David Norris (Independent) | Oireachtas source

I move amendment No. 2:

In page 12, between lines 21 and 22, to insert the following:

“Amendment of Section 81E to Pensions Act 1990

20.Section 81E of the Pensions Act 1990 is amended by the substitution of the following subsection for subsection 7:

“(7) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the Respondents or a material change in the Rules of the Pension Scheme subsection (5) shall be construed as if the reference in it to the date of termination of relevant employment were a reference to the date on which the fact of misrepresentation or material change of the Rules of the Pension Scheme came to the complainant’s notice.”.”.

This amendment addresses a manifest injustice under which a small subsection of gay people are precluded from claiming pensions because as of 1984, they did not submit in writing documents saying that they would claim for a husband or wife. In 1984, homosexual behaviour, even between consenting male adults in private, was a criminal offence. How could they possibly do so? Around this time, a judge stopped a case in Dublin - divorce proceedings - because if the witness continued to give the evidence the judge imagined he would give, of homosexual practice, the judge would be required to refer a transcript of the proceedings to the Director of Public Prosecutions. That was the State. In those conditions, how could any gay person possibly claim a pension? It is utterly scandalous that a small cohort of people are being precluded.

There is precedent for this. A number of years ago under the social welfare provisions, the PRSI scheme and so on, farmers' wives, who had been previously prohibited, were allowed to claim. Retrospective legislation was enacted which gave them the right to claim it. There is solid precedent there. Not only that but there is precedent in many other jurisdictions. There was a legal case before the supreme court of Massachusetts which raised this precise point and it decided that the pension regulations in America had to be changed. In the United Kingdom, our nearest neighbour, lesbian, gay, bisexual and transgender public servants who enter into same-sex marriages are now allowed to change their single person pension to a spouse pension and to acquire a spouse pension based on all contributions made since 1988 and not since 2005, as the Minister for Public Expenditure and Reform, Deputy Howlin, incorrectly stated in Dáil Éireann. The United States Government, the state authorities of Massachusetts and the United Kingdom Government are all doing this. It seems to me to be absurdly penny-pinching.It is important we rectify the manifest injustice that will be created if this amendment is not accepted, which I expect will be the outcome. The amendment proposes the amendment of section 81E of the Pensions Act 1990 by way of substitution of the following subsection for subsection (7):

"(7) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the Respondents or a material change in the Rules of the Pension Scheme subsection (5) shall be construed as if the reference in it to the date of termination of relevant employment were a reference to the date on which the fact of misrepresentation or material change of the Rules of the Pension Scheme came to the complainant’s notice.".".

The Minister, Deputy Howlin, has stated that allowing the change in pension arrangements would lead to substantial additional cost to the existing liability of public service pensions. What is the estimated cost in that regard? Why, in terms of the magnitude of the award, is this Government setting its face against giving justice to people in terms of their pensions, many of whom are elderly people who have been discriminated against throughout their lives and relationships by the operation of the criminal law until 1993 and who are now being denied proper pensions. It is scandalous. I cannot understand how a Government of this character could stand over such a situation.

A very distinguished former Member of this House, now a Member of the other House and Chairman of an important Oireachtas committee, Deputy Buttimer, has said that this displays complete intransigence. He went on to say that in 1984 it was not even a remote possibility that a gay or lesbian person would ever be able to get married or enter into a civil partnership. For gay men, relationships were criminalised. In effect, giving them the option to join spouses and children's superannuation schemes made no sense. They could also have been imprisoned for ten years if they made a claim under that scheme. We should allow these people the option to revise their decision.

I do not believe that there is a huge cohort of heterosexual people who will take up this option. However, if they too have been unjustly treated, why should money come into it? This is a question of justice. The argument made when equal pay for women and other reforming measures were proposed was that they would cost too much. That is always the response of the Department of Finance. The Department of Public Expenditure and Reform is now showing equally niggardly attitudes in this matter. I am appealing to the Minister to at this late stage follow the lead of her party colleague and give justice to a small number of elderly people. As I said, there is precedent for this. It would be a pity if this splendid Bill were to be vitiated by such a blemish on its moral character.