Bernard Durkan (Kildare North, Fine Gael)

I welcome this legislation and I am glad to have an opportunity to speak on it. This legislation records progress in this area in recent years, including in discussion inside and outside this House and in terms of the evolution of our society. It also shows a commitment to fairness. The programme for Government commits to fairer government, which is important at this time and for future generations. We must be seen to legislate in a manner that is fair to all in so far as is possible.

There may be people throughout the country who have concerns or have expressed concern about the contents of this Bill and the CivilPartnership and Certain Rights and Obligations of Cohabitants Act 2010. However, we must accept that society moves on. Whatever happens in society, we need to be able to put in place legislation to provide for, assist and guide when necessary, which is what is being done in this Bill. As Deputy Barry stated this is a hugely complicated issue in terms of inheritances, dissolution of partnerships and so on, which should provide happy hunting ground for our friends in the legal profession who will no doubt view this as fertile ground for future discussion. However, we will deal with that then.

We have all been approached by constituents involved in a relationship for a long time, be it with a same sex or opposite sex partner, who have contributed to society, the taxation system and complied with the laws in all ways but who could not obtain the same tax allowances or concessions as a married couple. Marriage is a sacred institution. It is important for everybody and is something which society needs to hold on to, cherish and support. However, society changes. We cannot, nor should we, as legislators attempt to force society to go in a particular direction. Up to now people in partnership arrangements could not obtain the same tax relief as others. That, in turn, became a disincentive to the formation of a proper partnership and commitment, which was the most serious element, and the law was virtually an encouragement to one or other partner to go their own separate direction and to plead, rightly, that he or she was not being treated equally within the laws of the State. The Constitution goes to considerable pains to set out the need to cherish the children of the nation equally, and I am one of those who believes this means all of the people. It is a point of which we need to be always cognisant.

Deputy Barry gave an interesting dissertation in regard to the definition of a partnership, whether it be a same-sex or opposite-sex partnership. A definition can be difficult to find, which may lead to some interesting cases being fought out in the courts. It will lead to situations where lawyers will have to be paid handsomely in order to determine, having due regard to the Constitution, the interpretation the law should take in the future.

While I understand there are proposals in this regard, I hope some means can be found to bring the costs in such situations within the means of the individuals, whether they be wealthy or not so wealthy. Everybody is entitled to the same treatment under the Constitution. It should not be something that is available to some person or group because that person or group can afford it. These changes in our laws must be available to everybody and must be within their rights. We must not have the nonsense of recent years, whereby a person who qualifies gets what they seek but a person who does not qualify does not get what they seek, which is to treat people differently under the Constitution. We cannot have that kind of nonsense.

Deputy Barry made interesting references to business and to farming. To consider a different issue, let us consider the question of entitlement to a local authority house. To be fair to the local authorities they have over recent years accepted the existence of partnerships and cohabiting, although it took a while for them to do so. However, problems can arise in certain circumstances, particularly, for example, when the establishment of the partnership or cohabiting relationship clashes with the Department of Social Protection's interpretation of partnership or cohabiting.

I am sure many Members of the House have experience of the following situation. Two people apply to the local authority and are deemed to be accepted for re-housing despite living in separate houses, perhaps with their parents, relatives or otherwise. They have made the application jointly, as they are entitled to do under the law, because, otherwise, they would never be able to move forward and would have to stay at home forever, unless they are in a position to rent privately first. While I do not blame them, there is now a tendency for officials of the local authorities and the Department of Social Protection to interpret such a couple as cohabiting, and thereby to determine their entitlements to social welfare. This is a problem that must be dealt with. If we are serious about what we are doing, we must accept the right of the couple at some stage, when they obtain a local authority house, to achieve what they see as the ultimate.

Although it does not apply to this legislation, there is a current tendency for well-meaning people to say "We cannot afford that". While there are many things we can no longer afford, the lack of money and resources should not be a means of reducing people's rights and entitlements. If they are entitled to something, they are entitled to it, and there is no good saying we do not have the money for it. The amount of money can be reduced to ensure there is enough. As we know, this was done by the previous Government and the current Government, and will have to be done by subsequent Governments in the coming years. While there is a tendency to say "We cannot afford that", the law must be observed. If we are a fair society and treat people equally, we must observe the law and ensure this Bill is applied equally and fairly, and that it does not create pitfalls, obstructions, loopholes or poverty traps further down the road.

The changes in the whole area of tax credits and allowances must be welcomed. We all know of cases where people could not claim, for want of a better description, family tax credits because of the situation in recent years. Thankfully, this has been addressed and, hopefully, the future position will be satisfactory.

We must remember other important issues. Legislators will always be judged on the way they respond to the needs rather than the demands of society. There is a huge difference between demands and needs, and between what is required and what is purely and simply something people might like to have. As we become more conscious of these issues, it is very important in the event of there being loopholes, obstacles and difficulties - I know case law will establish certain points - that amending legislation will deal with those issues as they arise, not ten or 15 years down the road.

There is a tendency to spend ten or 15 years talking and thinking about these issues, and turning them over in our minds. While I accept a certain amount of time is desirable in order to allow debate, we should not allow a situation to prevail whereby the law treats people unfairly or the legislation fails to acknowledge the existence of certain needs when they arise. There will be many more such needs in the future and it is hoped we can provide for them.

Schedule 1 contains the technical amendments to the Taxes Consolidation Act 1997 required as a consequence of the passing of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. This material is in a table showing the legislative reference, the current text of the legislation and the replacement text. It is a complicated area, as Members will readily recognise. We hope the examination has been thorough and that the indexing has been effective and adequately linked to ensure no aspect is omitted or ignored. The normal procedure is that the Minister would list any such omissions at a later stage in the House, if necessary.

Stamp duty is also dealt with. Section 2 and Schedule 2 give effect to the changes necessary to the Stamp Duties Consolidation Act 1999 to introduce the tax changes required as a consequence of the passing of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. I hope that this issue will be adequately and thoroughly indexed to ensure no unexpected pitfalls face the people affected.

It is important that we, as legislators, legislate for the needs of our society in good time and in such a way as to ensure we do not become divorced or separated from society or unrepresentative of society, because that would be very sad. Democracy is important and, in a democracy, everyone has rights and entitlements. The first right is the right to vote and elect those we wish to have represent us. It is the duty of the representatives to reflect the views of the people in so far as that can be done. They must balance one against the other, not exclude one at the expense of the other, and thereby achieve and attain a fairer and a just society.

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