The advice available to the Government indicated that a core provision of the Civil Partnership Bill 2004 would, if enacted into law, be repugnant to the Constitution, the Minister for Justice, Equality and Law Reform, Mr McDowell, said.
The particular section provided that the parties to a civil partnership should be regarded in law as having the same rights and entitlements as parties to a marriage valid in law under the Family Law Act, 1995 and the Civil Registration Act 2004. The Government was advised that this would constitute a breach by the State of its pledge pursuant to Article 41.3.1 of the Constitution. That article provided that the State pledged itself to guard with special care the institution of marriage, on which the family was founded and to protect it against attack.
The Minister said there were also problems of a legal/technical nature with the Bill. It did not contain an explicit list of rights and entitlements. Any bill creating a new civil partnership institution would have to contain a list of the rights and entitlements attaching to it.
The rights of parties to a valid marriage were complex and not contained in any single instrument. They derived from the Constitution, from statute law and common law, as interpreted by the courts. This raised the question as to what was precisely meant in the Bill by reference to the 1995 Act.
In addition, it lacked provision in relation to duties. In this context, it had to be borne in mind that marriage was not just a series of rights - although it might seem that way to people who felt they were denied those rights. "Marriage - the same would have to apply to any new institution which would mirror it - is a complex of duties. Married people owe each other many judicially and forceable duties such as a duty of maintenance; a special duty in respect of any home used by them; a duty in respect of children; and many other duties. The marriage status involves other legal issues such as bigamy, competence as a witness, privilege, divorce, judicial competence over capital assets, subjection to family law and other legal consequences. The Bill is silent in relation to all of these matters."
He stressed that it was not the case that the Government had decided to try to derail the Bill. In the days leading up to the debate every means were being sought to avoid voting it down. He was glad this had been achieved.
Introducing his Private Members Bill Mr David Norris (Ind) said it was well over 30 years since he started campaigning on the subject of homosexual law reform. It would bring his career in this area to a satisfying conclusion if he had his name on the Bill that finally and definitely removed discrimination. This was not a narrow measure, nor was it confined to gay people. Instead it addressed the principle of the legal recognition of the rights of all couples in committed relationships outside the institution of marriage and their offspring.