And for the record, I’ve had a blog which frequently discussed politics since about 2003, before closing it down, and replacing it with this one!

Neil

“Followed suit”? My first blog post was a good six months before Liz. Was she the first blogging Labour TD? I also had a website when I ran in 1997, but that’s another story!

Anyway, congratulations on the Ustream stuff, and on your own blog,

Ciarán Cuffe

Well, this was an election blog, so it will probably be closing down alright.

I have committed to preparing reports on all NEC meetings, and distributing them to all interested members. I’ll be doing this primarily by email, and also posting them on the internal online members’ forum.

However, I’m unsure about public distribution of such reports. Deserves a think over it though!!

Even if this does close, I’ll be starting up another blog very soon, on which I’ll continue posting Labour-related stories, as well as more general political comment.

Thanks again,

Neil

Congratulations!!!

Closing the blog though?? See Ann Black in the UK – Labour NEC member who has a website.

http://www.annblack.com/homepage.htm

Suzy

Regarding S.7 of the bill, the only other Act that I can think of that gives a Minister such broad power to amend existing Acts by ministerial regulations is the EC (Amendment) Act, 1973. This act allows Ministers to introduce Community laws by ministerial order. However, this was only permitted by the constitutional amendment that allowed Ireland join the Community in 1973.

I see absolutely no way whereby S.7 of the Labour bill would have withstood scrutiny by the Supreme Court. It would have been a huge waste of time to work on the Labour bill for a year or more and then to have it struck down. And when you talk about amending S.7 in committee stage, the issue here is that S.7 is the key aspect of the Labour bill – it’s the reason that it is only 10 sections not 264 sections like the British Bill.

I’d like to see the Government bill being as close to the Labour bill as is constitutionally possible. That’s what we in the Green Party will be working on over the next 4 months.

Firstly, I want to deal with the issue of constitutionality. As Roderic correctly points out, it is highly unlikely that the Supreme Court would have ruled that the Civil Unions Bill breached Article 41.3.1. To do so, they would have to believe that either same-sex couples should have access to marriage (in which case Civil Unions would definitely be seen as an assault on that institution), or they would have to believe providing Civil Unions would prevent people from settling down into straight marriages (the only other way in which I could see Civil Unions being perceived as an attack on marriage). The first idea is ludicrous, as we have an incredibly conservative Supreme Court who would never view same-sex partnerships as equating to marriage (hence the original need for a referendum to allow for same-sex marriage). And the second idea is even more ludicrous – the idea that the availability of Civil Unions could ‘turn’ people, and thereby act as a deterrent to them entering ‘normal’ marriages.

In relation to Section 7 of the proposed Bill, you raise an interesting point, though one which I believe is fundamentally flawed. You are correct that the courts dislike the idea of Ministers by-passing the Oireachtas. However, international standards of common law are increasingly moving towards creating accessible, elegant legislative structures, which place the complex burden of legally interpreting the law onto the Government, and not onto the statute books in a way which prevents any public understanding of legislation. Two approaches are possible. One, the British model, individually amends each corresponding piece of legislation. This is a clumsy, inaccessible method of changing legislation, and one which modern legislators in a variety of common-law jurisdictions are moving away from. The second is changing the spirit of the law, and effectively mandating the relevant Minister to oversee the subsequent amendment of all corresponding legislation. I believe the proviso to which you refer is legally sound enough to cover this angle. For what it’s worth, legal academics in TCD, NUIG and DIT agree with me, as does the Labour Party’s legal advisor – an experienced draftsman.

I don’t think it’s good enough for Greens to complain about the AG’s advice not being published. I believe their Ministers should pursue this at Cabinet, and push for that advice to be published, so we can all be aware of the AG’s findings.

The second area I wish to address, are the new Civil Partnerships to which you refer. The legislative agenda for the Houses of the Oireachtas doesn’t include any of this information, which means you are asking us to accept a version of the proposal which the Green party are in turning accepting from the Minister of Justice. I wouldn’t trust any promise made by the FF party, and I certainly won’t trust a promise made by FF, and then repeated to the rest of us by the Greens. At this point in time, we have no Government statement indicating what will or will not be included in the new proposed legislation (which does not appear on the legislative agenda). I won’t hold my breath. Furthermore, if they are to provide rights to same-sex couples only, wouldn’t they face exactly the same constitutional issue as the Labour Party Bill? Or are the rights included therein going to be watered down to a point where they could never conceivably be viewed as an attack on the institution of marriage?

Finally, the issue of the redress scheme is nothing but a distraction, just as the issues surrounding inheritance issues for siblings were FF’s distraction. They could have been dealt with under separate legislation. If the redress scheme is removed, you are saying the remainder of the bill will be a registration scheme for same-sex couples only? Because if so, it sounds awfully like the Labour Party Bill, and the changes you desire relating to Section 7 certainly could have been made at committee stage to create this Bill now, instead of waiting until March 2008 for Heads of Bill only.

Cutting through the spin, or spinning viciously yourselves?

The Colley report specifically did NOT make reccomendations

In relation to what the Government bill will deal with, the original proposal as I understand it would have been a Domestic Partnership Bill which would have done 3 things: a) recognise cohabitation agreements between same-sex and opposite sex couples b) allow same-sex couples officially register their cohabitation agreements c) provide a redress scheme for same-sex or opposite sex couples who had not registered their relationships, but where, on the end of the relationship, one party was in a vulnerable position.

It was felt within the Green Party that this was significantly less than that which we negotiated in the Programme for Government – civil partnerships based on the Colley Report.
As a result of negotiations, the bill will now be entitled the Civil Partnerships Bill. The civil partnerships it creates will be based on the model suggested in the Colley Report. The bill will no longer provide a registration scheme for cohabiting heterosexual couples. The redress system for vulnerable cohabitants (either same-sex or heterosexual) remains. This is not the same as a registration scheme – it will probably consist of a right to apply to the courts for property adjustment orders etc. It could only apply to same-sex couples who have not entered a civil partnership or opposite couples who have not married.

Constitutionality of the Labour Party bill
I’d completely agree with Ciaran Cuffe that the Attorney General’s advice on the Labour bill should be published.
In his speech, Brian Lenihan outlined 2 justifications for why the Attorney General felt the Labour Party bill was unconstitutional.

The first of these was that in attempting to create an institution that was similar to marriage in all but name, the Labour Party bill was in danger of breaching Article 41.3.1 of the Constitution which states “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”. Personally, with my lawyer hat on, I’m not completely convinced by this particular point. I can see there is an argument to be made that the similarities between marriage and the Labour civil unions could be construed by the Supreme Court as breaching the relevant constitutional provision. On the other hand, since the courts would (unfortunately) appear to be leaning towards holding that marriage can only be between a man and a woman, its arguably that a union between two persons of the same gender can never be similar to a marriage.

I think the second point that Lenihan says makes the Labour bill unconstitutional is much more compelling. That is his point that S.7 of the bill gives the Minister for Justice power to amend existing Acts by ministerial regulation to enable such acts apply in the same way to civil unions as to marriage. I think this is very constitutionally suspect as previous judgments of the courts show that they are extremely reluctant to let ministers by-pass the Oireachtas and amend legislation by regulation. I realise that the Labour bill has the proviso ‘purposes, principles and spirit of this Act’ but I don’t think that would be enough to save it.
The reason the British Civil Partnership Act is so long is that it dealt individually with each area or law where marriage and civil partnerships were being made equal, rather than the approach being taken in the Labour bill which wanted to empower to Minister to do it all himself.

Now, maybe the Attorney General is incorrect, and the Labour Bill would have been constitutional. But that would have been a huge risk to take. The Labour bill would have taken the guts of two years to progress, (time spent in committee, then back in the Dail, then in the Supreme Court). And what if the Supreme Court had found the bill unconstitutional? Then we would have been back to the drawing board.

By voting against the Labour bill and supporting the Government one, we will be starting off with a bill that the AG believes to be constitutional and one that has a better chance of surviving a reference to the Supreme Court. Perhaps we could be accused overly cautious, but I would rather we take a bit longer in getting the civil partnerships, than risk the bill being struck down as unconstitutional when the Attorney General states there is a chance of this happening.

Finally, I don’t think I “cynically compare himself to Katherine Zappone and Anne-Louise Gilligan”. I merely made the point that like them, I and the Green Party believe civil unions/partnerships are only a step towards full equality through access to civil marriage. And the Green Party are not being “all righteous on the matter”. However, we are justifiably proud that we have succeeded, for the first time, in getting the Irish Government to agree to legislating for civil partnerships, based on the Colley Report.