Ivana Bacik (Independent) | Oireachtas source

I thank the many Senators who spoke to the Bill. I thank Senators Gerald Nash and Kevin Humphreys, who seconded the Bill, and Senators Ray Butler, Catherine Ardagh, Victor Boyhan, David Norris, Fintan Warfield, Lynn Ruane, Máire Devine and Alice-Mary Higgins for expressing their support for it in such strong terms. I think everyone acknowledged the bravery of David Parris and his husband, Gerhard Scully, in taking the case and bringing the issue to wider attention. I reiterate that acknowledgment.

I thank the Minister for Social Protection, Deputy Leo Varadkar, for his generally positive response to the legislation. I thank him for acknowledging the track record of the Labour Party in delivering measures aimed at achieving greater equality. Like Senator Gerald Nash, I should have mentioned that a legacy Bill in the Senator's name, Convictions for Certain Sexual Offences (Apology and Exoneration) Bill 2016, is before this House. That Bill seeks to ensure people with convictions from the time homosexuality was a criminal offence will have them expunged from the record. We hope to make progress with that Bill.

I pay a particular tribute to Senator David Norris in this context. Senator Lynn Ruane reminded me that Senator David Norris had tabled an amendment to the Finance Bill to seek to deal with David Parris' case. Obviously, he has been a tireless worker on these issues during the years.

Senator Gerald Nash accurately described the Bill as dealing with "unfinished business". It is about trying to find a way forward to deal with the legacy of continued discrimination.

I want to address a couple of key points raised by Senator Ray Butler and the Minister by way of partial objection. I acknowledge their general support for the Bill and the principle on which it is based and thank them for that support. I am concerned, however, that both of them referred to the possibility of small pension schemes taking action on the basis that bringing new people within the provisions of such schemes will impose additional costs on the members of these schemes. Frankly, that is a spurious argument. The same argument could be made against a group of employees who organise a Lisdoonvarna-type dating festival, aimed at employees in their 50s who are close to the age at which they have to be married in order that their spouses might benefit from these arrangements, if that results in more people coming under a pension scheme. It is clear that pension schemes with these age restriction clauses have to take the risk that as people approach the age of 60 years, they will get married in a rush in order that their spouses might benefit. I do not agree that action can be taken by existing trustees or stakeholders in a small pension scheme when something results in more people becoming eligible to claim spousal benefit.

The Bill does not seek to abolish the age restriction clause in general. I acknowledge the point made by Senator Alice-Mary Higgins which was accepted by the Minister that there is something rather offensive about age restrictions in a general way. That is an issue for another day. The Bill does not undermine the existence of age restriction clauses. It simply seeks to create a small temporary exemption. As the Minister said, the 36-month window provision seeks to ensure the effect of this legislation will not be fully retrospective. It will be capable of allowing exemptions for a very small number of people only.

That brings me to the retrospective point more generally which we have tried to address through the 36-month provision. I am very familiar with the provisions of Article 15.5.1° of the Constitution. I represented the State in a case in the past, arguing for legislation to be applied retrospectively. As we succeeded in that case, it is not an absolute principle. As a result, sex offender registration provisions can be applied to people convicted prior to the entry into force of the Sex Offenders Act 2001. There are exceptions to the non-retrospectivity principle, even in criminal law where it is at its most robust. We have to look at the retrospectivity point. I do not see it as precluding us from bringing forward legislation of this type because there are ways around it.

Just because the European Court of Justice has stated there is no discrimination in EU law does not mean that we cannot say there is discrimination in our law in the case of same-sex couples. I think anyone would say the reality is that patently there is discrimination. As people were unable to get married, they were blocked in their spouse achieving survivor's benefit because of the age restriction.

I take the Minister's point about the need to engage with his officials. I will be very happy to do so. With my Labour Party colleagues, I will be delighted to engage with them to see how best to make progress with this principle. We are not wedded to the exact provisions included in the Bill. We would be very happy to amend them. I have a good track record in working with officials in other Departments to have Private Members' legislation passed and would be happy to consider an amendment to the social welfare and pensions Bill as an alternative route. I am not sure whether the Labour Party group in this House can conduct a regulatory impact assessment without the support of the State. The Minister would have more resources to undertake such an assessment and we will be happy to work with him in that regard.

I thank Senator Fintan Warfield for pointing me to the parliamentary question tabled by Sinn Féin on the existence of age restriction clauses. It is helpful to know that the State does not have this information. This makes it hard to assess the numbers involved. I know that the Minister intends to do this in another way by looking at demographics. Clearly, that might be a much bigger figure than the number who might actually be caught by the age restriction clause. We do not know how many of these clauses there are. We will have to work together to consider how best to establish the impact required. We all acknowledge that while the number of people affected by this problem is small, it is hugely important as an equality issue for individuals and couples such as David Parris and Gerhard Scully for it to be resolved.

Senators have spoken eloquently about the need to acknowledge the change that has taken place in Irish society by moving towards a more inclusive and equal recognition of loving partnerships. It was put very eloquently by Senator David Norris when he said "marriage is not equal as long as this anomaly arises" in our law. That is true. Senator Fintan Warfield has made the point that we need to give effect to the wishes of the people, as expressed in the referendum in 2015. I suggest bringing through this sort of legislation is a way of respecting the decision made by the people two years ago. I think everyone acknowledges that this an important legacy issue. I ask the Minister and his officials and the officials in the Department of Public Enterprise and Reform to work with us to make speedy progress in bringing the Bill through the Houses.