I thank Senators Norris, O'Toole, Henry and Ross for taking the initiative in tabling their motion because it gives the House an opportunity to debate this important issue. As we know, the family based on marriage was overwhelmingly the norm in Irish society for many generations. However, this has been greatly affected by changing social trends in recent years. Specifically, we have seen a marked growth in households consisting of co-habiting couples who are unmarried with, in some cases, their children or the children of one partner. In addition, we have same sex couples whose situation was the primary focus of the report of the Equality Authority referred to in the motion. Therefore, this debate is timely.
The Employment Equality Act, 1998, and the Equal Status Act, 2000, provide protection against discrimination on the grounds of sexual orientation, marital status and family status, among others. These Acts prohibit discrimination in employment and the provision of goods, services, facilities, accommodation and education.
The Equality Authority established an advisory committee on lesbian, gay and bisexual issues in 1999. The committee produced a report entitled, Implementing Equality for Lesbians, Gays and Bisexuals, which was published by the Equality Authority in May 2002 and which we are discussing. The report made 88 recommendations for action covering all areas of society under the following headings: community development and empowerment, equality proofing, partnership rights, health, education, youth services, employment and training, services generally and violence and harassment. It will be clear, therefore, that the report covers a broad subject matter which relates to several Departments, public bodies and the private sector. It also deals with an exceptionally complex and sensitive area on which there can be no sudden rush to conclusions.
Earlier this year the National Economic and Social Forum agreed to examine the implementation issues arising from the report. The forum was established by the Government in 1993 to achieve consensus on as wide a basis as possible on major economic and social policy issues. Since 1998 its work is focused on evaluating the implementation of policies dealing with equality and social inclusion issues.
It was also agreed in the Programme for Prosperity and Fairness that the social partners would consider how recommendations emerging from the authority's report would be carried forward. This project will involve new working methods and a role for the forum in the policy-making cycle. The forum has established a project team to progress this work. The team, which has met twice to date, includes representatives of employer and trade union organisations, representatives of relevant community and voluntary sector organisations, an official from the Department of Justice, Equality and Law Reform and a local authority representative.
The team has agreed in its terms of reference to consult relevant Departments and other bodies regarding the implementation of the main recommendations of the Equality Authority's report. The team will, adopting a problem-solving approach, pay particular attention to identifying potential implementation barriers and challenges on the main priorities as identified by the team and comment and advise on how these may be resolved.
Relevant Departments have been contacted and asked to outline the actions which have already been taken or which they plan to undertake regarding the recommendations, any barriers they envisage in the implementation of these recommendations and how the Departments may overcome these barriers. The team may also consult other bodies regarding implementation of the recommendations, as it considers appropriate.
The team will report back findings and recommendations to the forum by the end of the year. In keeping with forum procedure, the report will be sent directly to Cabinet for consideration prior to publication. It is important to point out that the Government has not had the benefit yet of the results of the work, given that it is still ongoing. Therefore, much as I compliment the Senators for raising the issue at this time, I cannot agree with the motion.
On the question of recognition of partnership rights, which is the specific concern of the motion of Senator Norris and his colleagues, the Equality Authority's report examines the existing law in Ireland and developments in a number of western European countries. It is clear that in countries such as the Netherlands, France, Germany and the Nordic countries, same sex relationships are accorded a form of legal recognition in themselves. Uniquely in Europe, in the Netherlands, the law expressly provides that a marriage can be contracted by two persons of different sex or of the same sex. In some of the states reviewed in the report, the institution of registered partnerships is only open to same sex couples while in others it is open also to heterosexual couples. Denmark is an example of the first type. The report indicates that in 1989 Denmark became the first country to introduce a law on registered same sex partnerships guaranteeing essentially the same rights to such a partnership as to a married couple, except that registered partners cannot adopt children.
This highlights an important distinguishing feature between the suggestion that there should be legal recognition of co-habitation, such as registered partnerships, irrespective of the sexual orientation of the participants, and the idea that such an institution should only be available to same sex partners as in Denmark and, according to the report, also in Germany. Same sex partners do not have the possibility of marrying each other and, therefore, may seek a form of legal recognition analogous to marriage. On the other hand, heterosexual co-habitees normally have the option of marrying and may be co-habiting for any one or more of a number of reasons. It may be a precursor to getting married or because they do not want to accept the legal incidents of marriage or because one or both partners may not be free to marry at the time or because they reject marriage as an institution for whatever reason.
The report recommends a reform to extend the legal and other benefits enjoyed by heterosexual marriage to unmarried heterosexual couples and same sex couples. In particular, it recommends that the legal and policy codes should be systematically reformed to ensure that references to the family recognise the diversity of family forms, households and couple relationships. The report envisages that couples could have a range of options including legal marriage, registered partnerships and recognised households. There would be rights to nominate a partner or successor; designate a next-of-kin for medical issues; nominate a beneficiary of pensions and inheritance; and nominate a partner as a co-parent or guardian of a child.
The report recommends that domestic violence legislation should operate on an equal basis towards same sex relationships as towards married relationships. It also recommends changes to immigration, leave entitlements, taxation, social welfare, housing, parenting, adoption and fostering laws and arrangements so as to accord rights to same sex partners and unmarried, heterosexual partners equal to those enjoyed by married spouses.
In general, the report adopts a far reaching approach in its recommendations, going through the various areas of law and proposing that the situation of same sex couples should be enhanced so that it is essentially the same as that of a married couple. This is a very radical approach in an area of particular sensitivity, which goes beyond the position in some of the European countries discussed in the report. As such, it is not realistic of the Senators to expect that, a matter of months after publication of this report, the Government should commit itself to legislating on the subject before there has been the opportunity to consider fully the issues involved. What has been done is to set in train a process, which I have just described, to examine under the aegis of the National Economic and Social Forum the question of implementing the report's recommendations.
As far as partnership rights are concerned, I think it would also be beneficial if there was more public debate on the recommendations in the report and I hope that our debate here this evening might provide the stimulus for that. The changes suggested by the authority are, as I said, far reaching, proposing as they do an equal status for different partnerships with that of married couples. Such changes, if they are to be made, will require careful consideration from the constitutional standpoint. As Senators know, constitutional recognition of the family is confined to the family based on marriage. Article 41 provides that the State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack. I do not know if the proposals in the report are consistent with this constitutional commitment because no advice has to date been obtained on the question. What is clear is that there needs to be thorough debate and reflection on the changes proposed rather than a rush to introduce legislation straight away.
As legislators, we need to be conscious of the different perspectives that are bound to exist in Irish society concerning the type of proposal which is made in the report. We must recognise the social change that has been taking place in our country but this does not imply that we must, without adequate consideration, decide that we are going to alter radically the legal basis of family life in Ireland. Put simply, we need to have regard also to voices other than that of the Equality Authority in deciding how to progress from here.
There is a further reason why the commitment, sought by the Senators in their motion, would be premature. The Law Reform Commission, as part of their second programme of law reform approved by Government, is examining the topic of the rights and duties of co-habitees. I understand that the commission hopes to publish a consultation paper next year. The expertise and independence of the Law Reform Commission makes it highly desirable that the Government and this House should have the benefit of its research in this complex area before taking decisions on the appropriate course of action. The consultation process in which the commission typically engages before making final recommendations will also elicit the views of experts in various fields and will provide an opportunity to engage with the general public on the issues.
I turn now to some specific points and recommendations in the chapter of the report dealing with partnership rights with a view to outlining the current position. The chapter refers to the issue of Civil Service pension arrangements, under which pensions are provided for the surviving spouses of married members. The terms of this scheme were considered by the Commission on Public Service Pensions. The commission, which drew together the views of unions, management and independent pensions experts, recommended a provision to allow payment of a pension to a financially dependent partner in certain circumstances. Two members of the commission entered a reservation in this matter.
The Government has accepted the thrust of the package of reforms recommended by the commission and has established a working group, as provided for in the Programme for Prosperity and Fairness, comprising representatives of management and unions to advise on implementation. The operational details of the implementation of the commission recommendations are to be agreed by Government following receipt of a report from this group, which is expected later in the year. Pending receipt of this report, it is not possible to give a more definitive response on this point.
The suggestion that legislation governing violence in intimate relationships should operate on an equal basis towards same sex couples as towards married relationships can be considered either in the context of legislation resulting from the Supreme Court judgment of last week on ex parte interim barring orders or other appropriate future legislation. As is noted in the report, under the Domestic Violence Act, a person who has lived with the alleged violent person as husband or wife, although the couple are not married to each other, can in certain circumstances apply for a safety or a barring order. Also, a person who resides with the respondent in a relationship, the basis of which is not primarily contractual, may apply for a safety order.
With regard to parental leave, a working group, which comprised representatives of the social partners, certain Departments and the Equality Authority, was set up in accordance with a requirement of the Parental Leave Act, 1998, to conduct a review of its operation within three years. The requirement was also incorporated as a commitment in the Programme for Prosperity and Fairness. The report of the working group was published in April 2002. The group identified 18 issues for consideration in the course of the review and made a series of recommendations in relation to some of these issues. One of the ten recommendations agreed by the group is that a workable legal formula should be developed to extend parental leave entitlement to persons acting in loco parentis. This would include persons who actively parent but are neither natural nor adoptive parents. This recommendation along with the others made by the working group is currently being examined by my Department with a view to bringing forward legislative proposals to Government.
In regard to social welfare, section 3(12) of the Social Welfare (Consolidation) Act, 1993, defines spouse for the purposes of the Act as each person of a married couple who are living together, or a man and woman who are not married to each other but are cohabiting as husband and wife. This definition is based on the outcome of the Hyland case in 1987, which dealt with the level of payments received by married couples and those who are co-habiting. The latter had been treated as single people and received two full payments, which placed married couples at a disadvantage as they received approximately 1.6 times the personal rate. As a result of this case and in order to ensure that married couples did not receive less favourable treatment than a co-habiting couple, the definition of a married couple was widened, for social welfare purposes, to include co-habiting couples. Payments to co-habiting couples were then adjusted downwards to bring them into line with those of married couples. I understand that this is the position in respect of social welfare payments generally, but does not apply for the purpose of eligibility for widow's or widower's pensions where co-habitation is not recognised.
On adoption, the legal position is that under section 10 of the Adoption Act, 1991, only a married couple can adopt jointly. Two unmarried persons of whatever sexual orientation cannot adopt jointly. A single person can adopt where it is considered desirable in the interests of the child, but any partner of the adopting parent would have no rights in relation to the child. I am informed by the Department of Health and Children that there are no current proposals to change the law in this regard, but there is an ongoing review in progress in relation to all aspects of adoption. One of the subgroups of the project team carrying out the review has recommended that where there is a pre-existing relationship between an unmarried couple and a child, it should be made legally possible for an adoption order to be made in favour of the couple.
The picture which emerges is that our law recognises cohabitation for certain purposes, though there is no particular institution or status for cohabitees as such. As I said, reforms are under consideration in a number of areas which would benefit cohabitees, but we must consider carefully, consult widely and not necessarily take all our inspiration from the one report in deciding on the reforms that need to be made. In this regard, we have the process set in train by the National Economic and Social Forum to consider how to respond to the report and the ongoing work of the Law Reform Commission on the rights and duties of cohabitees. In the light of these developments, the Government motion proposes that the House should resolve to consider the issue further when all the relevant reports are available.