Ivana Bacik (Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am delighted to be here to propose this Bill. I welcome the Minister for Social Protection, Deputy Leo Varadkar, to the House. I have received an indication from the Government that it will not be opposing this Bill on Second Stage. I am very grateful for and delighted about that news. I acknowledge the presence in the Visitors Gallery of Dr. David Parris and Mr. Gerhard Scully and I thank them for being here to support the Bill and for their bravery and courage in raising publicly the important equality issue it seeks to address. The Bill is the Pensions (Equal Pension Treatment in Occupational Benefit Scheme) (Amendment) Bill 2016. I am delighted to be proposing it on behalf of Labour Party Senators. My colleague, Senator Ged Nash, will be seconding it and Senator Kevin Humphreys will be speaking on it. We are putting it forward as a Labour Party Private Members' Bill.

We acknowledge the legal expertise and help provided on the Bill by our drafter, Mr. Finbarr O'Malley, and also by Professor Robert Wintemute of King's College, London, who has given us some very important legal input on the Bill. I also acknowledge the support of Ms Marguerite Bolger, senior counsel, who acted in the legal case that forms the impetus for the Bill.

Let me outline the background to the Bill. It seeks to address the very small number of cases in which retired employees who, because of their sexual orientation, were not legally permitted to marry the person they desired to marry before a particular date were deprived of certain pension or survivor benefits as a result.It was drafted, as I have said, in response to a particular case which I know the Minister is aware of, namely, the case of David Parris v. Trinity College Dublin before the European Court of Justice. Judgment was given on 24 November 2016. In that case, David Parris had argued that the Trinity pension scheme was discriminatory as it provided that a Trinity employee's partner would only be entitled to a survivor's pension where the employee had married or entered a civil partnership before reaching the age of 60. The Bill seeks to address the issue that arose in that case. It will provide that if a pension scheme makes a survivor's pension entitlement dependent on the employee having married or entered civil partnership before a certain age, this would breach the principle of equal pension treatment on the sexual orientation ground where the reason the employee did not comply with the requirement was because he or she was legally incapable of marrying prior to the entry into force of civil partnership law.

Before I turn to the provisions of the Bill I will outline the facts of the Parris case in a little more detail. The applicant had been living for over 30 years in a stable relationship with his partner. His employer's pension scheme provided for the payment of a survivor's pension to the spouse or civil partner of a member. However, the survivor's pension was payable only if the member had married or entered into a civil partnership before reaching the age of 60.

This is a clause sometimes referred to as an anti-gold digger clause, essentially based on a very sexist stereotype prevailing in universities at the time but hopefully no longer. The idea was that a younger woman, perhaps a student, might marry or seek to marry an ageing male lecturer in order to gain access to his lucrative pension entitlements upon his death. I am no pensions expert but I understand it is not a commonplace clause. It is an unusual clause because it precludes entitlement unless marriage or civil partnership was entered before a particular age. It appears to be premised on that rather bizarre notion.

It caught Mr. Parris and his spouse in this case because he was not legally able to enter a civil partnership or marry prior to his 60th birthday. As a result, the survivor's pension was denied or it was predicted that it would be denied in the future to his spouse. He retired in 2010 and made a request to Trinity at that point that on his death his then civil partner, now spouse, would receive a survivor's pension. That request was rejected in November 2010. His appeal to the Labour Court was referred to the European Court of Justice, ECJ, which is where the EU law case arose. However, while the EU court found against Mr. Parris, it did not preclude national law changing the position. That is an important point. Paragraph 59 of the Parris judgment states, "Member states are free to provide or not provide for marriage of persons or alternative form of legal recognition, and if they do so provide, to lay down the dates on which such marriage or alternative form is to have effect." While the court did not find in favour of Mr. Parris under EU law, there is nothing in the judgment that precludes us from making this legal change to our law. There was a very strong advocate-general opinion on the 30 June 2016 in support of Mr. Parris's claim. I understand there is also currently litigation in the UK Supreme Court on a similar point.

To turn to the provisions of the Bill, the Title provides it is a Bill to amend the provisions of the Pension Act 1990 and so on. Section 1 provides, crucially, that Part VII of the Pensions Act 1990 is amended in section 72. It inserts a new subsection (5) which says, essentially, that it would be a breach of the principle of equal treatment on the sexual orientation ground for a scheme to fix a requirement that employees would have married or entered civil partnership before a certain age in circumstances where persons were unable to do so because they were not legally entitled to marry because they were in a same-sex relationship.

A further clause has been inserted into subsection (5), stating that the employee must have married or entered into a civil partnership with the beneficiary, the potential survivor, within three years or 36 months of it being lawfully possible to do so. We have put that in on the basis that we understand a reasonable time should be provided for, that people would have had to marry or enter civil partnership within 36 months of it being legally possible to do so in order to avail of the exemption from the clause.

There is a standard form section 2 as well.

These are the sections of the Bill currently before the House. I was pleased to be able to meet with some officials from the Minister's Department and the Department of Public Expenditure and Reform. We are happy to continue to engage with the Minister and officials to improve upon the drafting and to amend the Bill, if required. We have already discussed that.

I want to deal with two particular points that have been raised with me by way of potential objection to any further progress of the Bill. First, the issue of retrospectivity and, second, what I call the floodgates issue: that there would somehow be a large number of people who would seek to benefit from this Bill. On the retrospectivity point, which was also raised in the European court, it must first be acknowledged that all pension entitlements, and particularly survivor benefits, are to some extent retrospective since they do look back at contributions made during employment. However, this Bill is not retrospective in any real sense, and certainly we say it is not of retrospective effect. I am grateful to Professor Wintermute for giving his legal opinion which I am happy to supply to the Minister and his officials. In this particular case, it is not a retrospective application, as David Parris is still alive-----