Vol. 390 No. 5
I move: "That the Bill be now read a Second Time".
Before proceeding to my prepared script I should like to refer briefly to what Deputy Jim O'Keeffe had to say about the Society of St. Vincent de Paul. It ill behoves this House to deride the efforts of a voluntary organisation to create employment throughout the country.
Rubbish.
The Society of St. Vincent de Paul received £500,000 in the budget this year. They are working on a programme of creating one job in each conference of the society throughout the country. Over the last two to three years they succeeded in creating 630 jobs in different conferences. I commend their efforts, as a voluntary body, in using the resources at their disposal — which happen to be worth while in terms of administrative skills on the part of people with knowledge of business and industry — in helping those in the community who are unemployed to find employment or to become self-employed.
I want to commend those efforts. I know there has been some comment in the Press and on Radio Éireann which I thought was pretty scandalous, of the lowest kind, probably brought on by the fact that at present Members feel —
By the Minister's press release.
——there could be a General Election in the wind and, consequently, they are grasping at any straw.
It is most unfortunate that, when a voluntary body takes the trouble to undertake this task throughout all their conferences — and remember they have 10,000 voluntary workers nationwide; they constitute one enormous voluntary body — their efforts are derided. If all the voluntary bodies, church groups and other agencies bent their wills to the creation of employment, in helping those about them in our society in the way in which the Society of St. Vincent de Paul organisation have done, there is no doubt in my mind but that we would be doing much better in the creation of employment than we are at present.
As a matter of interest, I should point out that some of the projects they have under way are for workshops — furniture repair and other projects of that nature. It is important that that be emphasised in this House because we gave them £500,000 in the budget to assist in the development programme they have undertaken and which constitutes a new departure for their society, representing an important change in the direction of their work. Rather than deriding their efforts, as an Irish person, I felt humiliated listening to RTE this morning, to hear the sneering and snide remarks of their commentator about a voluntary body's efforts to create employment——
——about the Minister.
Deputy O'Keeffe will have an opportunity of speaking on this Bill.
The Government have decided to introduce this legislation to deal with the situation arising from the recent Supreme Court decision in relation to the 1985 Social Welfare Equal Treatment Act, pending a review of the full implications of the Supreme Court decision.
The Government are concerned at the wider implications of the Supreme Court judgment which could have major budgetary repercussions. It is necessary to take immediate action to deal with the situation arising in the current financial year so as to ensure that expenditure remains within the existing budgetary allocation. The decision of the Supreme Court would otherwise result in an estimated additional expenditure this year of not less than £21 million and not less than £31 million in a full year. These are conservative estimates.
The purpose of this Bill is to maintain the arrangements which were made by the previous Government and enacted by the Oireachtas in 1985. The 1985 Act was designed to implement the European Community Directive on equal treatment for men and women in the social security code. That Act gave married women living with their husbands access to unemployment assistance in their own right for the first time. This meant that a married woman could qualify for unemployment assistance while her husband was in receipt of an insurance or assistance payment. It was a basic principle of the 1985 Act, however, that unemployment assistance payments should continue to be provided on the basis of the needs of the household. This Bill maintains the principle and the clear intention of the 1985 Act that unemployment assistance payments should be provided on the basis of the needs of households.
The 1985 arrangements were found by the Supreme Court to be defective in that they treated households comprised of unmarried couples more favourably than households comprised of married couples. Clearly it was never intended that this should be the case and the anomaly has only arisen as a consequence of the particular arrangements which were made at the time applying only to married couples.
The basic principle embodied in the 1985 Act, that unemployment assistance to married couples should be paid on the basis of household needs, is a reasonable one and this Bill is designed to uphold this principle. To do so, however, it is necessary in the light of the Supreme Court judgment, to also apply the principle to the small number of households comprised of unmarried cohabiting couples who qualify for unemployment assistance. It has yet to be established how many, if any, such households are covered by this provision. It is clear, however, that the numbers involved will not be great.
I can understand why the 1985 legislation did not address this issue. It raises the whole question of the treatment of different household situations within the social welfare code. This is a very complex area which needs careful consideration in all its various aspects. The Government have therefore decided on a fundamental review of the concept of the household for social welfare purposes. This examination will be carried out by a review group consisting of people who are highly qualified in this area. It will be chaired by Mr. John Curry, who was formerly chairman of the Commission on Social Welfare. In the light of their analysis, the Government will consider what changes are required in the social welfare system and these will be brought forward in time for next year's budget. At that stage, the Oireachtas will have an opportunity to consider the various issues involved in the context of the associated Social Welfare Bill.
I consider this to be the only reasonable and realistic approach in the circumstances. In extending the present arrangements to cohabitees, we are maintaining the basic principle embodied in the 1985 Equal Treatment Act. I do not envisage any difficulties in applying the extended arrangements. The concept of cohabitation is not a new one as far as social welfare legislation is concerned. It already applies in a number of our schemes and its application does not give rise to any major difficulties. It simply means that in future claimants for unemployment assistance will be required to state whether they are living as man and wife.
While, in the light of the Supreme Court decision the position of cohabitation needs to be addressed immediately, it is of course only one of a number of possible household situations which can arise. Other obvious examples are brother and sister households, parents and children both claiming or people sharing a flat. The review group will need to look at how the social welfare system treats these different situations so that a consistent and equitable approach can be adopted for the future. This problem already arises in relation to the fuel allowance scheme where only one allowance is paid per household although there may be several persons with individual entitlements living in the household.
The requirements of equal treatment will also have to be taken on board. The 1985 Act which provided for equal treatment necessitated further fundamental changes in the system. To some extent this was responsible for the present difficulties in as much as the approach adopted was to discontinue the head of household concept. It may well be that it will be necessary to reintroduce the concept in some shape or form, perhaps by requiring that one person be nominated as head of the household. This whole area will have to be examined by the review group and they will have to have regard to the practices applied in other countries in this matter.
It will also be particularly important that the new arrangements continue to have regard to the position of households where only one spouse is claiming and the other is working in the home. It was one of the underlying principles in the 1985 legislation that households where both spouses were in a position to claim should not be treated more favourably under the unemployment assistance system than households where only one of the couple is in a position to claim. This principle is maintained in the present Bill and is in my view an important one.
The whole thrust of the Government's approach in the social welfare area this year has been to direct the available resources to households who are in the greatest need. There has been a particular focus on families, particularly families of the long term unemployed and families of those at work on low pay. Substantial increases in the rates of the lowest social welfare payments have been provided for which, taken together with the increases given in 1988, mean increases of almost 25 per cent in these payments.
In addition to the 11 per cent increase provided to the long term unemployed and recipients of supplementary welfare allowance last year, a further special increase of 12 per cent is being provided this year and this will come into effect from July next. In practical terms, this means that an increase of £29.10 per week has been provided to a family with five children over the past two years.
At the same time, a number of other major improvements have been made in the levels of social welfare payments. A minimum child dependent allowance of £10 per week has been introduced, child dependant allowances payable to long term social welfare recipients have been extended up to age 19 where the child continues in full time education, the higher rate of child benefit is being extended to the fifth child from October next and new social assistance schemes are being introduced for widowers and deserted husbands who are bringing up children on their own. The introduction of these new schemes means that the payment being made to a widower on supplementary welfare allowance with five children will increase from £80.80 per week to £115.30, a very substantial increase of £34.50 per week.
In addition, major improvements in the family income supplement scheme are to come into force from July next. These include increases in the weekly income limits, increases in the maximum payments, extra payments to families with six to eight children, an increase in the rate of supplement and a reduction in the minimum number of hours of work required each week to benefit under the scheme. For example, a family with five children with an income of £120 per week will now receive £50 a week bringing their total up to £170 per week.
All these improvements in the levels of social welfare payments have been made possible through the efficient allocation of resources in a fair and equitable manner. This approach has enabled us to more than maintain the real value of social welfare payments and provide significant additional resources to those on the lowest levels of payment especially families on long term unemployment assistance. At the same time, we have simplified the system through the streamlining of the various rates payable in respect of dependants. Over the past two years, the number of different rates payable in respect of children have been reduced from 36 to 12 and the number of rates payable in respect of adult dependants have been reduced from ten to six.
These improvements have demonstrated the Government's commitment to improving the position of families and to directing a substantial amount of resources to them. Over the last two years an additional £257 million has been specifically allocated by the Government for improvements in the social welfare area. In these circumstances, the comments of some of our opponents are ridiculous.
Under existing arrangements, where both of a married couple are entitled to a social insurance payment in their own right, each receives the full personal rate of payment. The limitation provided for in section 12 of the 1985 Act, only applies where one or both of the couple are entitled to unemployment assistance. This reflects the underlying objective of the unemployment assistance scheme which is to provide a level of financial support in the case of unemployment which is related to the needs of the household. The fact that the payment is needs based means that households with similar needs should receive the same level of financial support. This point was emphasised when the 1985 Act was being introduced by the then Minister for Social Welfare, Deputy Barry Desmond. He stated at the time that the unemployment assistance scheme is clearly a family household type scheme because the income of the spouse is taken into account in assessing the means of the claimant. He considered that the provisions of section 12 were necessary to prevent the scheme from being used as a general top up on family income and to avoid inequalities in the level of payments provided to families in different circumstances but with similar needs.
It was also necessary to ensure that implementation of the equality Directive did not give rise to any discrimination against married women working in the home. If the limitation provided for in section 12 were not applied, married couples where both spouses are available for work would receive a substantially higher payment than the vast majority of other married couples where one spouse, either by choice or by necessity, works in the home. This would be in total conflict with the needs based nature of the unemployment assistance scheme.
The level of unemployment assistance payable must be related to the needs of the claimant and it would be inequitable to provide households with identical needs with different levels of payment. It is clearly evident that a couple living together, especially married couples, are financially interdependent. All of the main living costs such as housing, fuel, household goods etc., are shared and there are obvious economies involved. International research carried out on equivalence scales suggests that the appropriate social welfare rate for a couple living together is about 1.6 times the rate for a single person. This view was also shared by the Commission on Social Welfare which recommended that the appropriate payment for a couple should be 1.6 times the personal rate. The current rates of payment following this year's budget increases are in line with this.
The overall task of the review group which is being established will be to examine the social welfare code as it affects households with particular regard to the equal treatment provisions. This will necessitate a fundamental review of the provisions for the assessment of means for needs based social assistance schemes as applied in different household situations. It will also be necessary to review the limitations on payments applied to different household situations. It is intended that the review will be concluded within the next six months so as to enable the Government to consider whatever changes are required in the context of next year's budget. It is envisaged that the necessary changes will be introduced in the associated social welfare Bill. I believe that this review provides us with an ideal opportunity to reform our payment structure so as to bring about greater consistency in the treatment of households with similar needs through the various social assistance schemes. I would like to take this opportunity to thank the members of the group for consenting to participate in the review. I know that they each bring with them a wealth of expertise in their respective fields and I look forward with great interest to the results of their work.
Section 1 of the Bill remedies the defect identified by the Supreme Court by extending the provisions of section 12 (4) of the 1985 Act to unmarried couples who are cohabiting as man and wife. There are two subsections in section 12 which are being amended. Section 12 (1) provides that where both of a married couple are entitled to unemployment assistance, the overall amount of assistance payable to the couple would be limited to what they would receive if only one spouse claimed and received an increase in respect of the other as an adult dependant. The Act provided that each of the couple would receive half of the appropriate "married" rate of assistance. Section 12 (4) of the Act provided that where one spouse is in receipt of a benefit or pension and the other is in receipt of unemployment assistance the overall payment made to the couple would be limited to what they would receive if the spouse entitled to the higher benefit or pension payment claimed and received an increase in respect of an adult dependant. In this instance, the Act provided that the payment to the spouse entitled to assistance would be reduced in order to stay within this limitation.
The Supreme Court judgment concerned section 12 (4) only and in its judgment of 9 May 1989 the Supreme Court found that this subsection was defective in that it treated married couples less favourably than cohabiting couples. While section 12 (1) was not at issue in these proceedings, this subsection, which limits the entitlements of married couples in exactly the same way, must also be regarded as defective.
The manner in which the limitation is to be applied, however, in cases where one of a couple is in receipt of benefit or pension and the other is in receipt of unemployment assistance is being changed. Under the provisions of the 1985 Act, the amount payable to a couple in these circumstances was limited to the "married" rate of the higher social insurance payment. Following on this year's budget increases, the long term rate of unemployment assistance will exceed the basic rate of unemployment and disability benefit. The opportunity is being taken in this Bill to allow a person to have the benefit of whichever is the higher rate.
Section 2 provides that any claims for unemployment assistance made on or after the date of the Supreme Court judgment will be payable in accordance with the provisions of the amended section 12. This section also provides that married couples to whom the provisions of section 12 applied, who have not submitted claims in writing or initiated court proceedings for an increased rate of unemployment assistance prior to the date of the judgment will not be entitled to retrospective payment.
By virtue of section 2, the provisions of the amended section 12 will apply to couples cohabiting as man and wife with effect from 9 May 1989. Section 3 provides that any such person who may have benefited from the higher rate of payment will not be liable to repay any payments made under the present arrangements.
In conclusion, the arrangements the Government are making in this Bill are in my view reasonable, responsible and fair. The immediate anomaly is being addressed and at the same time the wider implications are being considered in a calm and sensible way. In this way the Oireachtas will have an opportunity to consider the full implications and make adequate provision for any necessary changes in the social welfare code.
I commend this Bill to the House.
The sensitivity of the Minister for Social Welfare in his opening remarks on the St. Vincent de Paul issue is fully understandable. He now seeks to deflect and ridicule the odium and criticism directed at himself by defending St. Vincent de Paul. There is no need for the Minister or anybody else to come into this House to defend the excellent work of the St. Vincent de Paul conferences all over the country. They are not being criticised and it was altogether wrong and unfair of the Minister to put forward this spurious defence, basically when he is trying to defend himself. The Minister has drawn this criticism on himself. He triggered it off by a press release which he issued, headlined "St. Vincent de Paul to Create 1,000 jobs."
Is the Deputy saying they are not going to create them or that they cannot create them? He should be honest and not just play politics in regard to this matter.
I am saying it is typical of the type of Government we have——
They say they are going to create them.
——which is quite clearly a Government who have as their motivating force the establishment of a PR image that indulges in media manipulation and manipulation of all kinds. The Minister is implying he will be responsible for the creation of 1,000 jobs. That is what has drawn the criticism and the Minister is fully aware of that. The Minister and his colleagues in Government are following——
I will give them every credit for creating jobs just the same as I would to anybody else who creates them.
——the McLuhan definition that the medium is the message. To come in here with a spurious defence of St. Vincent de Paul is only adding insult to injury. If the Minister wants to defend himself let him do so but he should not draw St. Vincent de Paul, that excellent body——
Could we now get down to the Social Welfare Bill which is before the House?
It is necessary to reply to the opening comments of the Minister on that issue.
The Deputy should be supporting that society if he is any good.
We have been subjected in the past number of weeks to a whole series of announcements about the good works the Minister and his colleagues are going to do by way of job creation, presumably trying to make up for the fact that——
Let us get down to the subject matter of the Bill.
——they have been over two years in office and they have hardly created a single job. In relation to the Social Welfare Bill, the Minister has no-one to blame but himself for the criticisms expressed about it. He has been aware since January 1988 of the High Court decision in the Hyland case and yet he was seemingly totally unprepared to deal with the consequences of the Supreme Court decision on 9 May of this year. While I have major reservations about the manner in which the Minister has handled this issue, as a member of a responsible Opposition, I recognise the need for urgent legislation following the Supreme Court decisions and, accordingly, I will not be opposing this Bill.
Because the Minister did not take into account the probability of a court defeat at the time of the preparation of the Estimates, he has left himself with no room for manoeuvre financially to enable him to do what we would all wish him to do, to increase the amount rather than reduce it. Accordingly, he has left himself no option but to preside over a pathetic approach resulting in the actual reduction of amounts paid to an indeterminate number of couples who are cohabiting. The Minister, therefore, has taken the soft option in introducing this Bill. In many ways it is clear that it was an option which at this stage he had to take because he did not have the planning or the foresight at the time of the preparation of the Estimates last October to make due preparations to enable him to follow any other course.
The position we find ourselves in leads to a much broader question, that is, the manner in which the shambles of our social welfare code is being amended. Essentially, it is very clear to me that amendments are court-driven and not need-driven. What we are dealing with today is another anomaly in a long series of anomalies highlighted by the courts. This points to the absolute urgency of a major overhaul of our entire social welfare code. Virtually every change of consequence is dictated as a result of court decisions and not as a result of a policy decision by the Government. Our social welfare code has been developed over the years in an ad hoc fashion and now we have this spectacle of the Minister, like the Dutch boy with his finger in the dyke, trying to patch over the hole that has been created as a result of the court decision. The Minister is putting another patch in the patchwork quilt that constitutes our social welfare code. It has been my consistent view since I assumed responsibility for this portfolio that that is utterly the wrong approach. What we need is an overall review of our social welfare code, a streamlining of that code so that we will have a fair and just system. This will not be achieved by the kind of knee-jerk Pavlovian response of the Minister to crises as they arise.
I note the Minister has set up a review group and this is a good decision. I have every confidence in the members of the review group but why is this only being done now? As I mentioned, it is almost a year and a half since the High Court adjudicated on the Hyland case. I am quite sure the Minister had advice from his legal team that the prospects of the High Court decision being overturned in the Supreme Court were very slim indeed. Why then did the Minister not take action following the High Court decision? Why did he leave it until now to set up this review group? Again, it was a hasty response to the decision of the Supreme Court and one that indicates there was no strategic thinking of any description on the part of the Minister or the Government as to how the social welfare code should be framed or shaped for the future or how in particular the huge series of anomalies in the code should be ironed out. Therefore, we end up with the Minister marking time by grafting onto that shambles of a social welfare code a provision which will leave him and his civil servants policing the bedrooms of the nation.
This arises, of course, because of the provision in section 1 (5) which defines a couple as a married couple who are living together or a man and a woman who are not married to each other but who are cohabiting as man and wife. It is very interesting that there is no definition of cohabitation in the Bill and this raises a very major question as to the Bill's workability. The Minister said there was a reference to cohabitation already in the social welfare code. What he did not say is that the reference is in an old statute, again without definition.
Also left unsaid by the Minister is that there are no Departmental guidelines, no written instructions to social welfare officers as to the basis on which cohabitation is to be considered proved or otherwise. I understand that in investigating this matter social welfare officers will look at who is living in the house and the position about one person supporting the other or not, but at the end of the day there are no guidelines as to how cohabitation is to be established, so we are now in the ludicrous situation that we do not have a statutory definition nor have we Departmental guidelines on this issue. The House deserves an explanation from the Minister as to how this provision is to be enforced. At this stage we have no idea at all as to how that will be done.
The position of the Minister in hastily producing this legislation is further highlighted by the fact that he has not got a clue as to the number of people involved. He has stated this clearly in his speech. He has no option, so in many ways he is taking a leap in the dark, making provisions for cohabiting couples without having the slightest idea as to the number of people involved. The best he can say in his speech is that he does not believe the number is very great. Are we talking about an estimate of 100, 1,000 or 10,000? The Minister owes an explanation to this House as to how many people he anticipates will be affected by his decision.
The decision of the Supreme Court and the position in which the Minister now finds himself must, even at this late stage perhaps in the twilight of this Dáil, bring even him to the conclusion that the entire system must be overhauled. There must be an approach which will involve searching out and then eliminating the poverty traps and the anomalies in the system. There must be a major effort to remove the disincentives to job creation in the system. Above all, there must be a clear approach on the part of this Government — or if we cannot get it from this Government, the next one — to improving the lot of those in greatest need. This Bill is no substitute at all for that kind of approach, that major overhaul leading to a fairer, more streamlined system.
The Bill arose as a result of a constitutional case taken by the Hyland family. It is incumbent on all of us in this House to be seen to observe fully the letter and spirit of the Constitution. There are other issues involved in that at present which I will not go into, but since this Bill arose as a result of a constitutional decision it has to be examined itself from the point of view of its constitutionality. I am not a constitutional lawyer but it seems to me that there are at least grounds for suspecting this new Bill itself is unconstitutional.
It may be argued that the Bill creates a further discrimination. On the face of it we now have a capping of the payments to a man and a woman who are cohabiting but this capping does not apply to other men and women who would be residing in the same dwelling but who would not be cohabiting. I am speaking of, say, a father and daughter, brother and sister or a boyfriend and his fiancée who might be under the same roof but might be conforming to the highest moral standards. What then is there for those? They may be incorrectly, improperly and unfairly found to be cohabiting. That would be an injustice in itself. On the other hand, if they are not so found they will be entitled to the full, separate payments but they would be at a higher level than for the pair who are married despite the fact that they are under the one roof. Their outgoings might be, therefore, less, as the Minister explained in his speech.
As I say, I am not a constitutional expert but it appears to me there are grounds for suspecting that this measure designed to cover a constitutional loophole, may itself be unconstitutional. In the interests of good order and good government this Bill should be referred to the President with a request that it be referred to the Supreme Court.
Does the Deputy not oppose it?
Speaking about the constitutional aspect, the court which decides the constitutionality of a Bill in that situation is the Supreme Court. If there are reasonable grounds for suspecting this Bill may be unconstitutional, the proper thing is to have its constitutionality decided on by the Supreme Court. Accordingly, I am suggesting to the Minister that this is the proper course of action to follow.
Leading on from that, it seems that the constitutionality of a number of provisions of the social welfare code may be open to question. I am aware there are quite a number of cases before the court on the basis that different provisions of the social welfare code are unconstitutional. Therefore, my second proposal is that as part of the social welfare system there is need to review the working of different aspects of the system from a constitutional point of view. This is necessary so that policy can then be established within clear constitutional parameters. I am saying this at this time because I can envisage, perhaps not the present incumbent, but a Minister for Social Welfare in the future coming into this House, again in response to some other court case, telling me he is doing this very thing. It should be done now because it would be of major assistance in establishing a clear policy for social welfare reform in the future. At the very minimum we should be aware of the constitutional parameters within which we can operate.
A further aspect of the Minister's speech which has to be referred to is the question of the figures and the amounts. I am worried that the figures that have been produced in relation to this problem may be quite misleading. On the face of it we have to accept that the Minister is giving us correct estimates from his Department. He tells us that the decision of the Supreme Court would result in additional expenditure of not less than £31 million in a full year. Normally one accepts figures from Ministers as being correct but he has provided no breakdown and he owes us an explanation as to how the figure is made up. I understand there are 8,000 married couples whose payments are capped under the 1985 legislation. Taking an average of £14 per week to level up, those payments would produce an annual expenditure of £5 million. There is a very substantial gap between those two figures. At the very minimum the Minister owes the House an explanation as to how the other figure was floated into the reckoning. If the problem could be resolved by levelling up at a cost of £5 million, it could be accommodated within the financial parameters. I accept that the figure of £31 million which the Minister did not have the foresight to provide for in the Estimates would be virtually impossible to include. A figure of £5 million is a different matter. The Minister should say how he computed his figures.
The Minister should also explain how he intends to deal with the right to privacy. Last week we debated a Bill introduced by the Fine Gael Party to establish the right to privacy for social welfare applicants and other people in public offices in discussing their affairs with public officials. Despite the initial reaction of the Government in opposing the Bill, perhaps for reasons which fit into a broader scenario, they caved in and accepted the principle of the Bill. The Minister should explain the extent to which there will be an invasion of privacy as a consequence of this Bill. What will be the extent of the power of a social welfare officer to make inquiries to establish cohabitation? Is the Minister putting the social welfare officers in an entirely invidious position, establishing them as official peeping Toms? That is the kind of question that arises in relation to the workability of the cohabitation provision and the Minister must give an explanation as to how he expects the provision to be implemented without an invasion of privacy.
A contradictory approach has been adopted in this Bill when compared with the approach adopted in tax legislation. We do not have an integration of the tax and social welfare systems, which would be the obvious answer to many anomalies. The Minister does not seem to be aware that the Murphy case regarding the tax issue resulted in an entirely different response from the Government of the day. We now have the ludicrous position that couples may be treated as married under the social welfare code and paid accordingly and yet treated as single under the tax code, their allowances being diminished accordingly. That is an entirely inconsistent and contradictory approach. It exemplifies the lack of any consistent approach by this Government in looking at the position of people under the tax and social welfare codes in a comprehensive way. The Minister has had to introduce hasty legislation in response to the Supreme Court decision, without having given full thought to the consequences.
In many ways this Bill is a typical piece of Fianna Fáil juggling. It is another chapter in the saga begun by the Taoiseach in 1979 when he produced his Irish solution to an Irish problem. All of us have a duty to ensure, whatever our views on the substance of legislation, that what goes through this House is as far as possible in conformity with the Constitution.
The Minister has not a clue as to the number of people who will be affected by this Bill. It is clear that some people will suffer hardship as a consequence of the Minister's approach. There is a duty on him to propose transitional bridging arrangements which would at least ease the adjustment of those directly affected by the provisions of this Bill. He should give a commitment that through the supplementary welfare system or otherwise provisions will be established to cater for the exceptional needs of those directly affected. That is the very minimum the Minister should do by way of recompense to whatever number of people are involved.
The Minister has left himself open to criticism because of the rushed manner in which this Bill has been introduced. He has left himself no room for financial manoeuvre and he has forced me and others in this House into a position where we must accept the urgent need for legislation. Nevertheless the Minister has raised many issues as a consequence of his action, the legacy of which will have to be tidied up by his successor as Minister for Social Welfare.
I am somewhat disappointed that this legislation is being rushed through the Dáil. I understand the reasons for it but I sympathise with the Minister because I believe many loopholes will be found in this Bill as time goes by. I would ask the Minister to monitor this legislation very carefully and to amend it immediately if hardship is shown to result. This is a very sensitive area. In other countries criteria are set down regarding cohabitation. The Supplementary Social Welfare Act of 1976 in Great Britain sets down the criteria in Schedule I, Part III, 1 (b) as follows: there must be a common household; there must be stability in the relationship; there must be financial support; there must be a sexual relationship; there must be children and there must be public acknowledgement of the relationship.
Perhaps the Minister would let me know exactly the kind of criteria to be set down here regarding cohabitation. Before the Department of Social Welfare make a decision in regard to cohabitation they must be furnished with a report from the social welfare officer. How is he to obtain information that is not given voluntarily? This legislation will be unenforceable for a number of reasons. The social welfare officers will not have the necessary time to observe cases and provide the information that is essential if they are to stand over their reports. It would be an imposition of additional duties on social welfare and community welfare officers who must, when they get a request for assistance, wait and watch the family. It is a very difficult and sensitive area and it would be most difficult for social welfare and community welfare officers to enforce this legislation.
The legislation is being rushed through the House without careful consideration and assessment of the whole situation. For instance, what happens when the views of the community welfare officer and those of the social welfare officer conflict on the question of cohabitation? What is the deciding factor then? A social welfare officer can establish the fact of cohabitation but the person involved can go to the community welfare officer in the health board and apply for assistance and get it because the community welfare officer has a doubt about cohabitation. Such a person can then apply for various other allowances such as rent allowances and things of that kind, resulting in additional cost to the State.
I am questioning the criteria rather than anything else in the Bill. I wonder how often deciding officers will have to seek legal advice on this matter and how often cases will go before the courts? That will be additional cost on the State to defend their views on the question of cohabitation. We saw protesters outside the door this morning. I do not believe in their protest but they have many views which I would like to hear to establish what we really mean by cohabitation. I would not like to be the welfare officer who has to adjudicate on such matters because there will be many innocent victims.
In the recent past several health boards have sought legal advice in relation to certain provisions of the supplementary welfare allowance scheme. Some of this legal advice centered around aggregation of means of spouses who have not gone through a marriage service but are living together. The legal advice the boards received was that the community welfare officers could not aggregate the means of couples living together who did not go through a marriage ceremony. What measures does the Minister propose to introduce to cover these cases in future? I have found nothing in the Bill to cover this and every day of the week community welfare and social welfare officers are looking for legal advice on certain cases before making a decision. One has only to check with the various offices to know that is the case. Hours are spent in deciding what decision community officers must make in areas like establishing the fact of cohabitation.
I do not wish to hold up the House because we only have until 1 o'clock and I would like to give other Deputies an opportunity to contribute to this very important Bill. I was glad to hear the Minister announce the setting up of a review group. It is long overdue. We have been advocating simplifying the whole social welfare system and it is a pity that before this review group report back, further legislation is being introduced resulting in more complications. The Minister probably has a reason; he is looking for additional moneys, but how much money was saved last year as a result of the Department's attack on abuse? It was well over £40 million. Why is this money not being redirected into areas like those we are talking about this morning?
When one throws a net to catch the abusers, innocent people are bound to be caught up in it. The sensible way to approach this difficulty is to fully implement the spirit of the EC Directive and comply with the 1985 Social Welfare Act whereby the State fully recognised that men and women, married or unmarried, should have equal access to an adequate income from the State to meet their domestic needs. Even if this additional measure would cost an estimated £31 million it could be made up by more prudent management and the simplification of the social welfare system.
Children do not have any choice as to whether their parents are married but they will now be financially deprived of substantial amounts of social welfare payments, payments which are generally recognised as doing little to alleviate the appalling levels of poverty in this country. The Minister should carefully monitor this legislation. In quite a short time we will see a lot of hardship and the children are usually the victims. I have made inquiries from social welfare offices, from community welfare offices and so on and I have been informed that they cannot administer this Bill which seeks to turn them into a sort of peeping Tom for the Government.
I do not condone the abuses. I have stood up here on many occasions to support the Minister's attack on social welfare abuses. I would urge the Minister to be very cautious in the way this legislation is administered. I am afraid that the children will be the sufferers because of this legislation. The Minister should monitor this to ensure that children do not suffer just because this legislation is being rushed through the Dáil to give the Taoiseach an opportunity to go to the country tomorrow morning. Within weeks of the passage of this legislation, possibly even during the election campaign, this legislation will inflict hardship and we will have little hope of coming back to the House during that period. I appeal to the Minister to make sure that the legislation is administered carefully.
I would ask the Minister to consider the British social welfare system which sets down a very definite criteria with regard to cohabitation. I believe this criteria is also used in other countries.
There is a number of important points to be made on this Bill but first I would refer to the opening remarks of the Minister in relation to the Society of St. Vincent de Paul. The Labour Party are well aware of the tremendous work done by this organisation throughout the country. I am particularly aware of their work in my constituency. On a daily basis they deal with people in a quiet, dignified and private way. It is unfortunate that this matter has come in for the type of discussion and comments that have been made over the last few days. I agree that every assistance should be given to the Society of St. Vincent de Paul. If I were to choose an organisation charged with the responsibility with which they are charged, an organisation who carry out their function very well under their charter, the organisation I would choose would be the Society of St. Vincent de Paul. I join with other Members of the House in putting on record our full support for and commitment to this society.
This Bill is being dealt with wrongly. I do not blame the media for an impression that is being created with regard to the Hyland family. The media are putting across a view but, as a result of statements emanating from Government sources and the Minister's Department, there is the impression that the Hyland family, who took this famous case and won it against all the odds, have done something wrong. That is the impression being created in the minds of the general public. It is a deliberate attempt to misrepresent the facts. The case does not relate to what married couples did wrong or to what cohabitors did wrong, but to what the Oireachtas did by not correcting a situation that was wrong from the beginning. It is immaterial whether we blame one Government or another, or one Minister or another.
At one stage we went to a Minister with a deputation — and it was not Deputy Desmond — and pointed out a number of anomalies that existed in relation to EC equality measures. The deputation were not listened to at that time and we have not been listened to since. The EC equality measures were forced in, in November 1986. There were two Fianna Fáil Governments in power prior to that and neither Minister for Social Welfare applied the EC directive. It was only when there would have been numerous cases before the European Courts, that the Government were forced to apply the directive in a way designed to save the maximum amount of money, as all legislation is applied.
This measure this morning has only one purpose and that is to save money. It is not designed to correct an anomaly following a High Court decision. It will create many more anomalies which will hang around the neck of whatever Minister will handle social welfare. We cannot cure or resolve an injustice by creating another. In most cases cohabiting couples cannot remarry because of the laws of the State and are forced to live together. Effectively, they are being measured by their morals in this Bill. This is not a moral issue. Moral issues should be dealt with by the churches and not in social welfare legislation. Whether they should live together is a matter for them to decide. There is no law on the Statute Book which states that they cannot do so. I am a perfectly happily married man with a family and I intend to stay that way. I am not encouraging people to go off and live together but I am saying because of the laws of the land people are forced to live together, against their will in the majority of cases.
We are putting them up to ridicule and creating the impression in the minds of the public that the issue is the morals of people cohabiting. I can assure the House that we will be opposing this Bill and will call on our other Opposition partners to do the same. There has been enough talk about what the Government have not done and what they should be doing. Today we reach the crunch and decide whether we put it to the Government collectively that they are either right or wrong in robbing over 80,000 married couples of their rights. That is what this Bill is designed to do. It is designed to take £14 per week out of the pockets of properly and duly married couples. Let us call a spade a spade.
Those protesting outside the gates have called it the snooper's charter. This obnoxious legislation which should never have come before this House is no more nor no less than that. These people have rightly challenged, in accordance with the Constitution, an anomaly which was pointed out in paragraph 9.4 of the Report of the Commission on Social Welfare and by me on behalf of my own party on a number of occasions. It was pointed out by a commission set up by Deputy Desmond when he was Minister for Social Welfare. We are now into the third year of the term of office of this Government and this anomaly has not yet been corrected.
The Hyland couple decided to exercise their democratic and constitutional right and take the case to the courts. They won their case, and won it on behalf of all married couples not just on their own behalf. I have been involved with social welfare appeal boards for the last 30 years and as every Member of this House knows, as the departmental officials and the Minister know, the rule is that one always takes a test case. One does not go ahead with 80,000 test cases on any aspect of social welfare. One selects one, two or three cases, depending on the numbers involved. Therefore, it automatically follows that the favourable decision reached in the Hyland case should apply in all similar cases. That is the principle, a principle which we have adhered to since the foundation of the State. We are breaking that tradition with this legislation and it is a dangerous precedent to set in this House.
This course of action does not allow or encounter people to exercise their constitutional rights. Most of the defective legislation passed through this House was in the social welfare area. It was pointed out recently by The Workers' Party that 12 cases were turned about. They are correct in their assessment. We are robbing people of their right to challenge bad legislation or bad sections of bad legislation in the courts.
What we are saying is that if they take their case at great expense right up to the Supreme Court we will simply bring further bad legislation into Dáil Éireann, overrule the decision and wipe away the views of the major court of the State. The court which defends the democratic and constitutional rights of the people is being interfered with this morning, and it is being interfered with on financial and monetary grounds. We are putting a price on democracy and on the constitutional rights of the vast majority of the people.
The question of cost is secondary. It was well known that this case was before the courts and that the Commission on Social Welfare had pointed out this anomaly. It was also well known to those of us involved in the area of social welfare that the case being put forward by this couple was a very good one and that the court would rule in their favour. That was the view of all the legal people involved and the experts who knew anything about social welfare. It had been suggested to me that provision had been made in the Estimates for this but I have some doubts about this now. It seems that a deliberate attempt is being made to circumvent — let us call a spade a spade — the decision of the highest court in the land by introducing further bad legislation. It is obvious that this decision will be challenged in the European Court when we will be the laughing stock of the European Community. This is the only country in the European Community which does not have equality measures in respect of husbands and wives. They should be classified and dealt with individually and not messed around in the manner we propose this morning.
This legislation is not designed to correct an anomaly. It is designed to take £14 per week out of the pockets of every married couple. I hope this message gets across rather than that the Hyland couple, with every married couple who claim equality or wish to claim equality with cohabiting couples, have done something wrong.
The question is how do we decide whether a couple are cohabiting. The two previous speakers have referred to this issue. The Minister should tell me how he is going to decide. In my home town and county, and particularly in Dublin city as the Acting Chairman will know, men and women share three, four, five, or six room flats. How are we going to determine which couples are living together? Will it be possible for a man and woman to talk together in the one room, never mind to have sex together? The only way we would be able to decide is on the criteria laid down in British legislation which has failed miserably and on which this Bill is based. This is defective legislation and will not work.
You cannot really define people who are cohabiting. Do you employ an army of social welfare snoopers? There are already enough of them operating. Will this be a new army of bedroom snoopers sent to find what is happening between two people living in the one building? They will have to establish whether a couple is sleeping together. If they are, they will have to determine whether it is for one, two or three weeks or three months. How do we define whether they are cohabitating? We have enough problems at present with community and social welfare officers dealing with all kinds of claims in regard to social welfare benefit without introducing the element of cohabitation.
We are now introducing another huge layer of bad legislation which will make it impossible for social and community welfare officers to carry out their duties. Already — and the Members know this — there is a six to eight week delay in the processing of unemployment assistance cases in every employment exchange from Cork city to County Louth. How do we overcome that problem? We should employ more people within the social welfare code but we cannot do that because of the embargo on public service recruitment. Indeed, those already working in the Department of Social Welfare are being offered early retirement and redundancy. This was brought in under the so-called Programme for National Recovery. Obviously, as a result, there has been a reduction in the number of people operating in the Department of Social Welfare, and that came across quite clearly from the trade unions representing the officials advising us today. They pointed out at their union conferences what was happening and yet we are introducing legislation which will demand an army of social welfare officers to implement. It cannot be done.
With a general election pending, it is hard to see how this will be justified to the electorate. I hazard a guess that in Dublin city and elsewhere every married couple in this category will vote against the candidate of the Minister's party, and I would not blame them because a fairly substantial sum of money is involved.
The provision in regard to retrospection put paid to any doubts I had in relation to this legislation. It convinced me beyond all reasonable doubt that this was bad legislation because it incorporated the provision that retrospection can never again be secured by a person or persons going through the courts. What happens if the Hylands decide — as they may do — to challenge this further in the European Court? They will win their case because the anomaly was pointed out by a commission set up by the Government and the Minister for Social Welfare.
How will those of us who will be reelected feel when, in two year's time, the European Court will rule in favour of this couple and all the others affected by the Bill? Who will foot the bill? What legislation will we put through the Dáil to overcome or get around the decision of the European Court? In accordance with an EC Directive, applied in November 1986, it was corrected by a decision of our Supreme Court. It may in the short-term save £21 million to £31 million, but that is the wrong way to put it as we have been cheating married couples out of £21 million per year. It is almost as if the decision of the Supreme Court was giving them £21 million to which they were not entitled. On the basis of the decision of the Supreme Court they would get £21 million to which they were entitled from November 1986 and which should have been applied by the Fianna Fáil Government in 1984 when the directive came through. These people are claiming that they should be paid retrospectively to the date on which the case was submitted to the courts but they are legally entitled to it under European law.
I should like the Minister to comment on that and not to blame any particular Minister or Government. Every Government have perpetrated an injustice. Maybe the present Minister is making the same mistake as a result of bad advice from his officials, perhaps he is accepting the advice in order to save money, but what about the £88 million taken out of the pockets of social welfare recipients? What about the bonus scheme operated by some medical officers within the Department? They are disallowing social welfare benefits as a result of a cursory examination.
It has been reported to me that on one day about 26 people were refused social welfare benefits and forced to appeal. The only factor on which the decision was taken was to feel their pulse or take their blood pressure. It did not matter if a person had only one leg, a major illness like cancer or tuberculosis or a malfunction of the liver or kidneys. It did not matter if a person presented the doctor with all sorts of evidence from a specialist to say that he or she was not fit for work, the idea seems to be to take them out of the system to save about £88 million. Of course it may be justified to take some people off benefit but these cases are rare.
There was no provision in the budget for saving £88 million so that amount saved on social welfare goes back to Government coffers. However, when £21 million to £31 million is due to people and squarely in accordance with the law, we rush through legislation, 24 hours before calling an election, when the House has no opportunity of going into it in a proper manner.
I do not blame the Minister, he has to put the best face forward. He said that there had been an increase in social welfare, and that is true. However, a percentage increase of nothing is nothing, no matter what you call it. Even assuming that there was an increase of 25 per cent in social welfare benefits during that period it is important to point out that there was a 100 per cent increase in differential rents in the last two weeks, a 100 per cent increase in rents paid by old age pensioners, a 100 per cent increase in rents paid by widows with children and a 100 per cent increase in rents paid by those on unemployment assistance. That is what the instruction of the Department of the Environment to local authorities has achieved. The majority of social welfare recipients will receive an increase of £1.80 from the first pay day in July but from next week or the following week, they will have to pay a minimum increase of £2.60 in their rent. On my calculations that represents a net decrease in their income of 80p per week. Those people will not be receiving a 25 per cent increase and the majority of those on differential and fixed rents face a 100 per cent increase in their rents.
We have reached the stage where social welfare recipients are paying more in differential rents than they would be if they were buying their houses on a purchase scheme. That is crazy and it would only happen in Ireland. It is hard to imagine that people who will be paid a 25 per cent increase in their benefits will be asked to pay a 100 per cent increase in their rents and that many of them will be paying more in rent than they would have to if they were buying their house. It is misleading to say that those people are being given an increase of 25 per cent in their benefits. The Minister is misleading the electorate, even on the eve of an election. That is deplorable.
In many ways I admire what the Minister had done in regard to social welfare but it is important to point out that since he took office he issued 25 regulations the vast bulk of which tightened up on social welfare benefits like a screwdriver tightens a screw. The result is that it is virtually impossible for some categories to obtain social welfare benefits. The qualification period has been increased some 400 per cent but there was no mention of that by the Minister this morning. The minimum qualification period has been increased and the ceiling reduced. The period of payment has been restricted. Those changes have taken place under regulations introduced by the Minister and those regulations did not go through the House but details of them were issued to managers of employment exchanges by way of ministerial order. Members of the House became aware of the changes when constituents approached them to complain that they had not received benefit for one reason or another. For God's sake, we should not refer to a 25 per cent increase; we are talking about a reduction of £14 per week in benefits paid to all married couples in this category.
Deputy Bell has extended the scope of the debate significantly in his efforts to deny that progress has been made in the area of social welfare in the last two years. He has forced me to take issue with him on a number of matters. He did not deal with the topic before us but went on to complain about local authority rents and so on. In view of that it is necessary to refer to some of the changes that have taken place in the area of social welfare. Deputy Bell must be aware, and undoubtedly would admit it in private, that Dr. Woods is a most innovative Minister. That has been recognised by most people. All parties accept that he has eliminated many anomalies. The Government have had to introduce this legislation arising out of the recent Supreme Court decision and the Minister dealt with many other anomalies in the last two years. For example, the anomaly in regard to widows' pensions had been knocked about for many years and nobody had the enthusiasm to deal with it until Deputy Woods took office. When I was elected to this House and got involved in the committee reviewing social welfare benefits I was amazed to find that we had 36 different rates of child benefit payment. That was incredible. I am sure the public are not aware of it. However, last year the Minister cut the figure to 24 and reduced it further, to 12, this year. What is more important is that the allowances were rounded upwards. There was no saving to the Department and it was wrong of Deputy Bell to infer that there was.
For years we have had the ludicrous position in regard to urban and rural rates of payment for the long term unemployed but the Minister has changed that. Again, he rounded the payments to the higher level of the two. The Minister streamlined rates for adult dependant allowances from five different rates to two rates and again, he rounded the payments upwards. If we are to tell the public the bad news, like Deputy Bell was preaching, we must also make them aware of the many innovations and changes that have taken place under Deputy Woods. These cost £71 million this year. The Minister sought, and obtained, support for his programme of change. There was a little nit-picking at the outset but, generally speaking, Deputy Bell and others admitted in private that changes were long overdue. For many years members of health boards, and others, have been preaching about the need to extend the free electricity scheme for the elderly. I can recall pleading for a change in that scheme seven years ago and suggesting that the elderly should be permitted to carry unused units from one billing period to another. Previous Ministers told me that that would be too costly for the Department and the ESB but Deputy Woods was able to change the scheme. I could carry on for an hour outlining the changes made by the Minister in the last two years. It is very unfair of Deputy Bell, and others, to suggest that welcome and long over due changes were not made by Deputy Woods.
I should like to state that I am very worried about many of the decisions of the Judiciary in the last eight or nine years. Those court decisions have cost us more than £600 million to date and many of them were contrary to the wishes of the House. I would be worried about the Judiciary deciding what is right or wrong in regard to social welfare and other areas. The House should endeavour to produce correct legislation at all times. Unfortunately, Deputy Bell and his colleagues, did not get their legislation right in 1985 with the result that our budgetary targets have been upset. The Minister has adopted a wise course of action in not just dealing with the immediate problem but in deciding to establish a review group to look at the change in society in the context of social welfare.
Rapid and radical changes are taking place in society, some of which we could not have imagined happening 12 or 15 years ago, and these changes have to be dealt with. Throughout Europe the standard practice is to take a household as a unit, no matter what the circumstances are or the relationship of the people living in the household to one another, and deal with it on that basis. In Ireland the primary grouping has always been the family and I am sure no one here would genuinely wish people who cohabit together to get a greater degree of benefit than a family unit. I do not think the general public would favour that and my knowledge — and I am not that long in the senior league in politics — from mixing with my constituents is that they would not like to see that happening. There has to be change in that area and we need to go further than the single case dealt with by the court. There will be a knock-on effect in dozens of different areas and there is a need for us to look at the overall situation. I recommend that in future we should take a household as a unit regardless of the marital or other status of the people in that household, recognise the needs of the household, compensate them accordingly and make benefit available to them.
It is wrong to knock the Minister and say that people are being deprived of X million of pounds to which they are entitled. It is taxpayers' money which Deputy Bell and others are floating around and because it is their money we are recirculating we need to be very careful about how we do this. The minimum estimate needed to implement the changes under one heading in the court decision would be £21 million for this year alone. If this is done there will be a number of knock-on effects which could not be catered for at this time and I believe the Minister — and no other Minister has so humanitarian an approach — has taken the correct decision. I strongly support the adoption of his recommendation and the setting up of a proper grouping to examine future payments and I recommend that this should be done in terms of a household unit.
I move amendment No. 1:
To delete all words after "That" and substitute the following:
"Dáil Éireann declines to give a Second Reading to the Social Welfare (No. 2) Bill, 1989, as the Bill is in breach of the spirit of the EC Directive on Social Welfare Equalisation, will cause additional hardship for people on already inadequate incomes, will give rise to further anomalies and is an unacceptable response to the Supreme Court decision in the Hyland case".
In moving this amendment I want to express once again my regret that this House saw fit to apply a guillotine to this debate. A guillotine was applied to the debate on the Social Welfare Act, which is being amended today, with the consequent effect that there was insufficient debate at that time and the various anomalies, and not just this one, which arose have had to be dealt with by way of the introduction of provisions to cushion the effects that arose. It is not a good way of doing the business of this Dáil to rush through legislation like this which effectively denies many Members of this House who have a wide experience of dealing with social welfare the opportunity to make a contribution and to point out the practical difficulties which can arise with regard to legislation, particularly in the social welfare area.
I regard this as one of the most shameful and disgraceful pieces of legislation to have been brought before the Dáil by the Fianna Fáil Government. The reaction of a government with any shred of integrity or humanity would have been to increase the levels of unemployment assistance payable to married couples to bring it into line with the amounts paid to non-married couples. Unfortunately, Fianna Fáil, true to their nature, have chosen to further impoverish people on already inadequate incomes. This Bill is a fitting epitaph for a Government who have consistently pursued a policy of making the rich richer and the poor and everyone else poorer. They have spent the past two and a half years hitting the old, the sick and the handicapped. What more appropriate way for them to end their reign than by hitting the poor on social welfare?
On the evening of the Supreme Court decision the Department of Social Welfare clearly indicated they intended to prepare legislation to provide for additional payments for married couples but this plan was apparently personally vetoed by the Taoiseach. The Bill before us should be rejected — and here I should like to say how regrettable it is that the Fine Gael Party and the Progressive Democrats have apparently decided they are not going to oppose this Bill — because it is clearly in conflict with the spirit of the EC directive on social welfare equalisation and will also give rise to all sorts of ludicrous anomalies.
For instance, a brother and sister sharing the same house or flat and sharing all living expenses will now receive a higher level of unemployment assistance than a married couple. House sharing arrangements where people share expenses are now quite common — there are dozens of advertisements seeking such arrangements in any evening paper. However, two people living together under this arrangement but not cohabiting will now receive more than a married couple or a man and woman who are not married and cohabiting.
There is the whole question of how "cohabiting" is to be defined and established. This is not defined in the Bill and it already gives rise to great difficulties in other areas of social welfare entitlement. The Bill raises the prospect of social welfare officers snooping around and peeping through bedroom windows to establish whether people are cohabiting. This is a degrading prospect both for those on social welfare, who are already imposed on in relation to denial of privacy to an enormous extent, and for departmental officers. I hope social welfare officers will take a stand on this issue and refuse to become Deputy Woods' sex snoops. Indeed I am happy that the CPSSU have already indicated they are concerned about the work their members may have to undertake arising from this Bill. The Irish National Organisation Of The Unemployed have pointed out that similar types of legislation in England have resulted in officials inspecting the contents of bathrooms and arrangements in bedrooms.
As I indicated, another serious reason for opposing this Bill is that it is contrary to the spirit of EC Directive 79/9 on equal treatment for men and women on social welfare. In fact, the Bill is of dubious legality itself. EC Directive 79/9 was designed to remove all forms of discrimination based on sex or marital status from the social security systems of member states. The Coalition Government in their Social Welfare (No. 2) Act, 1985, chose to implement the equality principle in a narrow and restrictive way with the purpose of saving money at the expense of people who had long been discriminated against by our social welfare system. At that time The Workers' Party opposed a number of the provisions in the 1985 Act and tabled amendments which found no support on either side of this House. Indeed, the then Minister steering the Bill through the Dáil, Deputy Barry Desmond, defended it as being equitable and practical and a reforming measure which he strongly recommended to the House. When the Minister was speaking earlier he inadvertently referred to Deputy Desmond as Deputy Barry Fitzgerald——
I did not fully say it.
Probably he was right to the extent that we witnessed a performance here yesterday which would have done Barry Fitzgerald proud given that it was Deputy Desmond who had steered that Bill through the House in 1985 and refused to accept an amendment which we had tabled. In fact, he denied that the section he was pushing through was in any way unconstitutional or in breach of the directive.
I might draw the attention of the House to the Official Report of 3 July 1985, column 292, when, in response to a question of mine, the then Minister, Deputy Barry Desmond stated:
We have carefully checked the legal basis of the provision and we are advised that on both directive and constitutional grounds the subsections are entirely sound.
One of the points I raised specifically in the course of the Committee Stage debate on the 1985 Act was that section 12 — by restricting certain payments to married couples to the level they had been, or would be if one spouse was a breadwinner and the other a dependant — was flouting the intention of the directive and probably also was unconstitutional. I drew particular attention to the precedent created by the Murphy tax case. The Workers' Party sought the deletion of the flawed section 12 provisions but ours were the only Members to vote against it. The High Court and Supreme Court have since confirmed that we were right. Those responsible for steering that Bill through the Dáil and those who advised them must share a great deal of the blame for this mess. Had they listened to the advice we offered many difficulties could have been avoided.
The courts confirmed that the 1985 Act was in conflict with our Constitution. The question remains: does this discrimination also contravene European Community Directive No. 9 of 1979? We believe it does. On that basis The Workers' Party are lodging a formal complaint against the Government to the European Commission. We assumed that, when the Hyland constitutional case succeeded in the Supreme Court — as we had expected it would — the Government would themselves introduce appropriate amending legislation incorporating the necessary retrospective element. Since this has not happened, since Fianna Fáil have taken the disgraceful decision to follow the example of the Coalition Government by equalising downwards rather than upwards, our complaint to the Commission will be made as a matter of urgency unless this Bill is defeated, which is probably unlikely given that the Fine Gael Party and Progressive Democrats have indicated that they do not propose to oppose it.
If the clear discrimination against married couples which has obtained to date is found to contravene the European Community Directive, then the Government will be required to provide justification for its continuance. Given that the payments now being levelled down are among the lowest in the whole of the social welfare system — well below the levels which bodies such as the Commission on Social Welfare and the Combat Poverty Agency defined as being the minimum necessary on which people could live — we do not believe that the Commission would accept any such justification plea by the Government.
There is a second major doubt about the legality of the provisions of this Bill. Even at European level if the provisions of this Bill are deemed to have removed whatever discrimination has obtained to date, married couples who have been adversely affected by the legislation to date, will have a right under European law — that is EC Directive No. 9 of 1979 — to seek retrospective remedies. National law cannot remove a right bestowed directly by European law. Rulings of the European Court have made that clear. Therefore, it appears that section 2 of this Bill, outlawing retrospective claims, is in contravention of European law.
It is also interesting to contrast the response of the Government in the Hyland case to that to the Supreme Court judgment in the Murphy tax case. In that instance there was no question of equalising downwards: all eligible taxpayers quite rightly benefited. In all fairness, those in receipt of social welfare — who generally speaking live on incomes much lower than those of taxpayers — are entitled to the same consideration.
The Government have also deliberately inflated the possible cost of increasing the entitlement of married couples. Their estimate of the cost, at £31 million, included the cost of equalising the payments to all married couples, that is, not merely those in the labour force but also in the case of married couples where one spouse is a genuine adult dependant, and might have no wish to be in the workforce and have no legal equality with those who do form part of the workforce.
The overall implementation of the EC Directive on Social Welfare Equalisation was a botched job. The original incompetence and penny-pinching of the Coalition Government are now being matched by Fianna Fáil. The implications of the original botched job are still being felt. The cushion payments which the Coalition Government were forced to introduce in 1986 to deal with some of the anomalies — when the public discovered that tens of thousands of families stood to lose substantial sums because of the provisions of that 1985 Act — are due to cease in July next. Although the value of those cushion payments have since been reduced many families still face a substantial drop of as much as £18 per week in their income and consequent additional hardship if those payments are abolished.
The cessation of these payments and the political row which will follow constitute some of the reasons the Government are apparently making a dash to the country on 15 June. I believe they are in for a rude shock. The electorate will not so easily forget the cruel hardship imposed on the old, the sick, the handicapped, the poor, the unemployed and the emigrants. Today the Opposition have the opportunity to drive this Government before the electorate. I would appeal to them to support The Workers' Party amendment today in this House at 1.30 p.m. affording the electorate an opportunity to declare their verdict on two-and-a-half years of Fianna Fáil misrule with the support of Fine Gael and the Progressive Democrats.
Before contributing to this debate, so that nobody accuses me of having wrong motives, let me declare an interest. As a lawyer involved in a law firm outside this House it was our law firm that was privileged to represent the Murphys in the Murphy tax case and also the Hylands in this major social welfare case. Indeed, it was because we believed that the social welfare system, as it operated, was inequitable and discriminatory against married couples that we saw fit to assist the Hylands in processing their claim through the courts. I am very familiar with the history and legalities of this matter. I would have to say that I agree with some of Deputy De Rossa's comments.
It is appropriate that this Government bring this Bill before this House apparently a day before the announcement of a general election. It is appropriate because there is little doubt that the Government would have a majority support for the Bill in this House. I do not think there is any doubt about that in the context of other people being away on European election canvassing. It is appropriate that the Bill go through the House and that this and other steps taken by this Government in the social reform area be judged by the electorate. Of course, this is not a social reform measure, it is a regressive approach to a major social issue. It is appropriate that this be one of the closing Bills with which we deal because, in the context of attacking our economic problems, there is a way of minimising its impact on the old, the sick, the handicapped, those in disadvantaged areas and those in receipt of low incomes.
This Government have been notorious for failing to get the balance right. On other occasions in Private Members' time this House has joined to highlight that fact. I do not want this Bill to go through this House without putting on the record my views of it and its approach to this issue. The Family Planning Bill, published by the present Taoiseach when Minister for Health in 1979, was described by him then as an Irish solution to an Irish problem. This Social Welfare Bill published by his Government can best be described as an Irish solution to an inequality problem.
It is difficult to take this Bill seriously. Under its provisions every applicant for unemployment assistance, unemployment benefit, injury benefit, disablement pension, old age contributory pension, old age pension, retirement pension or invalidity pension will be liable to questioning by social welfare officers about matters solely of relevance to their private, personal lives. The extraordinary invasion of the right to privacy required by the provisions of this Bill will enable every social welfare officer to question social welfare applicants of any age about their personal relationships. Entitlement to receipt of unemployment allowance and benefit will no longer be established by mere proof by an applicant that he or she is unemployed and available for employment but will also require the applicant to establish to the satisfaction of the Department of Social Welfare that he or she is living alone and maintaining a celibate life.
If the Taoiseach and the Minister for Social Welfare are in earnest about the promotion of this extraordinary Bill — on the basis that the Minister and the Government intend to push it through this House, it appears they are — a number of serious questions arise. Are we to have a new category of civil servant in the Department of Social Welfare called the morality officer, whose job it will be to investigate the private lives of social welfare applicants and recipients? Will we have a separate departmental principal officer leading a newly established morality brigade on nightly visits to the homes of social welfare applicants or recipients to determine whether unemployed or disabled men or women are cohabiting as couples? Will similar visits be paid to old age pensioners? How will the Department of Social Welfare, for the purpose of this measure, determine whether an elderly pensioner and a younger unemployed companion residing together in the one house are cohabiting as man and wife — as the Bill refers to it — or merely residing under the one roof so as to avoid the distress of living alone? Will the new morality officers be furnished with bright, new and sparkling departmental ladders and binoculars to carry out their functions? Will they be taught the skills of urban and rural camouflage so that they can carry out surveillance operations in household gardens and rural hedgerows and remain undetected? Will they be taught the art of photography so that those under suspicion can be caught in the act? Perhaps the Minister could answer some of these questions. All of this sounds funny but it is difficult to see how this Bill can seriously be put into operation unless the Minister intends to establish this new morality brigade.
The judgment in the Supreme Court in the Hyland case sought to remove a discrimination from our social welfare code which resulted in unemployed married couples obtaining a lesser sum by way of social welfare than other individuals residing together. It resulted in provisions in our social welfare laws which penalise the married state being held invalid. The Government in this Bill are seeking to turn the Supreme Court judgment on its head and instead of putting married couples in a position of equality with others are seeking to introduce a new and curious discrimination to be imposed on other couples. This discrimination will not affect unemployed brothers and sisters residing together, unemployed men residing together, unemployed women residing together or unemployed parent and adult child residing together and many others.
The Bill seeks to maintain in being a discrimination against married couples similar to the discrimination which the Supreme Court has held to be unconstitutional. In so far as the Minister has received advice that this Bill is not constitutionally infirm I would challenge the correctness of that advice both for the reasons I have already given, and for a variety of other reasons, in particular the way in which the Bill seeks to deal with retrospection and with the interim period as the law applies from the date of the Supreme Court judgment to the date of the enactment of this Bill. I have very grave doubts as to this Bill's constitutionality and in so far as other Members of this House have expressed those doubts I would agree with them.
Coming from a party which over the years has boasted of their commitment to the family and marriage, Fianna Fáil's approach to this Bill is a classical example of the shallow and unthinking approach shown by them in Government. I think, a Leas-Cheann Comhairle, if it was not so serious, this Bill should more appropriately have been published on 1 April. If the matters it addresses were not so serious it would not deserve to be taken seriously and would be treated as a joke. I would ask the Minister at this late stage, before we take Committee Stage of this Bill, to think again.
The Government should think again and check the advice they are getting. They should have a different social approach to the issue they are confronting and instead of enacting this measure they should simply withdraw it. It is one of the most half-baked ludicrous pieces of legislation which have been seen in this House since the Family Planning Bill, 1979.
Deputy Shatter must conclude in about one minute's time.
If the Bill is not withdrawn, and if the Bill is enacted, its implications will filter through to the general public outside during the course of a general election campaign. I hope they would take a particular view of this Government. The other matter I would like to raise in concluding——
I am afraid the Deputy has not time.
——is that if the Bill does pass through, and if it is not withdrawn, it should be referred by the President to the Supreme Court for constitutional adjudication under Article 26 of the Constitution. I believe it is incumbent on the President, by virtue of the decision in the Hyland case, to so refer this Bill before it is enacted into law and before it is signed by him. I hope the President will see fit to convene a meeting of the Council of State to consider whether or not he should sign this Bill or make a constitutional referral. I hope the advices he gets are better than the advices the Government have apparently received on the Bill they have brought before us.
I would like to thank Deputies for their contributions to the Bill and to the Second Stage debate. Deputy O'Keeffe, at the outset, was very concerned about the lack of departmental guidelines as to what constitutes cohabitation. When cases of cohabitation are being determined a number of factors are taken into account. Indeed Deputy Wyse referred to similar arrangements in Britain. These factors include co-residence, the financial situation, the social situation and the sexual situation in the sense of having children as a result of the relationship. It is not necessary to prove that all four criteria are met to establish cohabitation. If it can be established that a couple reside at the same address and satisfy any of the other requirements they are generally deemed to be cohabiting. It is not essential that a sexual element be present. Co-residence, financial, social and sexual co-residence means that a couple are living together. In establishing this fact it is necessary to examine the circumstances and the duration of their living together, the name or names given as owning or renting the property occupied by the couple, the type of accommodation available, how it is shared and the allocation of duties within the household. The financial side covers the sharing of the financial burden between the couple. It is not necessary to prove financial dependence but rather that the couple's financial arrangements are similar to those of a normal married couple. The social arrangements cover such matters as a permanent relationship, as being seen to be living in the neighbourhood as man and wife. It is not a problem that arises only in Ireland. From listening to Deputy Shatter it would appear that this was something which arose suddenly here, today, or yesterday, and that we in Ireland have suddenly invented cohabitation. Cohabitation occurs throughout social welfare systems all over the world.
It never happened——
The arrangements which we are making today are probably the first step towards the determination of a household situation. If Deputy Shatter spent more time, perhaps working with his party, rather than with his vested interest — to which he referred — why then did he not advise his party in the years which have gone by. We are taking this step now because there was a defect in the Bill. Indeed, it might well have been better for Deputy Shatter to have advised his Government at the time, because it was his Government which brought in that legislation. It is he who, skulking among his own partners in the House and among the Fine Gael Members, then goes out to the courts and challenges his own party's Bill. That is the kind of thing we are seeing again and again in this House. If Deputy Shatter has views why does he not make his wisdom available to his own party when they are bringing in a Bill; then he would not be faced subsequently with a defective Bill, which is what we are faced with here and what we are trying to remedy with two actions. The first action is to deal with the immediate situation, which Deputy Shatter knows quite well would cause enormous difficulties throughout the social welfare system. He has not referred to them in detail, but even from what he had to say, it is quite obvious that the ramifications of this decision are quite substantial. They have to be dealt with immediately. What we have done — and what he might have encouraged his party to do when in Government — was to set up as a matter of urgency a review group to sort out once and for all the assistance schemes for households. That brings into line the question of how brothers and sisters and others living in the same household should be treated. There is a simple system that is used on the continent and which gets over the legalities. That is that you nominate the head of the household. As I have said in my speech, there is no way we will pay five fuel allowances to a household needing one set of heating. Obviously to do so would be ridiculous.
We need, therefore, to look at how we will direct the assistance we are giving to social welfare beneficiaries, and that is why we are setting up the review group which is comprised of experts in the field, people who are familiar with the area. They will take the work of the commission a step further. The Commission on Social Welfare said we should pay in accordance with need. They also said that if there was a question of people living together, the dependency rate should be 0.6 of the full rate. That would be 1.6 of the full rate for two individuals. Yet the commission said there should be equal treatment. The difficulty is that on this side of the House we have to take account of all these suggestions and make them work. We have to use taxpayers' money to do that. We are being entirely responsible in what we are doing here today because we are not only tackling the immediate question raised by the Hyland case, section 12 (4), but we are also dealing with a similar one covered by section 12 (1). These two are being dealt with immediately.
We believe that a review is urgently necessary before further action is taken and that this is the right way to go about it at this time. This is a very responsible approach on the part of the Government. A number of Deputies, and Deputy Wyse in particular, raised the question of supplementary welfare officers' involvement. They are not affected at this stage, but they would certainly be involved in the review. The review will be covering the wider implications.
When a social welfare officer establishes the fact that a couple are cohabiting and then goes to the home assistance officer, would he not be involved immediately?
If a case of cohabitation is established, the people involved will be paid the same as a married couple are paid. This brings me to another point which is very relevant, and is particularly relevant to what Deputy Bell had to say. This Government are giving married couples, particularly those on long term unemployment assistance, very considerable increases. Nobody can deny that. Those increases were not given by previous Governments and to suggest, therefore, that we are trying to penny-pinch on married couples is ridiculous.
Deputy Bell asked us to compare the level of payments in 1986 with those of today. In 1986 a couple on long term unemployment assistance with five children would have received £104, if they were in receipt of the urban rate, and £103 if they were in receipt of the rural rate. Now in 1989 they are getting £127 per week. In terms of the consumer price index increases for other people within the scheme, that is a very considerable increase. This Government have been giving increases where most needed and in general we have been allocating our resources in accordance with need. We will continue to do that.
We have a responsibility to tackle this matter immediately, to ensure that married couples continue to get what they are getting and to review the position of the relatively small number of people who may be affected by these two provisions of the Bill. The numbers affected are relatively small and when a couple are making a claim they will have to say whether they are married or are unmarried but living together as man and wife, a cohabiting couple as it is commonly called. There will be a declaration involved in making claims.
Obviously, another way to approach this in the future is to ask a couple to state the head of the household. As I have said, this is one approach that is used by other countries and in fact the review group will look at this issue because it needs to be examined at this point. I accept that but I do not see any massive change at this point. The review group will report in time for the next budget, which again is a very responsible approach and any action that needs to be taken will be taken in the context of the associated Social Welfare Bill.
There have been various references to the Murphy case and its implications for equal treatment. However, that is an entirely different situation because in this case we are talking about the allocation of resources in relation to need. In effect we are asking how we allocate resources in relation to need in the social welfare schemes bearing in mind the provisions of equal treatment. This Bill will certainly deal with the most immediate questions arising from the Supreme Court decision, but there are much wider issues which will have to be tackled. That is why we have set up the review group and I would like to thank the members of the group for agreeing to participate in the review.
Have you appointed all the members of the review group?
It is an expert group, and all the people on it are clearly recognised as being expert in the field. I do not think their expert knowledge in the area could be called into question. They range from Mr. John Curry who was chairman of the Commission on Social Welfare; Dr. Fionola Kennedy, an economist; Dr. Claire Carney, Department of Social Science, UCD; Mr. Tony McCashin, a social policy analyst with the NESC who did some of the analytical work for the Commission on Social Welfare; Mr. David Byrne, senior counsel, — he was invited to participate because it was felt we should have a legal expert — Mr. John Hynes, Assistant Secretary, Department of Social Welfare, who is very much involved in the Department's development work in policy and planning and Mr. Michael Guilfoyle, a principal officer in the Department of Finance, dealing with the social welfare matters.
Is there any representative from the trade unions?
It is an expert group. I am quite satisfied that this group will get into the technical side and present an analysis, on which the Government can take action in the next budget and in the associated Social Welfare Bill. As far as I see it that would be immediate action and would be very responsible.
Both Deputies De Rossa and Jim O'Keeffe asked about the numbers involved. It is estimated that if only 20 per cent of those people who would be eligible to claim and whose spouses are on unemployment assistance claimed it would cost an extra £26 million. The figure of 20 per cent is seen as a very conservative estimate and I do not see why it would not be very much greater. This only relates to the most immediate aspects covered in the Bill but there are other aspects, which also have financial implications for the taxpayer in general. They have to be considered in a cool atmosphere and decisions have to be taken in relation to them. I am quite happy, a Leas-Cheann Comhairle, that these matters can be dealt with. It will mark a step ahead and I believe there is a responsibility on us at this stage to take the action that is proposed in the Bill.
When is it proposed to take Committee Stage?
Tomorrow.
Tomorrow, by agreement with the Whips.
Subject to the agreement of the House.
