Oral Hearings

Family Issues: Presentations.

Wednesday, 27 April 2005

The Joint Committee met at 10.30 a.m.

MEMBERS PRESENT:
Deputy B. Andrews,
Deputy P. Power,
Deputy J. Breen,
Senator M. Cox,+
Deputy C. Cuffe,
Senator J. Dardis,
Deputy J. Devins,
Senator M. Finucane,
Deputy P. McCormack,
Senator C. Glynn,*
Deputy A. Morgan,
Senator T. Kett.*
Deputy J. O’Sullivan,

*In the absence of Senators B. Daly and A. Ormonde, respectively.

+In the absence of Senator T. Kett for part of meeting.

DEPUTY D. O’DONOVAN IN THE CHAIR.

The joint committee met in private session until 10.35 a.m.

Family Issues: Presentations.

Family Issues: Presentations.

Chairman: The first group to come before the joint committee today is the National Women’s Council of Ireland. I thank Deputies and Senators for their good attendance. While the hearings have been long, there has been good engagement by committee members. Another full day and we will be well on our way.

Deputy Morgan: Any word from the political parties yet?

Chairman: We have been so busy with the hearings in the past two weeks I have not given the question of hearing from political parties much consideration but I have not forgotten about it.

The National Women’s Council of Ireland is represented by Ms Joanna McMinn, Ms Marie Hainsworth and Ms Orla O’Connor. They are all very welcome. Before we begin, I remind visitors that while members of the joint committee have absolute privilege, this same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

The delegation has given us a copy of its submission which we have studied. Rather than rehash it I ask delegates to synopsise the important aspects in about six to eight minutes, following which Deputies and Senators may wish to ask questions.

Ms Joanna McMinn: We welcome this opportunity to make a presentation to the joint committee. We have provided it with additional material this morning which we understand will form part of the record. Is that correct?

Chairman: If the council wishes this material to be its official——

Ms McMinn: We would like it to be seen as our official submission.

Chairman: All of the submissions received will be included. Rather than read out eight or ten pages, perhaps Ms McMinn will outline the areas she would like to emphasise and give your views to the joint committee.

Ms McMinn: I will start by giving a definition of “family” which, as we all know, has been defined traditionally through judicial interpretation to mean the family based on marriage. We believe the constitutional definition of the family based on marriage has had a strong influence on legislative and institutional arrangements in Ireland. As a result, other family forms are not valued equally in legislation and Government policy. We would like to draw attention to the impact of this. We believe it has had specific negative implications for lone parents who are consistently most at risk of poverty in comparison to other groups in society. We wish to emphasise that there has been a rise of almost 50% in the number of lone parents with children under 15 years living in poverty. Some 24% of lone parents are at risk of poverty.

We advocate the use of a much broader definition of the family such as that frequently cited as the definition of the United Nations which I am sure the joint committee has heard many times. We would like to emphasise that this is in line with the position adopted by the Commission on the Family which reported in May 1998 and concluded that Article 41 should be revised to give constitutional recognition to all family units, including families not based on marriage. The matter had been raised also by the Constitution review group in 1996.

In terms of family diversity, Ireland has been found to be in breach of its international obligations through the existing interpretation of the family based on marriage. The case of Keegan v. Ireland 1994, is often cited in that regard.

According to the Combat Poverty Agency’s review of the 2002 census, the range of family structures now includes 154,000 lone parent families, 77,600 cohabiting couples and 1,300 same sex cohabiting couples, an increase from a figure of 150 in 1996. The agency also identified that the fastest growing categories were families without children. The NWCI recommends that in order to comply with international human rights requirements and reflect the reality of family diversity in the Constitution, the State must have due regard to these rights and concerns and provide protection through the Constitution for all types of family structures.

On the question of whether gay couples should be allowed to marry, the State promises in Article 41.3.1° of the Constitution “to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.” Marriage is recognised in the Constitution article as a partnership between a man and a woman. However, as families only acquire constitutional protection in Ireland by virtue of being married and as the definition of marriage used by the State expressly denies access to this institution to same sex couples, it follows that same sex and unmarried couples and their children are not protected under the Constitution. The position of the NWCI is that as long as marriage remains the determinant for State protection through the Constitution, this must be made available to all people, including same sex couples, residing in the State.

Under existing Irish law, same sex couples and non-married heterosexual couples do not have the same rights as married couples. This has the potential for discrimination in respect of, for example, property rights, inheritance rights and the rights of partners in emergency situations. The NWCI feels that same sex couples, rather than being obliged to rely on legislative protection, need protection under the Constitution. This argument is made because although the Government has introduced legislation in recent years which has offered recognition to non-marital families - for example, the Domestic Violence Act 1996, the Parental Leave Act 1998, the Residential Tenancies Act 2004 and the Social Welfare (Miscellaneous Provisions) Act 2004 - much of it does not extend to same sex couples. The Residential Tenancies Act 2004 and the Social Welfare (Miscellaneous Provisions) Act 2004 expressly exclude such couples.

If the Constitution is amended to protect families that are not based on marriage and this includes same sex couples and their children, the NWCI would be open to supporting a civil union structure for same sex couples. Such civil unions would contain the equivalent rights associated with marriage, including that to adopt children. The NWCI bases its decision to support civil unions on recent developments in Northern Ireland where the Civil Partnership Act 2004 grants equal rights, including adoption, to same sex couples. Under the Belfast Agreement, the Government has already made a commitment to guarantee equivalence of rights protection on both parts of the island and would presumably implement legislation to respond accordingly to the UK Civil Partnership Act.

As a body representative of women, the NWCI wishes to add that the issue of adoption has a high priority because many of its members affected by these proposed changes have children. The NWCI also supports the inclusion of the Convention on the Rights of the Child in order to provide specific protection for children in vulnerable groups - particularly those of same sex couples and unmarried parents - since many children currently do not receive constitutional protection due to the marital status of their parents.

On the Constitution’s reference to a woman’s life within the home, the NWCI believes that this is discriminatory and that the Constitution should not ascribe gendered roles to either women or men. The patriarchal assignment of women to perform certain roles within family and society has not been to the advantage of women and has undermined the progression of equality for women. The Government has signed up to relevant commitments under the Convention on the Elimination of Discrimination against Women and under the ten critical areas of the Beijing Platform for Action. It is, therefore, the view of the NWCI that this reference should be removed.

The NWCI believes that care work should not be gender prescribed. By assuming that women can be valued only through their contributions in the home, the Constitution has effectively discriminated against those who wish to work outside the home. This has reinforced discrimination against women. For example, due to the marriage bar, many women who are now reaching pension age are not entitled to State contributory pensions. The Constitution review group has already offered an alternative wording for article 41.2 which the NWCI would support, namely:

The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

The NWCI supports the concept that the Constitution should name and provide protection to all types of family unit within the State. While it is acknowledged that the Constitution is an evolving document, it is also clear that existing prescribed definitions of the family mean that many groups receive little or no protection. The impact of this lack of protection can be seen in the development and wording of recent legislation where there has been explicit discrimination against certain groups. The NWCI believes this is contrary to the ethos of the Constitution, if not the actual wording.

Although this submission has not specifically addressed the inclusion of the Convention of the Rights of the Child into the Constitution, we would support any moves in that direction. The NWCI believes the Constitution should offer protection to all children regardless of their own home family structure. The reference to “an teaghlach” in its Irish text implies a wider definition of household than a nuclear family unit based solely on marriage.

The NWCI upholds the right of individual religious organisations to define marriage within their own institutions but it also insists that the State has responsibility for all its citizens. If marriage continues to be the basis for defining the family, then for the sake of equality this option has to be available to every citizen, including the members of same sex couples. Regardless of whether we decide to have civil unions or gay marriages, the NWCI believes that same sex relationships must be treated equally, within the law and the Constitution, with opposite sex relationships. The NWCI believes strongly that individual prejudice and intolerance should not be upheld by the Government, as this cannot be for the good of society.

Chairman: I thank Ms McMinn for her presentation. She has stated her position clearly and succinctly. I ask her to speak further on her statement that other relationships or types of family that do not fall within the Constitution’s definition of marriage are being discriminated against.

Ms McMinn: We argue that they are not valued equally.

Chairman: Is there evidence to support that statement? In what way would this be relevant to the child of a single mother or that of a cohabiting couple? Is it possible to pinpoint specific areas where there is discrimination?

Ms Marie Hainsworth: The point we are making is that any impact on the parents of a family will also affect the children. Any rights that cohabiting parents cannot access, particularly in terms of equality of benefits, social welfare and pension entitlements or inheritance tax, will have a knock-on effect on the family and the children. While there is equality among parents, there is also equality within different family structures.

Chairman: Does the NWCI believe it essential to have constitutional change because legislative reform is not sufficient?

Ms Hainsworth: From a historical perspective, legislative reform does not appear to have addressed many of the issues we have raised. Some Acts, such as the Domestic Violence Act 1996, mention different types of family structure but the position is open to interpretation. Individual judges may decide if same sex or cohabiting couples are included under the definition. Due to historical interpretations of the Constitution, it will take a long time for legislation to catch up with the ambiguity. That is why we believe constitutional change is necessary.

Chairman: What is Ms Hainsworth’s response to the fact that the majority - in the region of 70% to 75% - of the submissions we have received do not want any change? Those who made these submissions believe the Constitution serves people well and that the elevated status of the family in it, that is, a family based on marriage, should be retained or upheld. The council obviously does not concur with that view.

Ms Hainsworth: Even some of the religious organisations have articulated the fact that although that might be an ideal to which some groups aspire, the reality is that it is not the composition of family structure in Ireland today. Is the Constitution designed to uphold and protect the rights of individuals who live in the State or to uphold and protect the rights of a group we would like to live in the State? The council does not believe that the Constitution can take the position of trying to mould society to fit into what it wants when its role is to protect the citizens living in the State.

Chairman: Given that society has evolved over the almost 70 years since the Constitution was voted for by the people, does the council believe it should be a movable document that would reflect society as it changes?

Ms Hainsworth: It is supposed to be a dynamic document and many judges have stated that in different cases. Theoretically, there should be no reason to have much constitutional change because legislation should have allowed the Constitution to have been interpreted in a dynamic way. However, that has not happened. The council believes that the Constitution needs to state more clearly what the position of society is at present.

Chairman: Does the council believe that the courts have taken a conservative view in interpreting the Constitution with regard to the family and to children’s rights?

Ms Hainsworth: They find it difficult to do it. They are working within a system that is not easy to shift. In terms of how the Constitution works, I believe it should not necessarily be the role of the courts to legislate. The Government needs to take the initiative on that but it has not done so. It has even failed to implement recommendations of its review groups, some of which date from ten years ago. Unless there is some change within the Constitution, we have no evidence to suppose there will be changes at any other level.

Chairman: Deputies McCormack, Morgan and O’Sullivan will put their questions.

Deputy McCormack: I thank the council for its submission. In it, the council poses the question of whether gay couples should be allowed to marry but does not provide an answer. I do not know whether the question is posed for the council or for the committee. The council does not give its views on the matter. The submission goes on to state that the Constitution should recognise gay and lesbian partnerships as family units but says nothing about marriage. What is the council’s answer to the question it poses in the submission?

Chairman: The Deputy is asking if the council is proposing that gay and lesbian marriages should be permitted.

Deputy Morgan: I thank the National Women’s Council of Ireland for making a submission and a succinct presentation. A significant number of the people and groups that have made presentations to the committee have said that the Constitution should recognise relationships but that the family based on the institution of marriage should remain the cornerstone of the Constitution. What is the council’s view on that, in the context of broader equality issues? Does it support that view?

Let us imagine the situation if the Taoiseach decided to dispense with the All-Party Oireachtas Committee on the Constitution and handed the matter over to the National Women’s Council of Ireland. How would it deal with Articles 40.3, 41 and 42? Would it be inclined to replace them completely with something more in line with the UN and ECHR positions on this issue or would it - I am not clear about the meaning of Ms Hainsworth’s comments - seek to amend or tweak them in some way? Can they be tweaked to bring them into line with what is required of a modern constitution as opposed to what we have, namely, a constitution drawn up at another time for virtually another people?

Deputy O’Sullivan: I welcome the delegation. The issue mentioned by Ms Hainsworth, that is, whether the Constitution is a dynamic, changing document to protect the people of the time or whether it is about ideals, is something we have already discussed with other groups and we have heard different views on it. One of the practices of the committee is to put forward issues that other groups have raised because each group does not have an opportunity to engage with the other groups that come before the committee.

Some groups felt strongly about the need to retain the recognition of the caring role in the Constitution. Some groups, although not all, accept that there could be a gender change, in that it should not just relate to mothers but to fathers and other carers, such as daughters, perhaps, if the person being cared for is elderly. Regardless of whether they accepted a gender change, however, they felt that we should not further marginalise the unpaid caring role in the family.

The wording proposed by the council came from the Constitution review group and is supported by many of the groups that have come before the committee. What is the council’s response to those groups which are concerned that changing this article might make it more difficult for parents who make a choice to stay at home when they have young children or where an elderly parent or disabled person requires care in the home?

Chairman: Perhaps the council will respond to the questions from the three Deputies before I call Deputy Peter Power.

Ms McMinn: We made our position clear on whether gay couples should be allowed to marry. While we support civil unions, as long as marriage remains the determinant for State protection through the Constitution it must be made available to all people, including same sex couples.

Deputy McCormack: That is not made clear in the submission.

Ms McMinn: It is in the new document, the additional material we brought to the committee this morning.

Deputy McCormack: I have not had an opportunity to read that.

Ms McMinn: It is on page 5.

Deputy McCormack: That outlines the council’s feelings on the matter. Was it on second thought that the council came clearly to this view? In the original submission, the council was not clear about its view. My reading of it is that the council did not favour gay couples getting married, given the reply it offers to the question it posed on page 2 of the original submission. Was this a second thought clarification, as it were, of the original submission?

Ms Hainsworth: We acknowledge the point the Deputy raises. In our initial submission we did not, perhaps, clarify that point as much as we could. In addition, as a representative organisation we were keen to ensure our submission was reflective of the membership. We started that process by taking the submission to our executive board and examining the issue in more detail. That has now been included in the revised submission to go out to the affiliates. We considered the position in more detail and that is our opinion now.

We support gay marriages as long as marriage is the determinant in the Constitution. Our position is taken from an equality point of view. The council works from an equality framework that one cannot allow one option, such as marriage, to be available to only some members of society. We believe it should be available to everybody. However, if that was changed in the Constitution and the definition of “family” was made much broader, then there would be the option that same sex couples could be protected in exactly the same way through a civil union. In that case we could acknowledge that some members may feel uncomfortable with the term “marriage”, which has a very religious connotation. However, as long as the civil unions enjoy exactly the same rights, including the right to adopt children, then we would be supportive of that position.

Chairman: Deputies Morgan and O’Sullivan asked a number of other questions.

Ms McMinn: I think perhaps the question asked about the family concerns the same argument really, namely, that it is the value placed on family and the benefits that accrue from being recognised in the Constitution. Our concern would be that the Constitution entitles all relationships to the same benefits if they are, in fact, families.

Deputy Morgan: Is Ms McMinn’s position that of equality of recognition?

Ms McMinn: Yes, it is equality of recognition.

Deputy Morgan: Ms McMinn wants equivalence across the board, regardless of the institution of marriage.

Ms McMinn: Yes.

Chairman: Deputy O’Sullivan also asked a question.

Deputy Morgan: I posed one further question.

Chairman: That was the one in which the Deputy imagined the committee might be disbanded.

Deputy Morgan: I was not advocating that it should be disbanded.

Deputy P. Power: Is it being disbanded on-line at present?

Deputy Morgan: Let us say that it is being debated within the committee. Deputy Peter Power is teasing me.

Chairman: Did Ms McMinn want to clarify something?

Ms McMinn: Is the Deputy referring to amending the Constitution in light of international human rights standards?

Deputy Morgan: Which would be the best option? Would amending the current articles be the best option or would it be better to delete these and replace them with something more in keeping? Which would be council’s preference? Perhaps Ms McMinn has not considered that option and, if not, it is an unfair question. Therefore, I will not push it.

Ms McMinn: We have not considered that particular question. We would certainly want the Constitution to meet the human rights standards. We mentioned the rights of the child and we would like those kind of rights to be incorporated more fully into the Constitution but we have not considered the last specific question.

There was another comment about the Constitution being a dynamic document as opposed to an ideal. We would argue that it should be a dynamic document. That is most obvious in terms of the reference to a woman’s life within the home, which has been a source of opposition for many years from women who see that as discriminating against them and as a biologically determinate view of their role. As regards the caring role, I will pass over to Ms O’Connor to comment.

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