Wednesday, 16 October 2002
Recognition of Domestic Partnerships: Motion.
That Seanad Éireann, in the light of the recent Equality Authority Report, requests the Government to give an assurance that it will either accept from the Independent benches or introduce on its own initiative legislation to cover the recognition of domestic partnerships.
I welcome the Minister of State. I look forward to an interesting, positive and constructive response in the tradition of Fianna Fáil in these areas. The contributions of the former Minister for Justice, Mrs. Geoghegan-Quinn and the Minister for Finance, Deputy McCreevy, in the 2000 budget are examples.
It is very appropriate for the Seanad to try to push forward social change in a non-confrontational manner. This issue affects a very large section of Irish society nowadays and it should not become a matter of partisan dispute. It is regrettable that so little notice is given of Private Members' debates. I had hoped that people would have had more time to prepare for this debate. I received the Government amendment only this morning and I regret that it put one down. It kicks to touch in calling for us to wait until the relevant reports have been received. One of them has already been launched with a great fanfare. However, given that the third part of the motion commits the House to further review of the situation when the totality of reports has been produced, I will not force a vote but will accept the amendment because I believe in a constructive approach to these human problems.
One report has already been published. It is very significant and I intend to refer to it in this debate. It has also been adopted by the NESC and taken on board by the National Economic and Social Forum, under the direction of Dr. Maureen Gaffney. I understand that substantial meetings have already taken place and that this group, under the provisions of the Programme for Prosperity and Fairness, has requested feedback from the various Departments concerned, which are listed in the report as requiring to undertake certain things. Successful meetings have also been held with Secretaries General of a number of Departments, which is a very positive development.
In the run-up to the last general election, Gay Community News, a very good and well-informed newspaper which may not have wide circulation among Members of this House, conducted a survey over a period of months of the various parties and their attitude toward items of particular interest to the gay community. With the exception of Fianna Fáil, every party positively endorsed partnership rights and said they would introduce legislation in this area. Some even went so far as to indicate they would include adoption. The stance of Fianna Fáil was neutral. It indicated it did not have a policy at this time, which I do not regard that as a negative stance. The junior party in Government, the Progressive Democrats, has committed itself to legislation. That is a very positive framework.
I mentioned the question of the gay community. If only it was affected this debate would be rather narrow and I would not have put down this motion for this, the principal debate in the House on Wednesday evenings. However, the subject of the non-recognition of partnerships outside marriage now covers a considerable number of young Irish citizens who, for one reason or another, have chosen to establish their family units outside the conventions of church or even State marriage. I have a very helpful young American assistant who has produced interesting statistics. The birth rate for 2001 was a total of 57,882 babies, of which 18,049 – 31% – were born outside marriage. In the first three months of this year that has increased to 33%. That is the dimension of the problem we are dealing with. In other words, it is concerned with those who do not have the same rights as people who are married conventionally.
The traditional wisdom in an Ireland that has now changed was that people should be penalised, especially financially, for attempting to make these arrangements outside the strict definition of marriage. However, in justice, fairness and in a spirit of social constructivism, it is wrong to continue this penalisation because when people have decided to create these relationships they need to be supported and given encouragement, in the interests of a stable community. The Seanad ought to be able to provide a framework for that.
I have attempted to place this motion in this broad context because it is the best way to proceed. Members of this House had a series of discussions with the Minister for Finance, Deputy McCreevy, about the discriminations involved in inheritance tax and capital acquisitions tax, especially as it relates to the inheritance of property by those who are not recognised as spouses. We did not go into the question of what, if any, sexual relationships existed between them because that is a private matter and none of our business. The Minister was persuaded of this and introduced a very helpful measure in budget 2000. That was won because it arose in the context not only of specific gay cases, but of a general principle that affected unmarried people regardless of their sex in the unconventional arrangement or marriage.
However, there is one thing that makes it more difficult for gay people and the discrimination far more intense because in the case of heterosexual couples there is always the option of marriage. That option is permanently foreclosed for gay people under the present legislation. As far back as 1967, when Declan Costello produced his constitutional review, even though there was no hint or suggestion that people were considering this kind of same sex relationship recognition, the report said it would not in any circumstances accept it. There was a strong traditional commitment against it, which was unfortunate. Now, as we know, an increasingly large number of people are caught in this situation, whether or not they are gay.
As legislators, and especially in this Upper House, we are required to try to make provisions for social change we observe on the ground and this social change has been observed. However, this does not mean a weakening of support for marriage. I am very happy to support marriage; it is a splendid institution. Nevertheless, nowadays in the 21st century, other forms of relationship equally deserve, if not the respect of the majority of the people, at least to be protected against penal discrimination.
I am not talking about gay marriage. I am so tired of that phrase because it is easy to mock. It establishes a ludicrous picture of two hairy legged men with handle-bar moustaches in white skirts holding hands as they walk up the aisle. It is very easy to dismiss that, but behind it is the human reality of people who are prevented from visiting their partner of 30 or 40 years in hospital, debarred from inheriting, penalised in income tax terms or are sacrificed in terms of mortgage.
I am not interested in the ludicrous notion of marriage that is so easy to mock in the tabloid newspapers. I am interested in the tangible, practical benefits that flow for citizens, be they gay or heterosexual, from the institution of marriage. Without diminishing the status of marriage we must look at its inherent inequity because it is not extended to all people.
There is a certain element of difficulty in this as I have sometimes criticised the Vatican, but now I am in a situation where I can criticise my own church – the Church of Ireland. The Bishop of Tuam recently issued an edict forbidding ceremonies of affirmation of the friendship and love of a lesbian couple. I thought that was extraordinary. I wrote to the bishops of the Church of Ireland some years ago asking them to interfere to stop Drumcree and they said they could not. They can interfere and intervene to stop a service that affirms love and friendship but they cannot apparently stop one that foments and spreads hatred and division.
Would it not strike one as a bit odd that they could not bless a pair of unfortunate lesbians along with the hamsters, goldfish and everything else? There is a kind of a disproportion there and it is rather a pity.
I have already praised the Minister for Finance, Deputy McCreevy, for his work on capital acquisitions tax. The Equality Authority has produced a really important series of documents in addition to its report. I recommend the one to this House entitled Partnership Rights of Same Sex Couples because it deals with all the principal issues, such as adoption. One should not get side-tracked by the notion of gay adoption as it is a tiny insignificant element. There are only about 100 adoptions in the whole State every year anyway. I have not heard of one difficulty regarding a gay adoption but it is something that needs to be addressed in legal terms.
There was a case recently of two young businessmen who had children as a result of some advanced technique in America using the sperm of one of the partners who is the natural father, which left the rights of the children and also of the partner in abeyance in legal terms. This is a very rare occurrence but it should be addressed by the law. We are not suggesting we are paving the way for widescale gay adoptions.
Then there is the question of force majeure. If one is not married to somebody who is hospitalised because of a serious illness or accident, one is not taken into account. Those who saw that wonderful film "Philadelphia" will recall the scene between Miguel, the boyfriend played by the famous Spanish actor, Antonio Banderas, and the doctor treating Tom Hanks. He was Hanks's long-term partner and wanted to talk about the situation but was told by the doctor that as he was not family he had no standing. He was at risk of being thrown out of the hospital after living with Hanks and caring for him for some 20 years. That also affects heterosexual individuals.
In the Civil Service people are required to pay into a pension scheme which provides a benefit for widows and orphans that can only be claimed by people who are married in the conventional sense. What about the spouses of people who are outside – unmarried heterosexual people living together with children? They are debarred from a scheme into which they have paid. That seems to be a denial of natural justice. There is a whole section in the document to which I referred dealing with pensions.
There is also the issue of tenancy rights. In this House we discussed in the past few years the situation of somebody who had been living in Pembroke Cottages. He had lived with his partner for 30 years and had contributed to the rent. When the partner died he was put out on the side of the road as his name had not been on the tenancy agreement. That was the law of the land and it was wrong. That is something that could be addressed.
With the indulgence of the Acting Chairman I will leave this list and come back to it later on because I want to make a couple of suggestions that I would hate not to get looked at. I am grateful to the Leader of the House for the sensitive and intelligent way in which she has dealt with getting this issue on to the Order Paper. It is very interesting that we have just finished dealing with an item of legislation that came from a Labour Party initiative. That is a very good thing. Let us have more legislation that will give a profile to the Seanad. Let us have it, for example, come from the Independent benches or from an all-party group. I call on the House to provide the assistance of the expertise of draftspersons for legislation it deems to be serious because, by and large, we are not capable of doing it for ourselves. I ask the advice of the Leader and other leaders on this matter.
I have established a small committee of expert people in this area to review the law with a view to producing some kind of decent legislation. At the moment we are reviewing all the European legislation in this area. We would like to do something that would do this House, the Government and the country proud. In the past we gained tremendous credit in Europe for some of our anti-discrimination legislation, much of which originated in this House, because we were advanced and we are traditionally seen as a rather conservative country. They were amazed at what we were doing. Let us amaze them again. The expert colleagues on my committee would be delighted if, from time to time, representatives of different parties from the Seanad were prepared to sit in on our meetings, even if just at the end to see if we can put together something that would give justice to a whole range of people who now live decent lives but outside traditional marriage.
I compliment Senator Norris on putting down this issue for debate. It is something we have to address. I join with him in his words of praise for the Leader who has worked hard to put a sensitive amendment to it. I cannot disagree with it but I wish she could have gone a bit further.
Some 12 years ago Senator Norris asked me, as the co-ordinator of the Independent Members in the Seanad, to get Government time allocated to discuss the question of AIDS. At the time it was considered to be extraordinarily avant garde to have such a debate. Many people avoided having anything to do with it. The Government, and it was the Leader's party in government at the time, did agree to provide time. We did not want a divisive debate but simply wanted to raise the issue.
Tonight's motion does not in any way reflect Senator Norris's strong views on this issue. He has put a sensitively worded motion together in order to allow people to address the subject without creating a sense of division, which is not the objective. He discussed it in great detail with me and I know how much he wants the matter to be addressed. There is a real human issue here. The debate should not simply focus on the issue of gay marriages or adoptions – they are certainly a factor, but let us take it one step at a time and look at the point of this motion tonight. It aims to give recognition to people who have committed their lives together whatever their marital status, gender or sexual orientation. In that sense it is no different from many of the other legislation we have put through these Houses to ensure equality and equity for all.
This motion is as much about equity as it is about equality and that is crucial to the issue. In many ways the equality debate has advanced significantly over recent years. In dealing with this issue we must be sensitive. We have to give strength to people who are in clandestine relationships, for the want of a better word, those who are in relationships in which they feel slightly threatened. We cannot change that aspect of things in this House.
Perhaps Senator Norris will disagree on this point but I always advise people who have a gay sexual orientation not to feel any need to tell the world about it. It is their own business and they should hold it that way. Senator Norris has taken a certain stance on this for which I have admired and supported him. However, it is not an issue. I was probably the last person in Ireland to know Senator Norris was gay. We were both elected on the same day in 1987. I knew he was involved in gay rights, but so was I. I also knew that many involved in gay rights were not necessarily gay. When I asked him whether he was gay, it was the only time I have ever seen him stuck for words in the 15 years I have worked with him in the House.
People should be able to live their lives in equity and equality without it being necessary for them to make a public statement about their gender or sexual orientation. This should not be a necessity; it is a matter of choice and should remain so. This is where we move forward. It is when we say to the members of our groups who feel slightly or marginally uncomfortable and consider it less than macho to deal with this "sissy" stuff that it involves issues which are real in society and that wherever we live – city or country, town or village – there are people who feel threatened by the fact that they feel different to others. We should say to them that that is their business and that we do not need to know these intimate matters about them. We should also say that, if people commit to each other in a domestic arrangement, whatever the nature or level of their relationship, they should be able to do so in a way that is recognised by the law in terms of superannuation and pension rights of a surviving partner, wills and probate and the right of the surviving partner to have a claim on the estate.
I ask in this discussion that people leave the word "sex" out of it and let us discuss people. It is irrelevant whether partnerships are man and woman, man and man or woman and woman. That is the reason they are not referred to in the motion. Members should take their courage in their hands and say it is not up to us to make judgments or set the ethical standards for others, rather that we should set the standards for everyone and do so guided by equality and equity, especially on this issue.
This debate is important and we are the pointguards on this issue. People will look back on the debate and note that, while in contributing to it they may not have been completely certain about the issues, they believed fair play to be important wherever it arose. We, as legislators and public representatives, must see to it and ensure there is fairness, regardless of whether it applies to those who are different to us in terms of gender orientation or the nature of their partnerships. We must recognise and respect that. This is about the respect people have for each other.
There is no doubt that we have been reared in and I have been educated in and, in turn, been an educator in an education system which passes on to a new generation the beliefs, customs, mores and norms of the previous one. There is nothing wrong with this, but it is up to us, the leaders in society, to push out the boundaries as we go along to ensure people will always look at the new situation and deal with it properly and openly. It should not be a surprise to anyone that either we or the people we know have a difficulty with the types of issues with which we are dealing. That is not a matter which should be sneered at, dismissed or ignored. It is a matter of people recognising that they must educate and inform themselves on these issues. On that basis we must be the leaders who show the way and say to the Government it should take its courage in its hands and move this forward.
I know the Minister of State will have an open mind on this matter and move the issue forward. Senator Norris has graciously accepted the tone of the amendment on the basis of the last line: "[We resolve] to consider this issue further when all of these reports are available." There is no shame in the Government saying it does not believe we are ready for this legislation just yet, that people need to read through it to bring themselves along. These reports when they come through – some are already available – will help them in this regard. They have been compiled by people who are not crusaders or zealots in these areas. They are people who are examining society and speak with the generality of society in mind in trying to get the fairest and best way possible. It gives me great pleasure to second the motion and I compliment Senator Norris on tabling it for discussion.
I move amendment No. 1:
To delete all words after "Seanad Éireann" and substitute the following:
"–'notes the work currently under way by the National Economic and Social Forum to examine the recent report of the Equality Authority in consultation with relevant Government Departments and interest groups;
–notes the ongoing work of the Law Reform Commission on the rights of co-habitees;
–resolves to consider this issue further when all of these reports are available."
I defer to the Minister of State.
I thank Senators Norris, O'Toole, Henry and Ross for taking the initiative in tabling their motion because it gives the House an opportunity to debate this important issue. As we know, the family based on marriage was overwhelmingly the norm in Irish society for many generations. However, this has been greatly affected by changing social trends in recent years. Specifically, we have seen a marked growth in households consisting of co-habiting couples who are unmarried with, in some cases, their children or the children of one partner. In addition, we have same sex couples whose situation was the primary focus of the report of the Equality Authority referred to in the motion. Therefore, this debate is timely.
The Employment Equality Act, 1998, and the Equal Status Act, 2000, provide protection against discrimination on the grounds of sexual orientation, marital status and family status, among others. These Acts prohibit discrimination in employment and the provision of goods, services, facilities, accommodation and education.
The Equality Authority established an advisory committee on lesbian, gay and bisexual issues in 1999. The committee produced a report entitled, Implementing Equality for Lesbians, Gays and Bisexuals, which was published by the Equality Authority in May 2002 and which we are discussing. The report made 88 recommendations for action covering all areas of society under the following headings: community development and empowerment, equality proofing, partnership rights, health, education, youth services, employment and training, services generally and violence and harassment. It will be clear, therefore, that the report covers a broad subject matter which relates to several Departments, public bodies and the private sector. It also deals with an exceptionally complex and sensitive area on which there can be no sudden rush to conclusions.
Earlier this year the National Economic and Social Forum agreed to examine the implementation issues arising from the report. The forum was established by the Government in 1993 to achieve consensus on as wide a basis as possible on major economic and social policy issues. Since 1998 its work is focused on evaluating the implementation of policies dealing with equality and social inclusion issues.
It was also agreed in the Programme for Prosperity and Fairness that the social partners would consider how recommendations emerging from the authority's report would be carried forward. This project will involve new working methods and a role for the forum in the policy-making cycle. The forum has established a project team to progress this work. The team, which has met twice to date, includes representatives of employer and trade union organisations, representatives of relevant community and voluntary sector organisations, an official from the Department of Justice, Equality and Law Reform and a local authority representative.
The team has agreed in its terms of reference to consult relevant Departments and other bodies regarding the implementation of the main recommendations of the Equality Authority's report. The team will, adopting a problem-solving approach, pay particular attention to identifying potential implementation barriers and challenges on the main priorities as identified by the team and comment and advise on how these may be resolved.
Relevant Departments have been contacted and asked to outline the actions which have already been taken or which they plan to undertake regarding the recommendations, any barriers they envisage in the implementation of these recommendations and how the Departments may overcome these barriers. The team may also consult other bodies regarding implementation of the recommendations, as it considers appropriate.
The team will report back findings and recommendations to the forum by the end of the year. In keeping with forum procedure, the report will be sent directly to Cabinet for consideration prior to publication. It is important to point out that the Government has not had the benefit yet of the results of the work, given that it is still ongoing. Therefore, much as I compliment the Senators for raising the issue at this time, I cannot agree with the motion.
On the question of recognition of partnership rights, which is the specific concern of the motion of Senator Norris and his colleagues, the Equality Authority's report examines the existing law in Ireland and developments in a number of western European countries. It is clear that in countries such as the Netherlands, France, Germany and the Nordic countries, same sex relationships are accorded a form of legal recognition in themselves. Uniquely in Europe, in the Netherlands, the law expressly provides that a marriage can be contracted by two persons of different sex or of the same sex. In some of the states reviewed in the report, the institution of registered partnerships is only open to same sex couples while in others it is open also to heterosexual couples. Denmark is an example of the first type. The report indicates that in 1989 Denmark became the first country to introduce a law on registered same sex partnerships guaranteeing essentially the same rights to such a partnership as to a married couple, except that registered partners cannot adopt children.
This highlights an important distinguishing feature between the suggestion that there should be legal recognition of co-habitation, such as registered partnerships, irrespective of the sexual orientation of the participants, and the idea that such an institution should only be available to same sex partners as in Denmark and, according to the report, also in Germany. Same sex partners do not have the possibility of marrying each other and, therefore, may seek a form of legal recognition analogous to marriage. On the other hand, heterosexual co-habitees normally have the option of marrying and may be co-habiting for any one or more of a number of reasons. It may be a precursor to getting married or because they do not want to accept the legal incidents of marriage or because one or both partners may not be free to marry at the time or because they reject marriage as an institution for whatever reason.
The report recommends a reform to extend the legal and other benefits enjoyed by heterosexual marriage to unmarried heterosexual couples and same sex couples. In particular, it recommends that the legal and policy codes should be systematically reformed to ensure that references to the family recognise the diversity of family forms, households and couple relationships. The report envisages that couples could have a range of options including legal marriage, registered partnerships and recognised households. There would be rights to nominate a partner or successor; designate a next-of-kin for medical issues; nominate a beneficiary of pensions and inheritance; and nominate a partner as a co-parent or guardian of a child.
The report recommends that domestic violence legislation should operate on an equal basis towards same sex relationships as towards married relationships. It also recommends changes to immigration, leave entitlements, taxation, social welfare, housing, parenting, adoption and fostering laws and arrangements so as to accord rights to same sex partners and unmarried, heterosexual partners equal to those enjoyed by married spouses.
In general, the report adopts a far reaching approach in its recommendations, going through the various areas of law and proposing that the situation of same sex couples should be enhanced so that it is essentially the same as that of a married couple. This is a very radical approach in an area of particular sensitivity, which goes beyond the position in some of the European countries discussed in the report. As such, it is not realistic of the Senators to expect that, a matter of months after publication of this report, the Government should commit itself to legislating on the subject before there has been the opportunity to consider fully the issues involved. What has been done is to set in train a process, which I have just described, to examine under the aegis of the National Economic and Social Forum the question of implementing the report's recommendations.
As far as partnership rights are concerned, I think it would also be beneficial if there was more public debate on the recommendations in the report and I hope that our debate here this evening might provide the stimulus for that. The changes suggested by the authority are, as I said, far reaching, proposing as they do an equal status for different partnerships with that of married couples. Such changes, if they are to be made, will require careful consideration from the constitutional standpoint. As Senators know, constitutional recognition of the family is confined to the family based on marriage. Article 41 provides that the State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack. I do not know if the proposals in the report are consistent with this constitutional commitment because no advice has to date been obtained on the question. What is clear is that there needs to be thorough debate and reflection on the changes proposed rather than a rush to introduce legislation straight away.
As legislators, we need to be conscious of the different perspectives that are bound to exist in Irish society concerning the type of proposal which is made in the report. We must recognise the social change that has been taking place in our country but this does not imply that we must, without adequate consideration, decide that we are going to alter radically the legal basis of family life in Ireland. Put simply, we need to have regard also to voices other than that of the Equality Authority in deciding how to progress from here.
There is a further reason why the commitment, sought by the Senators in their motion, would be premature. The Law Reform Commission, as part of their second programme of law reform approved by Government, is examining the topic of the rights and duties of co-habitees. I understand that the commission hopes to publish a consultation paper next year. The expertise and independence of the Law Reform Commission makes it highly desirable that the Government and this House should have the benefit of its research in this complex area before taking decisions on the appropriate course of action. The consultation process in which the commission typically engages before making final recommendations will also elicit the views of experts in various fields and will provide an opportunity to engage with the general public on the issues.
I turn now to some specific points and recommendations in the chapter of the report dealing with partnership rights with a view to outlining the current position. The chapter refers to the issue of Civil Service pension arrangements, under which pensions are provided for the surviving spouses of married members. The terms of this scheme were considered by the Commission on Public Service Pensions. The commission, which drew together the views of unions, management and independent pensions experts, recommended a provision to allow payment of a pension to a financially dependent partner in certain circumstances. Two members of the commission entered a reservation in this matter.
The Government has accepted the thrust of the package of reforms recommended by the commission and has established a working group, as provided for in the Programme for Prosperity and Fairness, comprising representatives of management and unions to advise on implementation. The operational details of the implementation of the commission recommendations are to be agreed by Government following receipt of a report from this group, which is expected later in the year. Pending receipt of this report, it is not possible to give a more definitive response on this point.
The suggestion that legislation governing violence in intimate relationships should operate on an equal basis towards same sex couples as towards married relationships can be considered either in the context of legislation resulting from the Supreme Court judgment of last week on ex parte interim barring orders or other appropriate future legislation. As is noted in the report, under the Domestic Violence Act, a person who has lived with the alleged violent person as husband or wife, although the couple are not married to each other, can in certain circumstances apply for a safety or a barring order. Also, a person who resides with the respondent in a relationship, the basis of which is not primarily contractual, may apply for a safety order.
With regard to parental leave, a working group, which comprised representatives of the social partners, certain Departments and the Equality Authority, was set up in accordance with a requirement of the Parental Leave Act, 1998, to conduct a review of its operation within three years. The requirement was also incorporated as a commitment in the Programme for Prosperity and Fairness. The report of the working group was published in April 2002. The group identified 18 issues for consideration in the course of the review and made a series of recommendations in relation to some of these issues. One of the ten recommendations agreed by the group is that a workable legal formula should be developed to extend parental leave entitlement to persons acting in loco parentis. This would include persons who actively parent but are neither natural nor adoptive parents. This recommendation along with the others made by the working group is currently being examined by my Department with a view to bringing forward legislative proposals to Government.
In regard to social welfare, section 3(12) of the Social Welfare (Consolidation) Act, 1993, defines spouse for the purposes of the Act as each person of a married couple who are living together, or a man and woman who are not married to each other but are cohabiting as husband and wife. This definition is based on the outcome of the Hyland case in 1987, which dealt with the level of payments received by married couples and those who are co-habiting. The latter had been treated as single people and received two full payments, which placed married couples at a disadvantage as they received approximately 1.6 times the personal rate. As a result of this case and in order to ensure that married couples did not receive less favourable treatment than a co-habiting couple, the definition of a married couple was widened, for social welfare purposes, to include co-habiting couples. Payments to co-habiting couples were then adjusted downwards to bring them into line with those of married couples. I understand that this is the position in respect of social welfare payments generally, but does not apply for the purpose of eligibility for widow's or widower's pensions where co-habitation is not recognised.
On adoption, the legal position is that under section 10 of the Adoption Act, 1991, only a married couple can adopt jointly. Two unmarried persons of whatever sexual orientation cannot adopt jointly. A single person can adopt where it is considered desirable in the interests of the child, but any partner of the adopting parent would have no rights in relation to the child. I am informed by the Department of Health and Children that there are no current proposals to change the law in this regard, but there is an ongoing review in progress in relation to all aspects of adoption. One of the subgroups of the project team carrying out the review has recommended that where there is a pre-existing relationship between an unmarried couple and a child, it should be made legally possible for an adoption order to be made in favour of the couple.
The picture which emerges is that our law recognises cohabitation for certain purposes, though there is no particular institution or status for cohabitees as such. As I said, reforms are under consideration in a number of areas which would benefit cohabitees, but we must consider carefully, consult widely and not necessarily take all our inspiration from the one report in deciding on the reforms that need to be made. In this regard, we have the process set in train by the National Economic and Social Forum to consider how to respond to the report and the ongoing work of the Law Reform Commission on the rights and duties of cohabitees. In the light of these developments, the Government motion proposes that the House should resolve to consider the issue further when all the relevant reports are available.
I welcome the Minister of State and thank Senator Norris for taking the initiative in tabling this motion. I accept also that the Leader has tabled an amendment which is acceptable to Senator Norris.
Fine Gael is supportive of any moves to recognise the partnerships of same sex couples and non-married cohabiting heterosexual couples. There is an urgent need to eliminate disadvantage and social exclusion and thereby accommodate diversity of sexual orientation in Irish society. Many people live in relationships which are not recognised and this leads to discrimination; in certain cases it can lead to violence and harassment at work or on the street. It is time to face up to these problems and take the necessary action to give these relationships a legal basis.
The recommendations contained in the recent Equality Authority report which relate specifically to lesbians, gays and bisexuals are many and varied. Many of them apply to heterosexual couples, but we are dealing tonight with gays, lesbians and bisexuals. The recommendations cover areas such as community development and empowerment, equality proofing, partnership rights, health, education, youth services, employment and training services as well as violence and harassment. It is an excellent report and when one reads it, it is shocking to see the lack of recognition of the gay, lesbian and bisexual community. Our legislation assumes that our population is made up of heterosexuals only and that all cohabiting couples are made up of men and women who are married. It is time we took on and changed this assumption, recognising the many people now feel alienated from their own society.
What is needed? The report makes many excellent and essential recommendations and I will not go through them all, as the Minister of State has dealt with them, but equality proofing is absolutely vital. We are only coming to terms with this concept, but it is very important and should be implemented in all Departments and agencies in order that when legislation is in place, people will never again feel left out by our laws.
In the Department of Justice, Equality and Law Reform the legal and policy codes should be reformed to ensure references to the family recognise the diversity of family forms, households and couple relationships. We live in a more open society today, but there is still significant discrimination which should be addressed in order that we can build a more inclusive and equal society. For example, we must ensure same sex couples and cohabiting single heterosexual couples enjoy the same legal rights as married couples. This would give recognition to their nominating a partner or successor, designating a next of kin for medical issues, nominating a beneficiary of pensions and inheritance and a partner as a co-parent or guardian of a child. Other issues to be addressed involve providing equal rights of residency and work entitlements for foreign partners of Irish citizens as those provided for married heterosexuals and issues relating to leave entitlements, such as parental leave.
The Department of Finance should make the necessary recommendations for change to the taxation system in line with according equal rights to same sex partners, unmarried heterosexual couples and married couples. Same sex and unmarried heterosexual couples both gain and lose from the fact that the social welfare code recognises only spouses and those living together as "husband and wife". The relevant legislation could be amended and the phrase "living together as husband and wife" replaced by some more broad formula such as "living together in a relationship akin to marriage". Issues such as capital gains tax, inheritance rights and property, parenting, pensions and healthcare have been covered very well by this report and need to be addressed.
It is time to tackle these issues. Many of the issues to which I have referred apply to heterosexual cohabiting unmarried couples also. We cannot ignore these relationships any longer. We must shape a future for the entire community of Irish men and women, from all walks of life and regardless of their sexual orientation. Each one must be valued and accommodated by the larger society. It is up to us to move this forward and change people's views and opinions. This debate is the start of that process. People are more open to these ideas today, but it is up to each of us to bring the debate to the people and stand up and say we will not bury our heads in the sand any longer. People have been living in these relationships for many years and oppressed, but we do not want our people to live like that any longer. They need to be open and able to live in the society to which we all aspire – a society of equality and freedom in which one can express one's beliefs and feelings.
I welcome this debate and the reasoned approach taken by Senator Norris, who proposed it. These are issues which must be addressed in a republican society. If we value equality, we must address equality issues. In the area of equality, women would have felt disadvantaged in society in the past. Great advances have been achieved in that area. The European Union has been effective in bringing about positive changes. Equal pay was achieved as a result of European directives and we are moving towards more equality and fairness in the area of social security payments.
An audit published in June 2000 examined the situation regarding same sex couples under various headings. The Equality Authority as a body has a very important input to the evolution of policy and in the subsequent drafting of legislation. This report must be examined in the context of other reports and analyses. This document contains much good material but not all of it would find universal approval or support. I have a small criticism of the Equality Authority regarding its recent ruling that children of any age should be permitted in licensed premises at any hour of the day or night. Such a proposal goes against common sense.
As a consequence of not having some form of qualitative evaluation by the authority, the report is not as strong as it might be otherwise. Certain areas could have been prioritised and there is an overwhelming case to be made for changes in legislation. We have come a long way in the area of equality in recent decades but the removal of discrimination against minorities or sections of society still remains to be addressed. Social inclusion is a pre-requisite for a republic.
Other Members may disagree with my view of the report's recommendation that the Department of Arts, Sport and Tourism should support events such as gay festivals. Senator O'Toole alluded to this in his contribution and I believe that sometimes the accentuation of difference creates hostility and opposition. It is perhaps better to look at integration and, as a local representative, I have always advocated this approach. When local authorities decide to house Traveller families in groups in one estate, it tends to create a ghetto. I prefer a policy of integration in housing schemes where they will become part of the settled community, their children will be given better opportunities and they will not suffer the stigma which might be attached to people put together in one area. This approach would also apply to other minority groups.
Senator Terry referred to equality proofing, an initiative taken by the Equality Authority as a policy tool. The Good Friday Agreement provides for an equivalence of rights both North and South. Equality proofing has been mentioned as being applicable in such areas as poverty, health, disadvantage, social housing and training. The report states that many of the more liberal regimes within Europe are only now looking at changes in this area. I agree with the Minister of State that we should examine the implementation of changes in selective areas. Universal support is essential in the elimination of discrimination.
The issue of parity for same sex couples is currently receiving attention in some European countries. It has led to the registration of same sex partnerships. Senator Norris and Senator O'Toole outlined areas such as inheritance, taxation, pensions and health entitlements where it is of great importance to the individuals involved. Under existing legislation, the inheritance of the main residence can pass to the other person living in the house. I regard the recommendation that a person may nominate a beneficiary for inheritance or pension entitlements as very logical and it should be examined further.
I do not wish to nit-pick with the Equality Authority but one of the areas where I regard it as somewhat blinkered in its view is the statement regarding pensions where it says that legislation should be amended to read "nominated person" instead of "spouse", as designated by the employee. That could have dire consequences for those in the married state, particularly wives. They could be disadvantaged by that proposal.
I regard myself as a republican but perhaps Senator Norris would regard me as a conservative – I certainly lean more in that direction than towards being a liberal. It is important that any changes made do not undermine the strength and stability which the traditional married state gives to society. Heterosexual couples living together but not married have advantages in the social welfare system which work to the detriment of marriage. I do not believe that is a good trend. We must strike a balance between protecting the value of the traditional married family while ensuring the civil rights of other people.
Health is one of the key themes of the report. Many people who have found it difficult to disclose their sexual orientation have suffered great stress and the gay community should be given specific mechanisms to deal with that aspect. There should be equality throughout the whole educational system. The report deals with bullying and harassment. We should strive to eradicate homophobic bullying to satisfy the provisions of the Equal Status Act. The gay community has a role to play in this regard. Gay people should be advised not to make provocative displays of their sexual orientation because this, in turn, generates a reaction. I compliment Senator Norris on his approach.
Discrimination and alienation can occur in employment. It is essential that employer organisations and the trade unions play a positive role. They should ensure that any such behaviour is eradicated from the workplace. Minority groups are often victims of crime. The report's recommendations regarding violence and harassment are worth serious consideration.
Intolerance of minorities is unacceptable in a republican democracy such as ours. Respect for human beings, regardless of class, colour, creed or sexual orientation, is a priority. In fact, it is probably a prerequisite for a civilised society and the Legislature, which must also operate for the common good. Within that framework we should address the issues before us. We should move forward in a measured way to achieve widespread public support as being essential to gaining public acceptance which, in turn, underpins equality in practice.
I support Senator Norris's motion and commend the Government on its amendment which does not take away from the motion. I am concerned by the possible suggestion that this project could, in any way, be an attack on the family because we must consider the fact that families are diverse in their composition. I speak as president of Cherish, an organisation set up in the early 1970s by single mothers for single mothers because it was believed that no such person existed in those days. Now many women rear children on their own.
We have to take into account that there is a diverse group of people whom we might describe as families. Frequently, two people of the same sex bring up children together as sometimes do people who are alone. I am concerned that sometimes the children concerned are disadvantaged because of our attitude. Senator Norris's motion encourages the idea that we must ensure all the nation's children are cherished equally, as stated in the Constitution.
There was a great deal of excitement following the announcement that same sex couples should be allowed to adopt children. I remember I was asked to comment before I had the chance to read it. However, as has been pointed out, the purpose was that one member of a couple could adopt the other's children to ensure inheritance rights and so forth. What fascinates me is that such couples could so easily lie because single people can adopt children. One member of a couple could come forward to adopt a child. By encouraging a falsehood, they would be in a position to adopt, but if they came forward and honestly said they were a same sex couple, they would have problems with adoption.
We must be careful to encourage people to make honest declarations about their situation. This is causing problems in the case of young women claiming single mothers' allowance, even though there is a man living in the house who may be the father of the child. It is a good idea that children have two parents – I am a bit like Lady Bracknell in that regard. While I understand it being considered undesirable if both are drawing social welfare as it is felt one is drawing unfairly, one must also think of the common good. It is as well to allow a little leeway to encourage a stable relationship to be established.
Research was undertaken recently on pregnancy among teenagers and the figures are no greater now than they were in the 1970s. In the 1970s teenagers were briskly married off if they became pregnant. I will not enter a sociological discourse as to whether it is better that they should be married or stay single. However, we should recognise that if we are to encourage the welfare of children, in particular, we should remember that these relationships can be important and that it may work to the benefit of the child in the long-term to perhaps occasionally turn a blind eye, which we are particularly good at doing in various situations.
Senator Walsh mentioned health. Many people in single sex relationships, or even before they became involved in relationships, realised that their sexual orientation was different from what was more publicly recognised which has caused dreadful stress and, in some cases, mental illness. The incidence of suicide is higher among teenagers or young people who feel they are gay. It is important we try to ensure we address the issue in a sympathetic way, as Senator Norris has tried to do. We should be up front and say it is important from a public health point of view.
I never understood the reason stability in gay relationships was not encouraged because from a health point of view it would be far better. I do not know how many Members have read the dreadful story of the beginning of the AIDS epidemic in America, And the Band Played On. One could see where the marginalisation of the gay community allowed a situation to develop where there were more casual sexual relationships than there would have been if people had been permitted to be in stable relationships. That is one of the basic issues at which we have to look.
We are always trying to encourage constancy in heterosexual relationships. Perhaps it would be a good idea if we did the same in the case of same sex relationships. There has been a sixfold rise in heterosexual HIV infection in this country in recent years. Newly diagnosed cases, where men have had sex with men, have doubled since 1998, but have not increased as fast as the incidence among the heterosexual community. We should be careful not to minimise the importance of encouraging people to stay in monogamous relationships. Why should it just apply to heterosexual couples? I have never understood that. Encouraging stability in a community where relationships are between people of the same sex is important from a public health point of view. I commend Senator Norris on the motion.
It is timely such subjects are debated and I am happy Senator Norris has accepted the amendment tabled by the Government. I would, however, like to avail of the opportunity to speak on values which are close to my heart. I make no apology for supporting family values on which I base my political beliefs. Families are at the heart of our society and enshrined in the Constitution. Most of us live in families which we value because they provide love, support and care. They educate us and teach us right from wrong. Our future depends on their success in bringing up children. That is the reason we should be committed to strengthening family life.
There is now a widespread recognition that a new approach to supporting the family is needed. Families are under stress. The rate of marriage breakdown is on the increase. More children are being brought up in single parent households and there is increased child poverty, often as a direct consequence of family breakdown. Rising crime levels and drug abuse are indirect symptoms of problems in the family.
Saying that families are a good thing is not enough. Good intentions need to be carried through in practice. Governments must be wary about intervening in areas of private life and intimate emotion. They need to approach family policy with a strong dose of humility. A modern family policy needs to recognise these new realities and be founded on clear principles. I suggest three such principles. First, the interests of children must be paramount. The Government's interest in family policy is primarily an interest in ensuring the next generation is given the best possible start in life. Second, children need stability and security. While marriage is still the surest foundation for raising children and remains the choice of the majority of people in Ireland, many lone parents and unmarried couples raise their children as successfully as married parents. Third, wherever possible, Governments should not try to substitute for parents but offer support to all parents so they can better support their children.
There is no longer any credibility in either back to basics fundamentalism that tries to turn back the clock or anything goes liberalism that denies the fact that how families behave affects us all. The raising of children or the provision of care ought to be valued by society and everyone should have the chance to balance work and family commitments. Achieving that balance benefits us all. Families do not want to be nannied or to be nagged about how to raise their children, but they want support to be available when they need it. This may take the form of advice on relationships, help with overcoming difficulties, support with parenting and, should a couple's relationship break down, a system of divorce which avoids aggravating conflict within the family.
Marriage provides a strong foundation for stable relationships. This does not mean trying to make people marry or criticising or penalising people who choose not to marry. Governments should not interfere in people's lives in that way, but I share the belief of the majority of people that marriage provides the most reliable framework for raising children. We have to be realistic about how much can be achieved. Family matters are essentially private and individuals must live their own lives. What we must do is provide the best support we can and set out the rights and responsibilities of families clearly.
All families face pressure in their everyday lives and all families want some measure of support, but a small portion of families encounter more serious problems and need particular help and assistance. Poverty, poor housing, social exclusion and a lack of opportunity are the root of many serious family problems. Our strategies on social exclusion should address serious underlying problems with children's learning, juvenile offending, teenage pregnancy and domestic violence. In considering these issues, I urge that we revisit our Constitution, in particular the section on fundamental rights which deals with personal rights, the family, education and private property. We should ask ourselves whether we are truly supporting our Constitution or merely paying lip service to it when we address these issues.
I welcome the Minister of State to the House. I am happy to be here – it is my first time to speak since the election – and I am sure the Minister of State is of a similar mindset. I congratulate Senator Norris on bringing forward this motion. The Senator has been an ardent supporter of the marginalised, including those with disabilities. He spoke on many occasions in the last Seanad on disability issues, as I did. I know we have proposed an amendment to the motion, but the two marry very well.
The individuality of lesbian, gay and bi-sexual people is most marked by their lack of legal recognition. These marginalised people do not have the same rights as what is referred to as the traditional family. Unmarried heterosexuals have the option of marrying or rejecting marriage if they wish, but gay couples do not. They have no guarantee of protection and they would also say that they do not have fair treatment under the law, a point with which I agree. They are not recognised in any shape or form. Probably the worst manifestation of this is where a gay couple is living together and one of the partners dies. There is no recognition of the relationship.
That issue has been taken on board by some European countries in recent times to the extent that recognition of same sex partnerships is now relevant in terms of inheritance tax, pensions and health requirements. The Netherlands is probably way ahead of the posse on this issue – it has had full recognition of civil marriages between same sex couples since 2001 – but I do not foresee this country ever progressing to that extent. Denmark, Germany and France are moving in a similar direction, albeit more slowly, and other European countries such as Finland, Norway and Iceland are cherry-picking elements of legislation to suit their own particular needs in terms of same sex couples.
It is understandable that we as a country are not moving at the same pace. We have to consider where we have come from in relation to where we are going and it is fair to say that the Netherlands was liberal when some people could not even spell the word. We are coming from a much more conservative, religion orientated tradition and we have a long way to go in terms of recognising the liberal agenda that countries like Norway and the Netherlands have championed. We have made progress and the outgoing Government moved significantly forward in the Equal Status Act, 2000, and the Employment Equality Act, 1998. These gave legal rights to marginalised people in a very meaningful way and the setting up of the Equality Authority brought about a new dawn for marginalised people, particularly lesbians, gays and bi-sexuals. They now enjoy greater protection than they did in the past.
In terms of that legislation, it could be said that we have taken on board the easier parts of the liberal agenda, but we must crawl before we walk and the motion is probably asking us to run a little. The Equality Authority set up an advisory committee under section 48 of the Equal Status Act, 2000, to investigate the rights of lesbians, gays and bi-sexuals in particular. It gave the committee terms of reference that included equality proofing and also partnership rights, which we are discussing tonight.
One of the committee's suggestions was that legal and policy codes should be reinforced to ensure that reference to the family took into account the diversity of families and recognised that a family is not just a husband and wife scenario but may reflect something different. It also suggested that the Government should ensure that same sex couples are dealt with in an equal way to traditional couples in terms of a partner's legal right to extend a right. The outcome of that would allow same sex couples to nominate a partner or a successor, to nominate a next of kin in terms of medical issues, to nominate a beneficiary for inheritance or to nominate a partner to co-parent, adopt or be guardian to a child. In terms of parental leave, it was recommended that same sex couples should have equal rights to traditional couples.
If we go down this road, a whole plethora of changes will have to take place. Our taxation and social welfare systems will have to be examined, while another aspect is the provision of support housing. We all know how difficult it is to get a house. I have no idea what additional demands this would bring to bear on the housing situation which is already bursting at the seams, but that is a matter for another day.
Employers would also have to look at a situation whereby they would protect the pension rights and health care benefits of spouses. Senators Norris alluded to the public service. Since 1984 public servants, married or otherwise, have to contribute to a spouses and children's fund which provides them with a pension in the event of the death of a spouse. In those circumstances no payment can be made to a member of a non-married couple or any of the children of that partnership. I have a certain sympathy for someone in that position. For example, where a woman walks out on a man and he eventually finds a new partner who lives with him for 25 years and raises his children, in the event of his death, the woman concerned has no claim on his pension good, bad or indifferent. We do not have to walk far from here to find people in that situation. This issue needs to be addressed.
In the private sector pension benefits can accrue to a same sex partner and their children. There are certain companies which operate this system. In the public service, the death-in-service benefit – a standard lump sum – can find its way to a spouse in any shape or form by means of a last will and testiment. In the private sector the death-in-service benefit is granted at the behest of the trustees of the holders of the fund. Unfortunately, if a trustee was not inclined to one's way of life, the trustee may decide to distribute the fund in a way that might not otherwise be fair.
We are embarking on a real mindset in terms of where we are going on this issue. This is a debate to which we shall have to return many times before the end of this Seanad because the matter needs to be discussed on an ongoing basis. We are all changing in certain ways. This is the 21st century. In the Minister of State, Deputy O'Dea, we have a person who is open to meeting people, receiving submissions and willing to listen to the point of view of others. We can go forward in a positive way.
I welcome the Minister of State, Deputy Michael Ahern, and commend Senator Norris for tabling this important motion. Like others, I welcome the debate and also the good work under way by the National Economic and Social Forum and the Law Reform Commission in bringing recommendations to Government based on the Equality Authority report. I congratulate the authors of such a fine report.
Given that most of the issues have been well articulated by the Members who have contributed I shall not deal with them in detail. They have long been neglected in society and their resolution will have far reaching effects right across the board in all sectors, families and relationships. That the report has been considered by Cabinet and referred to the above bodies and a firm commitment given to revisit the matter when they conclude their work indicates that the Government has a positive, supportive and constructive attitude to it.
It is helpful that issues such as these are being brought to the forefront. Fianna Fáil has always been to the fore in pioneering social issues. On that note I strongly urge all sides to support and endorse the Government amendment which gives a clear commitment to revisit this important matter which should at that stage properly and rightly draw support from all sides of the House.
I am pleased to speak to the motion and, particularly, our amendment. I thank Senator Norris for tabling the motion and his openness in accepting the Government amendment, although he said it was not sufficiently embracing, in the spirit in which it was brought forward – a genuine spirit of co-operation and wishing to bring the matter further. I know Senator Minihan will not regard me as saucy or confrontational, but we all share the ideas of family which he espoused so defiantly and strongly. It is not a matter of saying one is for the family and raising the flag. That is not the point of this debate, but I accept the Senator's strong feelings. I have strong feelings about my family also, as I am sure every Member has. I remember reading something Senator Norris wrote about his dear aunt who was elderly—
We can all pat ourselves on the back and say, "What a good girl am I, am I?" or "What a good man am I, am I?" We are not trying to put a divide between people who love their families in whatever shape they may take. I accept that all human beings have an animal like attraction to family, to those they love and care for in whatever shape they may take. I accept that young children benefit from having two parents, whatever the relationship. This is not about driving a wedge between what would be regarded as traditional families and other families. It is about being inclusive and wishing to include in legal, social and family responsibilities all the various relationships which have sprung up which we have tiptoed around, talked about behind closed doors and hoped somehow would go away.
In 1996 during the divorce referendum in the name of Senator Terry's party and that of the Labour Party when Fianna Fáil was in opposition and in favour of it, I recall taking part in several debates about the matter. I continued to say it was not sufficient to say that because one was happily married that everyone else who was not could stay in the condition in which they found themselves. That would be an entirely incorrect way to approach any huge social issue. We have to recognise that we cannot stay cocooned in our little blanket of comfort and think that because everything is all right with us, it had better be all right with everybody else in the same fashion, otherwise we will not pay any heed to it. That is a wrong way to approach very important issues. Relationships in whatever shape can be loving, strong and supportive, give comfort and succour and life long. Above all, they can give a sense of love and belonging for which so many long and so many, sadly, never achieve. I strongly endorse the idea that this House should discuss such issues. I accept that other people have very strong views but it would be wrong of me to expect everybody to share my point of view. There are many aspects to this issue which should be examined.
I read the equality report this afternoon and I share the views of Senators Kett, Feeney and Jim Walsh. There are major issues in the report to be addressed, particularly financial issues. The report has been referred to the National Economic and Social Forum which has begun its work. I telephoned the forum today to find out how far it has progressed in its work and I understand it has set up its project team on implementing equality for lesbian, gay and bisexual people and also for men and women who are not in a marriage situation – Senator Norris is nodding so he must agree with me – although the report did not address that aspect.
The National Economic and Social Forum is awaiting the nominations of Oireachtas Members which was delayed due to the general election. An appropriate way for us to proceed would be to fill those vacancies – we would have to speak to the Chief Whip in the Dáil – because the forum is talking to its project team and awaiting its analysis and projections without the presence on the team of any Member of the Oireachtas. There is a strand on the project team for Oireachtas Members and we should put forward our nominees to it.
The report lists the various groups which have put forward nominees, for example, the General Council of County Councils. I understand Senators follow its work intensely and attend all its seminars and meetings because it gives them votes.
It nominated Mr. Michael O'Donovan. The community and voluntary sector and the employer, trade union and farming organisations have also put forward nominees. I welcome the fact that a number of women were nominated because it is often the case that the nominees to those groups are grey suits.
If this House is to establish part of its relevance, it should be willing to examine issues which, because of pressure of time or the confrontational way of doing business, the other House often does not have the opportunity to address. It does not often have people of courage who are prepared to put forward an idea and drag us into a debate on it such as the one we are having here tonight, which is very important.
I welcomed Senator Norris's remarks, and those of Senator Joe O'Toole, that the issue should not be about identifying certain groups as being gay, lesbian or whatever. I long for the day when our society is inclusive and people of all partnership arrangements are not regarded as different but as part of an overall pattern of life. That is what life is all about. If we all had the same ideas and the same sexual impulses, what a dull and unreal world it would be. We all vary and the idea that we would somehow all be the same and erect a portcullis around us and say, "I am all right and everyone else must work out their own business", is wrong.
I hope this is the start of ongoing debate and that we will have nominees from the Dáil and the Seanad on the committee. The committee will then issue its findings, the matter will go to Cabinet, the findings will be published and we will address them at that time. The road is a long one and there are huge financial and legislative considerations to address, but let us keep our hearts up high. This is a project. It is also an adventure but, above all, it is an issue of fair play, equality and decency. Obviously I support our amendment, but I am glad the issue has reached the discussion stage.
I welcome the Minister of State, Deputy Browne, to the House. I am delighted that my election to the Seanad enables me to participate in this discussion this evening. Tumultuous changes have taken place in our society over the past 20 years and, as the Leader of the House, Senator O'Rourke, stated so eloquently, we have to participate in and be part of that change.
It was in 1969 and I was discriminated against while working in the Office of Public Works. My boss tried to keep me on but the rule in the Civil Service was that I had to resign when I got married.
I have been an active participant in events on the Garvaghy Road for many years and every 12 July I witness discrimination and racism. Members might be surprised that I would use that word but the overwhelming psychological pressure put on Catholics in the Garvaghy Road by the Unionist and loyalist communities is racism. I was shocked when I realised that.
At a meeting of the parliamentary party today the Taoiseach said that Fianna Fáil is a socialist party. That is the reason I am a member of Fianna Fáil. I remind Senator Norris and Senator Henry of the Government's changes to the law that decriminalised homosexuality and that, in 1993, a Fianna Fáil Minister, Máire Geoghegan-Quinn, in response to the report of the Law Reform Commission, set the age of consent at 17 because that was the age of consent for heterosexual relationships. There was a hue and cry in society, and I will not go over all that again, but I reiterate that Fianna Fáil is a socialist party which wants a more inclusive society in which nobody feels pain or is discriminated against. When the Law Reform Commission issues its report, as it did in 1993, I am optimistic that Fianna Fáil will examine its recommendations in due time and take the lead on this issue.
I commend Senator O'Rourke on what I am sure Senator Norris will agree is an excellent amendment. I discussed this issue with work colleagues over the past few days and they asked me if I was talking about gay marriages, etc. We will have to deal with these issues in society but I welcome the views from both sides of the House and the fact that there was not one rigid view.
I thank my colleagues for such a wide-ranging, excellent and well-informed debate. I am extremely heartened by it. I should have not doubted it would happen when I look at my old friends and colleagues and my new friends with whom I spoke on the telephone, two gracious women Members of the Seanad, one on each side of the House. I spoke to them last night and I am not at all surprised that we had such a good debate.
The Leader of the House, Senator O'Rourke, as a Minister in May 1993, introduced the category of sexual orientation into the list of items covered by the Employment Equality Act, 1977. I remember, as Senator White says, the days when former Deputy Máire Geoghegan-Quinn was here. Mean-minded amendments were being put about, but she nailed her flag firmly to the mast of equality. She said she would require cogent and clear reasons to impose discrimination against any Irish citizen. As the Senator said, that was the kind of republican view with which I could find myself completely in agreement.
I want to put this discussion in a wider context than that of the gay issue. I share Senator Minihan's feelings about the centrality and importance of the family. Nothing that gives others outside that convention support and help would in any sense diminish the family. In fact, it would strengthen it because it would bring us all into the same category and we could all encourage each other in our different family structures of love.
Lesbian and gay people suffer disproportionately. According to this excellent publication by the Equality Authority, Partnership Rights of Same-Sex Couples, lesbian and gay couples have no guarantee of fair treatment under the law because legally their relationships do not exist. The vulnerability experienced by all couples during times of death or serious illness of a partner and the anxieties involved in child-rearing and child custody are all exacerbated for same sex couples. My colleague, Senator Henry, quoted what she thought was the Constitution but was actually the 1916 Proclamation, which mentions cherishing all the children of the nation equally. It is chilling to hear that a certain section of society – let us forget that they are lesbian or gay – has no guarantee of fair or equal treatment under the law. This is from an agency established under law by this Oireachtas. That must give us pause for thought.
I want to outline a few areas where there is a commonality of interest between gay and lesbian people and those who are heterosexual and outside marriage. What is striking in this book is that so many of these discriminations are shared. For example, it states that under the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996: "following a judicial separation or divorce, a portion of the pension may be calculated and allocated to the spouse who is not a member of the pension scheme. By definition, this facility obtains only in relation to married persons." This means that not only gay couples but also everybody outside marriage is inhibited in the full exercise of their rights under this legislation, which was passed as recently as 1995. There is a certain equality in social welfare payments until the death of one partner. The social security system then starts to discriminate and survivors' pensions are payable only to the lawful spouses of deceased contributors. This means that a woman and her children could be discriminated against in exactly the same way as a gay couple. That is to be greatly regretted.
The legal rights of a spouse include one half of the net estate as a "legal right share". The report states: "There is no provision in the legislation to entitle a same sex partner (or an unmarried heterosexual partner) to a legal right share, irrespective of the length of the cohabitation." This refers not just to gay people but also to everybody outside marriage. Then there is protection against disinheritance and intestate succession. Outside marriage, where somebody dies without a will, the surviving spouse has no entitlement – again, this covers all people outside marriage. Then there are restrictions on the transfer of a family home – the famous Family Home Protection Act, 1976. That only applies inside marriage. If a person has lived with somebody for 20 years and had six children with them, it still does not matter – he or she is not consulted under the Act. It is exactly the same if one is a partner in a gay relationship.
I want to make the point again that these issues seem to hit with monotonous regularity not just at gay people but also at everybody outside marriage. In the old days marriage was virtually universal. The continuing increase in births outside marriage may be regrettable and certainly shakes old fogeys like myself who are used to a more traditional arrangement, but just over one third of all births in the last quarter were outside marriage. How are we to protect the people concerned and their children, who are also citizens?
On the question of cohabitation contracts, there is a celebrated case – Ennis v. Butterly – in which the judge found that this kind of thing was dreadful because it would undermine the family. That is a caricature of the kind of attitude taken by Senator Minihan. It was a very bad judgment. I do not see how cohabitation contracts could possibly undermine anything. I know that is not what Senator Minihan means. We will have decisions such as this in court unless we, as legislators, make changes. For that reason, I respectfully do not agree with one or two of the points made here this evening. To suggestions that we might pick a little bit here and a little bit there and make a little adjustment here and do a bit of a tweak on inheritance I say, "No". We must take a central approach because the problem is a whole series of rights from which all those outside conventional marriage are debarred. This should be dealt with in a single clear and specific Act.
To show Members the extent of discrimination which exists, which we really did not realise in the past, I will give the example of simple income tax. Married couples get specific benefits – 12, for the record – from which everybody else is debarred. There is a higher limit on the standard rate tax band for married one income families. Where both spouses are working, the standard rate tax band is twice the value of that of a single person. There is a home carer's allowance for one income families and double the mortgage interest relief limit available to a single person for a principal private residence. Trading losses incurred by one spouse can be set against the income of the other spouse. The two businessmen who had the children in California are very remarkable business people, but if one of them gets into trouble, he cannot write off his losses against the income of the other. Why not? It has nothing to do with sex – it is about money.
Let us forget what people do. Perhaps I am unusual, but I hesitate to speculate on what virtually everybody else does sexually. I really do not want to know. I do not spend my time obsessing about what my colleagues in the Seanad do after about 11 p.m. when they get home to bed and hope they do not speculate about me, because it would be a nauseating prospect in the extreme.
These matters are private and should be left so. There are public aspects such as tax, inheritance and the home in which the couple lives. Further benefits for married couples include tax relief for a spouse for VHI and other qualifying payments made for the other spouse and tax relief for one spouse on gifts made by the other. Medical expenses incurred or defrayed by one spouse can be claimed by the assessable spouse. Tax relief can be obtained by one spouse in respect of a person employed to take care of the incapacitated other spouse. These are very human things. Why should two people who have lived together for so long not be able to get some support when one is trying to provide medical succour to the person he or she loves and has loved for many years? For married couples, there is tax relief for part-time third level educational fees and training course fees paid by or for the other spouse. Service charges paid by one spouse can qualify for tax relief in the hands of the other spouse.
I will finish with one more quotation from this book, two sentences which put the whole matter in context:
The income tax system is weighted in favour of the married couple. Unmarried couples, irrespective of their sexual orientation, are taxed as single persons. Thus, where only one of the couple works, the single standard rate tax band will apply, with no allowance being made for the unmarried partner who is not working.
I thank you, a Chathaoirligh, for your indulgence and all my friends and colleagues in the Seanad for an excellent debate. Let us move forward and have this debate again. Let us urge the Law Reform Commission to report as speedily as possible and take up Senator O'Rourke's suggestion that we make sure the Oireachtas nominees to the NESF are good people. I hope this will happen – I am sure it will. With our small, amateur committee we do have a certain first-hand knowledge of the issues. I would be honoured and delighted to arrange, if possible, even one meeting with representatives of all the parties to see if we cannot get this important, non-confrontational issue put through the Seanad. This is a much more appropriate House for it to go through than the Lower House where it might fall prey to partisan concerns.