Joint Committee on Public Petitions and the Ombudsmen debate -
Thursday, 3 Oct 2024

Petition on Pensions and Social Security Legislation

An Cathaoirleach

The next item of business is our engagement with petitioner Mr. Frank Moran, regarding petition No. P00058/2024, entitled Flawed Legislation relating to Pensions and Social Security.

Before we start, I wish to explain some limitations to parliamentary privilege and the practice of the Houses as regards references to other persons witnesses may make in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute, by absolute privilege. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if witnesses' statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction.

I remind members of the constitutional requirements that members must be physically present within the confines of the place in which Parliament has chosen to sit, namely, Leinster House, to participate in public meetings. I will not permit a member to participate where he or she is not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting.

Before we hear from our witnesses, I propose we publish their opening statements on the committee’s website. Is that agreed? Agreed.

On behalf of the committee, I extend a warm welcome to the witnesses, Mr. Frank Moran, the petitioner, and Ms Lucy Donoghue. Mr. Moran will read his opening statement, which should last no longer than ten minutes. We will then have questions and comments from members. Each member will have around ten minutes and they can come back in, if they so wish. Members may speak more than once. I invite Mr. Moran to make his opening statement.

Mr. Frank Moran

I thank the Cathaoirleach and members of the committee for giving me the opportunity of addressing them today. I am accompanied by Lucy O'Donoghue, who is a friend and former work colleague at the Central Bank. Lucy was the senior administrative officer with responsibility for pensions administration at the relevant time. She is retired from the Central Bank and is accompanying me here today in a personal capacity.

I joined the Civil Service on 12 November 1973 and became a member of the "original" spouses' and children's contributory pension scheme, which was compulsory for new entrants. In 1988, when I took up a new position in the Central Bank, there was a discussion between the senior pensions administration in the bank, the Department of Finance and myself, present, about the transfer of my service, including pension contributions from the Department in which I worked. During that comprehensive discussion the Department asked about my age, checked again and again whether I would ever envisage any benefit to myself under the scheme and then, taking all of that information into account, made a reasonable decision that they would refund the contributions directly to me in this case and not transfer them to the bank, given that I was never likely to benefit from the scheme.

The position taken by the Department of Finance was a case of, the officer read between the lines, there were no personal positions identified or divulged, but everything was understood. The refund from the Department of Finance was indicative that I would never be entitled to the benefits of the spouses' and children's scheme. I stayed in the Central Bank pension scheme as I was not prepared to “out” my personal orientation. Homosexuality in Ireland was not decriminalised until 1993.

Following the passing of the equality referendum in May 2015, and to ensure the entitlement of the same-sex couples to benefit from an occupational pension scheme, changes were made to Part VIIA of the Pensions Act 1990, as inserted by Part 3, section 27 of the Social Welfare, Pensions and Civil Registrations Act 2018. Section 81L sets out the conditions for entitlement. Subsection (1), part (ii) states that the member married or entered into a civil partnership with that person within 36 months of coming into operation of the Marriage Act 2015 or the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The legislation was sponsored by the Minister for Social Protection.

The changes in this law were adopted for members of the Civil Service pension schemes and were contained in Circular 18/2020. The title of the circular was Recognition of same sex marriages/civil partnerships under Public Service "Original" Spouses' and Children's Contributory Pension Scheme.

On 24 September 2023, I applied to be reinstated in the "original" spouses' and children's contributory pensions scheme as provided for in Circular 18/2020. On 4 June, I received a formal response to inform me that my application had been refused because my civil partnership had not taken place before 1 January 2014 as required by section 81L(1)(c)(ii) of the Pensions Act 1990. I entered a civil partnership on 14 April 2014. I missed the boat by approximately four months.

I will set out the critical timelines. June 1990 saw the passing of the Pensions Act to provide for the fair treatment of men and women under occupational pension schemes. May 2015 saw the passing of the equality referendum. December 2018 saw the passing of the Social Welfare, Pensions and Civil Registration Act, including changes to the Pensions Act 1990. November 2020 saw the issuing of Circular 18/2020 by the Department of expenditure and reform.

I will set out the critical issues. The 2018 Act laid down conditions under which a person who was a member of the "original" spouses' and children's contributory pension scheme and had left the scheme could apply to rejoin it. These changes gave recognition to same-sex civil partnerships and marriages for the purpose of entitlement to contributory pensions, including those in the public service. One of these conditions was the that the applicant must have entered into a civil partnership or marriage within 36 months of the coming into operation of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, whose commencement date was 1 January 2011. Thirty-six months on from 1 January 2011 was 1 January 2014. Critically, the changes to the Pensions Act 1990 were only adopted by the Oireachtas in December 2018 and Circular 18/2020 was not issued until November 2020. The 36-month condition in respect of same-sex partnerships had expired on 31 December 2013. When the 2018 Act was adopted, the conditions had already expired by five years. When Circular 18/2020 was issued, the conditions had expired by seven years. Circular 18/2020 was issued to the staff of the Central Bank on 3 July 2024. Part VIIA of the 1990 Act, relating to the 36-month requirement, is flawed, discriminatory and possibly unconstitutional.

Before concluding, I wish to make some observations about the response by the Department of Social Protection to my petition. According to the Department, the circumstances specified in section 81L to be satisfied are that the member of the scheme must have entered into a marriage or civil partnership with the other person within 36 months of the coming into force of the relevant legislation recognising same-sex relationships in Ireland, and since these were transitional provisions, it was necessary to specify a period of time within which the scheme member must have married or entered into a civil partnership to be deemed to specify the scheme conditions. It was not necessary. The only necessity was to name the spouse and provide proof of the civil partnership or marriage. These conditions have never applied to non-same-sex couples.

The Department also stated that to have introduced these provisions in respect of same-sex couples without specifying a period of time could have given rise to unequal treatment for opposite sex couples. This is utterly disingenuous and deeply offensive. The only people excluded from the cover of occupational pension schemes are same-sex spousal persons and their children. The Department stated that a three-year period was considered to be a sufficient and wholly reasonable time period for a scheme member in a committed relationship to regularise his or her marriage or civil status by marrying or entering into a civil partnership. I have proven that the time period was neither sufficient or reasonable. In its response, the Department failed to recognise the flawed, discriminatory, unreasonable and unconstitutional anomalies contained in the legislation. How fair and reasonable was it to introduce legislation in 2018 that created conditions for same-sex couples who wanted to avail of pension entitlements but backdated those conditions to 1 January 2011 for a restricted period of 36 months, thereby making the required conditions unattainable in 2018 and beyond? The legislation is flawed in meeting its objective.

In the final paragraph of its response, the Department stated that any question relating to the granting of access to schemes, in respect of persons who were not members of the schemes, that provided entitlement to spousal pensions was a matter for the Department of Public Expenditure, NDP Delivery and Reform. The passing of the Social Welfare, Pensions and Civil Registration Act 2018 led to the issuing of Circular 18/2020 by the Department of public expenditure on 30 November 2020. Circular 18/2020 contains the same flawed conditions as set out in the legislation. The Department of public expenditure and reform, or the Central Bank in my case, does not have the right to change the law even if it is fatally flawed, discriminatory, unreasonable or unconstitutional. In a phone call with the director of human resources in the Central Bank following the rejection of my application for reinstatement, I was told that, if the law was changed, the bank would apply the law.

An Cathaoirleach

I thank Mr. Moran for joining us. It is important that any legislation be designed in a manner that does not infringe on anybody's rights or issues of equality and that it be done in such a way that people do not fall through loopholes, which seems to be a lot of what is going on. Will Mr. Moran bring us back to when he was advised to opt out of the original scheme, as he put it? What were the unintended consequences of that?

Mr. Frank Moran

Ms O'Donoghue was the person who was co-ordinating that, so she might be the best person to ask.

Ms Lucy O'Donoghue

Mr. Moran did not opt out of the scheme. He stayed in the pension scheme in the Central Bank until his retirement. When he moved to the Central Bank, he applied to transfer his service to the Central Bank in order that it would all be counted together. There was some administrative delay in that transfer happening, so I contacted the Department of Finance. The occupational part of Mr. Moran’s service was transferred directly and the only contributory part related to the spouses and children’s scheme. A question arose as to whether that sum was going to be transferred to the Central Bank. In the conversation we had with the Department, it transpired Mr. Moran was very unlikely, in the circumstances, to ever benefit from the scheme and, therefore, the Department took the decision to repay him directly for those years of contributions while he had been at the Department. His position at the Central Bank was such that he remained a member of the spouses and children’s scheme and he had those refunded on his retirement. Otherwise, we would have had to make a different case in the Central Bank not to allow him, because it is a compulsory scheme.

Mr. Frank Moran

We are talking about a very different time, the late 1980s. That is why I emphasised in my statement that at that time, the law still applied in respect of homosexuality, so nobody was going to come out to their employer. It was dealt with in a very sensitive and appropriate way and everybody knew what we were talking about, but those were the cultural conditions that applied at the time.

An Cathaoirleach

Will Mr. Moran speak to what appear to be the irregular timelines that may have had an effect on his ability to adapt to the changes to the occupational pension schemes?

Mr. Frank Moran

The critical starting point is that after the 2015 equality referendum, the Government asked all Departments to carry out an audit to make sure they were all in compliance. The responsibility for pensions appears to have been vested in the Department of Social Protection. It affected a change to the Pensions Act 1990, which was the governing Act in respect of equality for men and women in occupational pension schemes. It was the appropriate area in which to insert an expansion of the understanding of occupational pensions.

For some reason, however, of which nobody has ever been able to make logic, and dare I say it, the Department's response to my petition does not deal with it in any adequate way, it inserted conditionality on both the civil partnership Act 2010, which came into operation on 1 January 2011. If we add the 36 months to the starting date, we end up with January 2014, in the context of an Act that was introduced after the referendum that nobody in 2010 would have known was ever going to happen. It introduced that, and the further anomaly related to the 36-month period for the operation of the Act applying to same-sex couples who married after 2015. For them, that 36-month period went up to 2018, so that was another implicit anomaly.

The Department has expressed a belief that this was something to do with transition. How can we say the law is being applied with openness and transparency if we create a conditionality that applies to the law in 2018 and is backdated to 2010? The only way this can be dealt with sufficiently is by simply removing that one sentence in the Act that lays down the 36 months. If that were removed, there would be equality of application of the law.

An Cathaoirleach

Has the Department given any reason it will remove that one line relating to the 36 months?

Mr. Frank Moran

No. In fairness to the Department, it has not had an opportunity to come back on the arguments I am making today, but I do not believe the Act in its entirety needs to be re-examined. Only one section causes offence, not only to me but to an unknown number of other people. That is why, when the application was refused within the Central Bank, I took the decision that I was not going to appeal it within the Central Bank because doing so would have meant that this issue, which is a public issue, would not have come to this committee, for example, or been raised with the Department of Social Protection. This is a wider issue than me, although it does apply to me. The public interest would be served by a one-line amendment to the Act, and I would like to think that would happen within the current political climate.

Deputy Pat Buckley

In less than 36 months?

Mr. Frank Moran

Yes, I would prefer not to have to wait another four years.

Deputy Pat Buckley

Mr. Moran has just spelled it out, from start to finish. The wording "transitional conditions" could have been expanded or squeezed back in. We have big problems here with accountability and responsibility when things happen and the lack of a commonsense approach. Mr. Moran spoke about the 36-month rule. That change can be made but, again, it will have to be through legislation. He has my head going at 100 miles an hour and asking how we would put in an amendment and when it would happen but, as he said, it has massive ramifications for so many people.

The Civil Service changed its attitude to same-sex couples long before the public did, and I am well aware of people who went into public service jobs because it was probably the safest place in which to work at that time, in the late seventies and up to the early eighties. I am a bit disappointed with the response Mr. Moran got from the Department of Social Protection telling him it is not that Department's fault. He got that refund in 1973. Is that correct?

Mr. Frank Moran

Yes.

Deputy Pat Buckley

I am stumped, and Mr. Moran pointed out the delay in those transitional periods very clearly, by the way in which he and others have possibly been penalised, even though it looks like an oversight. However, nobody is saying it is an oversight because, again, nobody is taking responsibility.

An Cathaoirleach

Pass the buck.

Deputy Pat Buckley

I need to find out whether this can be done and if it can, that this requirement be removed and the legislation tweaked. It should be done because it is the right and fair thing to do. I suspect Mr. Moran has been at this a very long time. It is not easy to come here. He has come to a public committee to tell his story about this. The way he has been mistreated is extremely unfair. I could use stronger words but I would be in trouble. It would be very unfair to the parliamentary public as well. I will certainly look into this to see what we can do to remove this. I do not know whether it will cause another knock-on effect. The Oireachtas has the resources and an amazing library and research crew. I will approach them to ask whether it can be done. We can even do that through the committee. If we know it can be done, they can assist us in making those changes and trying to get it through. That is the only thing we should be doing.

I thank the witnesses. Mr. Moran was extremely thorough in putting this out. It has serious ramifications. I do not know where this 36-month rule came from. The term "transitional conditions" put the red flag up for me. Who made that up? Were those two words in the legislation? I do not think they were so it should not apply. I am very interested in where we can go with this. I again thank the witnesses.

An Cathaoirleach

One place we can go is to find out, as the Deputy said, about the 36-month rule. If it can be removed, we will recommend that it be removed.

Looking at the Department's response, it claims that the 36-month rule was introduced because if it was not, it could potentially give rise to unequal treatment of opposite-sex couples. Will Mr. Moran give his response to that? Where does he think the Department is coming from on that?

Mr. Frank Moran

It is disbelief that a Department could make a comment on that. The legislation is not just about pensions. It is about equality. It is flipping the coin to say, when in fact the only people who have not had access to occupational pension schemes have been spouses and children of same-sex couples, that this might end up in the unequal treatment of those who already have an open book. There is no potential. The Department used the word "possibility". What possibility? There is no justification in that. It is very annoying and disingenuous to people in my situation. I speak on behalf of a lot of people for whom this might apply.

An Cathaoirleach

Some of the problem here, which we have seen not just in this case, is that no one wants to take responsibility, as Deputy Buckley said. It is just passed on to someone else.

Will Mr. Moran describe the impact on him of the circumstances he has fallen foul of? In light of the fact that he was less than four months outside the deadline to be approved, despite being in a long-term relationship since 1998, what impact has it had on him personally?

Mr. Frank Moran

I feel I have the same level of responsibility towards my spousal partner as anybody else has in a marriage. It is nothing other than that. Friends have said to me, since the passing of the referendum, not just gay friends but other people, "Are you not entitled to? Would you not be entitled to?" That is where the community comes in; on the basis of equality. People are very fair, if others have been discriminated against in the past. This is what the law is, what the referendum was, and what revolutionary Ireland's social forces were all about. This legislation is simply flawed.

The intent of the legislation was correct. The intent of the legislation presents no difficulty at all. It fulfils the requirements of the constitutional outcome of the referendum. Why a 36-month provision was tagged to either the Marriage Act 2015 or the civil partnership Act 2010 is beyond me. The word "transitional" does not cover it. If transitional is the issue, transitional should be attached to the Bill itself stating that the provisions of the Bill have a 36-month period, which is open to people to apply. Transitional conditions cannot be imposed retrospectively, thereby making the actual legislation inaccessible. That is simply what those provisions have done. All I want is equal treatment. Nothing more and nothing less.

An Cathaoirleach

I think I can speak for Deputy Buckley and anybody else who is online in saying that in 2024, people are entitled to equality and fair treatment. It is a crazy situation that in 2024, even after the passing of the referendum and that, Mr. Moran has to come in and put his whole life story in front of the public. It comes back to someone having decided that it would be put in, but no one taking responsibility to try to take it out. From our perspective, I assure Mr. Moran that we will do what we can to see where we can go with it. If we can, we will recommend that that one line, as Mr. Moran said, which is causing all the - I will not say trouble - misunderstanding and hurt, which we can see from Mr. Moran talking to us, be removed from the legislation.

Deputy Pat Buckley

I echo what the Chair said. As I said, a common-sense approach is pretty difficult in the House at times, believe it or not. I suggest going to the Minister to flag it up and ask whether the Department is aware of it. Also, the research and library-----

An Cathaoirleach

We will contact the Library and Research Service. We can write to the Minister, as the Deputy said, to ask this to be reviewed and see what steps we can take to get that line removed.

Deputy Pat Buckley

Expeditiously.

An Cathaoirleach

As I said, everybody is entitled to equality. People should not have to come before these committees to get equality. That should come as natural at this stage.

Mr. Frank Moran

I really appreciate the fact that the Houses of the Oireachtas have this committee in existence. It has become a way for me to bring this to the attention of the Legislature. Without this committee, I do not know where I would be. I congratulate the committee. I thank members for their-----

Deputy Pat Buckley

We could have called this committee the lastchance.com committee. It is lastchance.com for a lot of people, individuals and groups. I am very happy. We have a wonderful team and, by God, they are committed. Hopefully, we can move this forward as fast as we can.

An Cathaoirleach

We will hopefully get something done, or get it raised anyway, before an election. Will Mr. Moran respond to the letter he got from the Department of Social Protection?

Mr. Frank Moran

Yes, I can. To yourselves.

An Cathaoirleach

Yes. I thank Mr. Moran for coming to speak to us today. We will suspend and then continue in public session but he will stay with us in the Gallery. We will again talk about his petition in that public session and will make the recommendation in public. You never know, the Minister might be looking in on us. We might not have to write to her if that is the case. We will suspend the meeting for five minutes to allow the witnesses to go to the Public Gallery.

Sitting suspended at 2.59 p.m. and resumed at 3.02 p.m.