Dáil Éireann Debate, Thursday - 27 May 2004
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Legislative Programme.
188 Mr. M. Higgins asked the Minister for Justice, Equality and Law Reform the proposals he has or is planning to address breaches of equality provisions and equality proofing in such legislation as the Social Welfare Act, and particularly such anomalies as arise from the differential treatment of those in similar circumstances, such as deserted wives. [16033/04]
View answerIn bringing forward legislative proposals, each Department is required as a matter of policy to consider the implications which the legislation may give rise to in a number of regards. Proofing from an equality perspective is an important aspect of such considerations and has been since the enactment and coming into effect of the Employment Equality Act 1998 and the Equal Status Act 2000. This policy is particularly relevant in the context of section 14 of the Equal Status Act which excludes actions required by or under an enactment from the scope of the Act.
As regards the responsibility of my own Department in this regard, under the Employment Equality and Equal Status Acts, independent equality bodies in the form of the Equality Authority and the Office of the Director of Equality Investigations — the Equality Tribunal — have been established to implement the equality provisions and provide for redress in cases of discrimination. As part of its role the Equality Authority is empowered under the legislation to refer cases which in its opinion involve discriminatory conduct by persons, including public bodies, to the Director of Equality Investigations.
In the social welfare code same sex couples are treated as individuals which, in the majority of cases, is to the couple's advantage. For example, where each person of an opposite sex couple has an entitlement in his or her own right to unemployment assistance, the weekly rate of payment comprises a full rate payment and a qualified adult allowance. A same sex couple in the same situation is treated as two individuals and each receives a full rate payment.
A case was taken last year by the Equality Authority on behalf of a same sex couple where one of the couple had an entitlement to a free travel pass but was refused a "married type" pass in respect of his partner, in keeping with the definition of a couple used by the Department. Legal advice received by the Department of Social and Family Affairs indicated that, as the Equal Status Act 2000 applies to all non-statutory schemes, including free travel, the failure to award the "married type" pass would be in breach of that Act, as an opposite sex cohabiting couple in the same situation would have been awarded the "married type" pass.
It was the view of the Minister for Social and Family Affairs that the application of different rules to statutory and non-statutory social welfare arrangements would not be sustainable in practice. The amendment included in the Social Welfare (Miscellaneous Provisions) Act 2004 represents an interim solution which restores the position prior to the free travel equality case, which is that for all social welfare arrangements a couple means a married couple or a couple cohabiting as husband and wife. When this amendment was introduced, a commitment was given to a fundamental review of the overall social welfare code regarding the requirements of the Equal Status Act 2000. This review will be done in consultation with all interested parties. The review will aim to ensure that any difference of treatment on any of the discriminatory grounds, set out in the Equal Status Act 2000, can be justified by a legitimate social policy aim and that the means of achieving that aim are appropriate and necessary.
As the review will examine complex issues, with possible knock on effects to areas outside the social welfare area, and will involve a number of Departments, it will take some time to complete. The review will be based on a framework to be agreed with my Department. The scope and terms of reference of the review and the necessary arrangements for undertaking it will be decided in the coming months. Issues relating to social welfare legislation, such as deserted wives, are a matter for my colleague, the Minister for Social and Family Affairs.
