The motion regarding the statement for the information of voters in relation to the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023 will be debated in conjunction with the Second Stage of the Bill, but will not be moved until the Fifth Stage is concluded. Debate now follows in the normal pattern, with the Minister having ten minutes and all Senators having ten minutes. I welcome the Minister to the House and call on him to make his opening remarks.
Thirty-ninth Amendment of the Constitution (The Family) Bill 2023: Second Stage
Tairgeadh an cheist: “Go léifear an Bille don Dara hUair anois.”
Question proposed: “That the Bill be now read a Second Time.”
I thank the Acting Chair and wish Senators a good afternoon. I am pleased to be here to bring two Bills to the House, which aim to amend our Constitution to reflect the values of a more inclusive Ireland. Our Constitution is the fundamental law of Ireland. It should be a reflection of who we are and the values we hold dear, but right now the text of our Constitution does not reflect our values. It excludes thousands of people from the protection of being named as part of the constitutional family, it describes a very singular place for women within Irish society and it makes no allowances for care being a role for both women and men.
Any change to the Constitution is significant and meaningful. The amendments being proposed in these two Bills build on previous reforms to our Constitution, namely, children’s rights, marriage equality, and the repeal of the eighth amendment. They reflect the continuation of our journey towards a more compassionate, inclusive and equal society. There are a great many people in Ireland today for whom these changes will mean a lot. It will make a difference for people like Breda Murray. Breda is a single mother and a grandmother whose two eldest children were born in an unmarried relationship and two younger children were born in a marriage that has now ended. She said "there is absolutely no difference in how I love them and care for them, and no difference for them in how they love me as their mother". Despite this our Constitution currently makes a distinction between those children. As Breda said: "Ireland must change this archaic and discriminatory clause so that all children can receive the same rights and protections as each other whether their parents are married or not."
The first Bill we are discussing today is the Thirty-Ninth Amendment of the Constitution (The Family) Bill, to which I will speak now. The Constitution was written at a time when society only recognised and respected one kind of family, the family based on marriage. Non-marital families were made to feel like they were not a full part of our society. Those who fell outside the narrow ideal of the marital family were, and are to this day, denied constitutional recognition as a family. Single mothers and their children, in particular, were stigmatised and marginalised. This Bill aims to address that inequality by amending Article 41 of the Constitution to provide for a wider concept of family. The proposed amendment reaffirms the family as the fundamental unit of society but crucially, it does this in a way that recognises families beyond those based on marriage, including one-parent families and couples who choose not to marry and their children.
The approach taken by the Government with this Bill is twofold. First, the amendment would formally de-link marriage and family within Article 41.3.1° by amending the wording from "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack" to "The State pledges itself to guard with special care the institution of Marriage and to protect it against attack". This is important. It is this current wording which has been read by the courts as limiting the constitutionally protected family to the marital family. The special protection for marriage is not being removed and it is really important that we make that point. Second, the Government is proposing to amend Article 41.1.1° to read: "The State recognises the Family, whether founded on marriage or on other durable relationships, 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." This proposed amendment to this specific section is a deliberate choice with deliberate intent. It is a positive and upfront affirmation that the concept of family in Article 41 is no longer limited to the marital family and also encompasses other durable, committed relationships such as one-parent families and cohabiting couples and their children.
There has been much focus during the debate on this Bill in Dáil Éireann and in media coverage of the proposals on the inclusion of the word "durable" within the proposed amendment. To be clear, the term "durable relationships" is intended to encompass relationships of strength, stability and commitment such that they are consistent with that existing description of a family in Article 41, one that is the fundamental unit group of society and a moral institution. This proposed wording would expand the concept of family to cohabitants, with or without children, and to one-parent families.
I understand there are some concerns about whether the term "durable relationships" covers parent-child relationships. I can confirm that this is unequivocally the intention of this proposal and this is very strongly supported by the fact that the term "the Family" which we are discussing in Article 41 also appears in Article 42.1 and in that context, very clearly encompasses parent-child relationships. The approach seeks to positively recognise families beyond the marital family. It seeks to build, in a consistent way, on the existing guardrails that exist within Article 41 such as the terms "necessary basis of social order" and "indispensable to the welfare of the Nation and the State". These are powerful concepts that hold weight and the inclusion of the new term of "durable relationships" is consistent with these existing concepts.
The approach also aims to recognise the more inclusive concept of family in a positive, visible and upfront manner within Article 41 rather than solely in Article 41.3.1°, which is centred on marriage. In this context, it is important to note that the proposed amendments to Article 41.3.1° do not remove the special, unique status of marriage within the Constitution. The proposal removes the words "on which the family is founded" from Article 41.3.1°. However, the State's pledge within the Constitution "to guard with special care the institution of Marriage" and to "protect it against attack" will remain in place. Marriage is an important institution that is highly valued. It has also become a more inclusive institution in this country with the passing of the referendum on marriage for same-sex couples in 2015.
This amendment will not take away from that nor will it make marriage any less important. The proposed amendments aim to update our Constitution so it reflects and recognises families in an inclusive way. In doing so, they respond to the recommendations of the citizens' assembly and the Oireachtas joint committee, whose crucial work in helping us to get to this point I acknowledge. I also acknowledge the many Members of this House who were deeply involved in that process.
For the purpose of the Irish census, a family is defined as "a couple with or without children, or a one-parent unit with one or more children." By this definition, there were more than 1.3 million families in the Irish State on census night 2022. Of those, almost one in five was headed by one parent. The proposals contained in this Bill are not merely symbolic. They will ensure that constitutional protections for the family will extend to those families, which number in the hundreds of thousands. It will give to those families the right to manage decisions within their own families and give them the protections which currently apply only to the marital family.
There is something deeply meaningful about this proposal that transcends those practical legal effects. If we look at how single mothers and their children were treated in the past, how they were often treated as lesser and how they were often pushed into the shadows in Irish society, we will see that this happened against the backdrop of a Constitution that never recognised them as a family, that does not recognise them as a family today, that does not see their relationships as a fundamental unit of society and that does not recognise them as indispensable to the welfare of our State and our nation. The recognition that families beyond the marital family exist is now reflected throughout statute, including in legislation like the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. In this way, our society and even our statute, the Bills and Acts we pass, have moved ahead of our Constitution as regards the reality of the modern family. However, until our Constitution recognises those families founded on committed relationships other than marriage, we cannot say that, as a State and as a society, we have fully faced this aspect of our past and rejected the discrimination these families faced.
Since publishing this Bill, I have been approached by people and reminded yet again of how hurtful it is that they and their children are still not recognised in our Constitution, the founding document of our State. This referendum is our opportunity to put things right. Now is the time to finally recognise in our Constitution those families and all families that are founded on committed relationships other than marriage. It will allow us, as a society, to reject the discrimination these families faced in the past and to say to them that they are just as fundamental to our society as any other family. I commend this Bill to the House.
If I may seek the Acting Chairperson's indulgence for 30 seconds, I know this House held a very special event earlier this afternoon to recognise the retirement of Senator Norris. I will take this opportunity to recognise him as well. It is not often in your lifetime that you get to meet or work with a person who has had an absolutely tangible impact on the rights you enjoy as a person. As someone who is gay, I enjoy rights and freedoms in this country solely on the basis of Senator Norris's bravery in taking a case first in the Irish courts and later at the European Court of Human Rights. I recognise and thank the Senator today. He will leave a great gap in this House and in Irish society. I and many others are very grateful for his contribution over many decades.
I thank the Minister for those comments.
I will share my time with Senator Garvey. Before I begin, I would also like to pay tribute to Senator David Norris as he retires from political life. I did not have an opportunity earlier. I pay particular tribute to his work to advance LGBT+ rights in Ireland despite the great personal cost. As the first openly gay person elected to public office, he smashed a glass ceiling so that others could follow. He has been a champion for human rights, for his local community in Dublin city centre and for our collective built and cultural heritage. These are not the main reasons he will remain with me when he walks out the doors today. To paraphrase Maya Angelou, people will never forget how you made them feel. It was his warmth and his sense of fun and camaraderie that will remain with me when I think about our interactions over the years.
I thank Senator Norris and wish him a retirement of curiosity, beauty and mischief. Go-néirí an bóthar leis and may the sun always be on his back.
I also thank Senator Norris for his support for "Yes" vote in the upcoming referendums. The referendums that will take place on 8 March are important, and I will be voting "Yes" and "Yes" to change the Constitution. As Members are aware, the first referendum proposes to amend Article 41 of the Constitution. It does so to support and value the family and to widen the concept of the family to reflect today's Ireland. Many families in today's Ireland extend beyond a family based on marriage. We have one-parent families and cohabiting couples and their children. We all know these families. Some of us are these families. They form part of our wider networks of kinship, neighbours and communities. The current language in the Constitution excludes these families, however. The current wording of Article 41 and, indeed, some of the amendments proposed by fellow Senators, bring to mind Oscar Wilde's statement that to define is to limit. The Government's proposed wording is a fairer and more honest reflection of the Ireland we have become.
The second referendum proposes the removal of texts on the role of women in the home and would insert a new Article 42B into the Constitution to recognise and value family caring. While I always welcome constructive debate to ensure that all perspectives and unintended consequences have been considered, I have been more than taken aback by some of the opposition to the proposal to change the language in the Constitution on women and their duty in the home. Not only is the language outdated, it was inappropriate when it was first proposed back in the 1930s. At that time, it met with opposition from champions of equality such as Professor Mary Hayden and Hanna Sheehy-Skeffington. In 1937, Kathleen Clarke was one of several women TDs who took issue with de Valera's new Constitution because of its anti-women attitudes. I have heard and considered the argument that the current wording does not confine women's choices in any way, not even psychologically. The proponent of this perspective happens to be a colleague of ours here in the House. For what it is worth, I do not believe the majority of men presume to tell women what does or does not impact on them psychologically. I have spoken at length with a number of women on this issue, and I know it is quite personal to many. One woman recounted her introduction to Bunreacht na hÉireann in national school at the age of 11 or 12. She recalls the attention resting on Article 41 and a feeling of intense nausea as the implication of what those words meant dawned on her. That was 40 years ago. We do need men to be involved in this debate, however. We need men to recognise the value of care that is not based on gender, not only for the girls and womenfolk in their lives but also because many of them, boys and men, are playing vital caring roles. We need to have those roles valued in the Constitution.
These referendums have been likened to blind man's buff, a game many Senators may recall from childhood. It is a game of catch, where one child is blindfolded and spun around in an attempt to disorientate them before they are released on the group. It is the perfect analogy because what is at play here is an attempt to derail a simple and necessary update to archaic and sexist language through spin and disorientation.
I recently read the memoir of Des O'Malley, a man whose experience through more than three decades spanned roles in government, opposition and the formation of a new political party. Although our politics and opinions did not always align - he proposed the abolition of this House, for example - I have great admiration for his commitment to a Constitution that would reflect a tolerant and pluralist Ireland. In his memoir, O'Malley attributes much of Ireland's social development, particularly in the context of attitudes towards women, to our membership of the EU. He wrote that this is important and that the transformation in our attitudes to women, issues of equality and simple fairness might have happened by then under the pressures of feminist advance but it would have been a much slower and, he suspected, more painful process politically if we had not had the enlightenment thrust upon us. Enlightenment thrust on us is not enlightenment, however; it is compliance. In 2024, we can do better. It is as true now as it was then that these are issues of equality and simple fairness.
In 1987, as leader of the Progressive Democrats, O'Malley proposed that the very article we are discussing today needed to be changed.
He asked whether it was true that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
The theme of International Women's Day 2024, which not by accident is the same date as the referendum, is to inspire inclusion. The International Women's Day website reads, "When we inspire others to understand and value women's inclusion, we forge a better world." To every person eligible to vote in Ireland on 8 March I say take the blindfold off and find your target for two strong marks in the "Yes" boxes for a Constitution where care and family are valued beyond the constraints of the perspective of a patriarchal society. That time has come and gone.
It is great this is happening because any young person I have spoken to about this is amazed there is even a debate about it. They cannot believe this archaic wording is only now being challenged in any shape or form. They are delighted to hear it is happening now and are coming to me saying they want to canvass with me and get involved in the referendum canvass, which is interesting.
I find it really disturbing that some people who have no idea what they are talking about feel they can have an opinion on this. I suppose as a single parent myself I feel deeply offended by people who think family is this archaic definition of family based solely on marriage. I try not to get upset but that is a personal insult to me, a personal insult for 42% of the children born in Ireland, a personal insult to my son, and a personal insult to any gay couple who want to have kids. It is disgusting. It disgusts me that people in this House or anywhere else are now using this as some kind of a populist and stupid debate. Let us debate intelligently on intelligent things. This is a waste of time and is derailing something that has to be done. Bunreacht na hÉireann was written 100 years ago, so it is perfectly normal we would change wording to keep up with the times. My son is 24 and is saying "Why are we even being asked? It is so ridiculous. Are they saying that we're not a family, Mam?" This is one of the most stupid things I have ever heard opposition to. I have a neighbour who is a single dad. He raised his two kids on his own. Were they not a family? I do not know why anybody thinks this is even something about which there is a debate. We have to have a proper debate on "Yes" and "No" but I am just saying to people to listen to the young, to me as a single mother, to my son, to my friend who is a single dad and to the other fathers. I have several friends who are fathers who raised their kids on their own. I have several gay couple friends who want to have kids. Are we saying to all those people they are not a family? It is so backward and so archaic. It disgusts me we have public representatives speaking against this. We should all be unified in this. I would urge all on 8 March to vote "Yes" and "Yes" loud and clear, as we have in previous referendums, so that we finally see this country moving into a place that is in 2024 and not back in the dark ages.
One might not have understood from the Minister of State, Senator Hackett's contribution, that this debate this afternoon and this section of it, is to deal with the definition of the family. It is not to deal with archaic language about women in the home or anything of that kind.
It is the same thing.
It is not the same thing. Let us be clear about this. No insult is offered to anybody for querying the wisdom of what is being proposed here. The first thing we should remember about the Constitution is that "an teaghlach" is the Irish word used in the Constitution to cover the family. One will not find anywhere in the Constitution any reference to the proposition that a woman's place is in the home. It is simply untrue to assert that. It is being asserted day in and day out. RTÉ uses that phrase "women's place in the home". There is nothing in the Constitution that suggests women's place is in the home. There is a recognition of their contribution to an teaghlach, to the family, that they should not be obliged by economic necessity to work outside the home against their wishes and that the State should back them up if they want to remain with their family and to abstain from work.
There are plenty of issues that arise on that front but I want to deal with the definition of the family here now.
It is proposed that the definition of the family should be extended to families based on marriage and-or other durable relationships. Let us be clear about one thing. The Constitution, as proposed to be amended, would still say that marriage is the fundamental unit group of society and that the State must protect it. If this change is made, families based on "other durable relationships" will be given the same status as marriage and will be entitled to the same protection as marriage is at the moment. That is what is proposed because the family, based either on one or the other, will be entitled to the same protection.
We are being asked to accept the proposition that the "other durable relationships" are effectively the same as marriage. For that reason, we should pause and ask ourselves if this is either necessary or desirable. I mention that today the Supreme Court delivered in the O'Meara case a hugely important decision. It has effectively looked at Article 42 in its entirety, and has looked at it with a view to determining whether it is legitimate, for instance, for the State to withhold pensions from widowers with children, and from people who are not in the same position as a married couple would have been for social welfare purposes. It found that the State's obligation to children is such that distinctions between non-marital and marital children for the social welfare purposes mentioned in that case are not constitutional. We have to take a very close look, and I am surprised the Minister's speech did not deal with the O'Meara case because it came out today. It is the Supreme Court, prior to this referendum, saying that the State may not discriminate against a parent of children on the basis that he or she was not married to the other as a basis for distinction between entitlement and non-entitlement to social protection.
The second thing I want to say is this. I believe in marriage. I believe in marriage for this reason: it involves simply more than cohabitation. It involves more than that, in that it is a solemn decision by two people in the eyes of the law to make commitments to each other and to any children they may have. It is a commitment between two people and the State as to their obligations and - if I may use the terrible "D" word - their duties. Once one gets married, one has a duty to one's spouse and to any children one may have. Those duties are inherent in the concept of marriage. As the Minister said on the provisions of the Constitution dealing with education, in that area again not merely do parents have constitutional rights regarding their education of their children but they have duties in respect of the education of their children. The whole concept of duty seems to be one that we are devaluing to some extent.
The point I am making is this: why get married at all, if one can cohabit and have exactly the same status in the eyes of the law? The Minister says he is going to protect the institution but how is he protecting it when he says that one can opt out of it without consequence? The Minister, in his address to this House, said that he is talking about couples, whether they have children or not, and that they constitute durable relationships. Has he thought about how the Murphy decision on taxation applies here? As the Minister knows, we doubled tax allowances and tax bands for married couples. Is it to be the case now that people who have made no commitment in the eyes of the State but who are just long-term cohabitants are entitled to double the tax allowances and double the bands? The Supreme Court's decision in Murphy was based on the family and protecting the family.
From now on, will people who have been cohabiting for a long time - or a short time, because length of time does not seem to have much to do with it according to the jurisprudence I have seen - be entitled to call on the State to treat them on the same basis as are married people because they also constitute a family? There are other issues. The Minister of State, Deputy Richmond said on television the other day that from the point of view of family reunification, long-term cohabitation will be of relevance. Of what relevance, we do not know.
I propose to table an amendment tomorrow to do two things. First, to state that the words "whether founded on marriage or other durable relationships" should be between two persons as may be prescribed by law. I want to put it up to the Minister to accept that. If it is to be founded on a relationship, is it to be one between more than two persons? If it is, he should not just airily dismiss throuples, bigamy, polygamy or polyandry. Is the Minister confining this new family he is trying to create to a relationship between two persons as its foundation? If the Minister is not, he should take a look around a few corners because he is in fact envisaging a different set of relationships.
Second, the Minister has said to Members of this House in private briefings that the term "durable" will be determined by the Supreme Court. The amendment I intend to table tomorrow will say that it should be as prescribed by law. It is for the Oireachtas, not for the courts, to decide what is or is not a durable relationship. If the Minister cannot define what "durable" is - he has not yet and will not in the course of this referendum campaign - he has stated it is not the same as durable in the context of European law. He has told the other House that but he has not said what it does mean. If he cannot define it, he is stating that in the Constitution, the family is to be changed in a way these Houses will not decide in the future but that the courts will decide in the future. That is simply bad politics and bad legislation. It is a bad concept to simply say, "Pass this legislation and we will find out later what it means."
I had a good friend, Adrian Hardiman SC, who later became a Supreme Court judge. He opposed the eighth amendment when it was originally introduced. He appeared on the "Questions and Answers" television programme chaired by John Bowman and said that were it to become law, it would lead to travel injunctions. All the pro-life people, including William Binchy and the rest of them said "Nonsense, you're exaggerating." However that is what the courts interpreted it to mean.
I do not believe, especially in light of the O'Meara decision today, which effectively extends constitutional protection to children of non-married parents, that this House should put an amendment to the Constitution to the Irish people, the terms of which we ourselves are not willing to define. We are not willing to define what is a durable relationship and we are not willing to say why, for instance, a cohabiting couple should not, if this constitutional amendment is accepted, be treated equally for taxation purposes by virtue of the fact they are cohabiting. Were he to look around a few corners by looking to immigration law, to succession law, to pensions law and to a series of issues of that kind, the Minister would find there is every good reason to proceed with caution.
My last point is that we are being rushed through this legislation today because as a gimmick, the Government decided this referendum would be fixed for 8 March, International Women's Day. The commission has told the Government it must have the finalised text by tomorrow evening and that is the end of the matter. Our amendments cannot be accepted because they cannot go back to the Dáil. To put the referendum on International Women's Day is a worthless, cheap gimmick. This proposal deserves far more consideration and thought.
To those who say it reflects the output of the all-party committee, I say that that is not so. It differs from it, and the members of that committee have expressed disappointment with it on that account.
I welcome the Minister to the House. There is a lot of stuff going on that I would like to digest. I very much welcome the proposed change in the referendum. I welcome that the Government and the State are at a point of recognising that not all families are based on marriage, that there should not be a tier or a hierarchy of family, and that families like Senator Garvey's and mine should be acknowledged by our State and Constitution. Senator McDowell referenced the judgment passed today in a social welfare case. That is a judgment. It is jurisprudence; it is not our Constitution. I deserve to have my family acknowledged within our Constitution. I am an unmarried mother with a family. Senator McDowell's view will still be respected within the referendum. Marriage is specifically mentioned. However, there is a change with the proposed reference to durable relationships. Our families are changing. Senator McDowell can say that marriage is an institution that is recognised by the State, but durable relationships and families like mine can also be recognised. Is Senator McDowell saying that his family is a better family than mine because he accepts the duties placed upon him by the institution of marriage? Is there a hierarchy of his family against mine, which suggests that I do not take the duty of parenthood and making my home seriously, and that my partner does not do the same because we do not have a duty to do so under the institution of marriage? That is absolute rubbish. My children are well reared and well taken care of, thank God. They are not of a lower standard because they are not brought up in family under marriage. We are no less of a class of family. It is about time that the State recognised that families come in loads of different ways. It is a personal debate. I was accused previously of making this debate personal. Of course, it is personal. Family is personal; your home and your children are personal. Not to have my family and families like mine and Senator Garvey's recognised by Bunreacht na hÉireann is wrong.
When we were having the mother and baby home debates, I remember my second fella asking me what is wrong with him. I told him there is nothing wrong with him. He told me that I am not married to his daddy and asked what is wrong with him. I told him there is nothing wrong with him. There was never anything wrong with any child born out of marriage. The Constitution says that there is a hierarchy and that one family is better than the other. Senator McDowell has said that today, because apparently married people take their duties more seriously. I can tell the Senator that they certainly do not. There are plenty of married people who do not take their responsibilities and their duties seriously.
Hear, hear.
I very much welcome the fact that we are here today discussing what is a very fundamental change and an acknowledgement that this country is growing, that it is progressive, and that we are changing. One of the great things about our Constitution is the fact that we can change it. I very much urge people to come out and vote "Yes" and "Yes" on 8 March. It is no gimmick to update and modernise our Constitution.
I hear what everybody is saying and I very much respect the emotion that is involved. I stand here as a married person whose family is not included in this amendment, so it is not without its boundary. I think it is important that we keep the debate at an academic level. We are Senators, and it is important that the debate is not too personalised and that we do it like that. However, I think this referendum is absolutely necessary.
It is very important that we widen the span, definition and understanding of the concept of family at constitutional level. Let us look at the case law, namely, McGee v. the Attorney General, where Mrs. McGee would have been in a life-threatening position if she had another pregnancy. She won the right to have access to contraception, not on the basis that it was a health issue or a human right based on that issue but on the basis that she was married and had an entitlement to privacy. That is an obscene consequence of the Constitution. While the Constitution also makes provision for divorce, for as long as we recognise the fact that marriage can break down, we need at the same time to honour the fact that families can constitute a whole heap of different things. There are families that are an amalgam of former partners, former wives and former husbands that all come together as a single unit. This means that we do need to modernise the Constitution. I will be supporting this referendum, and the other one which we are due to deal with later, by voting "Yes".
The decision in the O'Meara case that was announced earlier today is a little more nuanced. My understanding is that this decision is based on Article 42 rather than Article 41. It is based on the right of the child to be supported and the widower's pension going to that family because of the rights of the child, not as a result of the fact that their relationship was on a par with marriage. The members of the Supreme Court were very deliberate in stopping short of not intruding on what is currently being dealt with in the Oireachtas. It is important that we do not confuse the issues because that does not lend it self in any way to today's debate.
I have sat in the High Court as an observer while the instructions to counsel for the State were to argue that the family before the High Court was not a family and should not be afforded the protections offered by the State. I have seen that happen. The Egans have come out and spoken about it. Brian and Kathy Egan have two children. The first was born naturally and in the normal course of how children are born to a couple. In that respect, they are fully and wholly a family with all the constitutional protections. Their second child was born via surrogacy after years of absolute tragedy within the family. They are not a considered family when it comes to that child. I know the Minister will be urging that the assisted human reproduction legislation comes through the Houses as quickly as possible because we need to afford people protection in that regard. However, it is a fairly stark and frightening experience to sit in court and hear those acting for the State say that this is not a family and that it is not entitled to the protections offered by the State. One would be entitled to presume, as a citizen, a contributor and a member of society, that, for example, one is entitled to such things as privacy or the right to make decisions, but those rights are not afforded in such a case. No family should be put through that – whether it is a single parent with children or some other form of family unit. We must recognise the fact that grandparents rear their grandchildren, as do single dads and single mams. It is not the province of any particular gender. It is not any of those things. To not be covered, and to have the State be so stark, is incredibly hurtful. It is an incredibly shocking experience. While I was not personally involved, all of the issues before the court on the day in question would apply to me.
It is hard to see it argued and to know that the State actually gives those instructions to say one needs to argue that this is not the case; it is not the fault of counsel who are arguing the law. We need the law to change. Our Constitution stands for the aspirations of our people, the vision and boundaries, the things which we value. Our Constitution needs to reflect the values of our people. Those values of our people are the 42% who are not born within marriage. Are people more dutiful if they are married? I do not think so. I completely agree with Senator McGreehan that there many a married couple are not dutiful at all and many who are not married are very dutiful.
Within this, we need to first of all to recognise that these provisions have very clear boundaries. Families where a child has been born via surrogacy are not included, even in durable relationships, even though I have been married for 22 years. I understand the reasons for that. I am not expecting that it should be so elastic as to cover every possible scenario because it needs not to. It needs to have clear boundaries. We introduced legislation that provides those pathways and deals with those or excludes the "throuples" that were alluded to in the Dáil.
Within this, we need to respect that case law down through the years has founded its decision upon marriage, as in the McGee case and other decisions where the family was not recognised and is argued even unto today that there is no recognition of it as a family. That is not a modern Ireland. That is not a progressive Ireland and it does not reflect the progression and the inclusion that is required.
Does this have implications for taxation? One of the notes I have to myself is that perhaps we need to go back and look at one of the progressive pieces of legislation that the Minister himself brought through, that being the parental leave legislation. One of the points about that at the time was that the children in single-parent families were at a disadvantage because in two- parent families, both parents get the allocation of leave. In single-parent families there will only be one parent getting the leave and consequently those children are at a disadvantage. There are aspects like that I would like to point out. In the future, I hope we will be looking at amendments that are very family-centred. If we need to change and progress our taxation, then so be it. I went to the trouble of getting married. I wanted to; it was really important. However, I do not think that it should change my rights and entitlements regarding taxation. I do not think that it should put those at any higher level. That is a personal commitment; in some cases it is a faith commitment. It is reflective of a person's own particular values. They are not superior or inferior, they are just different. They are different choices and consequently we have this eclectic society that reflects all sorts of decisions. I do not actually see a problem in advancing and changing our taxation system, where required. I do not have an issue with that. The O'Meara decision today in that way is progressive because it was actually about the provision for the children. That should be in keeping with our future jurisprudence along the lines of anything that flows from this constitutional amendment, which I will support 100%. I look forward to the clarifications and refinements that will come out of tomorrow's debate on Committee Stage. I thank the Minister.
I want to share some time with Senator Sherlock, if that is okay. I welcome the Minister to the House today to this very important debate on the Thirty-ninth Amendment of the Constitution (The Family) Bill 2023. I will be concentrating much of my contribution on my experience of dealing with cohabiting couples and our own Labour Party Bill, the Social Welfare (Surviving Cohabitant's Pension) Bill 2021 and of course, as has already been said by colleagues, the landmark ruling we have just received from the Supreme Court in what is being referred to as the Johnny O'Meara case.
We must recognise the treatment and legacy within our State of families who simply did not conform to the constitutional model of a family based on marriage. It is the opinion of many that the current definition of Article 41 in no way reflects the current and wonderful diversity of family life in Ireland. Indeed, it is my experience that such a restrictive definition has not reflected family life in Ireland for a long time. We therefore feel it is time to amend the definition of family, just as it is time to amend the language used in Article 42.2. I will not get a chance to contribute to that debate later but I welcome the fact we are getting rid of the sexist and outdated language contained within that article. I welcome also the support of Family Carers Ireland and Treoir for that amendment and the proposed recognition of care and caregivers in our Constitution for the first time. We have debated in this House on numerous occasions the value of caregivers in the State.
Getting back to the Bill before us, Labour Party colleagues introduced amendments in the Dáil on how we might go about amending this language, and we have also tabled amendments to be debated on the next Stage in this House. I acknowledge the work of my party leader, Deputy Bacik, as Chairperson of the Joint Committee on Gender Equality, and that of all the members of that committee. The Minister will be aware the committee devised the wording that reflected the recommendations of the Citizens' Assembly on Gender Equality, chaired by Dr. Catherine Day. He will also be aware of the continued calls for a referendum in 2024 and the urgent need for such a referendum for so many, including families such as that I mentioned, the O'Meara family.
I want to speak to the historic ruling of the Supreme Court today. It would seem from listening to the solicitor involved in that case on RTÉ's "News at One" that the Supreme Court judges based their judgment on Article 40.1 in the Constitution, on equality, providing that all citizens shall be held equal before the law, rather than on the definition of the family. Of course, while we must wait for the detail of the judgment to emerge, I thank Johnny O'Meara for taking this case. Likewise, I thank Treoir and FLAC for their involvement. This is an important moment in our State's history and we must now call on the Minister with responsibility to immediately act on the judgment. Since we in the Labour Party introduced our Bill, we have been contacted by many families in the same position as the O'Meara family. Indeed, when we used our Private Members' time last October to bring forward our surviving cohabitant’s pension Bill, the Government did not oppose it but instead sought time to consider what was referred to by the Minister on the night as the many complex matters that would need to be addressed before the Bill proceeded. On the night, the Government deferred the Bill for 12 months to allow for it to be thoroughly assessed in the wider legal context and in light of the impending recommendations of the Joint Committee on Gender Equality.
The judgment today, however, must be reflected on by the Government and acted on as quickly as possible to reflect the concerns, needs and rights of so many families who have come forward to us and are, I am sure, awaiting an update on the matter. Mr. O'Meara's case, while tragic, mirrors many more we have heard. I wish him and his three children well and thank him for engaging at length with the Labour Party, and in particular Deputy Kelly, along with the Labour Party Senators in preparing the Bill we have brought forward. I acknowledge on this historic occasion and important day his late partner, Michelle Batey, who sadly died from cancer. The couple had been together for more than 20 years. Like 150,000 other couples in Ireland, they were cohabiting and had not married. It would seem, however, from early reflection and commentary on the judgment today that what Mr. Justice Heslin said about the case before the Supreme Court hinging on a legitimate decision made by the State to support not families but those who had made the choice to enter the marriage contract remains the case, as I have said. We must act, therefore, through this referendum to adequately change the Constitution to reflect the true diversity of family life in Ireland.
One of the main questions I was asked on the introduction of our Bill addressing the issues of cohabiting couples related to what constituted a couple without a State-recognised marriage contract. The wording we have been presented with by the Government speaks of durable relationships and the Minister earlier went into some detail on that issue, but the question remains as to what durability is and what defines a durable relationship between adults. Is it one that exists for five, ten or 20 years? Is it the same as a commitment or as an enduring relationship? Is there a difference?
The definition must include comfort for cohabiting couples and those both with and without children, and I again take on board what the Minister said earlier. It must address issues for disabled people and the area of kinship carers. We look forward to further debate on the next Stage in this House.
I warmly welcome the proposed changes to the definition of "family" in Bunreacht na hÉireann. We cannot overestimate the hurt that has been inflicted on individuals and families over the decades because they did not conform to that very narrow definition of a family based in marriage. I was struck by Senator Garvey's earlier contribution. This is personal for many people, including the thousands of women who found themselves pregnant and parented alone, the women who were abandoned by the fathers of their children and left to parent alone, the men who raised children on their own, the grandparents, the people I know who are choosing to have children on their own and the many other types of families in this country. The symbolism of the change in our Constitution would have a profound impact for those families as they feel recognised.
There are also practical implications. Senator Wall already mentioned the Johnny O'Meara case. It is wonderful to see the Supreme Court's judgment today. In reading the judgment, it appears that the argument is all the stronger now for the constitutional broadening of the definition of a family to include all durable relationships. We cannot leave it to chance that there will be some other part of the social welfare or tax codes that will require somebody to go to court to prove their family rights. I listened to Senator McDowell's contribution. Far be it from me to challenge him, given that I am not a lawyer, but I am not sure if I correctly picked up what he said, which was that the outcome of the case is to effectively recognise non-marital relationships outside of marriage and civil partnerships in the Constitution. When I fly through the 90 pages of the judgment, and I am only flying through them, it is not clear to me that is what the judgment does. Instead, it recognises that parents should not be discriminated against whether they are married or unmarried. At the heart of the case about the widower's contributory pension was the question of whether that pension is intended merely to support the marriage or if it can also support the children of the relationship. That was at the heart of Mr. Justice Heslin's judgment in the High Court, which was then contested in the Supreme Court. Widower's and widow's pensions were introduced in 1935. At that time, it was about the alleviation of hardships accruing from the risk to all persons who were exposed as a result of the death.
We have the O'Meara judgment today, which has found there needs to be legislative change. The key point is that we need to ask about all those other situations. There may be other situations that we do not yet know about whereby a family and the children of a deceased person are effectively discriminated against because their parents were not married.
A wide-ranging conversation about our tax code will have to take place if this constitutional amendment is passed. That is particularly the case with regard to the treatment of income tax for married couples, unmarried couples and couples in a civil partnership. Of course, inheritance tax will have to be considered and capital acquisitions tax will be another important area. It is not hard to imagine that there will be a challenge to the partial individualisation afforded by marriage status in the context of the tax credit and the standard rate threshold we currently have in our income tax system. A message needs to go out that while the conversation needs to take place, there will be an attempt by some to ask what is the point of marriage anymore. For many of us, marriage is not just about the contractual, taxation and inheritance arrangements into which many of us enter. It is also about faith, commitment and values that some people wish to express and others do not. It is important to note that commitment to marriage is still being expressed in the Constitution. I fear that some will try to say that the Constitution no longer recognises marriage as a particular form when it still does.
I warmly welcome the proposed changes. Obviously we have concerns, which we will come to later, regarding the referendum on care but I support what is being done with regard to the family.
I will pick up where Senator Sherlock left off. It is important to emphasise that there is no change to the definition of marriage in this proposal. It does nothing to change the definition of marriage. The language, that the State pledges itself to guard with special care the institution of marriage and to protect it against attack, will still be there. Regarding some of the language on marriage, we can lose sight of the key part of the referendum, which is about the family. Marriage is a commitment between two people. That is still there. It was not defined in the Constitution previously except in the sense that it is in legislation.
That still stands but what is key here is the family and recognition of the reality of families across Ireland and the reality that 40% of children are born to unmarried parents. They may be born to cohabiting couples or it may be a one-parent family. Households headed by one parent make up almost 20%, or one fifth, of households in the State. This is a huge number of families that I hope will be affected in a positive way by this referendum because they will be properly recognised as part of the State. Again, it is not simply a matter of what they might be entitled to. It is a recognition of what they bring - the family as a necessary basis of social order, that the family is contributing to the welfare of the nation and the State and that it is a unit group of society and a moral institution as well as having inalienable rights. I believe all those families are contributing to and are part of the building blocks of those units that make up our State. If our Constitution, which is meant to be our collective vision for ourselves and our collective hope, does not recognise almost one third of families, that is a problem and a gap. We have a sense that a lot of people are being told they are not part of that fundamental unit group of society. This is not a Constitution for the people of Ireland in the full sense that it should be so it needs to be changed.
We need to be clear about where the Constitution comes from. We will have some more discussion on that when we discuss the second referendum. The 1937 Constitution came from a place of conservatism. Some of the laws directly affecting the rights of women that were introduced in the 1930s moved us further away from that other founding document about which many of the people of Ireland feel strongly, namely, the Proclamation, which spoke about cherishing all children of the nation equally. That is core for many Irish people but sadly it has not been the case.
In particular, unmarried women who have had children or women who have become single parents have been treated in an unequal way. The State has had far more freedom to do that because Article 41 did not apply properly in the past when it came to the rights of households headed by one parent. We have seen that lone parents have been treated abysmally. We have heard how this has been argued in the courts. The State has argued in the courts that people who have lived their life as a family are not really a family.
That is also reflected across social policy. The O'Meara ruling is really important because it addresses one piece of an unequal social policy and the unequal structure of our social protection system that has been allowed to develop because not all families were recognised equally.
There are also measures in respect of jobseeker's transitional payment, for example. I refer to what is required of one-parent families versus what is required of couples who are spouses in the context of acknowledging their caring contribution and the work they do in that regard. We will come to that again later.
There are many inequalities within our social protection system. We should not be in a situation whereby individuals have to fight all the way to the Supreme Court to get these things amended and fixed. The State needs to address issues relating to and bring forward equality. We have seen steps taken in that regard. I refer to the Children and Family Relationship Act, the purpose of which is to try to recognise relationships beyond simply those under marriage. We had the referendum on the rights of the child, the purpose of which was to try to acknowledge children's individual relationships rather than simply the marriage family of their parents being the only thing recognised.
It is clear that the ruling in the O'Meara case is based on the rights of the child and on those rights being placed against the interpretation that was offered in the High Court. The High Court chose not to grant the widower's pension on the basis of the article we are discussing here and Article 41. We have a tension between articles in the Constitution that offer a narrow version of what might be a family and in the context of recognising that all children should have the same rights and be cherished equally, that their parents' relationships should be recognised and that the relationships they have with family members should be recognised. Those tensions should not exist. The Constitution should work and flow in tandem with a situation where we have a recognition of all families and of the rights of the child and where the latter complement each other in positive decisions.
On the term "durable relationship", I preferred the wording offered by the Joint Committee on Gender Equality. However, it was the same principle, namely, that the concept of family should include but not be limited to the idea of the family based marriage. In the context of durable relationships, it is important that the Minister was strong in what he said earlier. I want it to be clear that the State is not going to wait for the courts to determine the outcome in each individual instance. It must be the case that the State will come forward with an interpretation of what constitutes a durable relationship which explicitly includes cohabiting couples and, crucially, one-parent families. Reference was made to what the State will do. The State must act on the interpretation to which I refer and reflect it in legislation, including legislation relating to social protection. I refer, in particular, to the social welfare Bill that will come before the Houses later this year. That Bill or an earlier Bill should contain concrete measures that audit all of the inequalities in how families are treated across the social welfare system and then address and repair them and restore equality.
We need a commitment that this will not simply be a tool in the Constitution that people may be able to use in court cases but that the State is going to drive matters. We also need a commitment to the effect that if narrow interpretations of what constitutes a durable relationship that seek to exclude one-parent families are brought forward, the State, in its engagement, will assert and fight for the wider definition to which I refer.
I return to the ruling in the O'Meara case. The latter recognises the rights of the children, but what of those who are there for 30 or 40 years with their life-long partners? There are brothers who have lived with their sisters and with mothers, for example. I refer to small families who have lived together for years. There are many families in Ireland. Some families have not had children. Some families are not able to have children. Are they any less as families because, when it comes to marriage, the State has indicated that if someone is a widower, they are a widower? Will we say that we do not recognise these kinds of families because they cannot lean on the constitutional provision laid down in Article 42A? This is why we need to ensure that the Constitution works for everybody.
The phrase "durable relationship" is being used and defined within Europe. I do not believe that anything inhibits our State from having a wider definition than that used in Europe, but it is important we address that.
Lastly, it would be incredibly sad if this debate were to become about interesting hypotheticals or potentially scandalous or interesting situations around "throuples" or whatever else because it is not about that. We cannot afford to have a conversation that is about hundreds of thousands of real people in this State become a mini moral panic about a fear some persons may have about something else that somebody else might do. We need to be really clear that we are sending a signal to everyone in this State who is directly affected, who is out there and who is campaigning and calling on us to support them. I hope we will, and I hope the Minister can strengthen his clarity on the phrase "durable relationship" when he replies to us. Perhaps he could also comment on the O'Meara ruling and his perspective on it.
I plan to speak on the thirty-ninth amendment to the Constitution, on the family, and my colleague, Lynn Boylan, will speak to the fortieth amendment, on care. As a member of the special Oireachtas Committee on Gender Equality, I played a very active role throughout 2022 on these issues, as did Senators Alice-Mary Higgins, Lisa Chambers, Regina Doherty and Pauline O'Reilly. I commend the committee Chair, Deputy Ivana Bacik, all the members, the secretariat and the witnesses who came before it. Our job was to examine the report of the Citizens' Assembly on Gender Equality, which was chaired by Dr. Catherine Day. We regarded the recommendations of the citizens' assembly as a blueprint for achieving gender equality in Ireland. Our work was focused on how best to secure the recommendations' implementation, so we did that. We provided a final report that is very much an action plan for change with reasonable timelines for implementation. I am disappointed - many others share this view - that the constitutional changes proposed do not reflect the wishes of either the citizens' assembly or the Joint Committee on Gender Equality. I wonder why we went through that whole process, what the citizens' assembly was for and what the Oireachtas committee was for. I wonder why the Government did not just propose this wording in the first place and why it needed years of delay.
The Joint Committee on Gender Equality finished its work and produced its report in December 2022, and it took a whole year for the Government to bring forward this wording. The wording as presented by our committee had cross-party support. It had support from civil society and trade unions too. It is, for me, a big letdown that the wording proposed by the Government is such a departure from the wording proposed by the committee. It has been mentioned many times that the Oireachtas committee made the unusual or uncommon decision to draft proposed wordings in our reports, first in an interim report on constitutional change and again in our final report in 2022, called Unfinished Democracy. We were minimalist in our approach. We wanted to ensure that the language we used was in keeping with existing constitutional language and constitutional text so we built on the existing text. Single-parent families, non-marital families and any family that does not conform to the constitutional model of family based on marriage deserve protection. I think we all accept that. The committee and the citizens' assembly did not suggest the term "durable relationships". That is entirely new language proposed for the Constitution. I wonder - I am not the only one wondering this - why that language was chosen. It does not seem to be prescriptive. I am not a constitutional lawyer but do we not need language that has established legal meaning? There seems to be very little buy-in at the moment for this proposed wording. Sinn Féin and other political representatives are concerned about the language used in the proposal.
Why has the Government moved so far from the recommendations of the citizens' assembly and the Joint Committee on Gender Equality? That question must be asked.
As Senator Sherlock and others have mentioned, the expansion of constitutional protection to families founded on other durable relationships raises many questions about what the amendment will mean in practical terms and the implications for law and policy on social welfare, taxation, succession, family law and beyond. In the absence of that information, there is a risk of confusion among voters. It also heightens the risk of misinformation around the proposal.
Sinn Féin believes the Government should outline the research that has been conducted about the implications of the family amendment on existing legislation. The interdepartmental committee, which was formed to prepare for the referendums, compiled lists of legislation that refers to family and marriage. We think the Government should publish those and any research conducted by the committee, the Office of the Attorney General or others about the impact of the proposed amendments. We also believe that the Government should commit to expanding State supports for families, including through taxation and social welfare, to at least families based on long-term cohabitation. It should also commit to additional supports for single-parent families. We believe we are heading in the right direction but there is a need to look at the wording and the interpretation and to deal with the implications.
Cuirim fáilte roimh an Aire. These were supposed to be referendums related to gender equality, yet here we are with two Bills, one on care and the other on family, which would appear not to advance anything for people's practical day-to-day needs but which remove the words "mother", "home" and "woman" from the Constitution, and gut the meaning of "family". The mystery of how we ended up here is compounded by the fact that we have not had pre-legislative scrutiny on either of these Bills. My friend and colleague, Senator Warfield, talked about the risk that people would be misinformed or exposed to misinformation. It really looks like, looking at this in all honesty, the State is trying to minimise the risk that people would actually be informed about what this referendum contains.
The lack of respect for our Oireachtas process on show here, with it going through three Stages in the Dáil in one day and four Stages to be got through this week, is an absolute disgrace. When one considers the way the Constitution is amended, it is a compact between the people who have the final say and the legislators who decide what is to be put in front of them. What is going on with many issues these days is massive insiderism. It is not the entire Government, but a coterie within the Government, certain NGOs, and certain people on the inside, who get to decide what the people must think, and there is to be minimum discussion, analysis, scrutiny, criticism and amendment of that by the directly or indirectly elected representatives of the people. Here, the Government shows its absolute disrespect for the people of Ireland in going about these referendums in the way it is.
That insiderism is sadly on show in many different ways. I was disappointed to get the news from the National Women's Council of Ireland today that the launch of its "Yes" campaign is to be chaired by the person who launched the Citizens' Assembly on Gender Equality, Dr. Catherine Day. It is so disappointing to see that people have no sense anymore of where they ought to remain strictly independent and impartial and to stand back. It seems that "independent" means whatever people want it to mean these days.
Some supporters of these Bills are annoyed that the wording is not strong enough, especially with regard to care, which I will come to in the separate debate. What Deputy Catherine Connolly said is worthy of note in that regard because it applies here too. This is not about delivering meaningful, enforceable rights and stronger constitutional protection for women, families and carers, as well as other groups who experience discrimination and disadvantage, such as people with disabilities; this is about focusing on symbolic recognition alone. The Government is very bad at solving people's day-to-day, real problems. It is very good at trying to notch up symbolic victories for the people who are on the inside track within government.
There was plenty of time to do this right. Last February, the Department of equality opened consultations with the general public.
It has hidden the outcomes of those consultations from us. They were not even available to the library to help it prepare its digest on the Bills. The Minister has not made any commitment that these outcomes will be available before the referendum. Will he make such a commitment? What is there to hide? What has the Minister to hide? On a number of occasions he has spoken in the Dáil of the advice received by the Attorney General in the drawing up of the Bills. Will he share that with us or has he anything to hide? No prelegislative scrutiny is taking place. This is following on a decision at a hastily convened private meeting of the committee on children a couple of days before Christmas recess. What is there to hide? Now we have two rushed Bills taking three Stages together in an afternoon of the Dáil and four Stages in the Seanad, giving nobody any time to read the digest prepared for us, never mind propose amendments. What is the rush? What is there to hide?
We are dealing with vitally important matters and this is no way to do business. This is no way to treat the Constitution, our basic foundational document. We legislators want to be clear on what we are adding. We want to be clear on what we are excising. We want to know the consequences of our actions. At the moment, few legislators do. What does the Minister expect the electorate to understand when it has made its decision on 8 March?
The family amendment devalues marriage, in my view. It equates the rights of a family based on marriage to those persons in a durable relationship and a durable relationship the Minister cannot define. He is clear in his mind, or so he says, what he would like it to include or exclude, and he has said that in the Dáil, but what are important are the words of the Constitution and how they may be interpreted. The word durable, insofar as our courts have made a ruling, does not necessarily mean durable in time and nor, indeed, is the relationship to be limited to two people. As far as I can see, despite protestations to the contrary, and I am not saying that is the Minister’s intention because, ultimately, we cannot know his intentions, we are potentially placing polygamous relationships on a par. Again, they are not entered into in Ireland because polygamy is illegal in Ireland but perhaps the ban on polygamy will be found to be repugnant to the Constitution in the light of this constitutional change in the future. The Minister himself mentioned throuples, I believe, in the Dáil. Are these to be on a par with other family forms? The Minister cannot tell us they will not be. Perhaps the words “among two persons” might have been added but the Minister has argued that a durable relationship is also the relationship of a single parent with his or her children. Fair enough but it was not beyond human ingenuity to find a way to ensure these strange, potential interpretations in the future cannot flow from this constitutional amendment if passed, as I hope it will not be.
Promoting marriage, by the way, is not the same as decrying or undermining the efforts of single parents, which are often heroic, as we all know, in the bringing up of children. That should go without saying. Single parents and, much more often than not, single mothers, have to do the work of two on their own. The research says what common sense tells us - two parents have a valuable advantage in that they have reason to help each other in performing tasks in the service of the family. All society benefits by having more married parents. The two married parents home has no competition when it comes to delivering the goods for families. There is a mysterious dearth of studies in this country but the Americans are not slow in evaluating what works. There is a 30 point happiness divide between married and unmarried Americans. Marriage has a causal impact on outcomes for adults and children with regard to completing college, earnings in life, social and emotional adjustment, employment prospects as well as future marriage and mental health prospects. That is from the Brookings Institution which refers to it as the marriage premium. It is not The Heritage Foundation or the MAGA Republicans; it is the bloody Brookings Institution.
This is where I see the denial and the disrespect coming from the Government. It wants to have it both ways. The Minister tells us that this will be inclusive but he is not able to give a single example of an injustice that it will remedy because there is none. As we saw with the children and family relationships legislation before a previous referendum and as we have seen with today’s O’Meara decision, it is always possible to legislate to deal with the particular situations of de facto families. This is about the Minister not wanting to give any particular respect to marriage. Although he says he is not taking away the State’s pledge to “guard with special care the institution of Marriage ... and protect it against attack” I would like to hear him try to tell us why marriage matters in his view. We already have a situation where, as I said, the State can do justice through its laws and its courts to children’s rights and to all the different de facto situations but what we had was the aspiration for marriage as a social ideal for all the reasons I have given because it actually works, on balance.
That is now being taken away. The Minister is reassuring us by saying, "Don't worry. We still have this constitutional aspiration to protect marriage from attack", but how? This very proposal is the attack. Is he able to give us any reason he thinks marriage should be protected from attack? He said nothing in his opening contribution. He gave us nothing about why. He talked about the importance of marriage but that is lip service given so that the electorate does not take fright. In fact, however, he is not able to talk about why marriage has a value such that the State should continue to protect it against attack. I find that very strange.
It is the kind of stuff, and the old communist way of doing things, that has now been adapted by the progressive left, or far left if you like, which is to say that they are not changing things. However, they are changing the meaning of things to bring about the radical change they want. The Government will say the family is still based on marriage and that it has just extended the definition but, no, it has emptied the definition of any meaning. No longer can the traditional understanding of family linked to marriage, ideally, or marriage-like relationships, be given as an ideal or social proposal. The Government should be honest and state that it does not want marriage to enjoy any particular kind of respect. If it is being honest, therefore, why is it not proposing to take out the clause in the Constitution that states the State pledges to guard the institution of marriage and to prevent it from attack?
The Government is engaging in political manoeuvring and is not being upfront about what it is really about, which is that it has an itch about institutions such as marriage that it wants to scratch. It is not able to show that it is doing a single just thing to any person who is currently being deprived of his or her rights. All it is able to do is talk about a past that has long since passed. It should be trying to solve the problems of the country rather than engaging in this politics of gesture and politics of social change without being upfront about it at the same time.
Following on from my colleague, Senator Mullen, I have to talk about the democratic process. For something as serious as a constitutional amendment, to come to the House and give a couple of hours of debate to two major changes to the Constitution is repugnant to the very House itself and everything we stand for.
One of the Minister's colleagues, during an interview on a radio station with me this morning, said that if the House brings forward an amendment the Minister thinks has merit, he would accept it. If he did, how will he square the circle? This must be finished, done and dusted, by tomorrow afternoon to meet the 8 March deadline. My colleague, Senator McDowell, said this is a gimmick and it is. It has all the hallmarks of a gimmick. The Government wants to bring forward this referendum on International Women's Day. Why could the legislation not have been debated properly in both Houses and the referendum take place on the same day as the European and local elections? Why did it have to happen on 8 March?
I congratulate the Government because it will now once again turn Irish society into a polarised society due to a constitutional referendum. My colleague, Senator McGreehan, spoke about the hierarchy of families. Nobody in my lifetime ever mentioned the hierarchy of families until today. I have never experienced or heard that term used ever in my life. Any family I have ever encountered in my life, whether it was single parent, cohabiting couples, gay couples or anything else, for me constituted a family. We are now in a situation where we are entering into a constitutional amendment and the first thing out of the blocks was one of the NGOs, the National Women's Council, stating publicly in The Irish Times that if a no vote is carried, it gives the State the oppressive role of keeping women from careers or employment. Where is that coming from? How can the chief executive of an NGO come out and say something like that?
Show me one instance in this country where a woman was prevented from pursuing her career. I would go back to the marriage ban and all of those things, which are all in the past. Ms Justice Denham in her judgment said that there is nothing in Article 41.2 that assigns women to a domestic role or in any way limits their access to a career.
I can see the argument already starting and friends falling out over this. Why in God's name does the Minister have to do this? What he is doing in this referendum is making the State indifferent to whether parents are married or not. That is really what he is doing. Whether the Minister likes it or not, he is presiding over the rushing of hugely important legislation through the Houses with absolutely no regard to the function of Parliament. It is not like him, so I would love to know where this is coming from.
I am deeply concerned. We called a citizens' assembly and established a committee on gender equality, neither of which was listened to. The wording of the amendment was drafted by God knows who and for what purpose, I do not know. It bears no relationship to the recommendations of the citizens' assembly or the committee of the House. What is going on? Why would the Minister not stall this and allow a proper debate?
My colleague Senator Seery Kearney referred to the elasticity of the definition of a family. I agree with her. We should be as elastic as possible to encompass all sorts of families. I also agree with my colleague Senator McGreehan. I do not believe there should be a hierarchy of families. A family is what it says on the tin; it is as simple as that.
Regarding the durability issue, we need a definition. Senators, as we heard, are confused as they try to figure out what is meant by "durable". The Minister needs to put a meaning on that as otherwise, as Senator Higgins suggested, he will drive innocent people with limited resources to the courts to get a definition. This is a change to the Constitution. It is unlikely that change will have to come again for many decades so it must be right first time.
A number of amendments have been proposed. Senator McDowell, for example, has offered an amendment to address the issue of durable, which makes the word perfectly clear. A number of other excellent amendments have been put forward by the Civic Engagement Group. What is the rush? Why are we rushing this forward?
I make a prediction today. Referendums frequently turn out not to be about the question but about the Government that is asking the question. I can tell the Minister already that the level of opposition to what the Government is trying to do in this constitutional amendment is growing. What will happen is €20 million will be wasted on a referendum that nobody I know is asking for, although perhaps the Minister knows who is asking for it, and it is going to fail. Both of the referendums are going to fail. We will talk about the other referendum on care later. They will fail because the Government is not trusted. People are asking what the rush is. What is the Minister afraid of in the debate?
I cannot, in my heart and conscience, support this proposal in its current form. I cannot support the lack of democratic debate which is what we are about in this House. I cannot support a Government that is so disregarding of the opinions of the elected Members of both Houses that it will run through its own question to be put to the people. The people will ask what the Government was afraid of in respect of the Members of the Oireachtas that has caused it to drive this through with such haste. I will vote against this amendment unless I hear something earth-shattering over the next day and a half. I cannot see that coming.
I ask for the Minister’s forbearance as I intend to speak to the Fortieth Amendment of the Constitution (Care) Bill 2023. Ironically, the reason I am asking for the Minister's forbearance in this regard is that I have a caring commitment myself this evening.
I will not be able to be present later to discuss it in the slot allocated to it. I will look at the record for his response.
The proposed care amendment is a lost opportunity. It is not consistent with the recommendations of the Joint Committee on Gender Equality, chaired by our former colleague Deputy Bacik, leader of the Labour Party. Neither is it consistent with the wording recommended by the citizens' assembly chaired by Dr. Catherine Day. I am puzzled and surprised to hear, as has been said here, that she has been involved in the launch of a "Yes" campaign. I think this is a lost opportunity. Article 42B is what is called a new care article in the explanatory notes. The proposed wording states: "The State recognises that the provision of care, by members of a family to one another" [listen to this] "by reason of the bonds that exist among them." I address that specifically to the Minister. It "gives to society a support without which the common good cannot be achieved, and shall strive to support such provision". The use of the word "strive" renders this care provision meaningless because strive can be challenged. I know, and the Minister knows from his conversations with me, that families cannot get the supports for independent living that they need. The answer we are given is that the State is striving to do so, but it is beyond its capabilities or, in my belief, beyond its ideological willingness to do so.
I will propose an amendment tomorrow but I am dismayed to note that no amendments will be entertained, especially given the timeframe, because it will not be practically possible to do so. My proposed wording is that the State shall take reasonable measures to support care within families and the wider community and shall promote and protect the rights of people with disabilities to live independently and enjoy full inclusion and participation in the community. That participation in the community was part of the proposed wording set out by the citizens' assembly. The Oireachtas joint committee put in its wording as a proposed part of this amendment stated, "outside of the home". The wording as it stands flies in the face of the aspirations for independence and autonomy - the right to independence and autonomy for disabled citizens as set out in Article 19 of the UN Convention on the Rights of Persons with Disabilities. This wording falls pitifully short of that.
I tell the Minister what it is. I have had a couple of inflection points in my life as a carer. I will give a couple of examples. One was when my son progressed from pediatric care to adult services. This was in 2019. I contacted the disability services manager in our CHO, where we live, to find out what the plan now was for my adult son. The disability services manager told me that there was no plan for him, and asked was he not living at home with me. That is the paternalistic, patronising, patriarchal view of care as expressed in this wording; care exists exclusively, and is reified, in the context of the home. Families will look after each other because of those bonds that exist between family members. The disability services manager referred me to the social worker. The social worker asked me what I was worried about, and whether my son was living at home with me. I asked what would happen when I died. Who will toilet him? Who will clothe him? Who will put his clothes on him? Who will shower him? Who will feed him? Who will watch him for his swallow? She asked me whether he had siblings to which I replied "Yes". She asked whether he has a sister to which I replies "Yes". The social worker then asked:"Well then, what are you worried about? She will look after him when you die." We know from research that the majority of carers in the home, who are unpaid carers, are women and girls and siblings. This Article 42B as set out here, which makes no reference to other supports in the community or outside the home, gives constitutional expression to that paternalistic and disempowering approach.
It is not a rights-based approach. It is a philosophical and ideological view. I do not know if it is unique to Ireland in our post-Catholic, post-whatever polity that disability or difference is a "burden" that ought to be borne by the family.
Another inflection point came in 2011 following all the ethical and intellectual failures of the so-called Celtic tiger when our economy was driven off a cliff. Who suffered with the imposition of austerity measures? Austerity measures were considered virtuous instruments by those who imposed them. The people who suffered most were the most vulnerable in society. At that point in 2011, my son's services to allow him to live an independent and autonomous life - pathetic as they were during the Celtic tiger era - disappeared completely and, by the way, they have not reappeared in the interim.
I was invited to a dinner in Dublin at the Stephen's Green Club, which was addressed by one of the highest officeholders in the land who had just taken that office. That individual promised us new politics, debt reduction, a negotiated reduction in interest rates and lots of other things. In his speech, he used language that I have heard older officeholders use more recently about creating an Ireland of opportunity for people to get up in the morning. I told that officeholder that I get up every morning at 6 o'clock to do physiotherapy with my own son. It is DIY physiotherapy - welcome to Ireland. We do it then because he is nice and warm in the morning and we cannot get physiotherapy elsewhere. Having pointed out that I am one of those people who gets up early in the morning, I asked him to promise that as long as he was in this new office as one of the most senior officers in the land, he would no longer impose any austerity cuts on families like mine, on the disabled and on the most vulnerable citizens in society. He said, "You do that because you love your son and I commend you on the love you have for your son. If only we had more people like you."
He told me that the State has no role whatsoever in intervening in the dynamics of the family. Basically, he gave me to understand in that room that the responsibility for people with differences lay with the family because of their bonds. This is the very language that exists among them and is included in this proposed amendment. Everything in that amendment and everything that he said to me - he did not intend to be offensive or hurtful - reflects a genuinely held belief among many people in Ireland that disability is not a human rights issue but a matter of charity, that it is a personal matter for families and that it should be the burden of people in the in the family home. That is what this proposed amendment gives expression to.
I am just simply asking the Government not to make this mistake. It is further undermining one of the most disenfranchised categories of citizens in this country with this wording. It should listen to the citizens' assembly and the Oireachtas Joint Committee on Gender Equality and take on board the wording they proposed. I do not entertain any hope that the amendment I have tabled for discussion tomorrow will be incorporated into the wording.
All Members of this House, if they have lived experience of disability, will know that we are a very disempowered group of carers in families. Disabled citizens are very disempowered. We are out of step with other jurisdictions in the European Union in this regard. We are out of step with the aspirations as set out in the UN convention. We have had proposed legislation here queried and interrogated on the basis that it would create a burden on the State. The Government is happy to let that burden reside within the family. It is unjust and unfair, and it reinforces inequality. It disempowers disabled citizens. Rather than giving that expression in the Constitution, Bunreacht na hÉireann, I think we can do better than that. We should have more ambition than that.
I would appreciate it if the Minister could just add a few extra words and accept amendments, if that is possible. This comes from the heart.
The Minister is very welcome to the House. I note the Electoral Commission states the following on its official website:
The Government has announced its intention to hold two Constitutional Referendums on 8 March, 2024. Legislation to confirm the wording of each referendum is now being considered by both Houses of the Oireachtas.
It is like the Government is ready to press the "send" button from these Houses tomorrow evening and this debate and tomorrow evening's debate are not worth the salt that is going to be talked here over the next two days. Contrary to popular belief, the definition of family within our Constitution matters greatly. Article 41 recognises the family as "the natural primary and fundamental unit group of Society ... possessing inalienable and imprescriptible rights". This informs many areas of law.
I want to explore what could be meant by "durable". Regardless of how one feels about the issues I am about to discuss, I think we can all agree that there needs to be more clarity. A durable relationship does not have a definition under Irish law, but it does have a definition under EU law. It includes any relationship that has lasted for a substantial period of time. As most of us know, it can take almost ten years for a case to work its way up to the European Court of Human Rights, so I think it is essential that we have a clear definition now. That is very important. Before this legislation leaves the front gates of Leinster House tomorrow evening, every judge in this land needs to know what a durable relationship is. Based on the Minister's speech, it seems the Government's definition is broader than the EU definition.
During my time as a foster parent I have had more than 100 children in my care, although not at the same time obviously. Would they be entitled to contest my will because they might claim to have a durable relationship with me? Would someone who is having an affair be able to contest the will of the person with whom he or she was having an affair? Members might disagree but in the eyes of a judge, it could look very different.
Last week in the Dáil, Deputy McNamara pointed out that throuples could be recognised. In response, the Minister, Deputy O'Gorman, stated that polyamorous unions would not be recognised because they are not a unit within society. Polyamorous marriages are not recognised in Ireland but who is to say that polyamorous relationships could not be subject to constitutional protection? Among some religions, polyamorous units are units in society. There are many sociologists and psychologists who may hold a different view. The fact that people may not like them may not matter once the issue is before the courts. The Minister and I may not think they are a unit in society, but a judge might think differently. That is why it is essential that we provide clarification. The Minister's statements do not count for anything because while the court can refer to the transcripts, it may decide not to pay attention to his remarks. This happened very recently when President Higgins referred the Judicial Appointments Commission Act to the Supreme Court.
Marriage affords a couple a wide array of rights, including a residential right for foreign migrants, and tax benefits. Will this lead to family reunifications? If the Minister tries to deny this, I will remind him that the Minister of State, Deputy Richmond, said a "Yes" vote would aid this process when he was on Virgin Media before Christmas. Would extended families have access to any new benefits? I put on the record that when this topic comes up it is not far-right disinformation but something that has been said by a Minister of State. If the Government does not provide clarity, it may find out within the next five to ten years that it was the one pushing misinformation and disinformation.
Many have said that single parents do not enjoy legal protections, but there are legal precedents provided for these protections. We see in today's case of the widower in Tipperary that the court found there is no difference between a marital and non-marital family in this context because Mr. O'Meara has essentially the same obligations to his children as a widower would have. Today's ruling has perhaps left other questions that might need to be answered, such as whether there must be children for a widower to benefit.
This referendum is not a high priority. There are many more issues facing the country. I hope the Minister can answer the following questions. This is like the nonsense with the hate speech Bill. Why are we not capable of providing a clear definition of anything in this country? The word "durable" is now becoming a lot like the word "hate". Why did the Minister reject the advice of the citizens' assembly? It seems as if he is doing this to satisfy no one. He has not taken anybody's recommendations on board. Why is it important that this referendum be held on International Women's Day? That seems to be a gimmick. I predict that this referendum will be defeated. Would it not be better to give some consideration to the amendments and to avoid a humiliating political defeat in March instead of working on the assumption that the Opposition can never have a good idea? The Minister knows as well as I do that this is irrational. He should let the Members of this House do their job and accept some of the amendments we have tabled for tomorrow. I hope he does the right thing before he sends the wording off to the printers tomorrow evening.
I thank Senators on all sides of the argument for their detailed contributions, in particular those Senators who spoke about the proposals to extend the values of our Constitution to ensure that it reflects families who have previously been excluded from the constitutional family and, indeed, society. In the past, non-marital families, single mothers in particular, were discriminated against and made to feel they were not part of Irish society. Thankfully, much of that has changed. It is important that everyone is listened to in the context of this debate and that we hear from those who are excluded right now. It was good to have the opportunity to hear from Senators McGreehan and Garvey, two Members of the Upper House whose relationships are not currently acknowledged as a constitutional family. People can refer to statutes and other pieces that give them legal protection, but the question is what that actually means to people. I have some sense of it because prior to 2015, my relationship could not be acknowledged as part of the constitutional family because I was not in a position to get married. I agree with Senator McDowell that marriage is important. I value marriage. That is why I fought really hard in 2015 to extend the institution of marriage.
Why does the Minister value marriage?
I value it for reasons that are unique to me.
Is it a secret?
Is it going to be a referendum of the Green Party?
No. I am sorry. Each person's marriage and each person's decision to get married is one that is unique to him or her. No more than I would ask or question why Senator McDowell decided to make that decision himself-----
It is because there is a commitment to the other party.
That was part of part of my reasoning as well.
I am glad to hear the Minister say it.
Inasmuch as I fought to get access – Senator Mullen had a different argument in terms of that – it is important that we hear from people who, right now, are excluded from the constitutional definition of the family and excluded from the value. Not only does marriage mean something to me, our Constitution means something to me, as I have no doubt it means something to other people in this House as well.
We have had significant discussion of the issue of a "durable" relationship and the use of that particular term. We want to use that term in a way that allows us to bring other relationships into the protection afforded to the family. I refer to relationships like a one-parent family and cohabitees, whether they have children or not.
By this I mean relationships like one-parent families or relationships of cohabitees, whether they have children - relationships as I said previously, that show strength, stability and commitment. Those relationships covered in the definition of "durable relationship" fit in with the vision that Article 41 gives us of what the family actually represents, which is the idea of it being a fundamental unit group of society and of something that is necessary for the basis of social order. Those are the strong, committed relationships that we are seeking to broaden the definition of "family" to. We are not seeking to bring in novel concepts that have never been recognised in Irish law, such as polygamous marriages. Our courts have been very clear on that in the past and that remains the case. However, we are seeking to include those relationships that we know in our everyday lives and those people we know. We see them and think of them as a family in our heads but right now, our Constitution does not recognise them as such. Those relationships within that concept of durability include those parent-child relationships. That is important and that is a different and a broader definition compared to the more narrow approach that is used in the citizenship directive.
A number of Senators raised the issue of the O'Meara case and the judgment today. I am happy to have the opportunity to speak about this. What the O'Meara judgment does most clearly is show that a majority - five of the seven judges of the Supreme Court - clearly state that the concept of marriage, as set out in our Constitution, is the family based on marriage. It is the marital family that is protected by Article 41. They are very clear that they are not going to change this. They are not going to give a reinterpretation. Since it is so current, if the Senators do not mind I want to quote from a provision from paragraph 157 of the judgment, where the Chief Justice said:
The very fact that the Constitution limits the Article 41 Family to marital families, even interpreted as it has been, may give rise to issues of interpretation and application in some cases. Even if it did not have any practical consequence, its terms might still be regarded as significant. What the Constitution says, and the story it tells about our society, is important in and of itself. There may be good reasons to debate what the Constitution should now say, and indeed the Court was informed by the Attorney General in the course of argument, that proposals to amend Article 41 in this regard were under consideration, and proposals are before the Oireachtas as of the date of delivery of this judgment. But, the forum for any debate on what the Constitution should say in this or any other regard is not the Court. There must be a limit to the permissible interpretation of the Constitution, and in my view, and with great respect to those who take a different view, I consider that to decide now that the Article 41 Family can include both marital and non-marital families alike, exceeds it.
The court is clearly stating that it is not going to change the definition of the marital-----
They respect the Constitution as it is
If we believe that it is right to broaden out the definition, it is with us now. We have the opportunity, in the context of the referendum and in the context of the wording that is before us to make that change. We are not, as Senator Mullen maintained, seeking to gut the definition of the family. We are seeking to be inclusive and to recognise the value of relationships that we know ourselves are family relationships but right now the people, in those relationships are excluded from constitutional protection.
Why is the Minister guarding with special care then the institution of marriage from attack? Is there any reason for that?
We are guaranteeing it.
Why? What is so special about it?
Because the Constitution continues to recognise the importance of marriage.
But why? The Minister is changing that.
We are not changing it. We are fundamentally not changing it.
What has it got over durable relationships? What particular protection should it have from attack?
We are continuing to recognise the value of marriage and its special position. In the context of the changes we are making, the State will continually be able to make a distinction between families based on marriage and other families.
The special position has nothing to do with family, that is what the Minister is saying.
Without interruption, Senator Mullen.
The special position had nothing to do with families. Is that the Minister's position?
It is separate. It is a recognition of marriage as an institution and what we are looking-----
It is nothing to do with family?
Senator Mullen, please.
What we are seeking to do is to ensure that those families based on marriage continue to have recognition in our Constitution, but we are looking to broaden it out to include other types of families as well. These are families we know and see in our everyday lives.
What is special about marriage?
Without interruption, please.
We want to ensure that they make continue to receive the protection of our Constitution. I believe that this is something-----
This has not been thought through.
I beg to differ. It is an important step to give that valid and important constitutional recognition to the tens of thousands of people who are in committed relationships outside of marriage. We have the opportunity to make that change. Our Supreme Court is not going to make the change. We, as legislators, are putting that change to the people on 8 March and we have this opportunity to bring a "Yes" vote and broaden the definition of family in our society.
Cuireadh an cheist.
Question put:
The Seanad divided: Tá, 25; Níl, 4.
Tá
- Ahearn, Garret.
- Ardagh, Catherine.
- Burke, Paddy.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Garvey, Róisín.
- Higgins, Alice-Mary.
- Hoey, Annie.
- Kyne, Seán.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Donovan, Denis.
- O'Sullivan, Ned.
- Seery Kearney, Mary.
- Ward, Barry.
- Wilson, Diarmuid.
Níl
- Craughwell, Gerard P.
- Keogan, Sharon.
- McDowell, Michael.
- Mullen, Rónán.
Tellers: Tá, Senators Paul Daly and Mary Seery Kearney; Níl, Senators Michael McDowell and Rónán Mullen.
Question declared carried.
Faisnéiseadh go rabhtas tar éis glacadh leis an gceist.
When is it proposed to take Committee Stage?
Tomorrow.
Is that agreed? Agreed.
Céim an Choiste ordaithe don Chéadaoin, 23 Eanáir 2024.
Committee Stage ordered for Wednesday, 23 January 2024.
Cuireadh an Seanad ar fionraí ar 5.30 p.m. agus cuireadh tús leis arís ar 5.50 p.m.
Sitting suspended at 5.30 p.m. and resumed at 5.50 p.m.