Recognition of Domestic Partnerships Motion: 16th October 2002

Recognition of Domestic Partnerships:
Motion.

16th October 2002

Mr. Norris: I move:
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 Fa´ il 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 Fa´ il, 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 Fa´ il 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. The day after I thought this, I listened to a charming priest of the Roman Catholic Church from Glasthule, accompanied with various sound effects, talking about the blessing of animals. He was blessing hamsters and goldfish and Great Danes.
Mr. Norris: 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 allparty 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.
Mr. Norris: 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 Ma´ ire 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 381 Recognition of Domestic 16 October 2002. Partnerships: Motion 382 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.
Mr. Norris: 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.
Mr. Norris: 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, ama383 Cardinal Healthcare 16 October 2002. Longford 384 [Mr. Norris.] teur 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. Amendment agreed to. Motion, as amended, agreed to.