Mr. Tim Duggan:

The issue of children was just one of the elements that was considered by the Supreme Court when it was teasing through the various facets of this case. It examined a whole range of elements. The judgment did not land exclusively on the fact that there were children in the relationship. It landed on a whole load of other things, including the fact that there were anomalies in the legislation as it is currently crafted, one of which is the fact that divorced people can access the widow's or widower's pension even though they were no longer married to the person when he or she died. We cannot simplify the situation to say it was about the children because it was about much more than that. If we were to take that narrow view of the court judgment, we would extend eligibility only to those who are in a cohabiting relationship where there are children of the relationship. We are making no such proposal. It is about much more than that. Equality of treatment goes beyond the fact that there are children in the relationship.

In the case of divorced couples, there is usually settlement when divorces occur. That is a legal process and a settlement usually arises from divorce. That settlement rarely, if ever, takes into consideration State pension payments or the potential for State pension payments into the future. It has never, to my knowledge, been a feature of such settlements or agreements on divorce. Therefore, to allow that situation to continue would be to result in the unequal treatment of people in different relationships. Somebody who is divorced would continue to have entitlement but somebody who remarries after a relationship breakdown would not. Somebody who went into a cohabitation situation would not have the same entitlement. That results in an inequality that could also be challenged constitutionally by somebody in the future. There is no obvious place to land with this. It is a matter of trying to strike balances and ensure that we treat everyone as equally as we possibly can. That is what we have tried to do in framing this legislation. It is a difficult thing to do without any direction of any kind from the court. The court provided no real assessment of why it landed on the equality piece or of what specific aspects led it to its conclusion in that regard. It provided no direction on what type of legislative fix would be needed to deal with its finding and, therefore, we have had to tease through all of the elements of this painstakingly to try to ensure that we do not introduce or allow to continue an inequality that would result in yet another case. Have we succeeded? I do not know. We think we have as best we can. Does that mean somebody will not try to take a challenge in the future? Of course it does not. Did we expect this challenge to result in this outcome? We did not, because numerous attempts have been made in the past to expand eligibility for widow's and widower's pension and in all cases, they were not successful, including at European level. Consequently, this is new territory. This is a new departure and we must tease it through bit by bit.

Obviously, the provisions that have been set out in the general scheme are now going to be teased through carefully by the Office of the Parliamentary Counsel and on the advisory side of the Office of the Attorney General.

It may emerge during the course of that analysis and assessment that an alternative approach to what is proposed in the general scheme may be required. It could equally emerge they are satisfied it stands up to the judgment and constitutional provisions that already exist.