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Deputy Deasy is sharing time with Deputy Bannon. The Deputies have five minutes each.
Private Members’ Business.
Civil Unions Bill 2006: Restoration to Order Paper (Resumed).
I wish to raise an issue that affects not only same sex couples but also unmarried couples. In the last couple of days the Taoiseach and others have spoken about introducing legislation within months to deal with civil partnerships and the issues that go with it. However, people might not be aware that the Finance Act 2007, enacted last February, strips some basic rights under the tax laws from unmarried couples, be they same sex or not. While the Government talks about extending rights, some basic tax rights have been removed in the last nine months.
Section 130 of the Finance Act 2000 provided relief from capital acquisitions tax for many home sharers upon the death of a partner. In his speech on this section in 1999, the then Minister, former Deputy Charles McCreevy, spoke about those in family and personal relationships who, under tax law, are treated as strangers. The section was passed to ensure that when somebody in a long-term but unmarried relationship who suffered the death of their partner and subsequently inherited the family home would not be subject to massive inheritance tax where a will was not made. One can understand the reason for it. It did not provide for equality perhaps but provided some element of fairness for unmarried couples under the tax law.
Speaking on the Finance Bill 2007 the current Minister, Deputy Cowen, said he was introducing a provision to deal with such manufactured situations that came within the scope of a section that was contemplated for a completely different, more bona fide set of circumstances. He tabled the amendment to close off any use of the provision in a manner that was not contemplated originally. He went on to say that he did not discern endemic fraud in this regard. What happened however was a blanket change that affected cohabiting couples. Section 116 of the Finance Act 2007 was passed. It effectively abolished the relief except for reasons of old age or infirmity. Deputy Cowen said the amendment was supposed to address some anomalies but the result was a blanket change in the law.
I have been contacted by a number of solicitors in Waterford about this. They have given me some examples of its effect. Take the example of two people in a long-term relationship where the dwelling house is owned by one of them. If the property owning partner dies leaving the dwelling house to his surviving partner and if the dwelling house was worth €400,000, the tax liability will be €400,000 less €25,000 tax exemption which leaves €375,000 taxed at 20% and amounts to approximately €75,000. That is the difference between being married and unmarried in this country. In this case it is €75,000. One solicitor told me he contacted the Revenue Commissioners on behalf of a client and was informed there have been numerous complaints about this but that they can do nothing because the law is passed.
The purpose of the amendment to the Finance Act 2007 was to limit the relief and restrain high net worth individuals from abusing the tax code and evading tax. Unwittingly, the amendment did not take account of the different types of human relationships that exist in a modern secular society like ours and the effect a law like this can have on lives. We are talking about extending rights to same sex couples in the areas of tax, social welfare and inheritance, and that is fine, but some of the vital tax rights that were balanced by previous legislation have been taken away within the past eight or nine months.
In the 2006 census there were 2,090 same sex couples in this country and there were more than 121,000 unmarried couples so we should get the proportion correct because that is 11.6% of all family units. I understand the Labour Party's goal for this motion and I support it but it is not the complete picture. We should spare a thought for heterosexual couples that are not being treated fairly under our tax code. If rights are to be extended to same sex couples under civil partnership, unmarried couples must also be dealt with fairly and this should begin with this year's Finance Bill, rather than wait for a civil unions Bill in March. If we are to make a practical difference in people's lives, be they in same sex or unmarried couples, we can start with this year's Finance Bill and amend the Finance Act 2007. This would make a practical difference for people facing massive tax bills on inheritances when a will has not been made.
I support this motion and thank the Labour Party for bringing this important issue back before the House. With my Fine Gael colleagues, I call on the Government to legislate for civil partnerships early in the life of this Dáil. I ask the Government to reactivate the Civil Unions Bill in the interest of equality.
In a U-turn last night, that was, of course, presented as a new idea, the Government had another conversion on the road to extinction, which is becoming shorter by the minute. Do rights of citizenship apply only to the current Government? It is easy to believe that they do. What Government, when it is not covering its back and feathering its nest, would oppose a Bill that would allow all citizens, regardless of sex or status, to share equal rights to property, inheritance, tax benefits, social welfare entitlements, next of kin rights, workplace entitlements and full pension provisions? The answer to this is clear to all. The Fianna Fáil-Progressive Democrats-Green Party Government is ensuring, by blocking this legislation, that Ireland is one of only two major western European states with no legislative provision for same sex relationships. What will be the price of the Green Party support for the Bill as evidenced last February? How will that party's avowed support for equality for same sex relationships marry with the Fianna Fáil-Progressive Democrats' stalling on the issue?
We must bear in mind that we have benefited greatly from our membership of the European Union. We must embrace matters other than those with immediate financial benefits for the country. Equality in Ireland should reflect equality throughout the European Union and those seeking it should be encouraged. If the Minister waits much longer on this issue he will be forced to take action by an EU directive.
In the High Court judgment on Gilligan and Zappone v. the Revenue Commissioners on 14 February 2006 Ms Justice Dunne stated that people in the position of the plaintiffs, be they same sex or heterosexual couples, can suffer great difficulty and hardship in the event of the serious illness or death of a partner. Dr. Zappone spoke eloquently when giving evidence to the court and said that ultimately it is for the Legislature to determine the extent to which such changes should be made. The ball is back in The Minister’s court.
As a result of an amendment passed on a report in the House of Lords the UK's civil partnership bill provides for close family members to register as civil partners, whether of the same sex or the opposite sex. Ireland lags behind the rest of the EU in its recognition of same sex relationships and risks falling further behind, to the detriment of many of our citizens, if the Government does not take action to reactivate legislation. Three extensive reports on this were published in 2006 but none of the options outlined has been acted on.
Last February, in voting down the Labour Party's Private Members' Bill, the Government argued it was unconstitutional but it failed to say why. Surely this is a cut and dry matter and the Government's legal advisers can outline their reasons for rejecting it. It was pointed out at the time that all the speeches on the motion supported the concept of same sex civil unions and it was also noted that sympathetic speeches came from the Government backbenches. As they say, where there is life there is hope, and Fine Gael has hope on this issue. It was the first party to publish a comprehensive civil partnership plan in 2004, following a commitment in the viable justice document of 2002. We support the reactivation of the Civil Unions Bill and call on the Government to do likewise today. I appeal to the Minister on this matter.
I wish to share time with Deputies Kitt, O'Connor and White.
I welcome the opportunity presented by the Labour Party's Private Member' Bill to discuss an important subject that will clearly be an early part of the legislative programme of the Thirtieth Dáil.
In the programme for Government, there is a commitment to legislate for civil partnerships at the earliest possible date, taking account of the outcome of a Supreme Court case and a range of options and recommendations put forward by various bodies listed by the Minister in his speech. He might include in those options a paper, for which I wrote the foreword, just issued by the Iona Institute and written by David Quinn called Domestic Partnerships: A response to recent proposals on civil unions, which was circulated to Deputies and Senators.
It goes without saying that any legislation to be supported by the Government must be deemed, following proper examination by the Attorney General, to be constitutional until otherwise established by a court later. There is no point in passing legislation in this House that we know in advance is unlikely to pass the constitutional test.
My belief is that even those who would have approached the subject of this debate with some hesitation or reluctance in the past accept that it is a problem that now has to be tackled. While, like all Deputies, I have received a number of messages urging me to support the Labour Party's Bill, it is not a matter that I can recall being raised with me, face to face, in my constituency from any angle, either for or against. While not of pressing concern to most people, it is extremely important to a minority. If two unmarried people share a house in circumstances where they have been deeply attached to each other, very often over a long period, it must be a cause of dismay to the survivor if, when something happens to one of them, the relationship is abruptly ended and the law, the Revenue, society and perhaps even the extended family treat them as if they had been perfect strangers. There is clearly a need for reform. Unlike, for example, the decriminalisation of homosexuality, this involves not just a change in the civil law, but a significant Revenue cost. As became clear to me when I was a member of the tax strategy group, chaired by the Department of Finance, as an adviser between 1997 and 2002, capital taxes today are a big earner for the State and, unlike married couples and direct descendants, fall heavily on other categories of relations, not to mind those who are unrelated. There is literally a price to be paid for a fairer, more equitable society.
Like the late Douglas Gageby, former editor of The Irish Times, I believe that liberalism is inherent in republicanism. I would be broadly comfortable with the changes in social legislation that have been enacted, from the lifting of literary censorship by the Minister’s father and distant predecessor in 1967 to the passage of the second divorce referendum in 1995. The decriminalisation of homosexuality, by then Minister Máire Geoghegan-Quinn during the Fianna Fáil-Labour partnership Government in 1993, was a model of radical legislative reform. Indeed, in the case of civil partnership there should be no necessity for there to be a physical relationship, though of course the public may tend to draw its own conclusions. There is a danger to be guarded against in any legislative scheme that confers tax advantages, that people will adopt a civil partnership that is in practice normal or non-existent purely to avail of the tax advantages.
The mantra of that earlier era was to keep the State out of the bedroom. It is important that any legislation on civil unions or partnerships does not bring the State back into the bedroom. The question of consummation, for example, as grounds for nullity does not arise outside of marriage. Have the promoters of this legislation worked out whether they want the same elaborate safeguards for the termination of a partnership, as exists for marriage, viz. five years separation, before being made absolute?
Two issues of principle require reflection. First, whether the primacy of marriage under the Constitution should be maintained and, if so, what that might mean in practice vis-à-vis civil unions or partnerships, and, second, the importance of equitable treatment of all who live together, including, for example, siblings, who are debarred from participation in partnership arrangements. With regard to the latter, it is indispensable that siblings living under the same roof should enjoy no less favourable tax arrangements on the decease of one of them than any other cohabiting couple. I would favour complete equality in all non-marital domestic partnerships.
Notwithstanding the variety of social arrangements, the value and social utility of marriage and the family based on marriage remains paramount, particularly for the upbringing of children. The social disadvantages of marriage breakdown, including its waning as an institution, are well documented. A fundamental flaw in Deputy Howlin's Bill and that of Senator Norris, which I debated in the Seanad a few months ago, is that they legislate de facto for same sex marriage and would give rise to an emotive debate which we are far better to avoid. The use of terms like “conjugal status relationship” and “an equivalent status parallel to marriage” make this plain to anyone who understands the English language. Anyone who trusts opinion polls on these types of issues should go back and study their very poor record over the past 22 years as a guide to the outcome of a referendum, once the public becomes engaged in the argument and battle lines are drawn.
Many people would not accept that a cohabiting relationship, heterosexual or gay, is an ideal just as worthy of promotion by educators as marriage. One could envisage in that event interesting clashes between a radical equality ethos and the ethos of the vast majority of our schools.
I do not on the other hand wish to underestimate the value of life-long companionship and caring relationships to society, whatever the gender of those involved. By way of illustration, I would like to mention the former partnership between Hilton Edwards and Micheál MacLiammóir, who founded the Gate Theatre. I was shown the other day letters written by Micheál to the Minister for Finance, Charles Haughey, in 1969 and again after his resignation in 1970, thanking him profusely for the first grant he gave to the Gate Theatre, which enabled it to keep going and to flourish. The Hilton-MacLiammóir partnership was of great value to Irish society. One might think back to the ladies of Llangollen, Eleanor Butler and Sarah Ponsonby, who eloped to avoid an arranged marriage, and who held court in Plas Newydd for about 40 years, where they had a steady succession of famous visitors, and whose home is still worth a visit. There was also a partner or companion, who, with great distinction, a few years ago helped our most senior elected official in this House represent this country abroad. However, one does not need to be famous or well-known to justify a happy caring relationship.
There are two approaches to progressing difficult and complex socio-moral issues. One is a divisive and confrontational approach, which is essentially counterproductive. The other is to try to build the maximum consensus. We need detailed, workable legislation that addresses all the issues and the wide variety of situations equitably.
In response to Deputy Flanagan, the only long-playing record being heard in this House is the tedious and repetitious jibes at the Green Party, mainly from Fine Gael, for not remaining in pristine opposition. If he thinks the Green Party is the vulnerable partner, I am sure our Green colleagues will be more than ready to show him his mistake over the next four and a half years.
And every Tuesday and Wednesday in the meantime.
I welcome the debate on this Private Members' Bill. Like many other Deputies, I praise Deputy Howlin on the work he has done in drafting this Bill and enhancing the debate on civil partnerships for same sex couples. The Bill attempts to deal with a range of complex issues, such as one's capacity to enter a civil union, pre-nuptial agreements, breakdown, disputes and cohabitation, areas where, until now, people in same sex relationships have had no legal protection.
I take pride in the Green Party's contribution in raising this issue in recent years. The Green Party produced a radical document in 2006 in which we put forward a range of proposals to address the fundamental inequalities which exist between those in opposite sex relationships and those in same sex relationships. Our party stands for liberty and equality. It does not believe the law should discriminate against minority groups in their needs for the legal security and protection the majority enjoy.
The issue of protection for same sex couples, and recognition of their right to have their partnerships formally recognised, has for too long been ignored. People are being legally ignored or punished for being in the minority. Same sex couples have often felt the need to live in secrecy because of unnecessary shame. The State's lack of recognition of such couples has played a part in fostering this situation. Now more than ever, we live in a diverse society where traditional family structures and relationships are becoming less conventional. The nuclear family has changed. Last year's census reported 121,000 cohabiting couples in Ireland, over 2,000 of whom were same sex couples. We need to accept these realities and recognise them in legislation. Acknowledging traditional prototypes is one thing, but failure to protect those outside the norm is another.
As we debate this Bill, we should also acknowledge the report produced by the 2006 Government working group on domestic partnerships, chaired by Anne Colley. It produced a comprehensive report on options to be considered on different kinds of cohabiting relationships and addressed many of the legal issues involved. Another report which examined these issues was the Law Reform Commission report on the rights and duties of cohabitants. This report is very important in debating the Private Members' Bill before us. While this Bill is broad-ranging and progressive in spirit, it does not deal with all the complexities the legislation must cover if it is to survive the test of legal challenges and time. The report alludes to entitlements to relief for the purposes of stamp duty, thresholds for the purposes of capital acquisitions tax, social welfare provisions, amendments to the Residential Tenancies Act 2004, the Domestic Violence Act 1996, the Civil Liabilities Act 1961 and the Powers of Attorney Act 1996. I do not believe these areas are covered sufficiently by this Bill. Let us remember that rushed legislation is bad legislation. Moreover, a Bill on civil partnerships will probably need an accompanying Finance Bill, which this does not have.
I thank Deputy Howlin for bringing the Bill before the House. It provides a timely reminder of the need for comprehensive legislation to establish equality in the area of relationships.
The Labour Party and, indeed, the rest of the House can rest assured that this Government will deliver on its promise to provide legal protection for same sex couples at the earliest possible date, in fulfilment of the Green Party-led provision for such legislation in the programme for Government. Only real debate prevents politics from becoming bland. Such debate can bridge the increasingly wide gap that separates people from politicians and brings democracy alive. This debate will ensure that new legislation will be delivered by this Government to support civil partnerships.
I am pleased to have the opportunity to contribute once again to this important issue before the House. I warmly compliment Deputy Howlin and his Labour Party colleagues on their work in this regard. I also wish to acknowledge the many calls and e-mails I have received, not only from across my constituency of Dublin South-West but also from other areas in Dublin. I have received co-operation and information from GLEN, the Gay and Lesbian Equality Network.
On the last occasion the House debated this matter, I made it clear that I was committed to using my energies to ensure that civil partnership legislation is introduced for same sex couples at the earliest possible time. I therefore welcome the opportunity to debate this matter again today. I am particularly pleased that the positive views of my colleague Deputy Barry Andrews and myself, as expressed in the previous debate, and our trust in the Government to move the issue forward, are not only reflected in today's amendment but also in the programme for Government.
There has been significant progress in six months. In supporting this amendment, we are firmly on the right road to providing for proper civil union for same sex couples in the short term.
I am a strong supporter of civil union. Next year will mark the 20th anniversary of the Norris judgment in the European Court, which led to our Government decriminalising homosexuality in 1993. We followed this with strong protections for gay people in employment and in accessing goods and services under equality legislation in 1998 and in 2000. It is just and logical that we should now provide for civil union.
I am not in favour of a watered down or lesser status union for same sex partners, and I am pleased to note the support this amendment gives to the findings of the Colley report and the Law Reform Commission's recommendations. The need for civil union for same sex couples is urgent and now upon us.
Much has also been made in recent times of the legitimate plight of cohabiting, perhaps elderly, siblings and I have no doubt that there is a need to protect all vulnerable people from discrimination. I trust these matters can be addressed elsewhere in a compassionate and fair manner.
There is a major difference in the status of same sex cohabiting couples and heterosexual or sibling cohabitees. The latter can, if they are single, marry under Irish law but gay couples cannot.
The trend in certain areas of the current debate to equate loving same sex couples, without rights of next-of-kin or inheritance, with cohabiting siblings who do have kinship rights and inheritance benefits, is offensive and deliberately designed to continue to undermine the status of same sex relationships.
I am pleased to note the Colley report, which advocates the extension of marriage to same sex couples and/or the creation of a system of civil union which will have parity of status and of rights with marriage. We have civil union and marriage for heterosexual people. It is time to move forward to ensure the same status and rights for same sex unions. The Government's amendment sets out the approach to achieve this fully and that is why I support it today.
In my previous contribution, I stated clearly that it is the responsibility of every legislature to ensure protection for children in providing them with good parents. Good parents are not the exclusive prerogative of one particular faith, ethnic origin, ability or sexual orientation. Civil union with full rights and status means all this and more for the children of gay parents.
We have waited a long time for civil union. The least same sex couples deserve after this period is fully comprehensive civil union with all the rights associated with marriage, including parenting. For too long, children of gay people have been left vulnerable from full legal provision and guardianship from the two loving adults who raise them. I trust the Government's Bill will provide such security for children of gay parents, as this issue is now of paramount importance.
The opportunity created by the same Labour Party Bill six months ago to debate this important issue has accelerated the process for the provision of same sex rights. It has allowed us on the Government benches to clearly state our support for this measure. It has added momentum to the urgency and sincerity of the Government's commitment to introducing comprehensive and fair legislation at the earliest opportunity. I welcome that wholeheartedly.
Many on the Opposition benches criticised our sincerity on this issue just six months ago. Today's amendment shows not only that the excellent reports to help shape this new legislation are in place, but also that their recommendations will form the bedrock of our proposals. These reports also indicate the work done by the Government and others to get this legislation right. It is good progress. We now need to continue with this work urgently.
Under the Good Friday Agreement we all voted for parity of rights between North and South. At present, there is something like a two-year waiting list for civil union in Belfast. It is essential that we keep our word to the electorate of this entire island — that whatever human rights are available to people in the North, in the event of a United Ireland, we too will honour those rights.
The creation of a new system for same sex couples is constitutionally possible and I look forward to the Government bringing forward legislation that is compassionate, well argued and of such clarity that it will not be subject to any delaying constitutional challenge. These ambitions cannot be rushed, but they are urgent and necessary. The commitment in the programme for Government reflects a sincerity on the Government's behalf to legislate comprehensively in this area. Today's progressive amendment is a further step in the right direction.
Like many of my Government colleagues, I do not like voting down a measure to provide same sex partnership rights. I am pleased with the comprehensive nature of the Government amendment. I commend the Labour Party on opening up this debate early in this new Dáil and, with like minded colleagues, I am committed to maintaining positive pressure to ensure the earliest production of legislation providing for full civil union and the proper recognition and status of the lives and love of same sex couples in our society. It is in this context that I am happy to support the Government amendment.
It is important to point out at the outset that the Government is not against the spirit of this Bill. Indeed, there is cross-party support for it as its intention is to remove inequalities in our legal system and continue progress in moving towards a more inclusive society. However, to be fair to all concerned, we have a responsibility to ensure that we have sufficient time to debate this subject and its legal complexities with a view to enabling a more comprehensive approach to the question of civil partnerships to be brought before this House in 2008. This Labour Party Bill was debated extensively in the House earlier this year and as outlined then and again yesterday by the Minister for Justice, Equality and Law Reform, it is constitutionally unsound. The Bill seeks to provide a civil registration scheme for same sex couples equivalent to civil marriage. If such a Bill was implemented it would be unlikely to survive a constitutional challenge and the Government cannot therefore support it in its current form. It is the Government's responsibility to ensure that, as far as possible, legislation is constitutionally sound.
In its legislative programme, the Government has provided for the drafting of a Bill to legislate for civil partnership. This will also fulfil its commitment in the programme for Government and, as reflected by the Minister's contribution yesterday, the Cabinet is anxious to have the scheme of a Bill prepared before 31 March 2008. Notwithstanding this, however, I welcome the opportunity to contribute to this debate. It is truly remarkable how far we have come from the early 1990s. We have moved from an era where homosexuality was criminalised and stigmatised to a debate not on whether but on how we can establish a legal framework to provide equality to couples in a committed relationship.
There is now a general consensus and eagerness to press for legislation in favour of treating gay and lesbian people as full and equal citizens in society. It is complex and challenging to give effect to this principle in legislation as it involves thinking about a host of related matters. Ireland's lesbian, gay and bisexual community has both contributed to and benefited from the extraordinary success of the economy. In fact, there is growing evidence to show that societies that embrace diversity and difference are more successful economically than those that do not. They are also more comfortable, exciting and safer places in which to live. Economic and social progress are inherently interlinked and associated policies should complement and reinforce each other. The enactment of equality legislation propelled Ireland to the front of the international stage with legal protections combating discrimination against lesbian, gay and bisexual people. Ireland has the ambition and capacity to move to the next level in facilitating, and legislating for, this kind of positive integration nationally.
Recently, with a good degree of cross-party support, a range of equality legislation has been introduced giving Ireland a reputation for having one of the most modern and extensive equality codes in Europe. The comprehensive Employment Equality Act 1998 outlawed discrimination on nine distinct grounds including sexual orientation in work-related areas, from vocational training to access to employment. The Equal Status Act 2000 provides protection for the first time against discrimination outside the field of employment, and Ireland remains one of the few European countries to specifically outlaw discrimination on the grounds of sexual orientation in respect of access to goods and services. The Social Welfare Act 2004 outlaws discrimination in occupational pensions on nine grounds, including sexual orientation. The Parental Leave Act 2006 extended the force majeure leave entitlement to employees in respect of persons, including same sex partners, with whom they have a degree of domestic dependency. It is therefore important to continue to address the remaining equality issues and I strongly support the Government’s commitment to introduce legislation to provide for civil partnership.
Same sex couples require heightened legal protection. Many cohabiting couples share property, home life, and income and want to care for one another, to be next-of-kin to each other, and to have the legal rights to be cared for in that context. It is desirable to provide legislative safeguards and obligations but we must do so in a manner compatible with the requirements of the Constitution. The Government's legislative record shows that it has put in place a comprehensive framework of equality legislation, backed by a strong equality infrastructure to ensure people cannot be discriminated against on the basis of their sexual orientation. I look forward to supporting the Government's Bill in 2008. It is better to put in place a law even if it takes longer than we would wish, that will be legally and constitutionally watertight.
There is no lack of support from the Government for a system of rights for same sex couples. I support the amendment and commend the Government's plans to provide legislation for civil partnership which will see greater rights, duties and entitlements available for same sex couples who choose to formalise their relationships.
I too am pleased to speak on the Government amendment. I have great respect for Deputy Howlin who speaks from a long-held conviction and determination that his ideas would find voice. I do not say this blithely.
There seems to be a determination to denigrate the smaller party in Government and to run down everything that it does.
I think this is born out of envy but I shall not go on about it.
They are green with envy.
The Deputy is sitting in the place of the smaller party.
The Deputy is a member of the Lenihan party.
I am very happy to be a backbencher, which I never was before. I guard my lovely seat back here safely and thank the voters of Longford-Westmeath whose resounding vote enabled me to return here, as Deputy Flanagan did. He is welcome back.
It is a form of semi-detachment.
If the Opposition wishes to speak about equality and parity of esteem why does it seek to denigrate, or caterwaul about, a party that is quite up front and determined to put its stamp on Government? I wish the party well and am really happy with our bedfellows.
It is the duty of Government to ensure that legislation it brings forward will withstand constitutional challenge but the Bill put forward by Deputy Howlin and the Labour Party would not. If and when such a challenge were mounted the Government of the day, not the Labour Party, would have to fight it in court. We should heed this point. Why go into a matter on which legal advice has been obtained and can be made public if necessary?
I support the idea of same sex unions and the Government amendment. The Minister for Justice, Equality and Law Reform will ensure the heads of the Bill will come forward.
He is no relation to the Deputy.
Is the Deputy declaring an interest?
I do not understand why the Members in the Front Bench of the Labour Party are laughing. They must have taken their happy pills this morning.
The Minister will bring forward the heads of the Bill by the end of March as outlined in the Government amendment. It ill behoves those of us who have known the delights of happiness in marriage and mourned its passing to be smug about our happy state or relationships. How can we be when we know there are many others who do not enjoy the opportunities given to those in traditional marriages? We seek to bring these opportunities forward for them, not through marriage but in the form of a partnership. The point of no return in the Labour Party Bill is that it would lead to challenges on the explicit issue of safeguarding marriage as defined in our Constitution. Everybody would agree with that safeguard. That does not mean we do not have regard for, and determination to bring forward, legislation which will withstand any challenge and to which we can give our full consent.
There will be no challenge to bringing it forward. Why should we not consent to it? I support the Government amendment and look forward to debating the heads of the Bill next spring and to the legislation. It was included in the programme for Government and the debate over these two days has been useful because it allowed us to restate the firm commitment of both parties to bringing it to fruition.
I wish to share time with Deputies Kathleen Lynch, Ciarán Lynch, O'Sullivan and Gregory. I was amazed at some of Deputy O'Rourke's remarks.
I am afraid Deputy O'Rourke is not interested in listening to Deputy Costello.
It seems that the Lenihan clan, which includes the Minister for Justice, Equality and Law Reform and the good Deputy, are playing a spurious constitutional card. I would like the Minister to publish the advice of the Attorney General in the matter so we can see precisely the position. It seems impossible that there is any offence to the Constitution which refers to marriage as the union of a man and woman when we are talking about same sex couples.
I am delighted to have the opportunity to speak on this Bill and I compliment Deputy Howlin on reintroducing it, having first introduced it early in the last Dáil. The purpose of the Bill is to give legal recognition to the partnership of two persons of the same sex. It seeks to create an equivalent status relationship for people of the same sex who cannot marry under our Constitution. It provides as closely as possible for the rules of law applying to marriage to apply also to these civil unions. As a result the Bill comprises only ten short sections and prevents an awkward knock-on effect which would require amendments to other complex areas of legislation.
Irish society has changed dramatically in recent decades, although having listened to Deputy Mansergh, one might wonder about some sections of Fianna Fáil. I must admit I was impressed by Deputy O'Connor's remarks and his commitment to this area. Irish society is now far more mature, extrovert and understanding. Church and State have a much greater awareness of their respective roles. The role of the State to legislate for all its citizens is clearly respected and recognised by all the churches. Indeed the State now fully recognises its duty in this regard.
Gay and lesbian citizens are entitled to expect that the State will provide for them the same basic rights as for all other citizens in Ireland. As legislators in the Dáil and Seanad, we therefore have a duty to address the issues where inequalities arise in the treatment of gay and lesbian citizens. We have a duty to address the constitutional bar on marriage of same sex couples with the consequent denial of a host of rights, privileges and benefits on the one hand and a host of obligations, penalties and sanctions on the other. The status relationship conferred by this Civil Unions Bill provides an avenue for approximating the rights of gay and lesbian couples under the Constitution. Indeed in the area of adoption it enhances the rights of the child. It provides for parties to a civil union who are living together to apply to adopt a child, which is welcome. More importantly, it establishes categorically in section 8(2) for the first time that the principle that the first and paramount consideration of adopting is in the best interests and welfare of the child, throughout his or her life. It also establishes the concomitant principle that no person, whether by virtue of membership of a particular class of persons or otherwise, has a right to adopt a child or any particular child or a right to preferential consideration of his or her application to adopt a child or a particular child.
Therefore, it is disappointing that this fine Bill was postponed cynically by the then Minister for Justice, Equality and Law Reform in February 2007 for six months until after the general election. That Minister prided himself on his liberal and egalitarian views, as well as his membership of Amnesty International. It is more disappointing that the new Minister, Deputy Brian Lenihan, should follow in the same footsteps and play a spurious constitutional card. I would like to see the publication of the Attorney General's advice on this. The Minister has deleted the entire Labour Party motion and replaced it with a standard Fianna Fáil amendment that kicks to touch. The Minister stated that the Government will prepare a scheme of a Bill providing a supportive legal framework for same sex couples in committed relationships sometime in the unspecified future. In spite of what people have been saying, we have no date for this.
Even more disappointing is the alacrity of the Green Party in settling so snugly into the comfort zone of the Fianna Fáil tent. Nothing illustrates that better than Deputy White, who stated today that rushed legislation is bad legislation. This Bill was published in 2006 and was debated in February 2007. It was promised within six months, but eight months have now gone by and all we get is an unspecified promise of something in the unforeseeable future. I hate to mention this as he is Acting Chairman, but it amazed me even more to listen to Deputy Cuffe on "Morning Ireland" today stating that his enthusiastic principled support for the Bill while in opposition has now become a pragmatic support for it. That is why he will be voting against the Bill today.
However, it is the Independent Deputy Finian McGrath who takes the biscuit in principled U-turns. Speaking on this Bill in the Dáil on 21 February, Deputy McGrath said:
I support this progressive legislation and unlike the Tánaiste [former Deputy Michael McDowell], I am standing by the republic. We must build and develop a republic based on equality and respect for human rights.
He ended with a ringing endorsement for the Bill:
Deputies should open their minds and hearts and support the Bill. It is concerned with accommodating and enjoying difference, diversity, powering success and the gay, lesbian and bisexual people at the heart of Ireland's progress. It is the right thing to do and I urge Deputies to support the legislation.
None of us on this side of the House could have put it better. I hope that Deputy Finian McGrath, Deputy Cuffe and the other Deputies now in the Fianna Fáil tent will examine their principles enunciated so clearly in February 2007. I hope that they will do what they know to be right and support the Bill.
Ireland has changed dramatically in the past ten years. We have become a very confident nation. When one went for a job before one was asked "who do you know?" The reason one was there was that one knew someone else. Now the questions are "what do you know?" and "what can you do?" People in this country can stand up and tell us what they can do, what they know and how they can do it better. That attitude has taken us all over the world, has contributed to every society and has brought us back. We now have the type of confidence that will allow us to introduce a Bill like this one, brought before the House by Deputy Howlin. It is about being confident about who one is, what one is and how one wants to live one's life. That confidence does not mean impinging on someone else's life and it does not mean interfering where interference is not necessary. It is a confidence that comes from people who are content with themselves. That is what this Bill is about.
What we have seen from the Government benches today and last night has been all about that lack of confidence that we used to have. It is about the terrifying spectre of someone taking something from us, but that is not today's Ireland. Today's Ireland is confident. It allows others to get on with their lives in whatever way they wish. The last census statistics showed us that 2,000 gay couples were cohabiting in this country. As a nation, we are saying that they cannot enjoy the same rights in law that we have.
I listened to an interview a few months ago about a famous woman who was living happily for 16 years with her partner. It never entered her head to marry as she did not feel the need for it, until he got sick. It suddenly occurred to her that she had no rights. She had no rights to decide what treatment he would get, nor any rights to be present while he was being treated. As soon as he recovered they got married because she needed that type of security in law. That is what we are offering to people.
I suggest that the Green Party Deputies be extremely careful about the speeches they have heard today. If the common thread of the Government speeches is that this Bill is unconstitutional, are they suggesting a referendum? That is the only way out of it. If they truly believe that this is unconstitutional, they must offer a referendum, and we know where that will take us. The same people spoke in the same tones about divorce and about the decriminalisation of homosexuality. The same uncertain voices have said "what we have, we hold". That is not the Ireland in which the majority of the people wish to live.
The Labour Party has been to the fore in pushing the equality agenda.
It has not quite made it yet and this constitutes one of the barriers that must be overcome. Other barriers still exist and while the Labour Party introduced equal pay for women, this has not yet been completely achieved. The Labour Party will continue to push such barriers aside and ensure that contemporary Ireland is a society in which all can feel comfortable and in which one is no longer obliged to go around in the shadows.
However that was the tenor of the speeches Members heard today. If the Government truly believes this Bill is unconstitutional, what is its solution? Its solution should worry us all. I am aware of some within Fianna Fáil who would have no problem with such legislation and Deputy Charlie O'Connor surprised Members this morning in this regard. Others, from whom Members expected better and who one would imagine to be so widely read, intelligent and well-travelled that they would consider this to be nothing, were deeply opposed. Such Members are deeply opposed because of the insecurities they feel within themselves. Members should not permit such insecurity to hold us all back. As legislators, Members have an obligation to minorities and the gay community is one such minority. Members have the opportunity to ensure the progression of this Bill to Committee Stage, where any flaws it contains can be teased out. However, Members should not wait any longer or rehearse the same old arguments.
I thank Deputy Howlin for tabling this motion and acknowledge the multitude of people who have contacted me in recent days to support it. The Labour Party's Civil Unions Bill is the first realistic attempt by any political party in this House to put forward a serious and practical recognition of the manner in which our complex society operates today. It challenges us to become a society that is no longer limited to viewing itself in arrangements that were developed in the distant past under some form of monarchy or confined theocracy under which we existed in former times. Instead, it challenges us to live in a modern republic that provides each citizen with responsibilities and rights in equal measure. The purpose of the Bill is to ensure that those who wish to have the responsibility of a civil union are provided with such a right to have that responsibility granted to them. Fundamentally this issue pertains to those who wish to take responsibility being granted that responsibility and having that right enshrined in law.
In the not too distant past, Ireland acted shamefully towards people in a manner that when considered today, fills us with embarrassment and shame. Members should draw a lesson from this experience for the future. For example, in recent years a child born outside wedlock was ridiculed, outcast and denied equal citizenship. If one considers today what happened then, one can discern both the anomaly and the issue of second-class citizenship and the repugnance of the practice itself. The introduction of the proposed amendment to this House is in itself a repugnant act because it mirrors the confined thinking that existed previously. Recently in official Ireland, this has been a repetitive theme that one has come to expect from Fianna Fáil, a party that opposes any measure of progress in any area of social reform. This motion sets out to correct an anomaly and to bring to an end the second class citizenship encountered at present by couples who are prohibited from forming a civil union.
The response of the Government to the motion is a mixture of the expected and the unexpected. While Members may have hoped, realistically no one expected Fianna Fáil to respond to this issue in any positive or progressive fashion. All Members are aware that Fianna Fáil has been dragged screaming towards any single measure of reform, be it divorce or any other issue pertaining to the creation of a modern Ireland that acts as a republic and that considers citizenship, without regard to the identity of the citizen, from the perspective of equality. The unexpected aspect was the response of the Green Party, particularly considering the support it gave to this Bill earlier this year. It is highly regrettable that it now colludes with the continuation of Fianna Fáil's former attitudes in the adoption of the approach of sticking one's head in the sand as these are social issues that one does not wish to acknowledge.
Last night and this morning on radio, I listened with astonishment to Green Party Members attempting to rationalise and explain its change of position. A few hours ago I listened to the Acting Chairman, Deputy Cuffe, on the "Morning Ireland" radio programme. He spoke in anecdotal or comparative terms about being in a relationship in which the Green Party also sought recognition. While Deputy Cuffe and his Green Party colleagues may be complaining to the public that they are looking for recognition from their new partner, they should be in no doubt that in the public's mind and to its knowledge, the Green Party has consummated that relationship and continues to consummate it every day in this House. It was consummated in respect of Tara, incineration and Ministers' wage increases. Today, it has been consummated once more by undermining the Civil Unions Bill.
My colleague, Deputy Kathleen Lynch, spoke about confidence and ultimately, this issue is a matter of confidence and whether this nation has the confidence to recognise this society's diversity. A positive feature of young people today is that they are not tied by the bonds and conditioning with which many Members grew up. Young people do not understand the problem that exists in this House as they consider this to be a natural development that should happen and should be legislated for, as well as being something on which Members should make progress without debate. More broadly, this issue affects Members' family members, friends and colleagues. Like any other workplace, I am sure it also affects work colleagues and people walking around this House.
It is natural for people in relationships to wish to form unions and in many cases to underpin such unions with legislative measures. The Labour Party Bill recognises the rights, responsibilities and necessities of a civil union and what is required of it. Moreover, it recognises that this issue must be legislated for and a framework must be put together. I call on the Acting Chairman, Deputy Cuffe, and other Members to ensure the Labour Party's Bill will be accepted and that today's amendment will be seen for what it is, namely, a device to throw another shadow over a matter that should be brought out into open daylight and dealt with.
I also commend my colleague, Deputy Howlin, on re-introducing this Bill. However, Labour Party Members had hoped he would not be obliged to so do. Were they to believe the Government's amendment the last time this Bill was debated in February, Government legislation now would be before the House and would be passed. I find this to be deeply disappointing. As for the Government amendment, despite receiving praise from several Government representatives who declared themselves proud to stand by it, it says nothing. It notes a number of matters and goes on to state its support of the "commitment in the Agreed Programme for Government to legislate for civil partnership at the earliest possible date in the lifetime of the Government so as to establish a supportive legal framework for same-sex couples in committed relationships". No timetable is included in this amendment although such a timetable was contained in the six-month period that the previous Government suggested the last time the Labour Party brought forward this legislation. The situation is now worse and no time commitment has been made.
Members have the word of the Minister for Justice, Equality and Law Reform that the heads of the Bill will be brought forward in March 2008. I refer to those who have been sending e-mails and otherwise contacting Members in the last week or so. As Deputy Ciarán Lynch has just observed, all Members know these people personally. However, there is nothing substantive in the Minister's statement that provides comfort to those people that their relationships will be recognised in the near future. In essence, such relationships do not exist at present. Consequently, they lack the rights enjoyed by those who can get married or who can form heterosexual relationships. This is to do with very practical issues such as tax, housing inheritance and the right to obtain local authority housing together.
I feel particularly strongly about couples in which one partner is Irish or European and the other is not, who have real personal difficulties in staying together because the non-European partner may not be allowed to stay in this country. I will quote from an e-mail I received in this regard:
I am an Irish citizen with an American partner — we have lived here in Ireland for a few years and it is now likely that my partner cannot stay. If this legislation passes we can hopefully register here as partners.
Later in the e-mail, the correspondent states:
I ask you to vote for this so that my relationship and the thousands of other lesbian women and gay men like me can become legally recognised by the State. It is time for Ireland to stop dragging its heels on this issue and bring in legislation now.
This is an example of a person who is suffering due to the problems caused by this delay. That is why I am so disappointed that no work has apparently been done since March in the Department of Justice, Equality and Law Reform, under either the previous Minister or the current Minister, although a considerable amount of work could have been done in that time towards the introduction of Government legislation or of proposals to amend the Labour Party Bill.
When I entered the House in 1998 I introduced a Private Members' Bill dealing with the statute of limitations for people who had suffered abuse as children. The then Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, who is now the Ceann Comhairle, accepted the Labour Party Bill and, although he amended it — we were not happy with some of his amendments — he passed the legislation. Similarly, when Deputy Shatter of Fine Gael introduced law reform measures they were amended and accepted by Government. If the same thing had been done with the Labour Party Bill, we would now be in a position to regularise the situation of people who are currently in a suspended state in which they have no rights. The last six months represent an opportunity that was not taken.
My colleague, Deputy McManus, said last night, "Come back Michael McDowell, all is forgiven." We should bring back former Deputy Máire Geoghegan-Quinn and people like her. In 1993, Máire Geoghegan-Quinn, under the Fianna Fáil-Labour Party Government, brought in legislation to decriminalise homosexuality. That took a lot more courage at that time than it would take to do what we are asking now. As pointed out by my colleagues, Deputies Kathleen Lynch and Ciarán Lynch, there was a very different social atmosphere back then. To make changes such as those that took place, Governments actually had to show leadership. It took a lot of leadership at the time, but once it was done it was no longer an issue. It also takes leadership to introduce changes now, but a lot less of it, because most people agree that these changes are needed. Deputy White mentioned that it is great to have real debate on this issue, but real debate achieves nothing. We have had enough debate. What achieves something for people's lives is legislation.
Most people in this House and across the country, with the exception of Deputy Mansergh, agree that we need equality for gay couples and that we need it now. Most people also accept that there is absolutely no constitutional impediment to this legislation. Although I do not wish to personalise the debate, the Acting Chairman, Deputy Cuffe, was with me on the All-Party Committee on the Constitution and he knows this. The definition of marriage in the Constitution refers to a man and a woman, whereas this legislation is concerned with two men or two women. There is no constitutional impediment so let us get that out of the way. This Bill could be adopted now and people would not have to wait.
I am concerned that the sentiments expressed by Deputy Mansergh may represent those of others within Fianna Fáil. I found his contribution disturbing and reactionary. He was certainly not standing by the Republic of which he often speaks in other contexts. I hope that feelings of this type are not holding back the Government from presenting legislation in this area. Views such as those of Deputy Mansergh are in the minority in this country and I am concerned that somebody of his knowledge and breadth of experience would express such anti-equality sentiments in the House. I cannot interpret his words in any other way than that Deputy Mansergh does not believe in equality in this area and that is disturbing.
I hope the Government, having listened to this debate, will appreciate the need to introduce its own legislation urgently. Preferably, if possible, it should have a change of mind before the vote today.
I thank the Labour Party for reintroducing this important measure and for sharing some of their time with me to allow me once again to put my position on the record. It now seems inevitable, unfortunately, that this measure will be defeated in the vote later this morning. It is ironic that if those Members of the House who voted for this measure in the last Dáil and were re-elected to the current Dáil were to vote for it again this time, it would be carried. This Bill will be lost today for a second time, but this time it will be lost due to the votes of people who spoke passionately in its favour on the previous occasion. In view of this, is it any wonder that politics is in such disrepute in this country?
I state my unequivocal support for the Civil Unions Bill 2006. It is a matter of civil and human rights. This Bill is a clear-cut, unambiguous measure which, if accepted, would advance equality by providing for the recognition and legal registration of civil unions. Although this Bill is being debated in the Dáil for a second time, it follows on the initiative of the great and courageous campaigner, Senator David Norris, who introduced his Bill in the Seanad some time ago to advance this issue. This Bill is concerned with respect for individual choice, which is surely the essence of equality. The vast majority of Irish citizens are ready to support this measure but regrettably the Fianna Fáil-Progressive Democrats Government did not have the courage to allow it to progress on its first introduction. Now, although it is difficult to believe, the Fianna Fáil-Green Party coalition is again putting it on the backburner with the casual promise that the heads of a Bill will be completed by April 2008 but with no timeframe for legislation to be implemented. This cannot be acceptable to anyone who genuinely supports this measure. It is certainly not acceptable to me.
That this is happening a second time will be a heart-breaking disappointment for many thousands of people around the country. For reasons to which I have referred, the disappointment and disillusionment will be all the greater this time. The Bill may well have imperfections — very few Bills, Private Members' or otherwise, ever prove to be perfect in the initial stages — but it is clear that if the Government had shown goodwill, this measure could have helped to bring a speedy end to the second-class citizenship conferred on so many of our people. It would have helped to ensure that all our citizens stand equal in the eyes of the law. It is tragic that this will not now happen.
The speeches made by Deputies today and last night emphasise the major shift in public opinion that has taken place in recent years. In 1993, when the then Minister for Justice, former Deputy Geoghegan-Quinn, introduced her Bill to decriminalise homosexuality, there was reluctance in many quarters even to talk about the matter, never mind debate it on the floor of the House. It is nice to see that we are becoming more mature in some respects, although I understand that the Opposition is unhappy with the stance being adopted by the Government on the Labour Party Bill.
As Minister of State for equality matters, I welcome the commitment in An Agreed Programme for Government to legislate for civil partnerships and I welcome the Government's decision that is reflected in the Government legislative programme, which was published in February last, to prepare a scheme of a Bill.
The Government is committed to putting in place a statutory framework in which same-sex couples can live in a supportive and secure legal environment. My colleague, the Minister, Deputy Brian Lenihan, outlined to the House the fact the Government had dealt with this matter at Cabinet and that he had been given instructions to bring forward the heads of the Bill by the end of March next year. People who doubt the commitment of the Government will not have too long to wait to find out how committed we are to bringing forward this measure.
It is worth noting that in terms of individual rights as opposed to relationship rights, the past two decades mark an unprecedented era of positive change and progress for lesbian, gay and bisexual people. In Ireland change has been particularly rapid and in many areas such as measures to address discrimination the country has been to the forefront internationally. Discrimination against the exclusion of lesbian, gay and bisexual people had already been recognised before the reform of the criminal law on sexual orientation had been included as a category of protection under the Prohibition of Incitement to Racial, Religious or National Hatred Act 1989 and the Unfair Dismissals (Amendment) Act 1993. Discrimination in public service employment on the grounds of sexual orientation or HIV status has also been banned, since 1988, and subsequent significant legislative reform to promote inclusion and equality for lesbian, gay and bisexual people has included a number of measures which include the Employment Equality Act 1998 which prohibits discrimination in employment on the basis of, inter alia, sexual orientation, the Equal Status Act 2000 which extends anti-discrimination protection into the provision of goods, services and accommodation in education, the Refugee Act 1996 which allows the granting of refugee status on the basis of the fear of persecution arising from one’s sexual orientation and, more recently, the 2006 amendments to the Parental Leave Act 1998 which allow for the extension of force majeure leave to include provision for same-sex couples — that was a simple measure in many respects, but very effective and it means a great deal to the people who avail of it.
These legislative changes propel Ireland into the forefront internationally in terms of legal protection against discrimination and exclusion and Ireland has also played a central role in having these protections extended throughout the European Union. In 1997 Ireland played a central role in promoting the adoption of Article 13, the anti-discrimination clause of the Treaty of Amsterdam 1997 which includes sexual orientation as a protected ground. On the views that have been expressed here that the Government has been backward or reluctant to come forward with progressive legislation, one will find on looking back on the history of the matter that the opposite is the truth.
Legislation alone will not address all the issues facing lesbian, gay and bisexual people. In 2003 the National Economic and Social Forum published a report entitled Equality Policies for Lesbian, Gay and Bisexual People: Implementation Issues and the active involvement of representatives of the gay and lesbian community, along with officials and social partner representatives, in the preparation of the report contributed immensely to its quality. The report is being implemented and my Department funds the Gay and Lesbian Equality Network to enable it to employ a full-time officer charged with liaison with the various Departments. As a practical example of what can be achieved within the remit of my Department, the Garda authorities have established a national advisory panel which includes members who represent the gay perspective to assist and inform gardaí. Designated gardaí have received special familiarisation training and have been appointed as liaison officers to both the gay and lesbian communities. A political consensus——
Under Standing Orders I must call on Deputy Howlin or a Deputy nominated by him to conclude the debate.
If I could conclude, one need not be gay or lesbian to appreciate the importance of the necessity to introduce legislation for civil partnerships. It is a basic human right. I know what it would mean to many couples throughout this country for the State to recognise the positions in which they find themselves and the relationships which they are enjoying at present, but the Government has given a commitment to bring forward the necessary legislation and I will play my role as Minister of State for equality to ensure that commitment is honoured.
I propose to share time with Deputy Gilmore in the ratio of six to nine minutes.
Is the leader to get nine?
I want to begin with the Minister of State, Deputy Seán Power's, assertion that he recognises that we are speaking about a basic human right and in the few minutes available I want to lay out a few fundamentals. If he recognises that what my colleague, Deputy Howlin, has proposed, for which I congratulate him, in the name of the Labour Party for the second time deals with a matter of right, a right delayed is a right denied. That is a fundamental. We are not speaking about a concession and we are not speaking about a concession that is adjusted to the social prejudice of the day. I have been through all of that in all of the different referenda and I want to make a few points clearly.
I saw the number of people who were wounded when we had a debate about the right to civil divorce and we had to go through the entire exercise again. At that stage, my colleague and former Deputy, Mervyn Taylor, was a Minister and we were members of the Cabinet in 1993. There have been many references to courageous decisions that had to be taken, including the decriminalisation legislation associated with former Deputy Máire Geoghegan-Quinn. I supported her in that and I recall her thanking me publicly in Galway for supporting her as a Labour member of the Cabinet when her own colleagues were undermining her in the constituency and elsewhere. The truth of it was when we negotiated our participation in Government on every occasion, the Fianna Fáil Government was forced to accept reforming legislation on divorce. It was forced to accept reforming legislation on family planning and it has been forced, yet again, to recognise that we are speaking about a human right.
Second, the Government does not have legislation proposed. What they have in the Government programme is a scheme for legislation. As a former member of Cabinet, I can say that a scheme for legislation is not legislation and the heads of legislation are very far from the text of legislation. It is clear that many of the Minister of State's colleagues intend to introduce such extraneous matters as to completely obfuscate the issue.
We are speaking of a rights issue and a citizenship issue. We are speaking about people who are citizens in the institution that includes a sexual relationship and let us recognise that such a thing exists, that they have the same right to participate personally and institutionally in the life of the State as equal citizens with protection and responsibilities before the law. That is what is at stake.
If the Minister of State intended to add all of the other different forms of people who find themselves living together — Deputy Mansergh is worried about very elderly people who manage to be brothers and sisters and of course we have compassion for that — and if he were to take Deputy Mansergh's rubbish and take, for example, all of the members of a monastery and divide them into couples and state for the purposes of doing the adjustment in law that the Minister will now have to deal with that as well, it would be not only a distracting but a dangerous nonsense because Deputy Mansergh does not have the guts to face up to what is a rights issue and it makes a mockery of his much vaunted support for republicanism in the general sense. No republican can vote against legislation like this and if the Minister wanted to extend it to include all of the taxation benefits, all of the other legal adjustments and whatever, he could accept this Bill and tag them on because then he would be doing the task of administration.
We are in a difficult position in our Parliament in any event. I say this as somebody who has been here more than 20 years and nine years in the Seanad. The Executive has an exclusive monopoly over the right to introduce legislation in practical terms. We have just heard speeches that give instances of the very few occasions on which Government accepted legislation that came from this side of the House but if the Government claims a monopoly on the right to introduce legislation, why then not take this legislation and use it as a framework and make it perfect if they wish? If the Minister wants to be republican as Deputy Mansergh put it, why not go on and recognise civil marriage as well? Deputy Lenihan, in a totally confusing speech, stated marriage is challenged and he quoted, for example, the Article of the Constitution, Article 41.3.1°:
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.
I can tell the Minister of State, and the Fianna Fáil Party in its different Governments and the Progressive Democrats, that they have done more to undermine marriage because of their contract with speculation than anybody proposing legislation on this side of the House. Was it strengthening and protecting marriage when people were compulsorily forced into mortgage slavery, when people can no longer afford a house, or where people are committed to commuting such long distances they can no longer spend some time with their families? Let us cut the nonsense about all of this. The exclusive reliance on the market undermined marriage and the family so systematically and so uncritically that it——
Deputy Higgins is going off on a tangent. He should stick to the subject.
——rings hollow for us to be taking lectures from the Minister, Deputy Brian Lenihan.
Deputy Higgins should be allowed to speak without interruption. Six minutes remain in the slot.
It is an issue of rights and equal citizenship. The invocation of a threat presented by civil union to marriage is a distortion and a camouflage. The Bill is constitutional. I support it and pay tribute to Deputy Howlin for bringing it forward again. Even at this late stage I call on Members to vote for it because it is nothing less than a modest reforming, equality measure.
I thank my colleague, Deputy Howlin, for bringing this Bill back before the House. I also thank all Members who contributed to the debate, especially those who expressed support for the Bill.
I do not in any way dispute the personal commitment of the Acting Chairman, Deputy Cuffe, or that of his colleagues, to the Bill. I assure him that bringing the Bill back before the House was not intended to cause him political difficulty or embarrassment in any way. If one looks back on the history of the measures that have been proposed by the Labour Party in this House to modernise our laws and liberalise the way in which we conduct our affairs, it is evident we have always introduced them on their merits. I refer to the legalisation of contraception, the introduction of divorce, the decriminalisation of homosexuality in 1993 and, likewise, this Bill.
The Acting Chairman and his party have been hopelessly outwitted and outmanoeuvred by their far more experienced Fianna Fáil colleagues who are pursuing an agenda on this issue that is a lot closer to the reactionary comments made by Deputy Mansergh——
——than they are to the views I know Deputy Cuffe holds. The truth is the Green Party has been sold a pup and been outwitted on the issue. The commitments his party have received are virtually meaningless and are actually a retreat from what was on offer from the then Minister for Justice, Equality and Law Reform, former Deputy, Michael McDowell, in February 2007. At that time the Minister sought a deferral of Second Stage for a period of six months with a view to enabling a more comprehensive approach to the question of civil partnership to be adopted by this House.
If passed, the Government amendment on this occasion, to which Deputy Cuffe has subscribed, will simply kill off the Labour Party Bill and kick the issue into the indefinite future. I heard Deputy Cuffe trying to explain this issue on the radio this morning. He sought to take credit on behalf of his party for the production of the heads of a Bill by next March. He sought to represent that as somehow a great victory on this issue. Either he is being incredibly naive in selling that line to the public or he is simply trying to sell on the pup he himself has been sold.
If the March deadline is so significant then why is it not included in the Government amendment? Anyone with even a passing knowledge of how the legislative system works knows there can be a significant interval between the heads of a Bill being agreed and the legislation being published, never mind being enacted. I draw Deputy Cuffe's attention to one example. The Ombudsman (Amendment) Bill is on the Government's current legislative programme. The heads of the Bill were agreed in autumn 2003. This is autumn 2007 and the Bill has yet to be published, much less to be enacted.
I understand how parties operate in a coalition government. One has to accommodate to the agenda of one's Government partners in the manner expressed in the House by Deputy Mansergh earlier today. The Green Party made a fatal parliamentary mistake. The amendment that should have been brought before the House was an amendment to restore the Labour Party Bill to the Order Paper and then do whatever it was the party wanted to do about Committee Stage. If the real position is that the party is preparing to introduce its own Bill on which the Attorney General has to give advice and all the complicated matters to which Deputy Cuffe alluded yesterday, then it could have been decided not to set a date for Committee Stage but the Labour Party Bill would have been restored to the Order Paper.
In restoring the Labour Party Bill to the Order Paper the Green Party would have strengthened its own hand in Government if its position was to ensure a Bill would be produced. Deputy Cuffe has been codded by his partners into killing off the Labour Party Bill because it does not appear to me there is a genuine interest on the part of the Green Party's partners in Government to bring this legislation forward.
The Green Party has also been codded in respect of all we have heard about other forms of partnerships and the Colley report. We are told the Government legislation for civil partnerships will now include cohabiting brothers and sisters. I fully recognise there is an issue to be addressed in terms of taxation and inheritance in such circumstances but I insist — and my party insists — that this is not the issue for this debate or this Bill.
The Government says it will draw on the Colley options paper and the recommendations of the Law Reform Commission on the rights of cohabitants. However, there is one basic, fundamental fact that is fully recognised in the Colley paper but which the Government still refuses to recognise; there are heterosexual couples who wish to cohabit and there are gay couples who wish to cohabit. There are also heterosexual couples who wish to marry and there are gay couples who wish to marry. The heterosexual couples have an option but gay couples do not. The Colley group recognised this point and the Colley proposals are in stark contrast to the Government proposals.
What Ms Colley and her group said was that full civil partnership for same-sex couples, in contrast with opposite-sex couples, should be viewed as a distinct institution, separate from and not competing with marriage. The Colley group believed that full civil partnership for same-sex couples did not suffer the same constitutional vulnerability as full civil partnership for opposite-sex couples. What Colley said — and I would imagine the Attorney General would concur — is that if equivalence is given to cohabiting couples who could get married but decide not to, as is given to married couples, then the institution of marriage is arguably being attacked and undermined. However, as her group and our Bill recognises, if one is giving legal recognition to same-sex couples who cannot constitutionally marry, then what injury is being done to the concept of marriage?
The Bill is proposed on an analysis that accords with the observations of the Colley group. We propose a civil registration scheme which extends the full range of rights and duties of marriage for same-sex couples. We agree, as they did, that there are no obvious additional benefits to introducing an alternative to marriage in the form of civil registration for opposite-sex couples, apart from offering a marriage-identical commitment without the marriage title to couples who object to marriage per se. We agree, as the group did, that introducing such an alternative for opposite-sex couples is vulnerable to constitutional challenge. Like the working group, we are not convinced that there are many cohabiting opposite-sex couples who are unwilling to marry but may be willing to enter a registration scheme which has all the attendant obligations of marriage.
Our Bill is underpinned by one single overriding principle, the principle of equality.
As Deputy Howlin wrote this morning, the principle of equality is at once simple and unsettling, often unwelcome, yet ultimately unquenchable and undeniable. The principle of equality is founded on the bond of our common humanity. It is based on our recognition in each other of an essential shared human experience. To deny equality is to look another in the eye and proclaim him or her to be a lesser person. It is to deny the bond of our common humanity.
Deputy Mansergh has given voice to the unspoken but real and reactionary mindset which is blocking the passage of the Bill.
- Ahern, Michael.
- Andrews, Barry.
- Andrews, Chris.
- Aylward, Bobby.
- Blaney, Niall.
- Brady, Áine.
- Brady, Cyprian.
- Brady, Johnny.
- Byrne, Thomas.
- Calleary, Dara.
- Carey, Pat.
- Conlon, Margaret.
- Connick, Seán.
- Coughlan, Mary.
- Cowen, Brian.
- Cregan, John.
- Cuffe, Ciarán.
- Cullen, Martin.
- Curran, John.
- Dempsey, Noel.
- Devins, Jimmy.
- Dooley, Timmy.
- Finneran, Michael.
- Fitzpatrick, Michael.
- Fleming, Seán.
- Flynn, Beverley.
- Gogarty, Paul.
- Harney, Mary.
- Haughey, Seán.
- Healy-Rae, Jackie.
- Hoctor, Máire.
- Kelly, Peter.
- Kenneally, Brendan.
- Kennedy, Michael.
- Killeen, Tony.
- Kirk, Seamus.
- Kitt, Tom.
- Lenihan, Brian.
- Lowry, Michael.
- Mansergh, Martin.
- McGrath, Finian.
- McGrath, Mattie.
- McGuinness, John.
- Moloney, John.
- Moynihan, Michael.
- Mulcahy, Michael.
- Nolan, M. J.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- O’Brien, Darragh.
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- Roche, Dick.
- Scanlon, Eamon.
- Smith, Brendan.
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- Wallace, Mary.
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- Neville, Dan.
- Ó Caoláin, Caoimhghín.
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Jack Nicholson must have needed a lot of toothpaste. When he was starring in Stanley Kubrick’s horror movie The Shining (1980), he felt it a matter of common courtesy to brush his teeth before any new scene. Working on a Kubrick film was, he thought, “gruelling enough” anyway for the crew and his fellow actors without having him breathe over them through “a face full of lamb cutlets”. In her BBC documentary Making the Shining, Vivian Kubrick, the director’s daughter, shows Nicholson bent over the basin, rinsing his mouth. The moment the ritual was complete, he very politely walked back on set, picked up his axe and started trying to hack his co-star Shelley Duvall into pieces all over again with that demented grin on his face. There was take after take after take – and his breath was as fresh at the end of the day at the beginning.
Nicholson was playing Jack Torrance, a troubled writer and recovering alcoholic who takes his wife Wendy (Duvall) and young son Danny (Danny Lloyd) to the Overlook Hotel in the Rockies. Jack is planning to spend the winter as caretaker, working on a book, but he’s an angry, combustible figure anyway and the solitude brings out the devil in him. Little Danny has psychic powers. Through “the shining”, he can sense the evil and violence lurking within the hotel – and inside his own dad, too.
This Shining, which turns 40 tomorrow, is one of Kubrick’s greatest films. This was a director who never took shortcuts and who approached every film he made with a manic zeal to match that of Jack Torrance with his axe. Radiating a slow-burning fury, the movie turns up the intensity from frame to frame, with Nicholson’s performance increasingly deranged. The fast-moving camera work, strident music and intricate but absurdist plotting induce a sense of mounting hysteria in audiences who’ve regularly voted this the scariest movie ever made.
But not everybody likes The Shining. Not only was it overlooked by the Golden Globes and the Oscars, but Kubrick found himself nominated for a Razzie for Worst Director. Stephen King, on whose novel it is based, was dismayed by Kubrick’s icy, detached approach. “It’s a great big, beautiful Cadillac with no motor inside. You can sit in it and you can enjoy the smell of the leather upholstery – the only thing you can’t do is drive it anywhere,” King said in an interview with American Film. He suggested Kubrick was trying to make a horror film with “no apparent understanding of the genre”.
Like all Kubrick movies, The Shining had a long and complicated gestation. It was supposed to take six months to shoot. It took a year. Towards the end of production, the sets at Elstree burnt down. Even then, there was a sweet aroma in the air. Bottles of co-star Scatman Crothers’ Brut aftershave added fuel to the fire. Thankfully, the polystyrene snow had been moved to the backlot. If that had gone up, the inhabitants of Borehamwood and beyond might have been at risk of severe poisoning. Kubrick took the mini-disaster in his stride.
The snow was used for the chase through the maze that marks the climax of the film. Kubrick had built a real-life maze – and it was a common occurrence for cast and crew to get hopelessly lost inside it as the director roared with laughter at their plight.
The director’s fastidious approach has given fuel to all those conspiracy theorists who’ve been poring over every frame of the film ever since it was released. The production design and use of props are so detailed that fans have read secret messages in everything from the tinned food in the Overlook’s larders to the pictures on the walls. If the colour of Jack’s typewriter changes in the course of the movie, these fans won’t accept it could be a simple continuity error. They’re sure Kubrick is telling them something.
Rodney Ascher’s entertaining 2012 feature documentary Room 237 gathers together some of the more outlandish theories. The Shining is seen by his interviewees as an allegory about “the genocide of the American Indians” or as having “a deeply laid subtext that takes on the Holocaust”. They puzzle over the strange architecture of the hotel, concluding that Kubrick has put the windows in all the wrong places on purpose.
When it comes to The Shining, just about any theory sticks. You could probably even make the argument that Jack Torrance is intended by Kubrick as a darker version of Mr Banks in Mary Poppins – an absurd idea but no more absurd than most of the others.
In his cutting remark about the Cadillac, King implied that there is an emptiness at the core of the movie. Maybe that’s why it so enraptures fans and inspires such wild interpretations. It’s a blank canvas on which they can impose their own thoughts and fantasies. The director didn’t give many interviews. He didn’t tell audiences what his films were about. Instead, he allowed the work to speak for itself.
Most of Kubrick’s collaborators don’t hold much truck with the “weird” and “incredibly irrelevant” readings of The Shining aired in Room 237. However, they testify to his mind-bending perfectionism. The director would test the lighting endlessly. He would spend an eternity on every aspect of the production.
Young British actor Leon Vitali had given a brilliant performance as the priggish, highly strung Lord Bullingdon in Kubrick’s previous feature, the period drama Barry Lyndon (1975). Kubrick had noticed the way that Vitali had calmed down a little boy appearing in the ballroom scene who had become upset and lost his focus.
“Stanley being Stanley, he doesn’t forget things like that. When it came to The Shining, he just sent me the book. I read it overnight,” Vitali tells The Independent. The next day, Kubrick called him and said, “how would you like to go to the States and find a boy to play Danny?”
The actor, later to become Kubrick’s dogged and dedicated personal assistant, took the job. It entailed an epic journey around Illinois, Colorado and Missouri, holding audition after audition. “It was amazing,” he says. “Before I went, there were four and a half thousand names with appointment times already. You can add another 500 to that once I got over there.”
Vitali interviewed all these kids (who ranged in ages from four to nine), videotaped them and then sent tapes of the most promising ones back to Kubrick in England. Eventually, he discovered the four-year-old Danny Lloyd, who said to him, “Gee, Leon, I like your suit,” and proved to be a screen natural.
The process of casting this one role had taken six months. Vitali then looked after Lloyd on set. “His parents were fantastic,“ he says. “They got it. They trusted us and we got to be very good friends actually.”
The other actors on The Shining faced a trial of endurance. They weren’t always sure what their director was after. Kubrick wasn’t interested in conventional psychological realism. “You come up against somebody like Stanley who says, yes, it’s real but it’s not interesting,” Jack Nicholson says in Vivian Kubrick’s documentary, summing up the challenge of working with such an unpredictable director.
“He [Kubrick] pushed me and it hurt,” Shelley Duvall said to Vivian Kubrick. In the documentary, there is an uncomfortable and revealing scene in which Kubrick loses his temper with her. He tells her in full view of the crew that she needs to “look more desperate” as Jack comes after her with the axe and warns her “you’re wasting everybody’s time”. Depending on your point of view, he is either bullying her or using sly, intimidatory tactics to goad the performance he wants out of her.
“I was really in and out of ill health because the stress of the role was so great and the stress of being away from home – just uprooted and moved somewhere else – and I had just gotten out of a relationship, and so for me it was just tumultuous,” Duvall told Vivian Kubrick. At the time, she felt the stress was worth it. Without the director playing on her nerves, she would not have been able to reach the pitch of intensity she achieved. Four decades on, though, some speculate that The Shining took an immense toll on her. “The film was hell to be part of,” the star, who has had mental health problems in recent times, later acknowledged.
Duvall’s is a thankless role. She is the foil to Nicholson’s mad man. He chases. She runs. “She personified the horror we are supposed to feel,” Vitali says. “To do that, she had to get up to a really high pitch of emotional tightrope walking. Once she had done that, she couldn’t go back. We were weeks and weeks and months and months from the end of the shoot.” Nicholson took the plaudits for his feral turn as Jack, while she has remained underappreciated. Yet her febrile, hyper-sensitive performance was just as important to the overall success of the film.
Vitali remembers that Kubrick had wanted to make a serious horror movie “in the psychological sense rather than a vicious, horrible, blood-filled [one]”. Not that this stopped him from including the famous scenes of blood cascading from the lifts down the corridors of the Overlook.
At lunch time, the cast and crew would all watch rushes. Kubrick liked his actors to surprise him. He would shoot take after take after take. “Stanley’s gauge was that when you’ve finally got an actor to go too far, you’ve probably got it,” Vitali remembers the way he kept on pushing the actors until boredom and exasperation gave way and they came up with something unexpected and original.
Nicholson realised that Kubrick’s ideas about the story and the characters were continually changing. “I quit using my script. I just take the ones they type off each day,” he told Vivian Kubrick.
Her father looked to his screenwriters to provide the foundations on which he would build his movies. Once these were in place, he wanted to be unfettered and free to explore. The writers would often be offended when he told them, “Thank you, tell Warners what they owe you” and then dismissed him from his orbit . For him, the screenplay was just the starting point. Inevitably, that meant his relationship with writers was strained. He kept them all at arm’s length. Even a figure as revered in horror fiction as Stephen King was left on the outside. “When Stanley said, ‘Right I am going to do The Shining’, I think Stephen thought he may be there, called upon to write the script or called upon to be a consultant in some way, invited down to the set. But Stanley never worked that way,” Vitali says.
King did eventually turn up at Elstree towards the end of shooting. Vitali showed him around at a time when the crew were shooting inserts of the typewriter. “I know he felt very angry and probably reasonably insulted.” What King couldn’t have known was the importance the typewriter holds in the movie. In one of The Shining’s most disorienting scenes, Duvall looks at the manuscript Jack has been working on. Instead of writing the next great American novel, her husband, she discovers, has simply been typing the same words, “All work and no play makes Jack a dull boy”, again and again and again, on sheet after sheet of paper.
The Shining was a huge endeavour. Assistant director Brian Cook told the BBC there were “300 construction people on the pay roll” before the film had even started. Quite apart from its status as one of the great horror films of the past 50 years, The Shining marked a pivotal moment in the evolution of Steadicam shooting (that’s to say, a stabilising system which allows handheld camerawork to avoid jerkiness). It begins with an astonishing helicopter shot. Then the Steadicam work begins in earnest. The camera is rarely still for an instant. The energy here comes not just from Nicholson’s performance but from the astonishingly fluid shooting style.
Carrying the Steadicam was its inventor, Garrett Brown, a pioneering and near-legendary figure in cinematography who had filmed Sylvester Stallone running up the stairs in Rocky (1976) and has worked with directors from Spielberg to Scorsese. Speaking on the phone, he describes his work on the film as being like “moving a piano and playing it”. It involved both very heavy grunt work and extremely delicate artistry.
Some may have complained about Kubrick’s tendency to shoot multiple takes but Brown relished it. He was refining how the Steadicam worked. “I realised on day one it was a priceless opportunity for me to perfect what I was doing, really to learn the physical act of doing it,” Brown recalls. “I could have literally done 100 takes or 1,000 takes.”
By take 14 on any given sequence of The Shining, Brown says he was reaching “a level of Zen-like perfection, like what happens, I imagine, when you did a Broadway show every night and you realised on day 239 that you could be six inches closer to the edge of the stage. It was therefore really fun for me.”
Just occasionally, Kubrick would admit that there was no real reason for the huge number of takes but Brown was happy for them to keep on coming. His experiences with Kubrick gave him the basis for his later work on films such as Reds, One From the Heart, Casino and Indiana Jones and the Temple of Doom. “The way that lens moves, the way the audiences’ eyeballs are handled and directed, is, I think, a seminal aspect of moviemaking and underappreciated.”
In Kubrick, Brown found a kindred spirit and a mentor. “Kubrick is, let’s face it, The Man. He is the one director working who commands absolute authority over his project from conception to release print. The ultimate technologist but, more, his technology serves a larger vision which is uniquely his own,” Brown later wrote. The technical demands were daunting. He would be gliding around the corridors of the Overlook on a specially converted wheelchair, following Danny on his bike, or tracking Duvall as she flees Nicholson.
The crew loved Nicholson. He was open and friendly with everybody. Sometimes, Kubrick wanted to work on Saturdays. Before this was allowed, union rules required the crew members to vote by Friday afternoon at 4.30pm that they were prepared to come in the following morning.
“Jack would say, ‘Champagne on set when we wrap tonight if you vote no!’” Vitali remembers. Often, the crew did exactly that, leaving Kubrick in a lather of fury. However, Nicholson and Kubrick had a strong rapport and generally brought out the best in each other. Nicholson was given license for some improvisation. He’s the one who came up with the idea of yelling out, “here’s Johnny!” when he axes down the door and sticks his face through the gap in the wood with a satanic smile on his face.
In an interview quoted in Patrick McGilligan’s biography, Jack’s Life, Nicholson explains his approach to the role. “When the material is as unusual as The Shining dealing with ghosts and spirits, the actor has to be larger than life,” he suggested. “I play the character as a guy who’s deeply pathological in the area of his marital relationships. The book had that intimation to begin with, and then I just blew it up ... it’s a demanding, highly difficult performance that’s sort of balletic.”
When The Shining opened in the US on 23 May 1980, the reviewers didn’t quite know what to make of it. Many were either baffled or hostile. “How can anyone make a film so fastidiously beautiful and still leave so many loose ends?” asked The New York Times. “First and foremost, it is mesmerisingly lovely, so handsome you may be halfway out of the theatre before those nagging questions arise.”
“The crazier Nicholson gets, the more idiotic he looks. Shelley Duvall transforms the warm sympathetic wife of the book into a simpering, semi-retarded hysteric,” wrote Variety, accusing Kubrick of destroying “all that was so terrifying about Stephen King’s bestseller”.
The box office wasn’t spectacular, either. The film wasn’t even a top 10 hit in the US, where it grossed around $45m. However, since then, its reputation has grown and grown. Its status as a modern-day classic was underlined in late 2018 when The Shining was added to The US National Film Registry, the list of films considered “culturally, historically or aesthetically significant”.
Forty years on, Nicholson’s turn in The Shining still ranks with the finest of his career. Satirists and comedians have been imitating him ever since. When you’ve been spoofed by both The Simpsons and South Park, you know you’ve really hit a nerve.
Often, when you revisit a film heralded years before as a classic, it can be anticlimactic. Either the acting will seem mannered or the special effects out of date or the themes archaic. That is not the case with The Shining. Like Jack Nicholson’s smile, it gleams as freshly now as when it was first released. Kubrick’s exhaustive approach paid off. The film may have taken a mini eternity to make but it has hardly aged. Everything in it is as vivid to audiences today as the ghosts in the Overlook Hotel are to mad Jack and his family.
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