David Norris (Independent)

I am grateful to Senator McCarthy for highlighting this issue. It is a fundamentally important one. The Minister of State has not had an opportunity to address the issue fully. Nevertheless, I am glad he had an opportunity to put his first few paragraphs on the record because they worry me. The Minister of State said it is up to the people involved to enter into a joint tenancy agreement. That itself is a discriminatory attitude. Would he say to a widow, for example, that proper provision was not made? Widows automatically inherit by virtue of their status. We are talking about people with no status who are not recognised at present.

There is case law on this matter in this country. A very courageous man had lived with his partner for 30 years or so and after the death of his partner, the landlord sought possession of the house, although this man had been contributing financially to the tenancy. The case went to court and judgment was found against him. However, the court, in its judgment, suggested that this was a form of unfairness because the law was anomalous. A situation is known to exist and known to be unfair.

As Senator McCarthy said, we already have a European judgment in the matter. The case of Mr. Karner was directly parallel to the one which occurred in Sandymount a few years ago and which went to trial here. Curiously, in Austria, which is a very conservative country, the lower court found in favour of the surviving partner, as did the next court. It was the conservative Supreme Court which overturned the judgments of the two lower courts. The case then went to the European court which decided in favour of the surviving partner on 24 July 2003, despite the fact that the plaintiff in the case had died. The European Court of Human Rights stated that the issue was one of such a fundamental nature with regard to human rights that it would hand down a judgment, despite the death of the plaintiff and the refusal of his mother, who was the nearest person in law, to continue the case. Application was made by interested parties of a philanthropic nature from outside the family circle and from outside the country and the European court took the matter so seriously that it heard this application and found in favour of the estate of Mr. Karner. The reason given was the question of proportionality. This is an interesting judgment, which the Minister of State should consider. The court determined that there was no requirement on the part of the state — nothing needed to be protected in the interest of the state — to make this exclusion.

I remind the Minister of State of the words of a former colleague of his, spoken in this House. The former Fianna Fáil Minister for Justice, Mrs. Máire Geoghegan-Quinn, said that she would need to have very clear, cogent, rational and factual arguments placed before her if she was to discriminate in any sense against an Irish citizen. Is the Minister of State withdrawing from that position of principle in the name of Fianna Fáil and saying he is prepared to introduce discrimination?

There is currently a discussion about the nature of the family and the Minister of State invoked the word "family" in his partial reply. It is necessary, as many elements in society are doing, that we look at the definition of the family and accept that people who maintain households together, forgetting about the sexual activities that may take place between them, create a relationship that has rights that should be enjoyed by a bereaved partner without this lingering echo of ideological or religious prejudice. Prejudice is all that could sustain opposition to what is being said on this side of the House and there are many decent people on the other side of the House who feel the same.