Ivana Bacik (Independent) | Oireachtas source

Precisely. I thank Senator Norris for his comment and his support.

David Parris does not seek recognition of his relationship prior to 2011 when it was possible to be legally recognised in civil partnership, he only seeks prospective recognition following his death, which hopefully will be many, many years away. It is not in any sense retrospective in his case, nor do we say is it retrospective in any general sense because it does not provide for survivor's pensions for same-sex partners of employees who died before 2011 and who were therefore never able during their lifetimes to enter a civil partnership or a legal marriage. It simply provides a temporary exemption for lesbian and gay employees from this particular rule that they must have entered a civil partnership or marriage before they turned 60. The exemption applies to employees who were legally unable to enter a marriage or civil partnership at the time they turned 60 and it gives them this small window of 36 months or three years to do so from 2011. We understand that there will be people who will not be able to avail of it, who were unable to enter civil partnership or marriage but who simply are not caught by that provision. Some, for example, may have entered a civil partnership between 2011 and 2014 and then died. The effect of the exemption is to make the rule that the employee must enter civil partnership or marriage either before his or her 60th birthday or within three years of being able to do so legally.

There is a strong legal argument that the exemption is required by a judgment of the European Court of Human Rights, ECHR, which has also ruled on this. While David Parris's case went to the ECJ, there is further case law from the ECHR under the convention. The case of Taddeucci and McCall v. Italy in 2016 involved a family member residence permit for a non-EU citizen. I would argue, as Professor Wintermute has argued, that it would suggest that this exemption is required, namely, that same-sex couples who are legally unable to marry must sometimes be treated differently from unmarried different sex couples who are in a different situation because they are legally able to marry.

The reason I raise that case is because of the floodgates argument. It has been suggested to me that one reason to oppose the Bill might be because there would be a large quantity of persons in other categories who might seek to avail of it, for example, opposite sex couples who simply did not get around to getting married before they turned 60, and then their spouse is then unable, of course, to get the survivor's benefit. Can they then seek to avail of an exemption? I argue they cannot. Taddeucci and McCall v. Italy says they are in a different position. They were legally capable of getting married. Just because they did not choose to do so at the time or did not get around to it does not mean they can avail of an exemption. Similarly, just because people were single until they reached 60, and only met their life partner after the age of 60, clearly they too cannot avail of an exemption like this because it will only apply to those who were legally incapable of marrying before that time.

We did try to think of other groups of people who might have had legal incapacity to marry, but we cannot think that there is any other group to whom an exemption like this could be applied. There are rules governing capacity to marry based on age, blood relationships and so on, but they are in a different league and there is no change to those capacity rules.

There is one further floodgate argument that has been raised with me, which is that there may be quite a number of other gay couples who are in a similar position and would be able to avail of the exemption. Without being an expert on this, I understand this is not a commonplace clause and that there could only be a small number of couples who would be in a position to avail of it. I understand the Department of Social Protection is doing some work in terms of demographic breakdown to see how many couples could potentially avail of this were such a clause to be in place.