Speech to be delivered by Alan Shatter TD at a Fine Gael meeting of Dublin Rathdown constituency at approximately 9 p.m., this evening, 10th February 2015, in Goatstown, Dublin 14.

Check against Delivery

Shatter calls for continuing constitutional renewal; says issue of abortion should be addressed by constitutional change; calls for new referendum on divorce; and says outcome of Marriage Equality Referendum should not be taken for granted.

The Marriage Equality Referendum is of great importance to a significant number of people in the State.  If successful, it will extend to gay couples the same right to enter into a legally recognised marriage as has, over the centuries, been availed of by heterosexual partners.  It will end a constitutionally imposed discrimination for which, in this modern era, there is no justification and bring our laws into line with legal change being effected within various EU states and in countries with which we have a great deal in common such as the United States and Canada.

For some, the change that will result from a successful referendum is dramatic.  For others, it is simply a symbolic recognition of the equal humanity of each of us regardless of sexual orientation.  The truth is, since 2010, there has been no real difference between the ceremony in which a heterosexual couple participate to effect a registry office marriage and the ceremony in which a gay couple participate to bring into being a civil partnership.   A majority Yes vote in May will simply, for the future, render the concept of civil partnership redundant and describe the ceremony presently civilly celebrated as being one of marriage.

Following the report of the Constitutional Convention, as Minister for Justice, I had the privilege of bringing to Government the proposal that the necessary referendum be held and secured the Cabinet’s agreement.  The May referendum is the culmination of that agreement and, despite what is represented currently in opinion polls as being overwhelming support for change, we should not take it for granted that there will be a majority Yes vote.  In 1986, there was similar overwhelming support for constitutional change to permit divorce at this distance from the date of the referendum but, by the time the votes were cast and counted, the support had evaporated.  When it comes to effecting constitutional change in relation to issues of social policy, no outcome should ever be taken for granted.

When legislation was going through the Dail to provide for civil partnerships in 2009/10, in order to avoid controversy, the then government excluded from that legislation any specific provisions prescribing the law applicable to the relationship between gay couples and their children, whether children were born as a consequence of assisted reproduction or with the assistance of a surrogate.  The then government also avoided prescribing specific provisions to address the position of such children and the rights of parents subsequent to a civil partnership breaking down.  The same issues and difficulties will arise with regard to married same sex couples should the referendum be successful, as currently apply to civil partners.  Unfortunately, these issues are not widely understood by the general public and, at the time when Cabinet decided to hold a Marriage Equality Referendum, I emphasised the importance of our enacting the Children and Family Relationships Bill addressing these important parental issues in advance of the Referendum being held.  These issues are of vital importance in the determination of the parenthood of children born to same sex couples; the legal rights and obligations that apply as between parents and child; the guardianship and childcare structure to exist; the support and maintenance obligations of parents; the mutual succession rights within the family; and the mechanisms available for dispute resolution.  With regard to assisted reproduction and surrogacy, the legal clarifications required are of vital importance not only to same sex couples but also to heterosexual couples, whilst in the area of adoption the changes required relate to same sex couples alone.  All of these issues need to be addressed in legislation whether or not the ceremony that same sex couples celebrate is to be recognised as a marriage. However, my concern at that time and today remains that, if this new legislative framework is not enacted and in place well in advance of the referendum to be held, it will facilitate those opposed to constitutional change generating controversy and muddying the waters and misleading people into voting No.  The draft Children and Family Relationships Bill was published by me exactly one year ago for consultative purposes and I am greatly concerned that it has not yet been published as a final Bill for Second Stage debate in Dail Eireann.  I am further concerned that it has been announced that the  provisions contained in it relating to surrogacy have been removed and that a separate Bill dealing with both assisted reproduction and surrogacy is to be published by the Department of Health. I believe it is of vital importance that the required legislation be enacted in advance of the referendum being held.

The two referendums to be held in May appear to be the final referendums the government intends will take place prior to the next election.  Issues remain over, resulting from recommendations for change supported by the Constitutional Convention.  There are also at least two issues not considered by the Convention to which we must return as legislators. They are issues that I believe Fine Gael should commit itself to addressing in Government after the next election and which should form part of the Fine Gael’s next Programme for Government.

It is well known that, in 1983, I opposed the inclusion in our Constitution of the so-called “pro-life” amendment. At that time, I predicted some of the possible consequences of its inclusion in our Constitution and, unfortunately, over the years, some of the predictions made by me have been proved right.  When in Cabinet, during the debate on the Protection Of Life During PregnancyAct2013 I stated in the Dail that I regarded it as an enormous cruelty that a woman in this State is compelled to bring to full term a pregnancy where a fatal foetal abnormality has been identified and there is no prospect of a child surviving.  I also believe it is entirely unacceptable that a woman who is a victim of rape or incest should be compelled to retain a pregnancy resulting from such circumstances.  I believe that  constitutional change should address these issues whether it is required or not so that the law is clear and not subject to challenge and pregnant women are not, at a time of great distress, reluctantly required to participate in high profile test cases of uncertain duration and outcome.  I believe that the view of an overwhelming majority of the general public on this issue is clear and that it is no longer tenable for those in political life, for fear of the inevitable emotive debate that will ensue, to deprive the people of an opportunity in a referendum to express their views.   I hope a commitment to do so will appear in the Fine Gael General Election Manifesto when it is published.

As a result of the defeat of the divorce referendum in 1986,  the successful referendum in 1995, which permitted divorce, resulted in the inclusion in our Constitution of a provision which requires that couples live apart for a minimum of four years before a marriage that has irretrievably broken down can be legally dissolved.  At that time, this provision was perceived as ensuring that couples would not unthinkingly rush into divorce whilst it was recognised that the law contained substantial provision to enable couples whose relationships had collapsed to separate either by agreement, or by way of a court separation decree, whereby all issues relating to children; finance; property; pensions; and inheritance could be addressed. It was anticipated that a reasonable number of those who obtained a court decree of separation would reconcile and return to court to have their separation decrees set aside. The reality is that this is such a rare occurrence that few of our judges who have granted separation decrees over the years have had any such reconciliation application come before them.  The  reality is that the required four year time frame merely locks estranged spouses into a legal limbo; results in thousands being required to involve themselves in two separate sets of court proceedings (one initially for separation and another later for divorce); adds to the acrimony by facilitating the reopening of issues previously resolved; results in unnecessary legal costs being incurred by those reliant on lawyers in private practice to obtain their divorces; and costs the taxpayer annually millions of Euros through those already legally separated who resort to government law centres, years after their separation, depending on legal aid to obtain a divorce decree.   It is now in the public interest that a new divorce referendum be held to revisit the issue of the currently imposed four year time frame with a view to its elimination or substantial reduction.     

Constitutions are documents of their time.  As society evolves and changes so should our State’s Constitution to ensure we can comprehensively and properly address todays issues based on todays understandings and knowledge.   It is in the public interest that we engage in a continuing process of constitutional renewal.  Doing so extends to the citizens of  this State the important democratic right to revisit and determine the content of the basic law that governs us all.  There has been an unprecedented number of referendums held  during the period in office of the current Fine Gael and Labour Government.  The momentum of constitutional renewal should accelerate and not be allowed to slow down during the lifetime of the government formed after the next General Election.

ends

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