Noel Ahern (Dublin North West, Fianna Fail)

I am not in a position to accept the amendment. The amendment as worded is incompatible with the remainder of subsection 39(3), as the deletion of the words "husband and wife" would widen the provision to cover any non-tenant living in the accommodation at the time of the death of the tenant. It would render the other subparagraphs redundant. The extension of the provision to include same-sex partners in sexual relationships would require specific reference to the category of occupant rather than the mere deletion of the words "husband and wife".

This was discussed on Committee Stage and I appreciate the motives of the Senators. I emphasise that we are not excluding anyone or discriminating against any category of multiple occupancy nor do we wish to do so. I have no personal ideological stance on this issue.

It is intended to be a provision of limited application and therefore does not cover other categories of multiple occupancy, such as friends, cousins, siblings, colleagues or persons in same-sex relationships. It is not specifically excluding those in same-sex relationships. I explained on Committee Stage that in discussion in the Dáil, I was asked to consider extending the provisions to a spouse, married or unmarried, in the event of the death of a tenant and we tried to do that. The limited application of a right to inherit a Part 4 tenancy is what is considered legally feasible because of the constitutional protection afforded to families. For good or ill, the Constitution affords protection to families and does not afford the same protections to cousins or siblings. As I explained on Committee Stage, the purpose of the amendment was to provide a mechanism by which dependent family members would be able to continue a Part 4 tenancy in a situation where the only member of the family who is the tenant, died.

This is the only instance in the Bill whereby a landlord has no say in whether to grant a tenancy to a particular person. One of the fundamental provisions of the Bill is that a landlord always has a right to decide on who can be a tenant. The only exceptions are in the case of a co-tenant or licensee, where the tenant is already in occupation. In this case, the amendment would afford the automatic right of tenancy to somebody who is not a tenant and who might not be known in legal terms to the landlord. That would be against the normal drift of the Bill. Because of the protection afforded to the family in the Constitution as opposed to other groupings, the Bill is taking away the right of the landlord in that one instance. The Bill is not discriminatory against anyone in that it is not taking anything away from anyone but rather giving a special protection to the spouses of existing family relationships, be they married or unmarried.

The Law Reform Commission recently issued a consultation paper dealing with legislative treatment of same sex unions. Following the consultation period, the commission will issue a final report for the consideration of the Government. At that stage it will be appropriate for the Government's thinking to include the position of couples in same sex unions in the occupation of rented accommodation. The Succession Acts must also be borne in mind. Widening the provision to include all categories of multiple occupancy who are not joint tenants, would and could create a conflict with the Succession Acts and could necessitate amendments to them. When one person in a relationship dies, the question of rights to the Part 4 tenancy, the right to occupation, arises. Other people not living in the apartment, flat or house might have rights under the Succession Acts and complications can arise. The Office of the Attorney General devised this amendment and felt justified in doing so because of the right of the family under the Constitution. Other groupings of people do not have that same right and the Attorney General deliberately did not extend it to other groupings. The debate in the Dáil was in favour of spouses in the case of the death of the tenant. I understand the Senators' concerns. It may well be that the report of the Law Reform Commission, when delivered to Government and rolled out in a couple of years, will make the changes sought by Senators. To accept the amendment now, however, would create considerable difficulties. This legislation is not the correct place for such a change.