Wednesday, 30 January 2019

Ceisteanna (32)

Jim O'Callaghan


32. Deputy Jim O'Callaghan asked the Minister for Justice and Equality his views on the ruling that the prohibition on testifying against a spouse extends only to married couples and not to civil partnerships or other forms of relationship; the actions he will take to address the issue; and if he will make a statement on the matter. [4428/19]

Amharc ar fhreagra

Oral answers (7 contributions) (Ceist ar Justice)

Before we take Question No. 32, I do not need to remind the Minister or Deputy O’Callaghan that decisions or judgments of a duly constituted court cannot be subjected to review or discussion in the House. I presume they are both well aware of this.

I am very aware of the ruling. A decision of the Court of Appeal made two weeks ago threw up a very interesting point for the Legislature. I do not want to deal with the details of the case but it concerned the rule that a spouse cannot be a compellable witness in a criminal trial. The argument made was whether it applied to people in civil partnerships or cohabiting people. The Court of Appeal ruled it does not do so and that it is a matter for the Legislature. I am interested to hear what the Minister has to say on it.

I acknowledge what the Leas-Cheann Comhairle stated and I will of course comply. I wish to address the issues raised by Deputy O'Callaghan in a general manner . As he is aware, the provisions of Part IV of the Criminal Evidence Act 1992 do not prohibit one spouse from testifying against the other but provide that a spouse is competent to give evidence except where both spouses are co-accused. Section 22 provides that a spouse is compellable at the instance of the prosecution only in limited circumstances.

The question of amending Part IV of the Criminal Evidence Act 1992 to extend the provisions relating to the competence and compellability of spouses and former spouses to give evidence so that they would also apply to civil partners and former civil partners, which is the issue at hand, was considered during the drafting of the Bill that became the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

At the time, the Attorney General advised against the inclusion of such a provision because of concerns relating to Article 41 of the Constitution. The Attorney General advised that Article 41 requires a clear distinction between the institution of marriage, as recognised by the Constitution, on the one hand and a civil partnership on the other. A further reason for not including such a provision for civil partners was the constitutional protection for the institution of marriage having the effect of protecting the privacy of the marital relationship.

In the Dáil and in Seanad Second Stage speeches on what became the 2010 Act, the then Minister informed the Houses that the Attorney General had advised that in order to comply with the Constitution, it was necessary to differentiate the recognition being accorded to couples who register their partnerships with the special recognition accorded under the Constitution to persons who enter into a contract of marriage.

I should also mention that the Law Reform Commission examined issues relating to marital privilege in its 2004 consultation paper on the rights and duties of cohabitees and did not recommend any change to the existing position.

I thank the Minister for his reply. This is obviously a complicated issue. To try to simplify the law as it stands, under the Criminal Evidence Act 1992, a spouse is not a comparable witness except in circumstances where an offence has been committed against that spouse, a child or a person under 17 years of age. The reason it is of significance to the Oireachtas is we now find ourselves in a society where not everyone gets married. People are in long-standing relationships with partners who, for all intents and purposes, have the same relationship as married people. Alternatively, people are in civil partnerships. It seems to create an anomaly in the law that only individuals in the protection of marriage are afforded a privilege that does not apply to others. I am conscious of what the Minister has said with regard to the advice of the Attorney General in 2010 and the importance of distinguishing the institution of marriage from other institutions. It seems to stand out as an unusual statutory provision when we think of how modern Ireland exists at present. Does the Minister have any proposal on how it could be dealt with to reflect more accurately modern Irish society?

I mentioned the view of the Attorney General in 2010. I have no evidence to suggest it has in any way changed. I also acknowledge the importance of the role played by the Law Reform Commission insofar as it was quite clear in its not recommending any change to the existing position, whereby cohabitants do not come within either the ambit of the Evidence Amendment Act 1853 or the later Criminal Evidence Act 1992. This was for two reasons. The first is that as cohabitation was not to be equated with marriage it would be incorrect to extend marital privilege to cohabitants because the privilege developed in the context of, and is specific to, the relationship of marriage. The second is the restriction on marital privilege in the context of serious crime by the 1992 Act may be seen as a move away from marital privilege generally.

Another way of looking at it would be that we need to question whether there is a necessity to maintain the marital privilege provision, as the Minister refers to it. The Minister has a concern and the advice of a former Attorney General was that applying it to others in civil partnerships could create constitutional difficulties but perhaps consideration should be given to the existence of the rule in the first instance. The purpose of it - and it is an archaic rule - was not wanting to put spouses in the position of having to give truthful evidence that could damage their relationships with their husbands or, to a lesser extent, their wives or place them in a position that would damage their relationships. We need to give this careful consideration. The reason it is relevant is because the Court of Appeal stated the issue that arose in the case is a matter for the Legislature and we need to give consideration as to whether we should do something about it.

I note the comments of the President of the Court of Appeal in the context of the judgment. I will not say anything further about it. Referring back to previous debates, it is clear that while there is a need to respect the entitlement to the equality that civil partners enjoy under Article 41 of the Constitution in particular, this must be balanced against the need to respect the special protection that article affords to marriage. The 2010 Bill was carefully framed to ensure a balance in any potential conflict between these two rights.

On the question of amending Part IV of the 1992 Act to extend its provisions to civil partners and former civil partners, it was decided not to proceed along those lines. I do not detect an appetite to revisit it. I am happy to engage further but I stress the importance of the position of the Attorney General at the time. I have not seen any evidence to suggest the legal position has in any way changed.

Question No. 33 replied to with Written Answers.