Léim ar aghaidh chuig an bpríomhábhar

Select Committee on Justice, Defence and Equality díospóireacht -
Wednesday, 30 Sep 2015

Marriage Bill 2015: Committee Stage

I welcome the Minister and her officials. Please turn off all mobile phones or put them on aeroplane mode, as phones in silent mode cause interference with the recording equipment.

I have not received notice of any amendments, but if anyone wishes to comment on a section or give notice that they wish to table an amendment on Report Stage, please stop me when we reach the relevant section. Otherwise, we will proceed fairly briskly through the sections, with the permission of members. Is that agreed? Agreed.

Sections 1 to 7, inclusive, agreed to.
Question proposed: "That section 8 stand part of the Bill."

I am not a member of the committee, but I wish to give notice that I will table an amendment on Report Stage. I raised this issue on Second Stage and heard the Minister's reply. Effectively, the Bill abolishes civil partnership going forward, as persons can no longer enter into a civil partnership from the date the Bill is enacted.

While I welcome the Bill, as I did on Second Stage, I am not convinced of the rationale for that. I would have thought the purpose of the vote was to accommodate the myriad types of family arrangements that are in place in Ireland. I would have thought a better way to do that would be to open up civil partnership, which is currently limited to homosexual couples, to both heterosexual and homosexual couples. The Minister indicated that she had received advice from the Office of the Attorney General to the effect that this would be unconstitutional. I am slightly sceptical about the use of advices from the Attorney General that nobody can see, question or read - advices from counsel can be quite nuanced - to shut down debate in this House, which is something that has happened quite a bit in the course of this Dáil. Has the Minister specifically obtained advices from the Office of the Attorney General - I am not referring to advices that have been hanging around for years - to the effect that there is a requirement to abolish the institution of civil partnership in order to legislate for homosexual marriage? Has such clear advice been obtained? If the Minister wishes to respond to that now, I would welcome it.

That is fine. Members can comment and ask questions on the section.

As I said during the Second Stage debate, the very question raised by the Deputy was extensively discussed and extensive legal advice on it was sought. I will just go over the detail of the policy again and maybe add a little extra to what I said previously. The policy based on the new constitutional context is that civil partnership registration will cease after a reasonably short period of transition. As the Deputy knows, section 8 of this Bill repeals most of Part 7A of the Civil Registration Act 2004, which had set out the basis for registration of civil partnerships. The status of current civil partners remains completely unchanged. I think we are all very clear about that. There is no question of removing any of the rights and obligations of civilly partnered couples or of changing their status in regard to each other. They will be free to marry each other if they so choose, or to remain as civil partners.

I would like to say a little more about the legal advice I have received. I have been advised that it would not be constitutional to keep civil partnership available and to open it to opposite-sex couples as this would create a risk of making civil partnership a potential competitor to marriage. All of the advice I have makes it clear that making a marriage-like relationship available would violate the constitutional pledge to "guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack". The legal advice I have is that civil partnership was legally and constitutionally justifiable because same-sex couples did not have the opportunity to marry. Now that same-sex couples can marry, the rationale for civil partnership as a distinct institution has disappeared. Accordingly, civil partnership is being wound down. The State is constitutionally prevented from making an alternative legal relationship available to couples, even though some might wish to become civil partners rather than marrying. That is the legal advice I have. This is an obvious question that arises. One has to consider it from a constitutional point of view. I have set out the advice that is shaping what we are doing in the Bill in relation to the future of civil partnership. It is very much based on advice relating to the role of marriage in the Constitution.

I thank the Minister for her comprehensive reply. I do not doubt that the Minister has received this advice, even if I might not necessarily agree with it. The Attorney General's office is the Attorney General's office. Ministers and Governments are bound to follow the advice of the Attorney General's office. The 2010 Act introduced cohabitation and provided for the rights of cohabitees. If civil partnership is somehow a competitor to marriage, I suggest that the same thing must apply to cohabitation and giving rights to cohabitees. I am not entirely convinced by the rationale we have heard.

The Minister is right when she says that civil partnership is a marriage-like institution. I do not necessarily know why it has to be a marriage-like institution. I do not know why the long-standing consanguinity impediments to marriage in Judeo-Christian traditions and Roman law, which predated marriage as a Christian institution, were introduced into civil partnership. I remind the Minister that the concept underpinning civil partnership is that it gives rights to people living together as a family unit who wish to obtain legal protection for that unit and to give rights to each other in the event that something happens. A common example of that in Ireland would be two elderly siblings who live together in a fairly dependent way. They no have rights under the Mental Health or Pensions Acts or anything else. If something happens one sibling, the other sibling has no rights even though they have been living together as a family for their entire lives, albeit obviously in a non-intimate way. Irish law provides very little protection to people in such circumstances. Why do we need to have the consanguinity impediments in civil partnership? I do not know why civil partnership cannot be open to people who are not otherwise in a civil partnership or married, but are in a non-intimate relationship. I note that intimacy is not a requirement for being treated as a cohabitee, although I suppose it is presumed that the couple were intimate at one point. One way of avoiding this idea of competition would be to change the nature of civil partnership and open it up.

I would also like to make the point that marriage is a permanent institution, notwithstanding the divorce legislation in Ireland. It has to be demonstrated that a marriage is irretrievably broken down in order to have it dissolved or to obtain a divorce. The same thing does not apply to civil partnership. They are two very different institutions. I do not really see that one necessarily competes with the other. People choose to marry or cohabit or whatever. I think there are other ways around it. I would like to flag my intention at this stage to look into the matter further with a view to proposing an amendment on Report Stage.

Does the Minister want to come back in?

I would like to make a couple of points. I have set out the legal advice I have received in this regard. As Deputy McNamara will be well aware, the rights of cohabitants under the 2010 Act are quite limited. The Act provides only for rights of redress in the case of a relationship of dependency. When the Deputy speaks about changing civil partnership, he is really raising a separate question. This is about the Marriage Bill. That is really as much as I have to say about it at this stage.

Okay. Deputy McNamara has given notice of his intention to table an amendment on Report Stage and I thank him for that. Does anybody else want to come in on this?

I would like to raise an issue that might not specifically relate to this. I have received an e-mail from a guy who is concerned about how the Pensions Acts link in with the Marriage Bill. What is the relevant section? I do not want to miss the opportunity to flag this in advance of Report Stage.

As long as the Deputy raises the matter at any time during this meeting, that is enough.

Can I do it now?

Grand. Perhaps it relates to section 16.

The issue in question will be dealt with primarily in a separate Bill - the finance and succession Bill.

This is about marriage so it is not specifically addressed here.

Can I read the e-mail so the Minister will know what it relates to? It is quite short. It is from a man who signs off as "Pension Equality". It states:

I wonder would you be good enough to propose an amendment to the Marriage Bill at the Select Committee stage in relation to the block which Section 81E (5) and (6) of the Pension Act places on anyone, retired, more than one year from bringing a claim for pension equality.

It affects LGBTI people, straight people, and children.

The time limit, besides being arbitrary (unlike other provisions it does not run from the date of the discrimination e.g. the refusal of the pension) is also contrary to EU Law which does not allow a time limit in national legislation which makes access to the relevant Court or Tribunal impossible as this one does for anyone claiming a pension benefit which only came into existence years after their retirement.

It goes on to state:

The Minister for Public Expenditure and Reform has relied on this time limit to have a claim to the Equality Tribunal rejected in March 2015. The State’s reliance on something which is self-evidently illegal as well as unjust is in marked contrast to its self congratulations about Same Sex Marriage. It is also an unfortunate example of an attitude which is regularly condemned harshly by the Supreme Court and the High Court and widely reported in the media, where the State in ligation against it, seeks to delay and defend the indefensible.

We are urging you to propose an amendment to the Marriage Bill in the terms below, which would deal with the matter. The Marriage Bill is amending many pieces of disparate legislation and this is in fact quite a simple amendment. It would be a great pity to launch marriage equality and at the same time bar retired LGBTI people from the Equality Tribunal if they are wrongly refused a pension for a spouse.

He has given me suggested wordings in this regard and I can submit them on Report Stage.

The Deputy is flagging the intention to table a number of amendments on Report Stage around this general issue of pensions. The Deputy mentioned what the courts are doing or not doing. I do not know if the Minister wishes to respond to that. She does not have to.

If the Deputy wants me to, I am happy to respond on the individual issue outside the committee. My understanding and advice is that this is either a matter for the Minister for Finance, the Minister for Public Expenditure and Reform or the Minister for Social Protection. It would be part of a general process of legislative change with respect to those issues as opposed to being dealt with in the Marriage Bill.

That is fine. I thank the Minister.

The Deputy can decide what he wants to do.

We will do a note.

Question put and agreed to.
Question proposed: "That section 9 stand part of the Bill."

I signal my intention to bring an amendment on Report Stage that will introduce a new section 9. The purpose of the amendment will be to remove the requirement for civil partners who have registered their civil partnership in Ireland to have to give the three-month notice when seeking to marry one another. This amendment is to reduce any unnecessary administrative burden on civil partners wishing to marry. The three-month notice period is not required in their case as they will already have complied with that requirement before registering their civil partnership or they will have been exempted by a court order. In all cases they will have established their identities for the registrar and provided all the evidence that is normally needed by the registrar when establishing whether a couple can marry, so I will introduce that amendment on Report Stage.

Question put and agreed to.
Sections 10 to 19, inclusive, agreed to.
Question proposed: "That section 20 stand part of the Bill."

I signal my intention to bring a Report Stage amendment to section 20. It is technical in nature and corrects a typographical error. It will insert the word "by" at the beginning of subsection (b). If amended, the text would read "by the substitution of the following subsection for subsection (7)", so it is a minor correction.

Question put and agreed to.
Sections 21 and 22 agreed to.
Question proposed: "That section 23 stand part of the Bill."

There is another issue that I discussed on Second Stage. The Minister mentioned administrative burdens to people who are in a civil partnership and wish to marry. One of the biggest administrative burdens, applying equally to gay and straight couples who wish to enter into a civil marriage, is the inability to get married because of staff shortages in the registrar's office. People can marry from 9 a.m. to 5 p.m. from Monday to Friday but most people want to marry outside working hours. We can discuss resources as much as we like but the reality is that resources are not there. I will propose an amendment to section 54 of the 2004 Act, which sets out who can solemnise a marriage, to include peace commissioners and commissioners for oaths. These people would clearly have to be accepted by the registrar and demonstrate suitability. They should be trained and know how to do it. There are already safeguards, including the requirement to give notice to the HSE, to be interviewed and so on. All these safeguards should be maintained but it would allow people to get married at a hotel or venue of their choosing outside of 9 a.m. to 5 p.m. from Monday to Friday. That is an unreasonable administrative burden, although I accept it is necessary now because of the financial constraints in which the State finds itself.

Commissioners for oaths and peace commissioners are responsible people and the latter are appointed by the Minister for Justice and Equality. They are appointed on the basis, if not of being politically connected, then that they are responsible people. I do not see why they could not carry out this important function in society or why it should be reserved exclusively for the Health Service Executive, which has many other functions.

It is a case of expanding the types of people who can preside over these marriages.

This is dealt with in the Civil Registration Act 2004, which provides for the categories of bodies and organisations that may apply for registration of persons on the register of solemnisers maintained by the Registrar General. Before changing those categories, which is what the Deputy suggests, we would have to consider implications and what it might mean. It is a matter for the Tánaiste and Minister for Social Protection because it comes under related legislation. My understanding is that currently there are no plans to change the categories of bodies or organisations that may apply to have their members entered on the register of solemnisers. I appreciate that the Deputy has said he wants to bring forward an amendment to change that but it would have to be considered carefully in the context of any implications.

It is anticipated that the increased demand for marriage solemnising arising from the implementation of the same-sex marriage provisions in this Marriage Bill will be offset to a significant extent by the cessation in the registration of civil partnerships, which is provided for in the Bill. As the Deputy mentions, registrars are employed by the HSE which is responsible for their terms and conditions of employment. I take the point made by the Deputy about weekends, which is reasonable. I know there are some discussions ongoing on broader issues relating to the human relations side of registrars. I take the point and I will certainly relay the Deputy's concern to the relevant Ministers. Clearly, there is a demand for weekend ceremonies as well. Under the current terms and conditions of employment of registrars under the HSE, that is not a possibility.

I thank the Minister. There is another issue, although the Minister may not be able to reply straight away. Section 5 of the 2010 Act that introduced civil partnership allows the Minister, by order, to recognise civil partnerships entered into abroad. Does that remain on the Statute Book?

I addressed that when I was speaking on Second Stage.

Civil partnerships that are legally entered into in other countries retain the recognition, up to the point of six months after the enactment of the Bill.

At that point it ceases.

I thank the Minister.

If those people were applying in Ireland to have the civil partnership registered, they would now have the opportunity to be married. That is the logic behind the decision.

It is consistent with the logic of saying that civil partnership is a competitor to marriage and therefore has to be abolished.

Question put and agreed to.
Question proposed: "That the Title be the Title to the Bill."

Is this the point to comment on the broader Bill?

Yes, now is the time.

It is appropriate that we commend all involved in the broader issue, in particular, the referendum on 22 May. This was an historic day. During the period leading up to the referendum, I thought the debate was very good. It was open and honest, at times it was very moving. It is important to say that. We have many differences in politics but there was a broad consensus across all classes and religions. That is very progressive. It is a signal that we are moving slowly towards an inclusive society that is built on equality.

I thank everybody involved in the campaigns.

Question put and agreed to.

I thank the Minister and her officials for attending.

Bill reported without amendment.