I propose that we proceed until approximately 1p.m. and then adjourn for lunch until 2.15 p.m. Is that agreed? Agreed.

I have introduced the Minister and his officials. On my left is the clerk, John Roycroft, who is known to Members. On my far left is Gearóid Cassidy from the translation section who is largley responsible for the translation of the text in the Bill and the Schedule. If there any grammatical matters relating to the Irish Schedule or part thereof, he can clarify those for us. To facilitate the debate I propose that we take amendment No. 1 in the name of Deputy Keogh and the Schedule together. Is that agreed? Agreed.

Before commencing the debate I remind Members that over the past week or more we have had a considerable and lengthy Second Stage on the issues involved. This debate lasted in excess of 16 hours. I ask Members to bear in mind when making their contributions that we are on Committee Stage. If we keep our contributions in Committee Stage form all Members will have an opportunity of making a valuable contribution. I hope we will not have the level of repetition one might normally expect on Second Stage.

AN SCEIDEAL

SCHEDULE

Ms. Keogh

Tairgim leasú a 1:

I leathanach 7, roimh an Sceideal, an Sceideal seo a leanas a chur isteach:

"AN SCEIDEAL

Cuid 1

2th D'ainneoin aon fhorála den Bhunreacht seo, féadfaidh an Stát socrú a dhéanamh lena dhlíthe go bhféadfaidh cúirt a bheidh ainmnithe le dlí scaoileadh ar phósadh a thabhairt sa chás go gcinnfidh an chúirt de réir na ndlíthe sin go bhfuil cliste go doleigheasta ar an bpósadh sin agus go mbeadh sé cóir an scaoileadh sin a thabhairt.

Cuid II

2th Notwithstanding any provision of this Constitution, the State may by its laws provide for the grant by a court designated by law of a dissolution of marriage where it is determined by the court in accordance with such laws that such a marriage has irretrievably broken down and that such a dissolution would be just.".

I move amendment No. 1:

In page 6, before the Schedule, to insert the following Schedule:

"SCHEDULE

Part 1

2th D'ainneoin aon fhorála den Bhunreacht seo, féadfaidh an Stát socrú a dhéanamh lena dhlíthe go bhféadfaidh cúirt a bheidh ainmnithe le dlí scaoileadh ar phósadh a thabhairt sa chás go gcinnfidh an chúirt de réir na ndlíthe sin go bhfuil cliste go doleigheasta ar an bpósadh si agus gombeach sé cóir an scaoileadh sin a thabhairt.

Part II

I am glad to see so much interest in this debate; I have never seen so many people at a committee meeting. It is good, when dealing with important legislation, that we have a good attendance and, I hope a good debate.

I have proposed one amendment to this legislation. I made it clear on Second Stage that it is my contention that detailed social legislation should not be written into the Constitution and that, as a Legislature, we should legislate on the matter. It has been my contention and that of my party all along that the Constitution should set out in broad terms the fundamental law of the State. It should, of course, include guarantees in relation to fundamental human rights and I believe divorce is a fundamental human right. In principle, the Progressive Democrats have always supported the deletion of the prohibition on divorce and the fact that divorce is a right which should be available.

It is also important that the Constitution should command the allegiance of all the people of the State. The Church of Ireland's forum document states that in relation to attitudes and the social climate here there has been a change in the political and social climate which has helped to make the Republic of Ireland more acceptable to Protestants and, of course, that much remains to be done. I think we all accept that. However, they, among others, object to the use of the Constitution as an instrument for determining complex social and moral issues so, whereas the Constitution can set out the broad spectrum, the detail should not be in it. That is a view which I wish to support.

The point has already been made but it is important to stress that we have already seen the catastrophic circumstances which can arise through a misguided desire to improve the Constitution when social difficulties are addressed in a manner which can lead to contentious debate and challenge. Unfortunately, we saw this arising as a result of the X case. We should learn those lessons but by going down this route, we show we have not learned that lesson. This is evident in the Government's insistence on taking this route. It is a tactical approach but it is the wrong one. I appeal to the Minister to recognise the points which we make and to ask my colleagues to accept the amendment but I am sure my appeal falls on deaf ears.

I hope many Deputies will participate in the debate. In doing so, we should remind ourselves of our role. We are legislators and it is our duty to legislate. If we accepted my amendment which would allow the Legislature to legislate, we would be accepting our responsibilities. It is not right that we shirk it and revert to the people on the substance and detail, as the Minister wishes to do. It sends out a strange message about ourselves that we will not accept the responsibility. We could, in fact, be blamed for shirking that responsibility. The people can decide and it is up to them to do so but I think the people can decide on the principle and we can work out the details.

One of the difficulties the Progressive Democrats have with the provision before us is that it is being put into the Constitution as part of some sort of cocktail. The committee will notice that the amendment begins by stating: "Notwithstanding any provision of this Constitution" because there are many articles in the Constitution which refer to the family. They give a high degree of protection to the constitutional family. I delineated this on Second Stage and I hope the committee will not think I am being repetitive if I go through it again. We must remember when amending the Constitution that we must take the amendment in context. Article 41.1.1th of the Constitution states:

The State recognises the Family 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.

2.th The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

We must realise that we are challenging a balance here. Constitutionally, the use of the words "Notwithstanding any provision of this Constitution" allows for this balance.

I do not know whether the Minister really believes the people want us to go down this route. I am not convinced he is going about this the right way, tactically and I want to hear his reasons for denying this particular amendment.

Mr. Browne (Carlow-Kilkenny)

I accept that Deputy Keogh has made a case for keeping the wording out of the Constitution. I suppose we must take the line that the Supreme Court will decide what everything means; there is that danger. Having outlined that we have a duty to legislate, we also have a duty to be practical. In the long run, if the people have more confidence in what is tied down as distinct from what could be changed overnight, there is a practical side for politicians. If we want to introduce divorce and the right to remarry, which is the only thing we are asking for at this stage, we must take the practical line that the people will be far more inclined to accept something which is tied down. That is the only difficulty I see in not having it in the Constitution.

Mr. J. O'Keeffe

I have a lot of sympathy for the Progressive Democrats' amendment but, to be honest and with some regret, it must be said it is not a practical proposition. The substantive issue before us is the question of divorce and the right to remarry. It is quite clear that the amendment does not in any way attempt to remove that proposal. In fact, what we are talking about is whether the basic conditions giving rise to the right to remarry should be in the Constitution or in Statute law.

On the substantive issue, I made it clear I consider it unchristian on my part to deny the right to marry to those people who have suffered from marital breakdown. Deputy Keogh refers to the right to remarry as being a civil right. Again, I have no problem in accepting that proposition. I believe it is a civil right. Basically, my position is that compassion and Christianity compel me to support the case for divorce as a civil right. I have no problem with that basic issue.

If we talk about the extent of marital breakdown, it is clear that we cannot be like ostriches and put our heads in the sand. We must confront the fact that there is an enormous extent of marital breakdown in the country. It was predicted at the time of the 1986 referendum that if divorce were introduced, the instance of marital breakdown would double within ten years. In fact, divorce was not introduced but unfortunately, without divorce being available, there was a doubling of marital breakdowns in less than that ten year period. We now have over 75,000 separated people. Unfortunately, that figure is likely to rise. The proposition to be put before the people is whether we give those separated people the right to seek happiness in a second marriage. I favour that option and I urge people to vote yes.

This amendment asks us to leave out the basic conditions so that they can be subsequently changed by law rather than in a further referendum. I believe in parliamentary democracy. I would much prefer it if there was faith in the politicians and people could rely on them to do what was best. I would also prefer it if politicians could trust themselves. I take the point raised by Deputy Keogh but unfortunately it is not a practical proposition.

Chairman

And one does not vote with one's heart.

Mr. J. O'Keeffe

That about sums up the case I am making. At the end of the day, this proposal has to be approved by the people. It is clear from the research and polls taken that the people will feel they have more control over the situation if the basic conditions are enshrined in the Constitution and there cannot be a change in them without reference to the people. This is not a point of principle for me. As one who wants to see the people approving the change I accept that is the situation and from the practical point of view, we have to agree that those basic conditions be included in the Constitution. Regretfully — as the Chairman pointed out, I will have to vote with my head and not my heart — I will have to oppose this amendment.

Mr. Taylor

I would first like to deal with the amendment in a general way in terms of the approach it represents to constitutional change in the key area of the dissolution of marriage. Clearly, that approach is at odds with the route chosen by the Government, a route which, as evidenced by the response to the Progressive Democrats amendment on Second Stage, commands widespread support among the broad spectrum of political opinion.

I know there are differing views on the desirability of putting detailed criteria into the Constitution, particularly where social matters are concerned. Nonetheless, we have to face up to genuine fears concerning the adverse effects which might be attendant upon the introduction of divorce, particularly so far as dependent spouses and children are concerned.

There is also apprehension that a divorce regimé here might mirror that in other jurisdictions where divorce is readily available even after a very short period of marriage, and only on the most tenuous evidence of marriage breakdown. We may feel these fears and apprehensions are groundless, but as legislators, we cannot ignore them. We must deal with them in some way and the way the Government has chosen to deal with these matters is by way of the specific provisions which are the subject of the Fifteenth Amendment of the Constitution (No. 2) Bill, 1995.

The Government is deeply committed to ensuring that couples whose marriages break down will have a right to remarry. For them to have this right, it is necessary that the divorce referendum be passed. That is the essential issue on which we should all focus. It is not an abrogation of legislative responsibility to accept that on some issues, the decision of the people must take precedence over our authority. It is not legislative cowardice to accept the reality that many people might reject the introduction of divorce here if primary legislation, rather than a constitutional provision, were to be the main instrument of change.

The amendment put forward by the Government is comparatively brief, but it encapsulates the essential requirements that would have to be fulfilled before a divorce could be granted. This is a reassurance to the many members of our society who have strong views on the type of divorce regimé that would be most suitable here. It is the ultimate guarantee that what they vote for is what they will get. If the provision is to be changed it is the people who will change it.

The effect of Deputy Keogh's amendment would be to allow for the enactment of legislation which would govern the dissolution of marriages, such legislation to be passed on the twin premises that the marriage had irretrievably broken down and that the dissolution was just. I accept that the formulation is shorter than that which the Government is proposing, but not that it necessarily deals with the issues which Deputy Keogh raised in criticising the Government proposal. In particular, any primary legislation may inevitably be the subject of constitutional scrutiny and I do not see that the legislation which this proposal would allow to be enacted would be any different in that respect.

Irretrievable breakdown is a very wide criterion indeed. As Deputy Keogh's amendment is framed, it would appear to be open to the Oireachtas to assign to it whatever meaning it might choose. I honestly do not believe this approach is one which at this moment is capable of obtaining majority support. It lacks precision and does not offer the security evidently contained in the Government's proposal. The Deputy, therefore, will not be surprised if I say I am not in a position to accept this amendment.

Dr. Woods

Fianna Fáil supports the Minister's proposal and cannot support the amendment put forward by the Progressive Democrats. The Minister's proposal meets the criteria we first set down and which we believe to be important in this proposed change to the Constitution. We said we did not want to see "quickie" divorces and that has been repeated by many people since, including the Minister. We also said we wanted to see the children affected being protected. Fianna Fáil believes that the biggest practical issues in this change, as far as the people are concerned, are those relating to the protection of children and the fears and concerns for children in the future. The Minister, in his proposal, is providing for both of these issues, to ensure that the children are constitutionally protected and to ensure that there can be no "quickie" divorces, which is another widespread fear among the population.

We also want to see, in association with the Minister's proposal, a five year strategic action plan. The Minister has replied to this on Second Stage and said he recognised the need for action. I emphasise to the Minister that this five year action plan is almost a sine qua nonof proceeding along the lines on which the majority of the Deputies in Dáil Éireann are proceeding.

A great deal of work has been done in the installation of new legislation and new protection for families in marriage breakdown situations. Some has yet to be completed and the Minister recognises that. The Minister has also made considerable progress in relation to counselling, mediation and other support services including legal aid. This is an area where a great deal more needs to be done. At this stage we need a clear and honest commitment from the Government to introduce such a plan before the referendum takes place. I know the Minister cannot have all the quantification done, he cannot have all the details worked out and resolved, but we believe it is important to be very clear and fortright about such a commitment at this stage.

We need a champion for children, particularly at present and especially if the people vote for the introduction of divorce in the referendum. We need a commissioner for children who will deal with the issues involved and propose further supports and packages and methods of dealing with the acrimony which is part of marriage breakdown and separation, quite apart from divorce. We can discuss this further with the main proposal but there must be a commitment from the Government to this effect. The evidence from almost everywhere else is that this kind of support is needed. The Minister is conscious of it and he is doing it but, just as in any area of our activity, whether it is economic or social, we need a clear cut strategic action plan. Every Government Department is implementing such a plan for its work. This is a major constitutional issue which has such widespread and far reaching effects that we want to see the Minister provide this support. He has time to do so and we look forward to him taking these steps.

In this context we look at the amendment proposed by the Progressive Democrats and I agree with the Minister that it does not meet people's fears or concerns. In the first instance it starts, as Deputy Keogh has pointed out, with the phrase "Notwithstanding any provision of this Constitution . . .". That element in the amendment is specifically designed to get around Articles 41 and 42 of the Constitution which provide special support for the family. This is probably a necessary step in regard to the way in which they wish to approach this amendment. Our concern about the amendment is that no safeguards are to be placed in the Constitution.

There are very strong safeguards for children in the Constitution at present and we are making a change from a total ban on divorce, together with the safeguards which are there in Articles 41 and 42, to a position in which divorce will be permitted under certain conditions. Our concern about the amendment is that it leaves the way open to divorce being more readily available. This could be seen as leading to a situation in which divorce could be available on demand. I know this is not Deputy Keogh's intention but in simple technical terms the amendment can leave that situation open.

The intention was to provide for marriages which are long since finished and broken down. That I believe, has been everybody's intention and it is why we wish to see the four year gap between the breakdown and the divorce and remarriage. That is not catered for in this amendment and it consequently conflicts with the criteria we set out from the start and on which basis we have supported the Minister throughout. There is no specific safeguard for children or dependent spouses in this amendment and that is a further matter of concern to us. We do not see any improvement in the terms "irretrievable breakdown" over and above the term "living apart" used by the Minister. There would be criticism of any of the terms that are used, but the term "living apart" is prefereable in these circumstances.

There is no reference in the amendment to reconciliation. People are concerned that there should be an opportunity for counselling, mediation and reconciliation, and that there should be a time gap to allow for this to occur. There is no reference to such matters in this amendment whereas the Minister's proposal includes a reference to there being no reasonable prospect of a reconciliation between spouses. There would be nothing in the proposed amendment, therefore, to encourage the spouses to attempt to reconcile.

There is no reference to adequate provision for children and dependent spouses in the proposed amendment. We know and everybody will cite the fact that, in practice, women are much more frequently dependent on social welfare following marriage breakdown and separation or divorce. We believe it is constitutionally important that we ensure there is adequate provision for both the children and the dependent spouses. That is a very important overall criterion within which Departments and Governments in future have to work. When it comes to examining the social welfare provisions or any of the other provisions made under the Constitution, the stipulation of adequate provision which is included in the Minister's proposal will be effective in providing support for children. These are the reasons we feel that we cannot support this amendment.

We agree that the Constitution should provide the basic principles which people wish to follow in the laws of the land and in that sense provide the broad framework on which our legislation should be based, but that broad framework must continue to include protections for children, for dependent spouses — principally women — and also against "quickie" divorces. On those grounds we will be supporting the Minister's proposal, not the amendment put forward by the Progressive Democrats.

Mr. E. Walsh

Everybody would agree that the ideal world would be one for which we could legislate in the Oireachtas without any regard to the checks and balances needed to have a healthy democracy in that Legislature would be free to do whatever it liked at any given time. That ideal world does not exist.

We are faced with a practical problem. If we proceed on the basis of putting before the people the Government amendment we are debating there is a strong possibility, particularly given the opinion polls published this morning, that a substantial number will be happy to amend the Constitution to enable people to remarry. That is a significant change in public opinion.

On the question of leaving it to the Dáil to deal with, I do not believe the people would be happy with that. They may decide that in the future. A time may come when people will say it is time to go to the Constitution again to further consider this issue and change it. However, it is not possible at this time. I will ask people to support this constitutional amendment to allow people to remarry. There will be genuine fears among people as to the consequences. However, the reassurance necessary is contained in the amendment to the Constitution.

We are giving the courts the right to dissolve a marriage and the Oireachtas has made provisions for them to do so. It has put all the required legislation in place in order to bring about the dissolution of a marriage. We have included safeguards such as counselling and so on. We are giving a clear signal to people that they must follow a reasonable and particular course of action before the right to remarry will be granted. This amendment does not prevent people separating and dissolving a marriage to a point where the right to remarriage enters into the question. In other words, even without this constitutional amendment, we allow people to separate and to order their lives under the control of the courts along specific guidelines.

The people are being asked to change the Constitution to allow three specific items to be put in place to act as safeguards. The courts, the Oireachtas and the people combined will be the best safeguard for the future. I cannot predict the future. People will watch carefully what this amendment to the Constitution will bring about. The right to remarry will be watched carefully by Irish people, and if they are happy, which I am sure they will, that that right will not in any way affect the stability of marriage, at a future date they may decide to go further in their interpretation of that part of the Constitution.

I am happy that the procedure we are adopting is the best line of action to take and the one most likely to bring about the right to remarry. On that basis, I support the amendment. Perhaps, some time in the future, the amendment proposed by the Progressive Democrats will come to fruition, but the time is not right at present.

Ms Keogh

Sometimes I am glad I am a newcomer to the Dáil because it makes me believe a little more in people. Many arguments have been put before us. I heard the word "practical" used — I separate the Minister from this — at least five times by Deputy Woods and members of Government parties. Some Members said their preference is to take the route I suggested but, to be practical, we must take the other. In order to get this amendment through, we must accept the Minister's approach.

That says a great deal. It says we do not trust the people and do not believe they are mature enough to accept the points of principle we are making. It also says we do not trust ourselves to do what we believe is right. I think the Minister, and many others, believe we should not be going this way but we are doing so because we want to reassure people. I agree with many of the sentiments Members expressed. We should reassure people and there should be adequate safeguards. Leaving divorce out of the picture, there should be safeguards for families, women, children and spouses. That has nothing to do with divorce but with what we should provide for people.

Deputy Woods said what the Government put forward meets the criteria laid down by Fianna Fáil and he believes that this is the way people will accept the amendment. We may be talking about an ideal world, but in that world, and if we were working ideally as a parliament, we would take this responsibility on ourselves. We could ask people to trust us to introduce legislation and do what is right and have reassurances, supports and a five year plan or whatever it would take. We could ask the people to give us that right. That is what we should put to the people.

Deputy Walsh was correct in saying that, perhaps, we will go back to the people in seven years; we trust them and they trust us. I wish we could do that now. We can reassure people by saying we are trustworthy and not that we are untrustworthy.

Deputy Woods said my amendment will not write into the Constitution the provisions he would wish to see in it. We can have those provisions in legislation but the principles should be in the Constitution. There is protection for the family in the Constitution and we should not ignore that. We are including a provision which will allow people whose marriages have broken down to remarry. We are not attacking anything, we are giving a human right.

The Minister said he does not believe my amendment deserves support. I understand where everyone is coming from because of the words "practical" and "reassurance" and I know there is not a meeting of minds on this. The Minister is wrong. It is heartening that an opinion poll this morning stated the divorce referendum will be carried. Although it is a matter of dispute, that is not because the people are reassured by the wording, rather that they have made up their minds. People are compassionate and they realise circumstances are changing. Perhaps they need to be better informed but they will not make up their minds on foot of what the Minister thinks are reassurances being included in the Constitution. They will make up their minds on the basis of the right thing to do.

The Minister also said the wording of my amendment is not precise. The effect of the amendment would be to give responsibility back to us as legislators. The legislation can be precise; it would be up to us. If we were to debate specific amendments, which did not involve provisions in the Constitution — as the Minister had done in this instance — we would be talking about what is correct in terms of legislation and what should be included. It would be a valid debate and we would be in a position to discuss all the matters mentioned today and on Second Stage.

The Minister said the decision of the people should take precedence. This is correct and nothing I say denies that point. We are in agreement in that regard; it is not in dispute. However, the Minister said that, by putting the terms into the Constitution, we are allaying people's fears, which the Minister said we must face, that we are taking the same route as other regimes. I listened carefully to many of the excellent contributions on Second Stage, one of which was made by one of the Minister's colleagues. The Minister also made an excellent contribution and he is very forceful on the point that we will not take the same road as other regimes.

However, his party colleague made a good comparison. She said people are maintaining we will end up like Hollywood, USA, but, she said, it is much more valid to make a comparison with Hollywood, County Down. She is correct and we should also make that comparison. We should make this point to people, rather than telling them that, although they are afraid, they should not worry because it is all in the Constitution and everything is fine. We should say we realise they have fears, which are genuine in many cases, but we will give them an opportunity to say whether they believe the prohibition on divorce should go and that we as legislators will undertake to enshrine in statute what we believe the parameters should be. This is not a fanciful suggestion, which would apply in an ideal world; it represents the world which elected me to the Dáil.

There is no dispute on the overall position that the ban on divorce should go and that people, whose marriages, unfortunately, have broken down and who are in second relationships, should have the right to remarry. The amendment does not ignore the fears or dispute that those fears should be allayed. It recognises the situation, admits that fears exist and tries to find a different approach. With all due respect to the Minister, decisions should not be made in the manner chosen just because, as Deputy Woods said, it meets Fianna Fáil's criteria or the criteria of any other party. The criteria should be that it is correct, that it is the proper way forward and leadership is being shown. There is a difference in tactics, rather than principle.

Chairman

Much of the Deputy's contribution centred on what is the right thing to do; she made that point repeatedly. One must always be cautious in defining what is the correct thing to do in any given circumstance. The Minister placed much emphasis on what is capable of support. The much maligned Florentine philosopher, Machiavelli, stated that what is expedient is right. Is there an element of expedience in the debate?

I call Deputy Frances Fitzgerald. You are not a member of the committee but you are more than welcome to the deliberations this morning. I know you wish to make a contribution but I must remind you that you have not been accorded voting status unless you are substituting for a Deputy.

Ms Keogh

The Chairman mentioned Machiavelli. What does he mean by "expedience"? Is he being a little machiavellian himself?

Chairman

I merely quoted Machiavelli. On one hand we are hearing what is right, but, on the other, are we hearing what is expedient in the circumstances? Machiavelli said whatever is expedient is right.

Ms F. Fitzgerald

Machiavelli also said something along the lines that nothing is as difficult as constitutinal change. Perhaps we should remember that.

When the debate began on how this matter should be handled, I would have preferred a simple approach, such as the deletion of the clause. However, the message which should go from the committee and the House is that all party support exists. I understand the Progressive Democrats want the referendum carried and this is the important message.

I have reflected on whether this measure should be written in such detail in the Constitution. I have much respect for the democracy we see at work in the way in which the Minister has approached this matter. Parliamentary democracy and the role played by politicians is one aspect of our democracy. The interaction between politicians and civil society and the views of the people is a very complex issue. The way in which democracies work is changing and more referenda are taking place in countries. There is greater participation between non-governmental organisations and governments throughout the world. This is apparent at UN conferences.

I have much respect for the way in which this matter has been handled by the Government. We expect our political leaders to provide leadership. We should remember that leadership is being shown by this referendum being put to the people. This Government introduced this Bill; other parties talked about doing so but this Government did it and the referendum will be before the people in November.

It is important to hear what the people are saying. It is clear from the research that 86 per cent are saying they have made up their minds on how they wish to vote. A large proportion, which increases with each piece of research carried out, say they want the conditions spelled out in the Constitution. This reflects a particular Irish approach to social issues. We have seen this over many years. There is ambivalence on social issues and this often leads to a situation where we need to be able to hold on to a sense of an ideal while regulating the current reality. This is reflected in the approach which has been taken. It reassures people.

The research also shows that Irish people are worried, as Deputy Woods said, about the effects on children and family life. At the same time, great generosity is coming through in what people are saying about people whose marriages are in trouble. People in the opinion poll today are being generous to those whose marriages are in difficulties. They want to give them the right to remarry. I am delighted by this and that this point is coming through so strongly.

The approach being adopted reassures people because we have seen in other jurisdictions that it matters how divorce and separation are handled. It matters particularly to children but also for the quality of society. Writing in the details regarding children and mediation — which the focus on reconciliation achieves — reassures people when they go to vote. It is clear from other jurisdictions that children's mental health is strongly affected by how couples approach divorce, how they handle divorce proceedings and the support they receive. It is not the fact that divorce exists that will impact on children's mental health — it is primarily marital breakdown and, once in the divorce situation, how it is handled. The detail in the Government amendment ensures that children's rights and the possibility of reconciliation will be given more focus in this jurisdiction than they have been given in other jurisdictions. That is important. If our primary goal is to regularise the legal position of the 75,000 people who are experiencing marital breakdown and to be responsive and generous to them it is clear that approaching the amendment in this way gives it the best possible chance of success. It is important that laws reflect the reality of people's lives.

This issue has had a fraught history. There is a great deal of fear as a result of what people experienced in 1986. The approach being taken by the Government takes that social history into account and that is important. The amendment proposed by the Progressive Democrats is not the correct approach at this stage.

Mr. M. Smith

There is little I wish to add to what Deputy Woods had said. However, I disagree with Deputy Keogh and Deputy Eamon Walsh and, particularly, with Deputy Jim O'Keeffe in saying that their preference would be to accept the amendment but it might not be the amendment that would be acceptable to the people.

The proposal before us is the result of long consultation. There has been wide consultation within political fora and we have tried to ensure that the best possible provisions are put to the people. as a politician I resent the suggestion that we do not trust ourselves. We add to cynicism and help people to adopt that view if that is how we think of ourselves. I do not support that. We trusted ourselves when introducing legal provisions and reforms in the past ten years.

We should remember that we have a Constitution which has provided essential safeguards for the people and, when a proposal for change is made, there must be reference to the people. Deputy Keogh's position is that there are provisions in the Constitution which we as politicians should change ourselves without reference to the people. Parliamentary democracy is important but it is not the first line in a democracy. The first line is the people. The people must be asked at local and national level to decide issues for themselves to a much greater extent.

Nobody heard until a few years ago about how to achieve national consensus on economic matters. Now trade unions, farmers and other representatives are brought together to work out national pay deals and other economic parameters. The consultative process of listening and consulting before deciding what action should be aken is a growing phenomenon and one which I support. The safeguard in this amendment are necessary in the Irish context. I believe the people in their wisdom will support the right to remarry in the circumstances provided here. We should have confidence in them to decide. We have made the best effort we can in consultation with the people and among ourselves to reach the best conclusion possible.

I wish my colleagues in future would trust themselves a little more and not make suggestions to the effect that we do not trust ourselves. We trust ourselves when dealing with many difficult and sensitive issues. However, we are not sure of the real answers. There are uncertainties to tackle; we do not live in an ideal or utopian world. The Constitution protects us. We can be proud of a Constitution under which we can refer to the people and trust them to make whatever decision they wish. There is nothing fundamentally undemocratic about being a politician and being able to refer to the people in the way we are going. We should not make little of what we do.

Mr. N. Ahern

I cannot understand the attitude of Deputy Keogh and the Progressive Democrats. They say they support the introduction of divorce yet they are against this wording. We have a Constitution and the people must be consulted about any change in the Constitution. When we consult the people they can give three answers: they can give permission for change, they can refuse permission or they can give a limited permission. The Minister is obviously thinking of the latter in this case. If Deputy Keogh wants change she should go along with the Minister's idea. If she wants this matter to fail she should take the Progressive Democrats approach. That is her choice.

Whether we accept it or not — and it does not matter what side of the argument any of us supports — the middle ground that both sides of the campaign would like to call their own might vote for divorce if they see it as limited and controlled with inbuilt safeguards. It is not a case of politicians not giving leadership or not taking responsibility. The perception is that people do not fully trust politicians. They are prepared to give politicians limited power. The people have power at present. Why should anybody with power surrender it? We all like to have power no matter who we are. The people have the power and they must be consulted about any change. Obviously, they want to control and measure the change they allow. They would be fools — as would anybody in any walk of life — to totally hand over their power for ever.

Many people in the middle fear that if divorce were introduced by legislation, as is advocated by the Progressive Democrats, it would be liberalised very quickly, possibly over a couple of years. The people need reassurance that divorce will not mean a quickie divorce regime within a short period of time without referring back to them for further permission. Regardless of what we would like, we must understand that we have a Constitution which the people control. We cannot take power away from them. They give us the power to make whatever change they wish.

The Minister's wording has been designed to try to get the middle ground. It has been framed after detailed conversation with my party and is aimed at concerned middle-of-the-road people regardless of where I or anyone else stands on the matter. For those who want divorce introduced, it is obvious that they should go along with the Minister. If one is against divorce, the Progressive Democrat way is probably the way to go.

Mr. L. Fitzgerald

I endorse what Deputies Ahern and Smith said. The Constitution is a safeguard for our people, not because the people do not trust the politicians but because it gives them a significant voice in ordering society as they wish. That is the essence of democracy. To simply delete something from the Constitution is to diminish the power of the people.

If I interpret correctly what Deputy Keogh said her understanding is that our position is a tactical one. I have to cross swords with her on that because my understanding of what Deputy Woods said on the Fianna Fáil position, with which I agree, is that it has nothing to do with tactics but everything to do with our concern and serious reservations about going down this road without taking fundamental account of the family. That is why we heartily endorse the approach taken by the Minister, as opposed to the approach taken by Deputy Keogh. Our position is based on humanity, concern, an interest in the family and an interest in promoting programmes and resources to take account of obvious difficulties irrespective of the outcome.

Mr. Kenneally

I have listened with interest to some of the things said here, particularly statements to the affect that we are here to legislate and we are not doing so on this occasion. I cannot agree with that. We are here to legislate only in the context of the broad parameters laid down by the people in the Constitution. As legislators we have a duty to make decisions on behalf of the people. Subject to the Supreme Court, we are the final arbiters and we have always accepted our responsibility in the past. On occasions a question like the present one arises where the people are the final arbiters and we must assist and facilitate them in deciding. That means putting the measure to the people for decision and that is what should be done on this occasion. Outside of the constitutional requirements, this is a decision which is more properly made by the people and I do not propose to deny them that right and opportunity, which is why I voted last Tuesday night to allow this issue to be put to them.

Having said that — and I do not want to get into a huge debate on the rights or wrongs of divorce and whether people should vote "yes" or "no" but it will take some convincing to persuade me to vote "yes". As of now, I will vote "no" on referendum day. I cannot see what good divorce has to offer to the majority of the people and, even to some of those whose marriages have broken down it does not offer a solution. It does not have much to offer to society as a whole.

The document published by the Minister on the right to remarry said that the Government's position encompassed the need to protect the family and the institution of marriage. I find that difficult to believe. There is an acceptance across the board that the introduction of divorce, by its very nature, is a declaration that all marriages are temporary. The State commitment to the family unit is gone from that stage.

I also take issue with something Deputy Keogh said earlier. She inferred that, by not accepting what she is proposing, we are not allowing the people to make a mature decision. That suggests that a mature decision would be to accept her amendment. Many people think the mature decision is to vote against the proposed referendum in whatever form it is put to the people. I must stress the importance of the measure being put to the people and, of the proposals that are before us. The Government proposal is the lesser of two evils, in that it makes some effort to restrict the availability of divorce whereas the proposal by Deputy Keogh and the Progessive Democrats seems to be for divorce on demand. For those reasons, I cannot accept the amendment proposed.

Mr. O'Dea

On the amendment, I find myself 100 per cent with the Minister. The kernel of Deputy Keogh's argument, as I understand it, is that we should trust ourselves on this matter. If any changes are to be made we should trust ourselves and not put ourselves in a position where we have to hand it back to the people. There are occasions when we do not and cannot trust ourselves. We have a written Constitution and any proposal to change it has to be referred to the people. If one takes Deputy Keogh's argument to its logical conclusion, we should change the law to allow us, as a Parliament, to unilaterally change the Constitution any time we wish. We have to look at what happened in other countries, whether we like it or not. In other countries where divorce was introduced it was consistently liberalised by parliaments. I know of no country where divorce was introduced where it became less liberal because of changes in legislation. In several countries, it is now more liberally available than the people want it to be. If that was not the case, the parliaments of those countries would not now be trying to row back. They are trying to row back because they have got the message that the public feels the interests of society have been damaged by a too liberal divorce regime. I am not saying that will happen here, or that the Parliament will run ahead of the wishes of the people in this regard if it had the exclusive right to make changes but, nevertheless, the perception is there that it might happen. Are not the people who take that view entitled to do so? Are they not entitled to think that what happened in practically every other country where divorce was introduced would happen here also?

After the next election, the formation of a Government could depend on the votes of a few independent Deputies. The price they could demand for support could be a change in the divorce legislation to make it more liberal. The party or parties seeking to form a Government could give in to them in the interest of forming a Government and the people would have no say in the matter. It is things like that which come into people's minds.

I am in favour of making more use of referenda. We are living in an era when, unfortunately, trust in politicians is low. Committee Members may or may not know that the French Government recently introduced a change whereby they will refer to the people on matters of great social or economic change, even without considering a change in the Constitution. That is more democratic and I would prefer to see this country go in that direction rather than in the direction Deputy Keogh seems to suggest.

Finally, as Deputy Frances Fitzgerald said and I agree with her, what we have written in here is a proposal that divorce not be granted unless adequate provision is made for the parties and for children. We must ensure that the Dáil cannot decide to water down the protection for the parties to a divorce, who are often adversely affected financially, or water down the provision for children without reference back to the people. It is only right, proper, just and entirely logical that Parliament should have to refer back to the people if it wants to weaken these protections in any way. We should go along the road of more, not fewer, referenda and this is why I support the Minister. I recognise the hand of Deputy Woods in this legislation. I am delighted the Minister has taken on board suggestions from my party on adequate provisions for the parties to a divorce and for children and that he accepts the logic and sense of our arguments.

Dr. Woods

Every party now agrees it would have been madness to introduce divorce in 1986 because we had not by then put in place the 18 Acts we have passed since then. I argued this at the time but it was not the thing to say then. It is important that we say what we believe and this is what Deputy Keogh is doing, although I do not agree with her in this instance. I strongly agree with Deputy O'Dea that our Constitution is valuable. It is valuable to have constitutional protection for children and dependent spouses not only when Governments are being formed and deals may be done but also when people suggest to Ministers that they would like certain things to be done.

Mr. Taylor

I welcome all the contributions, which have been helpful. We have reached the point when people in all parties should forget the history of this issue and remember that there is an important job to be done for thousands of people who are in grave difficulty and need help rather than further punishment. People in this situation have suffered great trauma because of marital breakdown. They need the option of the right to remarry and make a fresh start in life.

Deputy Kenneally stated that the holding of a referendum is a declaration that all marriages are temporary. It is not such a declaration; it is a recognition of the fact that all marriages are not permanent and it is our duty as legislators to help people in this situation. I hope that when Committee Stage is concluded all parties, including the Progressive Democrats, will make clear to the people that they are advocating a "yes" vote, not for an esoteric reason but to help people who may need to avail of this facility. These people are not statistics but real persons. They are our family members, neighbours, friends and colleagues. We all know people who are tragically in this situation and they need our help.

Some countries do not have written constitutions. In the United Kingdom parliament is supreme and there is no written constitution to which parliament is answerable. Other countries, like Ireland, have written constitutions. The basis of a written constitution is that matters which the people regard as of special fundamental importance are written into the Constitution. There may be differing opinions on what matters people regard has having special or basic constitutional requirements.

The result of my consultations with all parties in the House, a number of NGOs and a large number of people is that the basis on which divorce should be permitted is a matter of major, serious and basic concern and warrants being dealt with in the Constitution rather than by ordinary legislation. This is the conclusion to which the Government and I have come. We did not pick the idea out of the air; it is the result of extensive consultations with parliamentarians and others. This is a fundamental issue for the people and is properly addressed in the Constitution in the short basic form proposed in the Bill.

Deputy Keogh used the word "practical" in a way which suggests that a Deputy who is practical in this regard is somehow suspect and that "practical" is almost a dirty word. The opposite of being practical is being impractical and I am happy to be always practical rather than impractical and to take a practical, sensible, down to earth approach rather than an impractical one. We must meet the situation as we find it.

I understand the motivation behind the amendment, although I do not approve of it. It also provides for something to be written into the Constitution. Deputy Keogh has raised fears, as many have done and more will do, about legal challenges. The amendment proposes to write into the Constitution that a court can only dissolve a marriage if two conditions are met. The first is that the marriage must be irretrievably broken down and the second is that such a dissolution must be just.

We should consider what the situation would be if the committee decided to accept the amendment. It would clearly mean that every application would be subject to constitutional challenge in the courts on the grounds that the Oireachtas provided that the circumstances of the case constituted breakdown. The Oireachtas could not define what constitutes breakdown, only the Supreme Court could do so because it would be written into the Constitution. Under this amendment every case could be challenged on the grounds that the marriages in question were not irretrievably broken down according to the constitutional definition of that term.

The amendment provides that a dissolution can only be allowed if it is just to allow it. Remember that the word "just" could not be defined in the legislation because that would be a constitutional term written into the Constitution if this amendment was accepted. What does "just" mean? It would have a different meaning for judges who would each have an idea of what was just. You could not set about dealing with that in legislation because the legislation cannot define an expression used in the Constitution. Therefore, any person could challenge the decree made by a family court on the basis that it was not "just" within the meaning of that term as enunciated in the Constitution. I have seen and considered many amendments, but if ever a suggested amendment would lead to a legal quagmire it is the format of the one proposed by Deputy Keogh. I could speak about this longer but it would be pointless in the circumstances.

I am glad. We are not denying people any rights. In my Second Stage speech I said I was glad the people would have an opportunity to vote in a referendum on this matter. We have a problem with the manner in which it is presented. I do not want to be repetitive, but the safeguards for families and children should be part of our statute law. It should not take the fear of divorce — I use that term advisedly — to make people focus on them. The Minister has not done that, but the safeguards for children should not be a quid pro quo for introducing divorce. We must be absolute in our belief that families should be protected and that counselling and mediation services should be available. These services should be available whether or not the people agree that divorce should be introduced. Deputy Woods suggested a five year plan. I am open to debating all the issues he wishes to discuss.

The fears of people should be allayed. Many people believe that writing the terms for divorce into the Constitution is the way to allay those fears. I disagree with that view. We should ask the people to decide on the principle and then we should allay their fears through legislation, the provision of services and the type of society in which we live, not by writing the terms into the Constitution. We have a constitutional imperative to protect the family. The protections built into our Constitution should be respected and we should have laws which ensure that our society and our children are protected. It should not take a threat to make that happen.

There seems to be misunderstanding about the point I made as regards having confidence in ourselves as legislators. It is easy for people to be smart when talking about politicians. However, most, if not all, politicians are dedicated people who work hard and are sincere in their beliefs. I am not saying that we do not trust ourselves, but that if we take the road which the Government wants us to take and which is supported by Fianna Fáil, the message we will send is that we do not trust ourselves and that the people should not trust us to make the laws. People may disagree with that interpretation. We have confidence in ourselves to make good law and we should be proud to say it. We listen to people and we arrive at conclusions which we think are right.

The Minister criticised me for referring to the word "practical". He said the opposite of practical is impractical. However, I am not suggesting that we should be impractical, but that when we make a decision about something as fundamental as changing our Constitution, the first premise should be that it is the right thing to do. It is not a practical short term measure but the right thing to do.

I know what the Minister is trying to do and I appreciate the points made by others about reassurance. However, there is another way to reassure people and that is the fundamental difference between us. I am not being impractical. I know there are 18 or 19 pieces of legislation which were not there during the last referendum. We should write safeguards for the family into the legislation because the Constitution is the wrong place for such detail. I agree that people want reassurance and we, as legislators, should accept that responsibility. I have enough confidence in ourselves and in the people to believe that if we put the principle into the Constitution the people would accept it. The Minister may think that is taking a risk, but we have different opinions on this issue. Many colleagues prefer to take the road we suggested but, by not doing so, we are showing a lack of confidence in ourselves.

It is not that the Progressive Democrats do not want to consult the people; we do. The people must decide to change the Constitution. Some Deputies did not realise how we felt about this issue. We should put the question to the people, but not in the way the Government has proposed. I hope I have clarified our position.

We should get the right solution, not an Irish one, to the problems experienced by those who, as the Minister said, want to regularise second relationships and those who are suffering. The people's attitudes have changed in that they are compassionate enough to do that without using a sledge hammer approach. The people are more subtle, caring and mature than that. We should not be afraid of this problem. We should be upfront about it.

Chairman

In case there is some confusion, I remind Members that, as the substance of the debate on the Bill centres on the amendment and on the Schedule, we agreed at the outset to take the amendment and the Schedule together for debate purposes. Sections 1 and 2 are technical sections which provide for the insertion of the Schedule into the Bill and for the Citation to the Bill. Any debate, therefore, must take place before we put the question on amendment No. 1. Once the amendment has been disposed of or agreed to, any subsequent debate will be of a restrictive and technical nature on sections 1 and 2.

Dr. Woods

As regards the insertion of the Schedule into the Bill, that is a departure from the position over the years. I understood we were entitled to make comments on that and on the sections, rather than discussing the detail.

Chairman

Yes. However, I am sure the Deputy will agree it is difficult to do that without making reference to the Schedule.

Dr. Woods

I do not believe the Chairman should be unduly concerned because any comments Members might wish to make on that issue would be fairly general.

Sitting suspended at 1.05 p.m. and resumed at 2.15 p.m.

Chairman

We are resuming on amendment No. 1 in the name of Deputy Keogh.

Ms Keogh

As we are discussing the Schedule, there are some issues I would like to tease out with the Minister. I raised some of them on Second Stage and I would like the Minister's opinion on them. Part II of the Schedule states:

A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that—

i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years, . . .

We all accept there are delays in the courts even though they have been reduced. Does the Minister agree that for many couples we are effectively talking about not just a four year separation but, perhaps, a two year wait? We are talking about considerable delays. Will the resources required to meet that difficulty be made available?

Obviously, it is not just the delays at present. There is a need for more judges and training for judges in the area of family law. I want the Minister's opinion on that.

As an aside — I do not know whether this was put to me facetiously — what is the position of people who have been married one year and who almost immediately realised they have made a mistake and separate. Technically, must they wait four years to divorce? I do not know if the question was meant facetiously; I do not mean it facetiously.

Mr. Taylor

It is facetious.

Ms Keogh

It was put to me in those terms. Does the Minister see a situation arise where people will be waiting? I am not, by the way, advocating "quickie" divorce, in case people take an opposite interpretation from this. Does the Minister foresee circumstances where people could be waiting up to eight years for divorce?

Mr. Taylor

I cannot see anybody would be waiting for eight years. The question of delays in the courts is as long as legal history itself. It goes back to the last century. There always have been delays in the courts. They vary from court to court and from time to time. Even now, in the Circuit Court, which hears judicial separation applications, the delays vary from circuit to circuit. The Government recognises that and it has already been clearly indicated by the Government that an appreciable number of additional judges will be appointed. I understand seven judges are to be appointed to the Circuit Court, which, of course, is the main court which hears family law cases. When they are appointed, it will make an appreciable indent into the waiting list. Certainly, a period of about one year for proceedings would be usual. There is no question about that. It is about the same period as would be usual for a judicial separation case.

The question of training judges is one which has the attention of my colleague, the Minister for Justice, Deputy Owen, who has responsibility for the administration of the courts and the courts system.

So far as the length of waiting time is concerned, be it four, five, six years or whatever, I ask the committee to think of the present waiting period and of how long it has been with us. It has been with us for a long time. The Government introduced this measure to try to do something about that problem and I hope it will be accepted.

Dr. Woods

Obviously, if there is a "yes" vote, there will be a build up of people, who have been waiting to divorce, for the first number of years. In the event of divorce being made available, they will be anxious to apply. In that instance, it would be particularly important that the family courts be upgraded and that they, along with the Legal Aid Board, be able to deal with the extra demand. I am not going to go back over this because I mentioned all this on a Second Stage. Suffice to say it is part of the five year strategic plan.

In mentioning the five year plan, I was conscious of the fact that in the first five years there will be special demands and there will be changes, there will be a great need for counselling, support, assistance, legal aid and adequate and suitable courts. In reply, the Minister said he was very conscious of this. I want the Minister to take from this meeting the committee's strong request that the Goverment give its imprimaturto this development.

People from the North of Ireland told me recently that they would want a commitment on counselling and the necessary support services if they were introducing divorce now. These facilities are not really adequate. We can do it better. We know what the problems are. That is why we want the Government to make a firm commitment. It may be that the Minister is not in a position today to give that kind of undertaking on behalf of the Government but it needs to be an absolute one, one in which we can all have great confidence. That is how I see the position. I know the Minister is sympathetic to these issues but it is important, having examined the issues and carried out research into the possible problems, that we act accordingly.

Mr. Taylor

If the people pass the referendum, I suppose that initially, after the introduction of divorce, there will be some backlog or build up of cases. Many cases, which are judicial separation cases now, would become divorce cases if the option is made available. It will steady down. That has been the experience in other countries when it was introduced. Like in Italy and other countries, there will be an initial backlog.

Dr. Woods

Mr. E. Walsh

In the event of this amendment being made to the Constitution and the electorate voting in favour of legislating for divorce, does the Minister have any intention of separating the two elements contained in the marriage ceremony that now exists, that is, the State marriage and the Church marriage? If we do this, when we legislate for divorce, those who seek it will know precisely what they are allowed to dissolve. Does the religious element in the marriage ceremony need addressing or does the State element in the ceremony need addressing? Although it is premature to mention it now, any such changes will become important when we legislate to allow people to remarry on the dissolution of marriage. In this way we make the exact effect of this constitutional amendment clear to people, so that they will know we will not be interfering with whatever they believe from the religious point of view.

I wish to make a comment regarding misinformation being spread. It is unfair because there is a legitimate argument against divorce that is entitled to be put. However, to do it justice it needs to be done properly and to do it properly the people who seriously believe that they have a case against divorce should base it on factual information to give it credibility and standing. Therefore, it is important that the Government ensures during this campaign that adequate and correct information is given to people so that there is no misunderstanding and that this issue will be clearly understood.

There is a strange reluctance on the part of some young people at the moment to enter into marriage because of the denial of a right to remarry on the dissolution of a marriage. Quite a few people have expressed the opinion that, following a successful amendment to the Constitution and the institution of a right to remarry, some people will be more favourably disposed towards entering into a marriage, on the understanding that there would be a possibility of rectifying a difficult situation if it arises. In many ways it may be a strange phenomenon that instead of destabilising the situation by changing the law, as many people think, we may in fact be allowing more young people to consider marriage without the fear of never being able to address the long term difficulties associated with marriage breakdown.

Mr. Shatter

I found Deputy Ahern's contribution interesting, I know he has a genuine interest in and concern for this issue, as we all have, but I am concerned about the way he raised some of the issues. These issues are becoming identifiable with two or three people who are campaigning outside this House against constitutional change. They are deliberately — I am not suggesting that Deputy Ahern would do this and I do not want him to think I am — trying to sow confusion as to what the constitutional amendment means and its implications.

I have no doubt Deputy Ahern raised those questions genuinely and out of interest. However, there are issues to be pursued and for those outside this House to deliberately try to confuse those who will vote next November on this issue by making it sound as if what is proposed is more complicated than it is are doing a serious disservice to the public and both sides of the debate who have strong views on the issue.

Deputy Ahern raised an issue worth considering which the Minister dealt with in an exchange but did not come back to. He asked, no doubt seriously, if a couple who had only been married for seven, eight or nine months could get a divorce because they had been separated for the four years before they got married. That is a bizarre interpretation of this proposal which is being given currency outside this House by some who are busily briefing the media that this is a way it could be interpreted. It is clear in the context of this Article being situated within one relating to the family and marriage that we are talking about people being separated as spouses. If there is genuine concern about people rushing into the courts, nine, ten or eleven months after marriage, that concern should not relate to this aspect of the law but to the area of nullity, which has been given no real attention so far in the debate.

We hear a lot about the implications of divorce for children. For many years I have argued that it is not relevant to children whether or not there is divorce. Marriage breakdown is relevant to children and that is what causes the problems. No one asked about nullity. At present 40 decrees of annulment are granted in the courts each year. Nullity law has been liberalised by judges who are conscious of the constitutional predicatment and who have found a number of marriages invalid which ran into difficulties from the start. Perhaps we should ask about decrees of annulment being granted for marriages which have been in force for 15 or 20 years and about children being told their parents are not married although they thought they were. I wish some of the people who are so concerned about divorce would ask what that does to children who believe they have been living with parents who they thought were married but discoverd they were not.

Another area to which Deputy Walsh referred concerns the splitting of the civil and religious jurisdictions, which has received little mention — Deputy O'Malley mentioned it in the Dáil on Second Stage — and what is happening within the marriage tribunals of the Roman Catholic Church. I am not talking about some of the unfortunate personnel or one person on that tribunal recently who should not have been there, but generally. In excess of 200 decrees of annulment per year are now being granted by the marriage tribunal of the Roman Catholic Church. The most recent statistic I have — this is from memory, I do not want to mislead anyone — is from 1992, the last year one was available. In that year in excess of 250 decrees of annulment were granted by the church.

If 250 decrees of nullity are granted in one year, we are talking about 500 adults whose marriages are no longer valid. Many of these couples who get church decrees of annulment have children. A problem in this State is that not only is church nullity law far more liberal than civil law is or can be and that the Roman Catholic Church grants more decrees of annulment than our civil courts can or ever will be able to under the current constitutional position, but that large numbers are being remarried in church after church decrees of annulment.

The State does not recognise church decrees of annulment. In effect, all marriages celebrated after a church decree of annulment are bigamous and priests celebrating these marriages are accessories before the fact to bigamy and liable to criminal prosecution. Given that we are talking about the State upholding a certain form of morality and the debates going on here. I ask why in this Stage in the context of the way civil law operates we have turned a blind eye to the celebration of bigamous marriages and abandoned couples who celebrate them to a legal limbo for so many years. I would like Deputy Ahern and others who have worries about this constitutional provision to address that issue.

In the context of the Minister's amendment, if this legislation is adopted by this House and by referendum, it will allow people who got church annulments and remarried in church to regularise their legal position by getting a civil divorce and remarrying. I am curious that some of those campaigning against constitutional change do not find a need to address this issue to any degree. I believe many thousand are party to bigamous marriages celebrated by the majority church in this State. The Roman Catholic Church maintains statistics of the decrees of annulment granted but for some reason it does not seem to have available, as far as I am aware, statistics on the number who have been remarried in church after decrees of annulment have been granted. I do not know why that statistic is not available. If one wants a church decree of annulment in Northern Ireland, one must first get a civil divorce. One is also told this in England and some other countries by church authorities when one looks for a church annulment.

Will the Minister tell us if at any stage his Department has been in contact or engaged in discussion with the church authorities as regards concerns about the number of couples party to bigamous marriages and if it is anticipated that their legal position would be changed or regularised or that the church will adopt a different approach, for example, that adopted in Northern Ireland and England, if this constitutional change is effected?

Mr. Taylor

As regards Deputy Walsh's point, we are concerned about State law, State marriages and the dissolution of marriage by the State. What individual religions may hold as regards particular situations between people is a separate matter. The question of State and church marriages and the registration arrangements therefor is under review in my Department and I cannot say what the outcome of that review may be. For the moment anything we do in this House through this legislation or through the referendum will affect the State position and the civil position only. In so far as the religions are concerned, in particular the majority religion, they naturally have their own religious rules which apply.

I take Deputy Shatter's point as regards the anomalous and bizarre situation which arises as a result of church annulments. A well known business man in this city called to see me two weeks ago. He told me that after he had been married for five years and had two children his wife applied for and obtained a church annulment. He mentioned that he was given no reason but that is neither here nor there. His wife obtained that church annulment 17 years ago. Two years later both he and his wife entered into or purported to go through ceremonies of marriage — his wife with another man and he with another woman. They have been in stable relationships since and both have children in their second and permanent relationships. He asked about his legal position. I do not need to spell it out for Members because as we know the church annulment is not recognised by the State and it gives rise to a bizarre situation.

A similar situation, which involves many people, pertains to those who obtained foreign divorces which are not recognised in Ireland. Many people have purported to go through marriage ceremonies in Ireland based on non recognised foreign divorces. Their position is also bizarre in the extreme.

The reason these strange positions exist and a blind eye has been turned in Ireland to bigamy over the years is that we have not faced up to reality. Until now, we put off facing that reality which arises because divorce was not available in this country up to now. As we are aware, every other country in Europe and most other countries in the world have a divorce jurisdiction, including Catholic, Protestant, Buddhist and Muslim countries.

They have this jurisdiction for the purpose of meeting the needs of a particular situation and not because their social mores are wildly different from the mores or social conditions in Ireland. Undoubtedly, differences exist from country to country but by and large the divorce jurisdiction is there to meet a need. This is highlighted by the unacceptable situations in Ireland which will continue and expand unless and until a form of divorce jurisdiction is introduced in this country.

For this reason and although it is a difficult and complex issue, the Government decided to go ahead and hold this referendum to try to deal with the reality. We all know people caught up in this situation and that is the purpose of this measure.

In reply to Deputy Shatter regarding the position of the Catholic Church, I had a consultation meeting with the hierarchy and all aspects of the issue were discussed. We agreed it would be a confidential meeting and that the details of what we discussed and how we discussed it would not be disclosed by either party. They have not disclosed what we said and I do not propose to disclose the details. However, I held an extensive consultation and discussion with them on all aspects of family law and how it would work.

Mr. E. Walsh

The Minister may have misunderstood my question which related to the combination of the civil and religious ceremonies and the lack of clarity. I am not concerned about how the church runs it affairs. That is its own business and people decide to submit themselves to whatever beliefs they hold. However, irrespective of what is done as regards the referendum, from now on, and especially after the referendum if it is successful, it is essential to make provision immediately for the division of the civil and religious ceremonies so that we know precisely what people are about to do. If this is not done, further confusion will be caused. It must be done and the church can organise its affairs as it sees fit.

Mr. Taylor

The position is that a couple, if they are so minded, may have a civil ceremony of marriage which is disconnected from any church ceremony. Many people do so. However, if they go through a church ceremony in any of the recognised churches or synagogues, it is a valid marriage which is recognised by the State. This is the position at present. To have a complete separation between the two ceremonies is a possibility. At one stage some time ago, the Hierarchy indicated that it would possibly support such a provision. I do not know whether that is still its position. However, an alteration in this area would require careful examination and there is an ongoing review of this subject in my Department at present.

Mr. O'Malley

I reread what I said on Second Stage on 28 September and I do not feel anything I said then needs revision. I do not see that anything I said then is incorrect in any way. It disappoints me that few of the points I made have received replies.

The ongoing debate in the House and at this committee is a little unreal. The loudest clashes I hear are between people and parties struggling with their consciences, rather than having a real debate on the realities of what is at issue, which is, fundamentally, whether we put 14 lines of precise detail into the Constitution regarding the grounds on which divorce may be granted. It is immaterial whether one agrees or disagrees with the detail or the grounds. The fact is that detailed social legislation cannot be inserted in a properly regulated constitution of a sovereign country if the constitution is to be workable. This has been widely recognised.

Deputy O'Malley has the floor.

Mr. O'Malley

The two are identical in their effect. I said "something along the lines", I am not hung up on the wording. If the Minister wants to remove some words from Deputy Keogh's amendment, which is what he said, I am providing him with a shorter alternative. Anything along those lines will work.

We are not speculating about what will be the likely effect of the proposals in the Schedule. We know that interpretations will be put on the words and phrases in its 14 lines that are not foreseen by this committee or by the House. The reason we can say that with certainty, even though we cannot say what all the interpretations will be, is because the interpretations put on the 1983 amendment were quite different from what Ministers and Deputies had solemnly enunciated as the meaning and effect of the 1983 amendment.

Deputy Shatter used the word "bizarre" when referring to one of the possible readings of part of this proposal mentioned by Deputy Ahern. That interpretation came originally from a group of family law specialists which Deputy Shatter founded or in which he played a prominent part. They might have diverged in their paths since then — perhaps they had an irretrievable breakdown and perhaps there is hope of reconciliation when all this is over.

Ms Keogh

They are living apart anyway.

Mr. O'Malley

However, it is feasible. Deputy Shatter regards it as bizarre but "bizarre" was the word used by many people to describe the Supreme Court's interpretation of the 1983 amendment. The fact that something might appear bizarre does not mean that it is not likely to happen.

Another point has been made and it appears to be at least as tenable as any other interpretation. If two people have lived apart for a period of at least four years during the previous five one of them is entitled to make an application for divorce. If people are married for six months and if they have not cohabited prior to marriage they have lived apart for at least four of the previous five years. That argument will be made; it does not appear to be at all impossible. If that argument can be made one can imagine the type of argument that will be made about phrases such as "reasonable prospect of a reconciliation" and the question of living apart. I heard the Minister read out his notes on this. They have no standing whatever. I am sure Ministers read out plenty of notes in 1982 and 1983. Did they prevail before the Supreme Court? What standing has a Minister's notes even if he got them from the Office of the Attorney General or wherever? Countless Acts have been struck down by the courts as unconstitutional where Ministers had given assurances that the Acts meant a particular thing and could not mean anything else.

I pointed out on Second Stage — and nobody appears to be challenging it — that it is not a valid excuse to say that because something is sensitive and difficult it should be put into the Constitution and the people should be allowed to vote on it. From the late 1970s to the latter part of the 1980s — looking back it seems strange that it caused such agitation at the time — contraception and the legislative provisions relating to it caused enormous angst in the Dáil and throughout the country. In all, three Bills were introduced. The first was probably the most difficult simply because it was the first.

On the basis of the arguments being made today, that Act could justifiably have been inserted in the Constitution. If it had been, there would now be an Article in our Constitution stating that a healthy 25 year old must get a doctor's prescription in order to buy a condom. How laughable that is now. The current view of all the controversy at that time is that it was something of a joke. It is a laugh to read the debates of the time and to see the anxieties. Many of these debates might turn out to be a laugh too. However, they will not be a laugh if the provisions we seek to change are enshrined in a way that makes it almost impossible to change them.

That is the fundamental problem: the Constitution is being used in a way that a Constitution should not be used, that is, as an instrument of social legislation. I am amazed that people who understand its significance, such as Deputy Shatter and his colleagues, now seek to argue that this is the right way to approach it. The group of lawyers with the most direct experience of family law — all of them are specialists in that area — are horrified at this disposal and believe it is fatally flawed. It is fatally flawed and it is a great tragedy that we should use our Constitution in this way.

The Consititution was recognised before its thirtieth anniversary, by no less an authority than the late Mr. Lemass, as having become somewaht outdated. He saw the need to have it radically reviewed. If there was a need at that time — which there was — that need is now ten times greater. Since 1966 when Mr. Lemass sought to have it reviewed, the number of cases decided on the Consititution has increased many times. The latest edition of John Kelly's book on the Constitution, revised by Mr. Hogan, is enormous. Thirty years ago there was hardly any books about the Irish Constitution. It appears to be entirely wrong to use it in this way. We should be thinking in terms of replacing the Constitution altogether with a more concise form that does not reflect the particular and, one might say, peculiar views that were prevalent in Europe in the Middle and late 1930s. It is vital to do that, but instead we are seeking to impose more particular views on the Constitution.

Deputy Shatter said earlier that nobody in the course of this debate had dealt with nullity, which he described as far more fundamental. However, columns 483 and 484 of the Dáil Official Report of 28 September show that I stated:

If we must have detailed provisions in our Constitution about divorce, how can we justify not having one word about nullity? Nullity is a far more drastic remedy, with much greater consequences for those involved and their children, than is divorce. Annulment after 20 years of marriage and several children is a mere fiction but somehow, for many people, nullity is respectable and divorce is anathema. We all know why but why does our approach have to reflect the views of one church only?

What Deputy Shatter said about nullity is correct but it is not true to say that an effort was not made to debate it. It is a pity it is not debated and it seems unreal to ignore that there are 250 annulments a year and only discuss divorce to the exclusion of everything else.

The constitutional amendment put to the people should be along the lines suggested by Deputy Keogh. The shorter such an amendment is the better and the lesser will be the difficulty it will be open to subsequently. In its present form it will constitute a major legal quagmire and will be litigated about for years on end. People may think that divorce jurisdiction will exercised by the Circuit Court expeditiously and inexpensively but because there are so many provisions in the Constitution the ultimate interpretation of them will have to be done by the Supreme Court. Every phrase in the lengthy constitutional amendment now proposed will be litigated about in the Supreme Court and the uncertainty which will ensure for years will create great difficulty and delays for many people.

There were thought to be ways of solving what was seen as the great dilemma and difficulty of the contraception controversy over the past ten or 15 years but these were an absolute joke and the law had to be repealed and re-enacted in a different and simpler form. The same may happen with regard to this issue and it may be necessary to make amendments if interpretations are put on phrases which are not now foreseen. We will not be able to make changes, even if we end up in what Deputy Shatter called a bizarre situation.

We should reflect before committing ourselves irrevocably to this. It is a solution which satisfies nobody. Even the strongest proponents of divorce must be unhappy with what is suggested here. Even if we agreed that the terms were reasonable for the time being, we should not commit ourselves to having them irrevocably placed on the people for all time. This Legislature may have its defects but I do not think it is as inferior as is implied in what it is now trying to do. I finished my contribution on Second Stage by saying:

If the House approves the provisions in this Bill it will pass a vote of no confidence in itself as a Legislature. It will be a celebration of its own mediocrity. This, I am afraid, is the truth.

Mr. M. McDowell

The Minister is right when he says it is for the Supreme Court to interpret the Constitution. No Act can purport to tell the Supreme Court what the Constitution means. It therefore follows that if we insert something in the Constitution, we surrender control over its interpretation. It orbits around us like a space station and we cannot make contact with it again except by the costly and difficult means of another referendum.

We know this from the 1983 pro-life débï¿½cle. On that occasion politicians dismissed as mischievous and malicious rubbish suggestions that some day a woman would be prevented from leaving Ireland because she was intending to go to England for an abortion. We were told this could not happen. Case law began to build up and zealots had their way. They chased students in UCD and Trinity College down various legal avenues and they finally arrived at the point that they had build up such a corpus of case law that the Supreme Court was bound to take the final logical step and say it had jurisdiction to stop a rape victim from travelling to England for an abortion. I was by no means in the vanguard of the "no" campaign; in fact I voted in favour of the pro-life amendment. I remember dismissing this possibility and was fortified by Ministers and other public figures who said that this could not happen, that it was fanciful and bizarre and that no Supreme Court would ever tell a rape victim that she could not travel to England.

However, this happened and there was nothing the Legislature could do about this amendment. We had to put three enormous constitutional amendments to the people in a referendum, two of which were accepted; the third proposed to restate the law, this was the so-called substantive amendment. What began as a simple Article, in 1937 terms, on the right to life has ended up being hideously distorted.

I agree with the premise of the Minister that once this amendment is inserted in the Constitution we cannot subsequently pass a Bill saying what it means. The other side of this coin must surely be — I think the Minister would agree — that if there is any doubt about the meaning of this and it is open to debate, we must do our best to satisfactorily resolve that doubt before we put this amendment in the Constitution.

The meaning of the term "living apart" is open to two arguable constructions. Most people would probably agree with the Minister that the term should have a liberal construction; this is our political view. However, there is no point in our having a view. At some stage the members of the Supreme Court will decide on this issue and, on the arguments put before them, they will decide what "living apart" means. They may find it means not sharing the same house. Alternatively, they may find it means sharing a house due to economic necessity in circumstances where, effectively, the marriage has died. It is clear that nobody here can say with 100 per cent certainty, or the same degree of certainty we heard in 1983 about rape victims never being prohibited from leaving the country, what "living apart" means. Yet we are being asked to put this proposal in the Constitution and to hope the Supreme Court will interpret "living apart" in the way we think it ought to be.

If you are changing the Constitution your first duty is to put something very clear into it. If you are going to surrender to the Supreme Court the interpretation of an Article, which you necessarily do, you must in the last analysis have written it as clearly and as unequivocally as you can possibly do, to mean what the people will mean by it when they put it into the Constitution.

Deputy O'Malley mentioned Mr. Gerard Hogan, one of the co-authors of the third edition of Kelly's The Irish Constitution, who agreed with the Minister that that liberal interpretation is open. However, I found nobody who said it means that and only that.

The Supreme Court will decide the issue. It may be that the Minister is correct when he looks into his crystal ball. The Supreme Court may find that "living apart" covers the situation where two people share a home but their marriage has collapsed to the point where, in these appalling situations that one hears about, they communicate by notes or through their children. However, the Supreme Court may not take that view and may decide the people clearly meant that living apart means living apart — that what an ordinary person in Ballymun or Rathmines means by that phrase is what is meant and there is no point in going behind the ordinary natural meaning of the words.

If I was on the Supreme Court on the day I would come to the Minister's point of view, but there is no guarantee, or danger, of that depending on your point of view. I would take the view that it must, at the very least, be arguable. Very few lawyers would say that the matter is free from controversy, and I suggest that no lawyer can say to the people, with hand on heart, that it means only one thing.

Are we right to put it into the Constitution if it is open to several interpretations and if we cannot haul it back at a later stage if the interpretation we think is correct but not free from ambiguity — is not accepted by the courts?

In the Minister's proposed change to the Constitution all the conditions specified as conditions 1 to 4 are cumulative. It is strange, therefore, to note that there is a distinction in law between people living apart for four out of five years and there being no reasonable prospect of a reconciliation between the spouses. There may be some overlap between the two but they are different concepts. In other words, people could be living apart for that period of time and one of them could be applying to the court — this is implied in the wording — for a divorce based on that fact. However, you are saying that in addition to that the court judge could say "Yes, you have been living apart, whatever that means, and yes, you want a divorce but you fail the test of no reasonable prospect of reconciliation. I believe there is a prospect here for reconciliation".

A judge of the Circuit Court or High Court applying that constitutional test will find him or herself saying, "I am told by the terms of the Constitution that it is not sufficient to find that they have been living apart and that one of them wants a divorce. I must now inquire into and be satisfied that there is no reasonable prospect of a reconciliation."

That brings you to a second fundamental legal issue which will be determined in the next five or ten years one way or the other: is that an objective or a subjective test? Is the judge entitled to substitute his own view about the prospect of reconciliation between spouses for the views expressed by the spouses themselves? Is the judge entitled to override their views and say, "I think that if there was a bit of goodwill there, and if they behaved reasonably, they could get back together again."

That appears to be an implicit problem in the Minister's proposed wording. I am not suggesting, by the way, that this wording is ridiculous or that the Minister is coming up with a ridiculous formula. It might be very well expressed in the form of a statute where we could fine tune it this way or that depending on how it was interpreted by the courts. We could put in a few definition sections or say it shall be presumed that, where people have been living apart for four out of the last five years, there is no reasonable prospect of reconciliation. However, what we are putting in place now is a system where that is not the case and where the courts will have to conduct this inquiry in those circumstances.

This is not all theoretical. In 1983 the case of the girl who might be raped and injuncted sounded entirely theoretical and fanciful, but it turned out to be the case later on. On a number of occasions the courts have sought to prevent young women leaving Ireland to have abortions. You have to deal with what I believe will be real cases where the question of, for instance, the reasonable prospect of a reconciliation will arise.

One example might concern a woman and man who are married and where the man is sent to jail for 12 years for an armed robbery. After five years his wife says "I want a divorce. I want to get on with the rest of my life and I have waited long enough. I have satisfied Deputy Taylor's strict and unyielding test. I do not intend to wait for the next seven years for that man to come out." Can a judge say to a man who is incarcerated, and whose marriage was perfectly happy until the date of the crime he committed, that there is no reasonable prospect of reconciliation?

The prisoner will say: "Here I am in Mountjoy or Portlaoise. Of course, my marriage has withered on the vine for the time being but I was a happily married man until I committed a crime. I believe that I am not entitled to be told by a judge that, because my wife now wants to marry somebody else, there is no reasonable prospect of reconciling us."

That is not like an X case which may happen. For a certainty, within three or five years, there will be a case of a long term prisoner whose spouse wants to divorce him or her. Some High Court or Supreme Court judge will have to look at this issue and say: "I know from the Constitution that the mere fact that you are living apart is not a sufficient ground, yet your wife wants to marry somebody else." The prisoner will say: "Yes but you know, looking to the Constitution as framed by the Oireachtas and adopted by the people, that you have to find there is no reasonable prospect of a reconciliation between us. I am now prevented from re-establishing a normal marriage relationship with my spouse because I am not being given temporary release."

I would like the Minister to advance a view as to how the courts will deal, in general terms, with long term convicted prisoners. I do not know how they will decide it. All I can say is that I can see both sides of the argument. A woman might well be entitled to say that if this man has blighted her life, destroyed her family and put himself behind bars, it is absurd for him to argue that he can hope to pick up the pieces where he left off when he is released from prison.

I can imagine the woman's advocate saying that this is an absurdity, but I can equally imagine the "tie a yellow ribbon" argument being made by the man's advocate. The man could claim it is monstrous that, in addition to being put into jail, his family rights are cancelled in his absence in circumstances where the Constitution requires it to be demonstrated that there was no reasonable prospect of reconciliation, but where he is in no position to effect such a reconciliation until he is let out of jail.

That is a debatable issue. I defy anybody here to say that neither side is unstatable or ridiculous. It will come for determination sooner rather than later. The High Court or Supreme Court will offend a significant proportion of the population by saying that a bank robber is still capable of effecting a reconciliation when released and ought not to be visited with a divorce suit as well as a sentence. Alternatively, those courts will offend many Irish women by saying: "Sorry. In those circumstances we have to wait and see when he is released whether there is really the prospect of restoring a normal marital relationship." We could be faced with the more bizarre scenario of a right to a conjugal visit. Those are the realities we now face. That decision will be made in the next few years. No one at this table today could put his hand on his heart to take The Irish Constitution—J. M. Kelly in his hand and say “I know how that will be decided.”

Do we want to put ourselves in the position where the Supreme Court can say that because these conditions are cumulative, there will be circumstances where long term convicted prisoners will be told there will be no dissolution while they are in jail and they must be given a reasonable opportunity to restore their marriage relationship when they are released? That is a hard case, but the hard cases, as we are always reminded, make bad law. That issue must be decided if this becomes part of our constitutional law. I defy anyone to say for certainly how it will be decided. I am also sure there will be great controversy if that case is decided one way or the other, because people will say it was wrongly decided.

These matters should make us conscious of the risks attached to writing detailed social legislation into the Constitution. I understand the Minister's argument and I am not saying it is ridiculous argument that some divorce is better than none, or half a loaf is better than nothing. If he loses the argument, he will lose it to a scaremongering campaign which suggests that he agrees with quickie divorce. In a perfect world he would agree with the Progressive Democrats, but we live in a real world with the Mr. McCarrolls, etc. taking pot shots at him. I am not suggesting the Minister's view is bizarre, but that, as Deputy O'Malley and Deputy Keogh have pointed out, there is a clearly identifable downside based on some of the arguments here today. I am presuming we are not omniscient on this side. There are probably 20 arguments which nobody here will foresee.

I remember the Minister's legislation on the Family Home Bill. No one in the Dáil foresaw or articulated the basis on which that would be turned down.

Mr. Taylor

It should have been done by way of constitutional amendment.

Mr. M. McDowell

Nobody foresaw what happened, although lawyers debated it at the time. Lawyers, including Deputy Shatter, raised constitutional issues, but I, like him, did not foresee the grounds on which it came to grief. When that happened, I looked at the Supreme Court's reasoning and realised it had stuck out a mile, but nobody saw it at the time.

I presume there are problems with this wording which none of us can see. My example of the long term prisoner is only one argument, but there will be others, such as the X case type argument or the one which Deputy O'Malley raised about whether the five years applies in the case of a short marriage. Will the Supreme Court say that no matter what the circumstances are, a person who is not married for five years cannot be divorced? Will it say that is what the people meant? Perhaps it will take that view, but a liberal Supreme Court could say that is ridiculous. That is putting an arbitrary interpretation on our law. Why should two people who are beating the living daylights out of each other after two years of marriage not be able to avail of a liberal construction of the type Deputy O'Malley mentioned? They should not be penalised for the fact that they were not living together prior to their marriage. I take the view that it is less likely than likely.

Mr. Taylor

I thought the Deputy would.

Mr. M. McDowell

We do not know how the Supreme Court will interpret it, but we will find out some day.

As regards the Minister's objections to Deputy Keogh's amendment, he said that the word "just" and the term "irretrievably broken down" are ambiguous. However, "irretrievably broken down" and "no reasonable prospect of reconciliation" seem to be similar in concept and if one is ambiguous so also is the other. I do not see that one could have a situation where a marriage was not irretrievably broken down but there was a reasonable prospect of reconciliation and vice versa. It would be difficult to say that there was no reasonable prospect of a reconciliation but the marriage was not irretrievably broken down.

I ask the Minister to be fair to Deputy Keogh. If he is casting doubts on the formula she proposes, perhaps he would distinguish a case where there was a reasonable prospect of reconciliation but there was no irretrievable breakdown. How could he imagine that a case would fall into one category and out of the other? I do not believe it is possible to do that or that he could choose either of those two phrases.

The essential difference in Deputy Keogh's proposal is that it reduces the number of cumulative conditions and excludes the time based condition because it is inflexible and is meant to be so, unless Deputy O'Malley is right and it is more flexible than we think. It is meant by the Minister to be an inflexible obstacle. Many people regard it as an unfair inflexible condition. It is a strange world where a significant number of people, including the family lawyers group mentioned earlier, think it is unfair and wrong on the first day it is being put into the Constitution. That is not allowing for a change in social attitudes. I share this view because, even allowing for judges who try to hear divorce cases as quickly as they can, it will be five or six years between the establishment of a breakdown and the availability of a remedy. That might be a useful cooling off period or time for reflection in the case of some marriages, but it will be unfair in other people's cases.

Some people, particularly women, will be coming to the end of their reproductive life. I was upbraided by Emily O'Reilly for suggesting that women were getting worried about the dangers of childbearing in their late thirties. It does not matter what the age is, but many women are concerned about becoming pregnant in their early to mid forties. Someone in those circumstances who wants to remarry, but who is held out of a marriage by an inflexible formula such as this one, is hard done by and unfairly treated. It is not necessary to put such a strict formula into the Constitution.

Deputy O'Malley made the point, which is difficult to answer, that nobody has demanded that the grounds for nullity be stitched into the Constitution. We have left it to the courts and we have even given the Oireachtas competence to determine the issue as well, subject to the Constitution.

Another example which I want to bring to the Minister's attention is the recognition of foreign divorces. I am aware of cases where Irish people have obtained what the Minister termed a "quickie" divorce. Their spouses travelled to England, established English domicile and obtained a "quickie" divorce which is valid in Irish law. The spouse who remained in Ireland is, therefore, liberated to remarry instantly. That is the law as it stands.

The remaining paragraphs of Article 41 of the Constitution make it clear that the determination of the validity of a foreign divorce is a matter for the Oireachtas to decide. No one has said that this is a backdoor to "quickie" divorces in Ireland. However, it is possible for a person in Ireland to remarry two years after his wife has left him and obtained a divorce in England. That is possible as the law stands. I have been involved in cases where it has happened. It was the practice of the registrar to place obstacles in the way of this process until he was told not to by the High Court. He was informed that he must give prima facie importance to a person’s evidence regarding their English domicile and that he could not obstruct such people from remarrying.

The crucial point is that we trust ourselves, and the people trust us, as legislators not to go mad on the issue of nullity or in recognising divorces granted in Haiti or Reno. No one has suggested that we will go mad on that front. However, we are suddenly suspect when it comes to legislating for divorce in Ireland. I do not see the logic in that. Today's The Irish Times contains an MRBI poll which shows that, when questioned, a significant majority of people stated that they want the current absolute ban on divorce to be deleted from the Constitution. That is the question people were asked, not if they approved of the Government’s proposal regarding people being separated for four of the past five years. The Minister will argue that he is being cautious. However, I believe he should do the right thing and show some courage.

If I had read in today's newspaper that the figures were more finely balanced — 51 per cent against 49 per cent, for example — I can imagine that the Minister would upbraid me and say that he must pay attention to the people frightened by the prospect of "quickie" divorces. Now that there seems to be a healthy majority of people willing to repeal the absolute ban on divorce, the Minister should be willing to follow through and do the right thing with regard to the Constitution and not insert a highly restrictive and ambiguous formula of the kind proposed.

I support Deputy Keogh's amendment. I would support any similar amendment because it would leave the obligation to legislate to the Oireachtas. The Minister is correct in stating that once this is contained in the Constitution, the Oireachtas is helpless in terms of putting down defining legislation. That can never happen once this is included in the Constitution. That ought not to happen. We ought not to discover that no reasonable prospect of a reconciliation meant something we never anticipated. I am not being arch or arrogant when I say that I can see why the Minister is making his proposal. It has some weight. However, it would be a very strange thing if — ten or 15 years from now, following total silence from the Opposition during this debate — legislators were faced with a Supreme Court decision and asked themselves "How did we get into this mess?". If people had had more courage than I did in 1983 to say that we were taking the wrong direction with the prolife amendment, we would not have experienced the trouble that we did. It is never too late to consider the wording of legislation.

Deputy Shatter and I attended the first meeting of the Lawyers Divorce Campaign which seems to have undergone a rapid evolution in its thinking on this matter. When I returned to the Law Library for the commencement of the current term I discovered a leaflet from that group telling me to write to the Minister and inform him he was mad to pursue his current course. I received a letter at my home from them, on the same day, stating that they had reconsidered the situation and decided that, politically, the Minister was probably correct.

Ms Keogh

Who got at them?

Mr. M. McDowell

I do not know, but somebody got at them. I found a draft letter in my post-box at the Law Library that I was to send to the Minister which stated that he was crazy and would plunge the country into confusion. That organisation sent me a letter on the same day stating that they believed the Government would not bend on this issue and that they did not want to make too many negative noises because they might imperil the referendum. Therefore, they said, they would ease off the issue. Even that organisation, whose members are so intellectually mobile and adaptable, is asking the Minister to reconsider the wording of his amendment.

I believe there are very strong arguments for a rethink on the wording of the amendment to the extent that Deputy Keogh has argued. There are strong arguments for not doing what the Minister proposes to do. Unfortunately, there seems to be viewpoint in this House that to raise or ventilate those arguments is to imperil the entire exercise and is negative and destructive. It is a very grave situation that Members cannot express genuine reservations in circumstances such as this. I ask the Minister to entertain Deputy Keogh's amendment because it offers a more workable formula. I believe the people will trust politicians who trust themselves.

Mr. Browne (Carlow-Kilkenny)

I do not intend my contribution to be as lengthy as Deputy McDowell's. However, I want to speak in defence of Dr. Garret FitzGerald. I was a member of the Seanad in 1983 when Dr. FitzGerald informed the nation and its politicians — on the advice of the then Attorney General, Mr. Peter Sutherland — that the wording in the pro-life amendment was flawed. Dr. FitzGerald accepted the flak afterward and lost some of his troops on the way. As Taoiseach, he announced in advance that the wording was flawed. I do not think that anyone should say that that wording was put through without due notice being taken of it. Garret FitzGerald did his best.

Deputy McDowell has spoken at great length during this debate. In typical legal fashion, he is on one hand and on the other. He can defend the murderer and he can prosecute the murderer. We can talk for hours about what the Supreme Court might do. There is no end to what it might do and it has done some strange things. The Supreme Court might decide that black was actually white and we could do nothing about it. In the past Deputy McDowell's predictions about what the Supreme Court might decide with regard to constitutional issues have been wrong. The Minister is not God. There is no way that he will ever achieve the correct wording.

Deputy McDowell provided the example of the prisoner. If the State had "quickie" divorces, judges would have no conditions for divorce laid down before them. He or she would have to consider the circumstances of the prisoner and his wife and make a decision. We could say that half a loaf is better than no bread or that the Minister got it half right and half wrong. We could say it could be white or it could be black. Of course it could and we might be here until we drop dead listening to Deputy McDowell. We would make no progress. In fairness to the Deputy, we have made no progress following his contribution.

When I interrupted Deputy O'Malley during his contribution he was quoting the wording of his Second Stage speech. He offered it to the committee as an alternative. Would his own party not accept it? Deputy Keogh's amendment contains different wording. If Deputy O'Malley's wording is good enough for the committee and the Minister, it should have been good enough for his own party.

Ms Keogh

I believe that Deputy Browne is missing the point. Our argument is that it is inappropriate to put detailed social legislation into the Constitution. The argument was made very well this morning, and even better this afternoon, to illustrate the dangers inherent in doing so.

I have no hang up about wording as such if the principle is being established. We arrived at a formulation of words which we believe alleviates many of the dangers inherent in the Minister's proposed amendment to the Constitution. Unfortunately, if the people accept the Minister's proposal, it will be subject to a great deal of litigation. Nothing is surer than that. We in the Progressive Democrats are as dedicated as the Minister is to the abolition of the ban on divorce and the right of people to remarry. I ask people to accept the valid points we have made. I do not believe we are receiving an open hearing because the Minister is absolutely determined to take a course of action and that is most unfortunate.

This country has a written Constitution. What matters go into a written Constitution? The answer is those matters which the people regard as important, crucial and basic. My view and that of the parliamentarians, NGOs and various other people with whom I have consulted is that in introducing a divorce jurisdiction in a country that has never had one, the format and detail of such jurisdiction is a matter of basic and crucial importance.

Deputy McDowell spoke in another context about what is subjective and what is objective. The same criteria might be applied here but my view, based on extensive consultations, is that this is a matter of crucial importance. People want to know, before they vote for the introduction of divorce, what format it will take and what control they will have over it. The people do not want, and would not vote for, "quickie" divorces, for a divorce culture or for anything that could easily lead to it as has happened in other countries. Do not talk to me about women coming to the end of their reproductive cycles. This has been happening for many years and not just since this referendum was introduced by this Government.

The current wording was not conjured up by a few odd people sitting in a smoke-filled room. The wording, the nuances, the formation and the basis of the proposal were considered by the best legal brains, word by word and line by line. Every nuance, like interpretation and possible alternative was carefully considered and reconsidered.

This situation is not comparable to the X case or to cases relating to contraceptives. Deputy McDowell in particular knows well that every case is different. This is a different clause in a different provision and different considerations apply. I am tired of references to what happened in the X case and predictions that the same thing will happen in the case of ever other constitutional amendment. Our proposal has been considered in light of the best legal knowledge available and I am satisfied from what I have heard that it is the best possible formulation.

Will cases arise on it? Of course, cases will arise under any legislation. The Judicial Separation and Family Law Reform Act has been subject to challenge. It is not a constitutional matter; it is an Act of the Oireachtas. It also ended up in the Supreme Court and the people who brought the case lost. Any legislation can be challenged both as to what it means and as to whether it is constitutional.

Deputy McDowell raised the question of a prisoner and asked how the courts are to decide if there is a reasonable prospect of reconciliation between the spouses. That is a fair question and I will give him what, in my opinion, is the answer. They will decide it on the facts of the particular case and those facts may be different from the facts in another case. That is why the courts are there and that is what they do every day of the week. Every divorce application will have to go before the court and a body of law will evolve, as it evolves under any legislation. There is already a large corpus of material there and I am sure Deputy McDowell has studied every inch of it. I have examined it all in great detail and I am quite happy that this proposal takes the correct format.

I do not know whether Deputy McDowell is suggesting that it should be possible to obtain a divorce where the court is not satisfied that there is no prospect of reconciliation. My view and that of the Government is that one of the essential preconditions for the granting of a divorce is that the court be satisfied that there is no reasonable prospect of reconciliation. Maybe Deputy Michael McDowell says that that condition is right but it should be in the Act and not in the Constitution. If the same expression is in the Act, it will also be subject to interpretation whether it is in the Act or in the Constitution.

Mr. M. McDowell

But not subject to amendment.

Mr. Taylor

For example, the basis of the living apart provision, and the reason we ended up with that provision having considered all the legal interpretations from numerous jurisdictions is — and it leads us to this particular point — that what we are concerned about here is allowing divorce only in cases where the marriage is long since over.

There will be cases where they are under the same roof and where, although the marriage may be in huge difficulty it is not over. If the court so holds that that is what applies in a particular case then my answer is very simple; that is not a case for divorce, it is a case of a marriage in great difficulty. We are saying that the partners in a marriage which is long since over may divorce. It is on that limited basis, if you like, but so be it.

At the moment, there is no divorce and on that basis the Government put forward its proposal. The wording of the amendment has been carefully considered and I am quite satisfied that it is the best possible formulation. Any form of wording, Deputy Keogh's or Deputy O'Malley's, in the Constitution or in law, will be interpreted by the courts. That is what they do every day of the week. They interpret words and phrases, these things are decided, legal precedents are set up and legal procedures evolve and develop. The basis of this amendment will be that if a court is satisfied those four items apply in the case of a particular marriage, where the parties have been apart for four years or more, there is no reasonable prospect of reconciliation and the provisions have been made, the court will grant the dissolution. Otherwise, if the court is not satisfied on each and every one of those categories, they will not grant it. That is the position.

Mr. O'Malley

It is a pity that the Minister started off in the way he did. It strikes me he will see this through with his rather antagonistic attitude, that, right or wrong, it has become a matter of honour or principle for him and that he is not that concerned with the wording.

His reference to the fact that I, and my party, supported the proposed referendum in 1986 is pretty sick coming from a member of a party the leader of which said at length in 1992, and again in 1993, that one could not have a constitutional provision like this. Various other members of the Government said one cannot write detailed social legislation into the Constitution. I do not have all the references to hand but Deputy Harney quoted them at length in the Dáil on Second Stage on Tuesday afternoon last. Deputy Spring, in particular, was most vociferous that you could not have this. He pointed out the consequences of the X case, which would haunt us for all time.

The Minister referred to the X case as if it were almost of no consequence. It is one of the most shatteringly fundamental decisions ever made in this country, not just because of what it was about but because of the way it threw back a constitutional provision in the face of the Oireachtas, in particular. It is worth reminding ourselves, if we think large numbers bring wisdom and certainty, that only a tiny handful of people in the Oireachtas in 1982 and 1983 opposed that proposal.

That amendment started when Fianna Fáil were in Government in 1982, it was taken over by the Fine Gael-Labour coalition at the end of 1982 and the beginning of 1983. It was amended — as this provision has been — in conjunction with Fianna Fáil in Opposition and at their suggestion and I do not think there was a vote on it in the Dáil.

Mr. M. McDowell

There was a vote.

Mr. O'Malley

There was a vote, I am sorry. It had overwhelming support but that did not make it right. It required three constitutional referenda, not just one, to try to rectify the situation. One of those was beaten so to say we have certainty on everything now and that we did not have it then is ridiculous.

The Minister goes on at great length. Maybe people who do not understand the situation may be impressed by him saying he has the best legal advice and that they have considered every possible alternative. I cannot remember which particular Minister brought the 1983 amendment before the Oireachtas but I have not the slightest doubt that he said the very same thing. I am sure he had the best legal advice available to him at the time. The then Attorneys General — and there were a succession of them — went through it with a fine comb and rejigged it in whichever way they thought necessary and appropriate. They gave all kinds of assurances to successive Governments and they got it all wrong so to talk in those kinds of terms is not, I am afraid, of any value.

There is one additional point which I did not address when I spoke earlier. I was reminded of it by Deputy Shatter who said one of the interpretations which was being put on some of the wording by lawyers, which he described as "bizarre", could not stand up because the particular provision would have to be read with the remainder of the Article. Of course, I believe Deputy Shatter is right in saying that any provision in the Constitution, particularly any amendment, must be read in conjunction with the remainder of the Article. I invite members of the committee to read the remainder of the Article to see the enormous incompatibilities there are with the proposed amendment. It is not clear how the Supreme Court will reconcile these conflicts. One of the ways and, as far as I can see, the only way those conflicts can be over-come is by using a phrase such as the one at the beginning of Deputy Keogh's amendment, "Notwithstanding any provision of this Constitution".

When that problem arose, as I pointed out earlier, in 1972 with the ratification by this country of the Treaty of Rome, that type of provision had to be included. Otherwise, the treaty could not have stood with a whole lot of provisions of the Constitution and it would have caused a huge conflict.

We still have that difficulty here. It is interesting that it is Deputy Shatter who makes this point, even though he makes it from a different perspective and, perhaps, for a different reason but it is the same as that to which I referred on Second Stage and is valid. There is huge incompatibility. I pointed out before that if this is passed in the form now proposed by the Government, a situation will arise that under Article 41.3.2th of the Constitution one can have divorce in Ireland and it is recognised but under 41.3.3th, the other subsection of the same section, a foreign divorce is not recognised. If that is not a ludicrous anomaly, I do not know what is. It is interesting that Article 41.3.3th allows this State and the Oireachtas to change the recognition of foreign divorces by law. It states, ". . . a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution . . ." and so on. If the Oireachtas can be regarded as competent for the purposes of Article 41.3.3th, why is it so outrageous for Deputies Keogh and Michael McDowell and I to suggest that it could equally be competent for the purposes of Article 41.3.2th? That is being selective indeed.

The earlier provisions of the Article are totally incompatible and completely in conflict with what is now being proposed to be inserted. The formula that is normally used for overcoming that conflict is not used in this instance. However, it is in Deputy Keogh's amendment, which is why it is worthy of consideration and acceptance. The Minister would be better employed in trying to meet, tease out and deal with the genuine difficulties that arise here rather then make sweeping political statements in a somewhat aggressive tone which tends to imply a weakness in his case. It is always regrettable when that happens.

The most important words in Deputy Keogh's amendment are as follows: "Notwithstanding any provision of this Constitution. . .". If one does not use those words, there will be a most fundamental conflict with the remainder of this Article and, to some extent, with Articles 42 and 44. If, as Deputy Shatter says — I believe he is right — the whole Article, with the amendment, has to be read together, how will one reconcile those conflicts? The Supreme Court will spend painful weeks trying to work that out in some case. However, there will be hundreds of other parties waiting to see the outcome of that case.

The Minister made a simplistic statement in saying that whether something is a constitutional or a legal provision, the Supreme Court is there to interpret it and that it is interpreting law all the time, whether it be constitutional or statutory. Of course it is interpreting both of them, but if the Oireachtas, and the people through it, decide that the Supreme Court's interpretation of a statute law is not what the Oireachtas wants, it can change it. However, if the Supreme Court's interpretation of a constitutional provision is not what the Oireachtas wants or what the Minister of the day foresaw, it cannot be changed. There is a vast difference and one cannot compare the two as if they were similar; they are not. They are fundamentally different. That goes to the root of what we are saying in this amendment. The Oireachtas should not invite the people to tie all these provisions down in such minute detail so that in practice, they can never be changed again or only with extreme difficulty. As a principle, that is wrong.

I am fortified in that argument by a long list of Deputies, Members of this Dáil who spoke to that effect in the Dáil in 1992 on constitutional matters that were then the subject of discussion, several of whom are now members of the Government. The principal reason they gave for saying this was the X case. They, like me, might have been happy to have had provisions written into the Constitution in 1986 because they, like me, would never have guessed that the Supreme Court would have taken the view and come up with the interpretation it did, which was the direct opposite of what the Dáil was assured at the time would be the case. Since the X case, one has been forced to take account of it and to realise that this type of constitutional legislation is unwise. That was certainly the view of Deputies Spring and De Rossa and other members of the Government.

Dr. Woods

We have been here a long time and it has not been possible for me to get a word in edgeways. Deputy Keogh may have made the most significant point this afternoon in saying that the arguments being made this afternoon were made cogently and clearly this morning by herself. She also said that they may have been made a little better this afternoon. I do not think so; they were made clearly enough this morning.

Deputies from various parts of the country have put their views today. Deputy O'Malley suggested that Deputies should reflect on the matter. The contributions were very reflective from Deputies on both sides and Deputy O'Malley was dismissive of them. However, he is entitled to his view. He put it clearly in the Dáil and got a clear answer when his suggestion was defeated by 125 votes to ten. He put this argument here again — it was already put this morning — and everyone had an opportunity to respond. There is not much point in repeatedly going back through these issues. I could take issue with Deputy O'Malley over points be made on the pro-life amendment of 1983 but there is no point; that is for another day.

There is a strong difference of opinion here. Deputies O'Malley, Michael McDowell and Keogh believe that this kind of statement should not go into the Constitution, that these provisions, safeguards and criteria which we discussed at length this morning should not be included. They put forward an amendment which they admit may not be the best in the world but the vast majority of the Members of this committee believe they are wrong and the amendment the Minister has proposed is right and approprite for this time. I see little point in going on endlessly and repetitively about these issues.

I suggest that the Chair put the question to the committee. If it is not intended to do this, we need to think about allotting time tomorrow to consider the issue further and give us the opportunity to read the Constitution. Deputy O'Malley referred to the different references to the family in the Constitution and interpreted by the Supreme Court over the years. I have it all here. I can give members examples from it, but of what value would that be to anybody? All the Deputies here have made their points of view clear. Most have said they want this in the Constitution as a safeguard. Deputy Keogh and her colleagues have said they do not. There is no more to be said. They will obviously not convince anybody now. We should put the question at this time.

There has been a death in the family and I have to leave by 4.30 p.m. at the latest. I must leave now.

Chairman

I am in the hands of the committee in regard to the length of time for which we will debate this matter. I have to remind members, however, that were are on Committee Stage of the Bill. We have had over 16 hours debate on Second Stage and four and a half hours debate on this amendment. I recommend that matters be brought to a conclusion unless we debate aspects of the wording or of the amendment which have not already been discussed. It is unfortunate that all the members who are here now were not with us for the duration of the debate this morning. I am anxious that everybody would have an opportunity to make a contribution, but the committee must decide for how long we will deliberate this matter.

Mr. M. McDowell

The Select Committee adjourned at 4.40 p.m. until 10.30 a.m. on Friday, 6 October 1995.

Select Committee on Legislation and Security debate - Thursday, 5 Oct 1995

An Bille um an gCúigiú Leasú Deag ar an mBunreacht (Uimh2), 1995: (Céim an Choiste.

Select Committee on Legislation and Security debate -
Thursday, 5 Oct 1995