Seanad debates
Wednesday, 22 March 2017
Pensions (Equal Pension Treatment in Occupational Benefit Scheme) (Amendment) Bill 2016: Second Stage
10:30 am
Ivana Bacik (Independent)
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I move: "That the Bill be now read a Second Time."
I am delighted to be here to propose this Bill. I welcome the Minister for Social Protection, Deputy Leo Varadkar, to the House. I have received an indication from the Government that it will not be opposing this Bill on Second Stage. I am very grateful for and delighted about that news. I acknowledge the presence in the Visitors Gallery of Dr. David Parris and Mr. Gerhard Scully and I thank them for being here to support the Bill and for their bravery and courage in raising publicly the important equality issue it seeks to address. The Bill is the Pensions (Equal Pension Treatment in Occupational Benefit Scheme) (Amendment) Bill 2016. I am delighted to be proposing it on behalf of Labour Party Senators. My colleague, Senator Ged Nash, will be seconding it and Senator Kevin Humphreys will be speaking on it. We are putting it forward as a Labour Party Private Members' Bill.
We acknowledge the legal expertise and help provided on the Bill by our drafter, Mr. Finbarr O'Malley, and also by Professor Robert Wintemute of King's College, London, who has given us some very important legal input on the Bill. I also acknowledge the support of Ms Marguerite Bolger, senior counsel, who acted in the legal case that forms the impetus for the Bill.
Let me outline the background to the Bill. It seeks to address the very small number of cases in which retired employees who, because of their sexual orientation, were not legally permitted to marry the person they desired to marry before a particular date were deprived of certain pension or survivor benefits as a result.It was drafted, as I have said, in response to a particular case which I know the Minister is aware of, namely, the case of David Parris v. Trinity College Dublin before the European Court of Justice. Judgment was given on 24 November 2016. In that case, David Parris had argued that the Trinity pension scheme was discriminatory as it provided that a Trinity employee's partner would only be entitled to a survivor's pension where the employee had married or entered a civil partnership before reaching the age of 60. The Bill seeks to address the issue that arose in that case. It will provide that if a pension scheme makes a survivor's pension entitlement dependent on the employee having married or entered civil partnership before a certain age, this would breach the principle of equal pension treatment on the sexual orientation ground where the reason the employee did not comply with the requirement was because he or she was legally incapable of marrying prior to the entry into force of civil partnership law.
Before I turn to the provisions of the Bill I will outline the facts of the Parris case in a little more detail. The applicant had been living for over 30 years in a stable relationship with his partner. His employer's pension scheme provided for the payment of a survivor's pension to the spouse or civil partner of a member. However, the survivor's pension was payable only if the member had married or entered into a civil partnership before reaching the age of 60.
This is a clause sometimes referred to as an anti-gold digger clause, essentially based on a very sexist stereotype prevailing in universities at the time but hopefully no longer. The idea was that a younger woman, perhaps a student, might marry or seek to marry an ageing male lecturer in order to gain access to his lucrative pension entitlements upon his death. I am no pensions expert but I understand it is not a commonplace clause. It is an unusual clause because it precludes entitlement unless marriage or civil partnership was entered before a particular age. It appears to be premised on that rather bizarre notion.
It caught Mr. Parris and his spouse in this case because he was not legally able to enter a civil partnership or marry prior to his 60th birthday. As a result, the survivor's pension was denied or it was predicted that it would be denied in the future to his spouse. He retired in 2010 and made a request to Trinity at that point that on his death his then civil partner, now spouse, would receive a survivor's pension. That request was rejected in November 2010. His appeal to the Labour Court was referred to the European Court of Justice, ECJ, which is where the EU law case arose. However, while the EU court found against Mr. Parris, it did not preclude national law changing the position. That is an important point. Paragraph 59 of the Parris judgment states, "Member states are free to provide or not provide for marriage of persons or alternative form of legal recognition, and if they do so provide, to lay down the dates on which such marriage or alternative form is to have effect." While the court did not find in favour of Mr. Parris under EU law, there is nothing in the judgment that precludes us from making this legal change to our law. There was a very strong advocate-general opinion on the 30 June 2016 in support of Mr. Parris's claim. I understand there is also currently litigation in the UK Supreme Court on a similar point.
To turn to the provisions of the Bill, the Title provides it is a Bill to amend the provisions of the Pension Act 1990 and so on. Section 1 provides, crucially, that Part VII of the Pensions Act 1990 is amended in section 72. It inserts a new subsection (5) which says, essentially, that it would be a breach of the principle of equal treatment on the sexual orientation ground for a scheme to fix a requirement that employees would have married or entered civil partnership before a certain age in circumstances where persons were unable to do so because they were not legally entitled to marry because they were in a same-sex relationship.
A further clause has been inserted into subsection (5), stating that the employee must have married or entered into a civil partnership with the beneficiary, the potential survivor, within three years or 36 months of it being lawfully possible to do so. We have put that in on the basis that we understand a reasonable time should be provided for, that people would have had to marry or enter civil partnership within 36 months of it being legally possible to do so in order to avail of the exemption from the clause.
There is a standard form section 2 as well.
These are the sections of the Bill currently before the House. I was pleased to be able to meet with some officials from the Minister's Department and the Department of Public Expenditure and Reform. We are happy to continue to engage with the Minister and officials to improve upon the drafting and to amend the Bill, if required. We have already discussed that.
I want to deal with two particular points that have been raised with me by way of potential objection to any further progress of the Bill. First, the issue of retrospectivity and, second, what I call the floodgates issue: that there would somehow be a large number of people who would seek to benefit from this Bill. On the retrospectivity point, which was also raised in the European court, it must first be acknowledged that all pension entitlements, and particularly survivor benefits, are to some extent retrospective since they do look back at contributions made during employment. However, this Bill is not retrospective in any real sense, and certainly we say it is not of retrospective effect. I am grateful to Professor Wintermute for giving his legal opinion which I am happy to supply to the Minister and his officials. In this particular case, it is not a retrospective application, as David Parris is still alive-----
David Norris (Independent)
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He is not dead yet.
Ivana Bacik (Independent)
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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.
David Norris (Independent)
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Look at the number of marriages. It is quite small.
Ivana Bacik (Independent)
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There are a number of ways of doing it. When the Bill progresses further we may look at that. Even if there are more than a handful of couples, and I really do not think there will be, I do not believe that would be a reason to deny what is an important equality right.I see this Bill as a legacy Bill. It deals with a legacy of discrimination against gay couples and gay people. It is an important way of clearing up an anomaly in pension law that exists now despite the fact we passed the referendum in 2015 with such a strong majority. Despite the fact we now have equality for same-sex couples, we still have a legacy of discrimination that is based on archaic age restriction clauses in some occupational pension schemes. This Bill simply seeks to address that tiny but important anomaly. As I said, this Bill is based on an important equality principle. I urge Members to support the legislation. I thank colleagues who have indicated that they will support the legislation on a cross-party basis.
Gerald Nash (Labour)
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I wish to share my time with Senator Humphreys.
Catherine Noone (Fine Gael)
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Is that agreed? Agreed.
Gerald Nash (Labour)
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I am delighted to second the legislation tabled by my colleague, Senator Bacik. As we all know, she has been at the vanguard of progressive social change in this country and has sponsored a considerable amount of important legislation in this House in recent years. Today's Bill is another example of trying to advance the agenda for progressive social change in this country, which I very much welcome.
This legislation, as eloquently outlined by Senator Bacik in a very lucid and comprehensible manner, was inspired by the experience of David Parris and his partner, Gerhard Scully. In my opinion they have been deprived of an entitlement that should rightfully be theirs. I recall late last year having to turn up the volume on my radio to listen to an interview given by Dr. Parris on the "Drivetime" programme on RTE. I was very moved by what he had to say and I am sure that anybody who listened to the broadcast was moved. When we listen to such an experience, we must put ourselves in that citizen's shoes and consider what we would do if we found ourselves in a situation where a clear anomaly needed to be addressed to make this country a better, more fair and more tolerant place. I am pleased that my colleague has sponsored this legislation. She did a considerable amount of work with the Department of Social Protection and the Department of Public Expenditure and Reform to advance this legislation. I hope the Bill is not simply unopposed by Government but supported by it because this is the right thing to do.
We have achieved a lot in this country, certainly since 1993 when we decriminalised homosexuality. Following on from that, we had the Equal Status Acts and, in 2010, the civil partnership legislation. Of course we all remember the great joy in this country when the people, by popular vote, decided to give the rites of marriage to all couples regardless of their sex. Marriage equality is something to celebrate. It is something the Minister, I and my Labour Party colleagues and most people in this House, with a small exception, have worked extremely hard on.
We have unfinished business. In a way we can describe this legislation as an important housekeeping matter and, as Senator Bacik has described, it is a legacy issue. If we are to finish the business of at least aspiring to full equality in this country, these are the types of anomalies we need to address. We are dealing with an anomaly that in many ways probably was not anticipated when the legislation was drafted. How could it have been? The existing legislation is flawed and the anomaly needs to be addressed. I am happy to support and endorse this Bill because we need to remove all the remaining barriers that discriminate in this country and this is an important one.
Kevin Humphreys (Labour)
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I thank my colleague, Senator Bacik, for the work she has done on this Bill. The legislation has great support within the Labour Party.
I thank the departmental staff for their openness in how they approached this legislation. Senator Nash has described this legislation as unfinished business and a housekeeping matter, but it is important to a few people because it will have a huge impact on their lives for decades to come. The anomaly has led to a huge worry for couples in terms of how the surviving partner would be provided for if the other partner passed away. I thank the Minister for not opposing this Bill. In fact, he has supported it, thus allowing it to move on to the next Stage.
The battle for equality in terms of lesbian and gay rights has spanned decades in this country. Many times, when people took out pensions, they could not openly say their partners were the same sex. I very much remember the applause Senator Norris received when he ran the Dublin city marathon shortly after winning his court case. On that occasion many people cheered him on. I know because I was on Haddington Road cheering him on.
David Norris (Independent)
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I ran the marathon in five hours and 45 minutes.
Kevin Humphreys (Labour)
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We can see how much this country has moved on and changed. That is why I think this legislation, whether we call it unfinished business or a housekeeping matter, is so important. We must make sure we legislate to tackle anomalies but do so quickly.
I thank the Minister for his openness and the assistance his staff have given to Senator Bacik in terms of this legislation. I hope we can progress this legislation quickly and smoothly. While it means so much to so few people, it is still important we get this business done quickly.
Ray Butler (Fine Gael)
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The Pensions (Equal Pension Treatment in Occupational Benefit Scheme) (Amendment) Bill 2016 was introduced to the Seanad on 8 December 2016. The Labour Court found that the requirement to marry or enter into a civil partnership to obtain a benefit under a pension scheme is liable to affect significantly more LGBT employees than heterosexual employees in circumstances in which the right to marry is reversed for opposite sex couples and civil partnership is not available.
In terms of the position of the Government, the introduction first of civil partnership and then of marriage equality has made a huge difference for many of our fellow citizens. The Bill introduced by Senators Bacik, Humphreys, Nash and Ó Ríordáin seeks to deal with an important legacy issue for a number of couples. The Government is sympathetic to the Bill and has, therefore, chosen not to oppose it. The Bill, as drafted, raises serious legal and technical problems as well as a number of policy issues. These would need to be dealt with and teased out during further consideration of the Bill.
There are two conditions under the Bill that must be met for a same-sex spouse to be entitled to a spouse's pension. The conditions are that on or before the date on which the employee reached pension age, he or she could not have married the beneficiary because both parties were of the same sex, or because he or she could not have entered into a civil partnership with the beneficiary and a foreign civil partnership would not have been recognised, and after the employee reached pension age, he or she married or entered into a civil partnership with the beneficiary within 36 months of it being lawfully possible to do so, or his or her foreign civil partnership became recognised in Irish law. Apart from the same-sex couples included in those two conditions, the Bill would affect pension schemes and the scheme's stakeholders. It is possible that where pension schemes unexpectedly must pay spouses' pensions retrospectively, those schemes may seek to reduce benefits for other classes of beneficiaries. Affected pension schemes might take a legal action to challenge the Bill if it is passed. It is right that this legacy issue be dealt with but it is crucial that a Bill with adverse or unintended consequences is not put on the Statute Book without understanding and accepting those consequences. A number of issues would therefore need to be considered.
Catherine Ardagh (Fianna Fail)
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I commend Senator Bacik on bringing this Bill before the House. Fianna Fáil fully supports this Bill. As the Senator has outlined, the aim of the legislation is to address the small number of cases where retired employees who were legally not permitted to marry persons of the same sex before a particular date may be deprived of certain pension benefits. The Bill follows on foot of the case Parris v.Trinity College Dublin that highlighted an anomaly in Irish pensions law. I commend Dr. Parris on the matter. It is no mean feat to challenge an institution of this State. To do so, he bravely put his home on the line.I commend him on taking that step and on highlighting this anomaly and I commend Senator Bacik on bringing this Bill before the House.
Given that Ireland has made significant strides in recognising LGBT rights, it is essential that we continue to address anomalies in current legislation which directly and indirectly discriminate against the LGBT community and ensure that there is equality of treatment and fairness across the board. We must ensure that legislation reflects the recognition of marriage equality and civil partnerships. Not only has an anomaly been pointed out in respect of this issue but there is a serious gender gap anomaly in private and public pensions. I hope the Minister will take this on board. There are small things he could do such as backdating the homemaker's disregard to ensure that women who are particularly disenfranchised and do not get the full State contributory pension are not discriminated against. It would be a great thing for the Minister to ensure that women are treated equally and their work history or employment stamps do not result in their being treated in an unequal way.
Victor Boyhan (Independent)
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I welcome the Minister and Dr. David Parris and his partner to the Seanad. I do not doubt the Minister's personal commitment to this issue. I hope the Government will come on board and that this will not be dragged out. Senator Bacik has to be thanked for the way she set out the background to this Bill and the work she did in bringing it forward. She and her colleagues in the Labour Party have my absolute support. This is important legislation. I am surprised that there should be any big issue about it. This should go through.
It is also important that the Government comes on board. This concerns the equality of same-sex couples and the follow through from their right to marriage and their succession rights and for their loved ones to benefit from their hard work, their thole and their choice to pass on and share what they have sown and reaped. They are entitled to pass that on to those whom they choose. I have read the Parris judgment, which is very interesting. It is a legacy Bill, tidying up and having a real effect on people. Will the Minister indicate how this can be rolled out quickly and without further delay? I thank all involved in preparing this Bill.
David Norris (Independent)
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I recognise the presence in the Visitors Gallery of my old friends David Parris and Gerard Scully. I have known them for well over 30 years and recognise their extraordinary courage in taking this action. When I took several constitutional actions, all the costs were paid, mine and those of the then Government, even when I lost. However, Dr. Parris has been forced to pay €50,000 out of his own pocket. There is something there that needs to be examined. It is completely wrong.
I have no personal axe to grind in respect of this Bill. I am not married. At the age of 73 it is rather unlikely that I will get married, although I am open to offers. I spent so much time pushing the boat out that I forgot to jump on and saw it going out of the harbour with little figures waving at me while I was stuck on the strand. This is a measure to tidy up some of the remaining anomalies after the passage of various items of civil partnership and marriage equality legislation. We talk about marriage equality but marriage is not equal as long as this anomaly arises.
It is really an extraordinary anomaly. I have raised it repeatedly in this House since the first civil partnership Bill was introduced because I spotted it and I was contacted by a few members of the public who were affected by it. It is a truly Kafkaesque situation. People could not apply for a pension because they did not marry but they could not marry and, therefore, could not get their pensions. It is utterly revolting. People were forced to contribute to a pension from which they did not benefit. That is patently unfair. In the old days when I raised this I was told it was a question of expense, that it would cost the Exchequer too much - rubbish. There is no price on equality. It is a principle and it has to be guaranteed.
It is absurd that people who were not in a position to marry are penalised for this. I would think the number of cases is extremely small. I very much doubt that any pension funds would be endangered by it. I do not think I am breaking too many confidences in saying that I bumped into the Minister and mentioned this to him and he said that it could affect small pension funds relating to approximately four people. I rather doubt it. I do not think there are very many.
Since the passage of the Thirty-fourth Amendment of the Constitution (Marriage Equality) Act 2015, there have been only a couple of hundred marriages. That is a tiny number. It is ridiculous that we are halting the State machine in its majestic progress for the sake of a couple of hundred people. How terribly mean-minded.
I am glad to say that I have lived in this country through such a period of change. I have no gaydar. I am incapable of telling whether somebody is a fairy or not. It is wonderful that we have a Government with two openly gay Ministers. It should not matter a damn to anybody but at the stage we are at I take courage from the fact that two outstanding members of the Cabinet are openly gay and nobody bats an eyelid. That is exactly the way it should be. It gives this country something it never had during my youth, namely, somebody to look up to and to take as a gay role model. It also shows that people can be successful and happy and contribute to public life. When they contribute, however, they should be rewarded and there should be no discrimination in terms of pensions. I commend Senator Bacik and the Labour Party on introducing this legislation. I remember times when this was not a popular political message, to put it mildly. Now, it is taken as a matter of course. The Irish people, who are fair-minded and decent, would say that, yes, this matter needs to be addressed.
Fintan Warfield (Sinn Fein)
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I welcome the Minister and Dr. Parris and Mr. Scully, failte go dtí an tSeanaid Éireann. Before Senator Norris leaves, I would like to recall the moment he scorned me for using the word "queer" in Trinity College.
David Norris (Independent)
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I hate it. I do not mind being a poof or a fairy but I will not be a queer for anybody.
Fintan Warfield (Sinn Fein)
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I scorn his use of the word "fairy". I commend Senator Bacik on bringing this Bill to the House. Dr. Parris's case highlights the fact that, despite substantial strides, including marriage equality, we still struggle in many instances to provide legislation and procedure by the LGBTQI community. Sinn Féin believes that Dr. Parris was discriminated against and that his and his husband's marriage deserves to be treated equally. The marriage equality referendum was fought on the basis of equal marriage rights. It is clear that Dr. Parris has not received that.
The referendum was intended to allow two people of the same sex who love each other express that love in the same way as everyone else. There were legal obstacles that were of great importance during that campaign that denied LGBT people security in certain circumstances, for example, married couples could adopt as a couple whereas only one gay partner could adopt and the other had no parental rights that could be expressed in cases of emergency or separation.Another significant legal right was the right of succession where, in the event of a death, the surviving spouse would have an automatic entitlement to his or her husband's or wife's property intestate. That gave security to widowed parties and allowed LGBT couples to be treated as equal. I mention transgender citizens also because the divorce requirement for gender recognition was conditionally removed on that referendum's passing.
While this Bill, as admitted by Senator Bacik, provides for a very small number of people, and will provide for fewer as time goes on, it is important that we, as legislators, do what we can to express the wishes of the marriage equality referendum and provide civil and legal rights to LGBT people equally to those of heterosexual married couples represented through legislation.
As legislators, we must also consider how best to achieve equality for those marginalised but also how we redress the inequality of our past and provide justice for those affected. What this anomaly will show is the need to equality-proof legislation effectively for those denied marriage rights in the past and those who wish to get married in the future.
In response to a Sinn Féin parliamentary question on gold digger clauses, the Department of Social Protection stated:
Private pension schemes (such as occupational pension scheme) are matters for pension scheme members, their employers, and the scheme trustees. My Department does not hold records of individual pension schemes and their rules (such as any “gold digger clause” in specific pension schemes).
As the Department does not hold data to ensure compliance with pension law, the Minister might respond on how this Bill's implementation will be monitored by the Department if pension procedure is not monitored.
My hope is that this Seanad continues to explore how best to achieve LGBT equality and that we have further conversations to determine how much is left to be done in terms of providing gender recognition for all, combatting homophobic, bi-phobic and transphobic bullying, the increase in hate crime, LGBT visibility, acceptance and much more. I believe all Members and parties should use their time here wisely, however long this Seanad remains, and I call on all parties and groupings to bring forward legislation that will progress LGBT equality as there is so much to be done in that regard.
I also want to remember Declan Flynn, whose anniversary was on Saturday.
I commend Senator Bacik on highlighting this anomaly in the legislation. I also commend Mr. Parris on what I am sure was a tough legal struggle. He showed a great deal of courage. Go raibh míle maith agat.
Lynn Ruane (Independent)
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I thank the Minister for his time this afternoon. I join everyone in thanking the Labour Senators, especially Senator Bacik, for bringing this short and important Bill before the House and for using their Private Members' time to highlight this issue. I also welcome the work of Senator Norris on this issue because if I recall correctly, he tabled an amendment to the Government's Finance Bill just before Christmas with the same policy intention as this Bill, so it is great to finally see some progress on it.
I first became aware of the issue highlighted by this Bill in January when I received an e-mail from David Parris, a retired Trinity College lecturer, who is here with us today, in which he gave a heartfelt and comprehensive account of his struggle to see his pension entitlements extended to his same-sex partner under his pension plan due to their inability to marry before the age of 60 in the absence of legal civil partnerships or marriage in this country, and the tenacity he showed in challenging this unfair policy by eventually taking his case all the way to the European Court of Justice. He went on to outline how the detailed and clearly argued decision by the court found against the college on all counts and showed that discrimination had taken place on the grounds of age and sexual orientation. Nevertheless, the court decided against him, proclaiming that the married-before-60 rule was not legal under European law. The ordeal that the letter described is a tale of unfair treatment, inequality and discrimination and I am glad we are here today to take the first step in rectifying that inequality.
Other Senators spoke to the incredible change the passage of the marriage referendum in 2015 represents in how Ireland views and treats its LGBT community. It will always be the case when such a significant and transformative change happens so quickly in one day, being the national referendum, that there will follow a period in which the State institutions must work to reflect and incorporate such a change across many public policy areas. It is unfortunate that what is essentially an administrative anomaly was not dealt with in the post-referendum legislative period but I am glad we are dealing with it now.
As I said, this is a short Bill of just two pages but it is great to know that such a short amendment to the Pensions Act 1990 is what is required to give equality in respect of private pension systems to LGBT citizens. This issue speaks to a wider debate we need to have in the Oireachtas on equality-proofing of legislation and budgets across a range of areas, whether it be in terms of gender, sexual orientation, disability or socioeconomic class, as well as the need to ensure we are cognisant of all the potential knock-on effects of the decisions we make in national referenda and in the Oireachtas.
I express my strong support for the Bill and applaud the tenacity of David Parris in pursuing this issue. I again thank to the Labour Senators for tabling this Bill and look forward to seeing the Bill pass all Stages in the House.
Maire Devine (Sinn Fein)
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With regard to pensions, most of us roll our eyes to Heaven when we hear the complicated, mumbo jumbo jargon but I thank Senator Bacik, and David Parris, for introducing a Bill that is short, sweet and that people understand and welcome. I am delighted to support this amendment to the Pensions Act 1990. It rightfully grants equality to many persons who have been denied it for far too long. It is timely legislation and ensures we are progressive in terms of making Ireland a more fair and equal place in which to live and grow old. The Bill rightly has support across the House.
Pensions are very important as eventually we will all get to our third age when we can live well - as we were expected to - and reap the benefits of what we have paid into over a lifetime and not be discriminated against. The Minister thinks I am always being a grinch when I speak here, although I probably need to be more of a grinch, but while I welcome this Bill, there is a big job of work to do on the entirety of pensions legislation. The gender gap with regard to pensions remains one of the highest in Europe. We need urgent reform of the State pension scheme, which is unstable. Those who reach the age of 65 are now contracted to retire at age 67, and later at the age of 68. Will they be forced onto the dole for the extended period of time until they are entitled to claim their pension?
I do not want to sound like a grinch but pensions were the first easy pickings when the economy crashed and we have not got back to where we should be in that regard. Defined benefit, DB, schemes were discontinued by the majority of employers who brought in defined contribution, DC, schemes, which are the poorer, cheaper relation and from which there are greatly reduced payments and benefits for people who have contributed over a long time.
Go raibh míle maith agat to Senator Bacik and well done, David. If this country continues to progress, some day we will not have anything to complain about.
Alice-Mary Higgins (Independent)
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I want to express my support and that of the Civil Engagement group for Senator Bacik's Bill and commend the Labour Senators again on being consistent in using their Private Members' business to bring forward legislation that will improve the lives of a small number of people in our country.
I join my colleagues in commending David Parris and Gerhard Scully for not just their bravery but their generosity in taking a case and pushing forward this equality issue through the courts. It was important as a recognition of their own relationship and life together but it was also a great act of generosity for them to highlight and push forward this issue.It is unfortunate that far too often in Ireland we see individuals having to take cases and push them forward for issues and anomalies in the system to be brought to light. I would love to move towards a point, as my colleague, Senator Ruane, mentioned, at which, through comprehensive equality-proofing, we actively seek out the anomalies in the system more often and ensure we can address them without relying on individuals to display such bravery, consistency and persistence.
In supporting the Bill, it is worth noting that the legislation is very specific and has a very targeted effect. There is absolutely no reason for it not to move speedily through the Houses as far as possible, and I urge all Senators to support this. There are wider questions that are not dealt with in the Bill, and so they should not as they are wider questions. There are concerns about the injustice and inequality to the LGBT community represented by clauses such as - I hate even to use the term - the apocryphal gold-digger clause. There are issues of age discrimination in respect of those who find relationships later in life. There are also issues of discrimination in respect of marital status. Many people can be in meaningful relationships for decades of their lives without choosing to marry. There are other questions we could consider another time. What is important is that a pension should reflect the life someone has lived, the partnership he or she has had and the contributions a couple has worked together. The precedent of the spousal pension is a recognition that people come together, contribute to each other and support each other in a life together. This is a wider question. For now, I recognise that the focus of the Bill is narrow and specific in order to ensure that it can effectively move forward and be passed. However, I urge greater equality-proofing of our pensions legislation.
Senator Warfield mentioned the Department's treatment of private pension systems. We give very considerable tax reliefs to many private pension systems. There is a question for the State as to whether it might not want to send a small signal of what we expect in terms of good practice in other future occupational pensions. The Bill represents an opportunity to do so in a way.
This is a very well thought-out, carefully worded, measured Bill which will make a significant difference and fix an anomaly in our system, and I support it. I recognise that the Minister very kindly accepted an amendment I tabled in respect of voluntary contributions to the pension system. It was a small change and it did not affect a huge number of people but it made a difference to people. People feel they are more able to plan for their future and are recognised for the contributions they have made. These small changes can make a very big difference and send a very positive signal that the State recognises relationships and contributions made. I thank Senator Bacik again. I look forward to seeing the Bill back before the House very soon and I hope it will move very speedily through both Houses.
Leo Varadkar (Dublin West, Fine Gael)
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I thank the Acting Chairman for the opportunity to speak on the Bill. The introduction first of civil partnership and then of marriage equality has made a huge difference for many of our fellow citizens. The Bill introduced by Senators Bacik, Humphreys, Nash and Ó Ríordáin seeks to deal with an important legacy issue for a number of couples. I join with Senator Norris in recognising the Labour Party for its long-standing interest and commitment to equality for LGBT citizens long before it was mainstream. The Government is sympathetic to the Bill and has therefore decided not to oppose it. The Bill as drafted, however, raises some legal and technical problems and policy issues that need to be considered. These would need to be dealt with and teased out in further consideration of the Bill.
These provisions have been presented in different guises over the past few years as amendments to various pieces of legislation such as the Social Welfare and Pensions Bills, Finance Bills and equality Bills. The core issue is retrospective pension rights for same-sex couples. Under the provisions of the Pensions Act, people in civil partnerships, same-sex marriages and opposite-sex marriages are treated equally. The principle of equal pension treatment is that there shall be no discrimination on any ground in respect of any rule of a scheme compared with other members or prospective members of that scheme. Broadly speaking, pension scheme rules may provide that spousal pension benefits will be paid where the member has married or registered a civil partnership at the point of retirement within a specified time before or after retirement or at the point of death. As Senators have mentioned, these rules are sometimes referred to as gold-digger clauses, designed to protect older people and other scheme members from having to pay out spousal pensions that could stretch long into the future. Of course, such a clause could as much apply to a young man seeking to marry an elderly female, as in the example described previously, although perhaps this would be a graduate clause rather than a gold-digger clause.
As the law stands, there is no difference between opposite-sex and same-sex couples. In a scheme whereby spousal pension rights will be paid where the member is married at the point of retirement, if either a same-sex or opposite-sex couple marries subsequent to the member's retirement, no pension would be payable. In a scheme whereby spousal pension benefits will be paid where the member is married at the point of death, where a same-sex or opposite-sex couple marries subsequent to retirement, a spousal pension would be payable. In 2016, the Court of Justice of the EU ruled that it was not discriminatory for a pension scheme to refuse to grant a retrospective spouse's pension to a same-sex partner or spouse if civil partnerships were not recognised by the State during the relevant period.
There are a number of reasons the Bill gives rise to difficulties. Provisions that are discriminatory cannot be introduced, and any changes to a pension scheme might have to apply equally to persons in civil partnerships, same-sex marriages or opposite-sex marriages. The Bill could also give rise to constitutional issues. Article 15.1.1° of the Constitution states: "The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission." It is possible that this Bill, if passed, could be challenged on these constitutional grounds by affected pension schemes. There is also the principle of non-retrospectivity. Pension schemes cannot give benefits to members to which they are not entitled, and entitlements must be given by reference to the law in force at the time, not what we believe it should have been. Enacting retrospective legislation in this case could raise precedent issues in that it could be seen to offer an avenue to others who feel they have been historically discriminated against to demand subsequent law changes to seek redress at the expense of others. However, having listened to the debate, I think Senator Bacik has done well in her Bill to avoid retrospection and has tried to create a window of opportunity during which people could regularise their statements, this not being possible or legal previously. To disregard the European court's ruling that there was no discrimination in the circumstances in question is also a significant matter and could lead to calls to do the same in other cases. However, again, it is of course a matter for the Oireachtas to decide this on a case-by-case basis, and this could well be such a case.
Private sector pension schemes must have sufficient funding in place to provide the promised scale of benefits. They are unlikely to make provision for an occurrence that might not take place. Schemes do not in general make provision for the payment of a pension to a spouse or civil partner who does not exist at the time of retirement. There could also be additional legal, actuarial and administrative costs for such schemes.
Many pension schemes are struggling at the moment without the addition of further costs to the schemes. However, I accept that the numbers involved may be very small. Even in a very small scheme, however, many of which we have in Ireland - in fact, half of the occupational pension schemes in Europe are domiciled in Ireland - the costs may not be minor. For example, in the case of a small scheme designed on the basis that it will have seven or eight members, adding one or two more members to the scheme could have a very serious impact on what is left in the pot for the seven or eight who had been in it from the beginning.
There are thousands of people in both public and private pension schemes who are not covered for spousal benefits. Many of these made decisions about pension coverage based on their circumstances at the time, often for very understandable reasons. For example, a person who was separated and had no prospect of remarriage prior to 1996. Unfortunately, there are no "do-overs" in these circumstances, regardless of changes in society since they made their decisions.
The Bill would also make changes only for same-sex couples affected by these conditions. This could be viewed as preferential treatment for same-sex couples and might lead to opposite-sex couples requesting equal treatment. Although the Bill is for defined benefit, DB, occupational pensions, it could also create an issue for same-sex couples with annuities. If a person in a defined contribution scheme bought an annuity without a spouse's pension, would he or she now feel he or she should be able to purchase a spouse's pension as well? While I may personally feel that these clauses should be changed in all pension schemes, rules in general are a matter for the trustees, and changing them may have a significant financial impact, which we need to understand.Trustees may also argue that the legislation interferes with the property rights of their members. Equally, it could be argued that trustees should make these changes to their schemes.
I recognise the problems of the particular past circumstances of the people for whom the Bill has been designed. I am keen to find a way forward. One of the next steps is for the sponsors of the Bill to conduct a regulatory impact assessment. The Bill contains some drafting errors which they need to rectify. I am sure they will want to do so. Consideration needs to be given to how this legislation will interact or conflict with other provisions included in the Pensions Act. Cost implications are difficult to quantify on the basis of the Bill, as published. Unexpected or unintended costs arising from the Bill - costs to the pension scheme and future pensioners, rather than the Exchequer - could have effects on private and public sector pension schemes. These costs need to be calculated. My Department will certainly assist in that process.
It is right for this legacy issue to be dealt with. I am sure the sponsors of the Bill and all Senators will agree that it is crucial that a Bill with adverse or unintended consequences is not put on the Statute Book without understanding and accepting what the consequences might be. I urge the sponsors of the Bill to consider carefully the points I have made as they consider how best to make further progress with it. My officials and I will be available to assist in preparations for Committee Stage, or perhaps with a view to devising an agreed amendment to the forthcoming social welfare and pensions Bill.
Ivana Bacik (Independent)
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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.
Catherine Noone (Fine Gael)
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When is it proposed to take Committee Stage?