Private Members' Business. - An Bille um an Deichiú Leasú ar an mBunreacht, 1985: An Chéad Chéim (Atógáil). The Tenth Amendment of the Constitution Bill, 1985: First Stage (Resumed).
Tuesday, 5 November 1985
Dáil Eireann Debate
An Ceann Comhairle: Deputy Michael O'Leary moved on 30 October that leave be given to introduce this Bill and the motion was opposed by Deputy Willie O'Brien. I accordingly propose to give five minutes to Deputy O'Leary and five minutes to Deputy Willie O'Brien to make their cases.
Mr. M. O'Leary: In this Bill I seek to remove the outright ban on divorce in the Constitution. In its place I would substitute a provision for divorce in circumstances defined in the Marriage Bill, 1985, with a mechanism for popular consultation in the event that future change is desired by the Legislature. There are two aspects to this popular consultation requirement. The first is the practical one, that my proposals on popular consultation correspond more nearly with what we know are the people's wishes and it follows that, in any referendum, success is more likely where continuing consultation is assured to the people. Of equal importance to this practical element is the importance of the principle itself, the principle of consultation with the people. The marriage law is of such central importance in people's lives that they are entitled to a guarantee of continued democratic consultation if any reforms are contemplated by the Legislature.
I seek a partnership between the Dáil and the people for such legislation. That partnership is already acknowledged in Article 47 of the Constitution. The consultation therein envisaged has never been invoked. On appropriate occasions, when matters of fundamental importance which stand outside, or should stand outside, party controversy are to be decided, the people must be acknowledged as responsible partners in the legislative process rather than passive recipients of party plans at election time. This is not to distrust the Legislature. It is a fuller version of democratic decision making than the Westminster model.
It has been suggested that it is legally  impossible to have The Tenth Amendment of the Constitution Bill, 1985, and the Marriage Bill, 1985, decided on by the people on the same day. I do not agree. I accept that it may be that simple enabling legislation as happened in 1937 in the enactment of our present Constitution may be necessary. Alternatively, it might be considered more simple that the provisions of Article 47 of the Constitution which allow for reference of Bills to the people need to be invoked. Whilst in principle it is not essential that the process of popular consultation and the power to consult the people should be dealt with on the same day, for maximum clarity the people should know the terms of divorce legislation as they are asked to abolish the outright ban on divorce.
Whether enabling legislation or amendment of The Tenth Amendment of the Constitution Bill to include a reference to the Article 47 procedure is required, I can see no insuperable difficulty in regard to the concept of popular consultation. These points would be issues in the course of events, for a Second Stage debate.
I commend the response of the Labour Party. The weakness of what they propose is the lack of a mechanism for continuing popular consultation. The guarantees they propose in relation to the grounds for dissolution of marriage are so vague that they would permit virtually any legislation in their wake.
Mr. M. O'Leary: The Oireachtas committee's report made a valuable contribution under the able chairmanship of Deputy Willie O'Brien to whom I pay tribute. Indeed, my proposals were assisted by his publication. I regret that Deputy O'Brien has been cast in the role of opponent here tonight.
Mr. W. O'Brien: In opposing the introduction of the Bill I do not intend to discuss the merits or otherwise of the  proposed legislation. As former chairman of the Oireachtas Joint Committee on Marriage Breakdown I feel it is absolutely essential that the report produced by the committee should be given the maximum time for debate in this House. The committee, as the Chair will recall, met for more than 18 months. We received 700 written submissions and heard 24 oral submissions. Every member of that committee devoted himself to the study of this agonising problem of marriage breakdown. Any of my colleagues on the committee can confirm the impact of the painfully disturbing information made available to us. Many members of the committee changed their views and in many cases saw in a new light the suffering caused by marriage breakdown.
Many of our colleagues in both Houses of the Oireachtas who were not members of the committee followed our work with interest and sympathy. We had our problems, as was natural, by virtue of the fact that we were dealing with a very sensitive matter. Some members from the different parties were violently opposed to divorce legislation, and other members were very much in favour of divorce legislation. There was a wide gap to bridge, but we found common ground on many issues, one of the issues being that our report should be debated in both Houses of the Oireachtas. I am happy that Seanad Éireann are at present discussing this report. I know I can speak for every member of the committee when I express my sincere thanks to the many Senators who made such fine contributions to this debate. I am sure this House will have the opportunity in the near future to discuss this report at length in the broadest possible sense.
It would do the work of the committee and its members an injustice if the debate here were to be pre-empted by the Bill proposed tonight. Any legislation that would pre-empt this report would not only destroy the true value of the report but would also destroy forever the concept of the committee system which has served this House so well. It would also demean the House if an elected representative of  the people were prevented from explaining fully all the aspects of this problem, instead taking up immediate positions on a limited Bill.
An Ceann Comhairle: As fewer than ten Deputies have risen in their places, in accordance with Standing Orders I declare the motion defeated. The names of those claiming the division will be entered in the Journal of the Proceedings of the House.
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